Director of Public Prosecutions v McCoy (a pseudonym)
[2019] VCC 680
•15 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL MCCOY (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 May 2019 |
DATE OF SENTENCE: | 15 May 2019 |
CASE MAY BE CITED AS: | DPP v McCoy (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2019] VCC 680 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | OPP |
For the Offender | Mr C. Pearson | Michael Gleeson & Associates |
1HIS HONOUR: Paul McCoy[1], you can remain seated for the time being.
[1] A pseudonym.
2You have pleaded guilty to four charges of sexual penetration of a 16 or 17 year old child under care, supervision or authority, and one charge of possession of child abuse material[2]. Charges 1, 2, 3 and 4 are representative charges, representing multiple episodes of offending.
[2] Charge 1 is an offence contrary to s48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 2006, and applied prior to the legislative amendments which took place in July 2017. Charges 2, 3 and 4 relate to offending contrar to s49C(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016. Charge 5 relates to conduct contrary to s51G(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
3The maximum penalty in relation to Charges 1, 2, 3 and 4 is 10 years' imprisonment. The maximum penalty in relation to Charge 5 is also 10 years' imprisonment.
Circumstances of the Offending
4The circumstances of your offending are set out in the agreed summary of prosecution opening dated 3 April 2019, tendered on your plea hearing 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.
5By way of summary, at the time your offending commenced you were 39 years of age, divorced and living in shared accommodation. You were the owner and director of a dance school. You met your victim, Laura Booker[3], when she was a student taking your classes.
[3] A pseudonym.
6At the time of your offending Ms Booker was age 16 and 17 years, lived at home with her parents and attended school. She was a young lady with significant learning difficulties[4]. In February of 2016, Ms Booker enrolled in dance lessons with your school, initially attending lessons on a weekly basis on her own, but increasing her attendance to many lessons each week. Ms Booker turned 16 in November of 2016. Between March 2017 and January 2018, you embarked on a sexual relationship with the victim, who was your student and therefore under your care, supervision and authority. The sexual activity progressed from kissing and touching at the dance school after class, to the victim losing her virginity to you in March 2017, and spanned a period of approximately 11 months. During this period of time there were in excess of 20 occasions of sexual penetration on 15 encounters between you and your victim. Those encounters took place at various locations including the dance school, the victim's house, your house and other public locations.
[4] Psychometric assessment report of Tanya Miles dated 4 June 2015, Exhibit E.
7Charge 1 is representative of two occasions of penile‑vaginal penetration that took place between you and Ms Booker between 8 March 2017 and 4 April 2017. The sexual penetration which took place on 8 March 2017 in a back room of your dance studio was the first time Ms Booker had ever had sex. When you put a condom on your penis and put your penis inside her vagina, she screamed out in pain and told you it was her first encounter of sex. She was then 16 years of age. You repeated this behaviour on 4 April 2017.
8Charge 2 is representative of 13 occasions of penile‑vaginal penetration that took place between you and Ms Booker between 10 July 2017 and 8 January 2018. The episodes of penile‑vaginal sexual penetration which took place within this period of approximately seven months occurred at various locations: your house or the house in which you were then residing, in your car whilst parked at a car park nearby the victim's place of work, a toilet in a public park, the home of the victim, and the toilet at the dance studio. On several of these occasions you did not wear a condom. On one of those occasions of unprotected penile‑vaginal sex you ejaculated. Some of the episodes of penile‑vaginal sexual penetration were accompanied by additional components of you biting the victim, and on one occasion using restraints in the form of handcuffs on the victim.
9Whilst it was not suggested by the prosecution that any of the sexual activity which took place with your victim was against her wishes, the circumstances in which the sexual activity took place are relevant in terms of an appreciation of the nature of the sexual relationship that you, a 39 year old man in a position of care, supervision and authority, engaged in with your victim, aged 16 and 17 years.
10Charge 3 is representative of five accounts of penile‑oral penetration that took place between 1 August 2017 and 27 December 2017. These five episodes of sexual penetration, by you introducing your penis into the mouth of Ms Booker took place at various locations including her home and yours, and often occurred amidst other sexual activity between you.
11Charge 4 is representative of three occasions of penile‑anal penetration that took place between 9 August 2017 and 27 December 2017. The three occasions upon which you introduced your penis into the anus of Ms Booker took place at your home or the house in which you were then residing. The first occasion of anal penetration took place on 9 August 2017, after you had engaged in penile‑vaginal intercourse with Ms Booker. Not wanting to initially engage in anal sex with you, Ms Booker eventually agreed. When you finished this activity, you withdrew your penis from her anus, however the condom became stuck inside. The second occasion also occurred immediately following penile‑vaginal penetration, and I note that your then 17 year old victim experienced excruciating pain upon your penetrating her anus with your penis.
12The last occasion upon which you engaged in sexual activity with Ms Booker was on 8 January 2018. Three days later, the victim's mother was cleaning her room and found a diary within which Ms Booker had detailed some of the sexual activity between you. Three days later, on 14 January 2018, Ms Booker and her parents attended at the local police station and the matter was reported to police.
13On 18 January 2018 you were arrested and your mobile phone was provided to police. Your phone was analysed and found to contain 13 images of Ms Booker naked and/or in sexual poses and/or engaging in sexual activity. Police also located 10 videos of Ms Booker, a minor, naked and/or in sexual poses and/or engaging in sexual activity. Those images and videos were classified by police and the relevant classifications are set out at paragraph 71 of the summary of prosecution opening.
14During the course of your sexual interactions with Ms Booker, you requested her to send naked images of herself to you and she complied with your requests. She also sent sexualised images of herself to you without you requesting her to do so. A similar situation occurred in relation to the transmission of videos. By way of example, on 3 January 2018, whilst at your house, Ms Booker made the suggestion to make a video of you and her having sex together. When you agreed, Ms Booker set up her mobile phone for filming before the two of you became undressed.
15On some occasions, the material was provided to you by Ms Booker on an unsolicited basis. I note that it is not alleged by the prosecution that the images were disseminated or obtained by trawling online sources; rather, they were part of an exchange between Ms Booker and yourself as part of the sexual activity you embarked on with her. This activity took place, however, in the context of Ms Booker' young age, and the power imbalance between you two which I will later refer.
16You were interviewed by police on 18 January 2018 and exercised your right to make no comment.
Victim Impact Statement
17Three Victim Impact Statements were tendered at the plea hearing, one by your victim, Ms Booker, and one from each of her parents[5]. Each of these statements were read aloud in Court by the prosecutor. Your victim in this matter indicated in her statement that her relationship with her family since the offending had become extremely difficult. She has become extremely frustrated, angry and moody and found it extremely difficult to sleep for some months. She has become very unmotivated, turning to stress eating, and as a result has gained weight. Ms Booker also referred to a loss of trust in males since your offending. She also referred to feeling unsafe in her local area, as you had until recently, reside in the same locale. Ms Booker has been seeking psychological treatment since February 2018, and a brief letter from Ms Booker' psychologist was also attached to her Victim Impact Statement. That letter documents Ms Booker' depression and associated anxiety.
[5] Exhibits B, C and D.
18The Victim Impact Statements provided by Ms Booker' parents both speak as one in relation to the sense of guilt, betrayal and failure that your offending has caused to them. Mr Booker indicated:
'I feel totally betrayed by this criminal, as we put our trust in him to look after our daughter, and not to take her innocence away. I find it hard to comprehend how a grown man could do this to a child.'
19I have carefully considered the contents of each of the Victim Impact Statements. Collectively, they highlight the significant impact of your criminal behaviour. I have taken them into consideration in the exercise of my sentencing discretion.
Nature and Gravity of the Offending and Your Level of Culpability
20I turn now to the nature and gravity of the offending and your level of culpability. Your offending represents serious criminality. When you committed your crimes, you were 39 years of age, more than twice the age of Ms Booker. She was then aged 16 and 17 years of age, dealing with a learning difficulty, sexually inexperienced, and accordingly was young and vulnerable. In offending in the manner in which you have, you exploited the vulnerability of Ms Booker. By virtue of your role as her dance teacher, you were in a position of care, supervision and authority. You were in a position of trust, and your offending represents a serious and protracted breach of that trust.
21Your offending took place over a period of approximately 11 months. In my view, this provided ample time for you to realise the gravity of your wrongdoing and desist. You failed to do so. Your sexual interactions with Ms Booker involved multiple methods of sexual penetration at various locations. Clearly, some of those encounters caused Ms Booker discomfort. On a number of occasions when you penetrated Ms Booker' vagina with your penis, you did not wear a condom. I regard this as an aggravating feature of that particular offence - exposing your victim to the risk of pregnancy and sexually transmitted infections, and generally revealing a lack of concern for her welfare. I note in relation to Ms Booker' Victim Impact Statement, she indicates:
'I have undergone a lot of testing, and blood tests make me very anxious and nervous about the results.'
In all of the circumstances, I have formed the view that yours is a serious example of sexual penetration of a child age 16 or 17 in a position of care, supervision or authority. You sexually penetrated your victim in excess of 20 times, during 15 encounters between you. Your counsel conceded that your culpability was high, and did not submit that your level of culpability was decreased pursuant to any of the Verdins principles. I have formed the view that in all the circumstances, your moral culpability for your offending is high.
23In my view, your criminality encompassed by Charge 5, that is possession of child abuse material, needs to be analysed in the context of your sexual relationship with Ms Booker. I accept the submission that the child abuse material arose in the context of your sexual relationship with Ms Booker, and was not the result of criminal behaviour independent of that relationship. I also accept that some of the material was generated by Ms Booker, and sometimes this was unsolicited by you. However, the gravity of your conduct in relation to this charge is reflected in the statutory maximum for this particular offence, that being 10 years' imprisonment. As is the case in relation to Charges 1 to 4, the criminal law in this area seeks to protect children from exploitation, and children from themselves. It matters little in my view that Ms Booker was an active participant in relation to any of the criminality to which you have now pleaded guilty, including Charge 5.
Background and Personal Circumstances
24I turn now to your background and personal circumstances. You are currently 41 years of age. You were born in Sri Lanka and grew up in the capital city, Colombo. You have been in Australia since 2003. You have no prior convictions or findings of guilt either in Australia or in Sri Lanka. I was informed that, but for these charges, you have no matters outstanding before the Court.
25You had a severely troubled childhood in Sri Lanka, reporting that your parents did not want you, and that you faced denigration and humiliation from your mother throughout your childhood. You have described your father as an “alcoholic” and a “monster”. You have reported in detail to others the violence you witnessed your father perpetrate upon your mother, and it seems you endured regular beatings from your father. This dysfunctional and abusive relationship continued until your father's death from a heart attack when you were 15 years old.
26You have an older brother who still resides in Sri Lanka, and your mother resides in Australia.
27You have also reported that from the age of 10 to 12 you had been subject to sexual abuse from the child of your family's landlord. Your landlord's family lived adjacent to your family, and the young adult son of that family engaged in various sexual acts with you, progressing from genital touching to oral sex and attempted anal penetration when you were young. You have reported that you did not disclose these events to anyone until after your arrest on these matters.
28You reported difficulties with your education, often being bullied and ostracized by other students and resulting in you being an isolated and lonely student. You left school after a fairly modest education, and trained as a motor mechanic. You worked in that profession until 2003 when a workplace injury precluded you from continuing in that field.
29As I have indicated, you came to Australia in 2003. You came to Australia with your then wife, whom you had met and commenced a relationship with in 2002. There are no children to this marriage. Your marriage to your then wife began to deteriorate in the context of protracted difficulties attempting to conceive a child. Ultimately, you separated in mid‑2013 and divorced in 2015.
30Soon after your arrival in Australia, you have worked as a dance instructor, and indeed, this has been your great passion. You have worked in that role for approximately the past 15 years, competing at an elite level and working as an instructor for several major dance studios. For a number of years you have run your own dance studio, in the suburbs of Melbourne. As earlier indicated, it is in this context that you met Ms Booker, who was initially one of your students.
31I was informed that you have never been a drug abuser or a problematic alcohol abuser.
32I accept that, but for these serious charges and notwithstanding your difficult upbringing, you are a person of previous good character. I accept the submission put by your counsel that you have opened and run your own business in Australia for some years and made a positive contribution to the cultural prosperity of the Australian community.
Section 5AA of the Sentencing Act 1991
33I turn now to s.5AA of the Sentencing Act. Whilst it was not pressed by the prosecution in this case, the potential applicability of s.5AA of the Sentencing Act was raised at the plea hearing. Pursuant to that section, despite s.5(2) of that Act:
'…in sentencing an offender for a child sexual offence, a Court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the Court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.'
34For the sake of clarity, I have formed the view that your previous good character was not of assistance to you in the commission of the offence. I accept that you had run your dance school for many years, providing services to children and adults, and that your offending arose in the context of a wholly inappropriate sexual relationship with one of your young students. Your offending was facilitated by you being in a position of care, supervision and authority in relation to your victim. It was not in my view facilitated by your previous good character. Accordingly, in my view s.5AA does not have application in this case.
Sentencing Factors
35I turn now to sentencing factors. Section 5(2) of the Sentencing Act sets out the matters that the Court must have regard to in sentencing. I have already referred to the maximum penalty for the offending, the nature and gravity of your offending, and your culpability and degree of responsibility for it, the impact of your offending on your victim and her family, and your previous good character. I now turn to other mitigating factors relied upon by your counsel.
Plea of Guilty and Remorse
36You were arrested, interviewed, and charged on 18 January 2018. I was informed that you initially faced some 51 police charges. After a number of committal mentions, and subsequent plea negotiations, the matter resolved on 14 September 2018. I was informed by your counsel that you have provided instructions from the outset to resolve this matter and avoid any cross-examination of the victim. It was submitted that the only slight delay in the resolution of this matter was in ascertaining the appropriate charges as part of negotiations. I was informed that your plea of guilty reflects the totality of the original allegations. In these circumstances, I accept that you entered your plea of guilty at the first reasonable opportunity. Your early plea of guilty warrants a substantial sentencing discount. It has saved your victim from being cross-examined, has avoided the cost and delays associated with a trial, and reflects an acceptance of wrongdoing on your part. A discount reflecting the utilitarian benefit is applicable.
37Your counsel submitted that furthermore, you were remorseful for your conduct and your plea of guilty reflects this. In that regard I have considered your letter of apology to the Booker family, dated 30 April 2019, tendered at your plea hearing and marked Exhibit 2. I have also had regard to the bundle of eight support letters tendered at your plea hearing and marked Exhibit 1. A number of the individuals who had written these support letters were present in Court for your plea hearing, highlighting the degree to which you are still held in high regard and supported by those around you. A number of the support letters referred to your frequent demonstrations of regret and remorse, and I have taken those sentiments into account. I have also taken into consideration your expressions of remorse to clinical and forensic psychologist Patrick Newton, as referred to in paragraph 34 of his report dated 3 December 2018, tendered on your plea hearing and marked Exhibit 3.
38I am satisfied that your plea of guilty is reflective of genuine remorse on your part, warranting a further sentencing discount.
Prospects of Rehabilitation
39You come before the Court aged 41, with no prior convictions. Since arriving in Australia in 2003, you have developed a dance school, and from all accounts displayed a strong work ethic. Notwithstanding the gravity of your misconduct, you are fortunate enough to maintain a network of friends, and I acknowledge again the attendance of numerous individuals at your plea hearing. Collectively, the bundle of support letters (Exhibit 1) speak of you in most positive terms. By way of example, I note your recent volunteering efforts along the Yarra River. Collectively they support the conclusion that you are a man who has made positive contributions to the community.
40You were assessed by forensic psychologist, Patrick Newton, on 22 November 2018. In Mr Newton's report dated 3 December 2018 (Exhibit 3), Mr Newton indicated that his evaluation of you did not reveal any signs of deviant cognitions or sexual deviance. According to Mr Newton, you would not meet the criteria for any paraphilic disorder or similar condition. According to Mr Newton:
'Mr McCoy's offending arose from his failure to appreciate the impacts of the power imbalance that characterised his relationship with the complainant. Beyond this, he was unprepared for the strong emotions which entering a pseudo-counselling relationship with her evoked, and interpreted them as signifying a nearly mystical level of connection with her. In combination with his own neediness at the time, these issues underpinned his offending conduct.'
Mr Newton indicated that you were able to demonstrate only very limited insight into two key issues which were identified with regards to your sexual adjustment. Firstly, you had considerable difficulty discussing the issues arising from the power imbalance that existed between you and your victim, and second, Mr Newton identified your difficulty in interpersonal adjustment and your difficulties with boundaries. Mr Newton opined that you had an ongoing tendency to confuse normal interest and friendship with erotic and sexual interest, and that you initially saw your interactions with the victim through the lens of counselling. Mr Newton opined that you would benefit from participation in offence‑specific treatment to improve your insight and assist you to ensure that there is no repeat of such behaviour in the future.
42Mr Newton conducted a risk assessment in relation to the risk of sexual reoffending using the widely accepted risk assessment tools, and concluded that you pose a moderate risk of recidivism to sexual offending.
43Mr Newton also noted your recurrent bouts of suicidal ideation and indicated that you met the diagnostic criteria for adjustment disorder with depressed mood.
44In his concluding remarks, Mr Newton noted that a term of imprisonment may impact on your mental state, indicating that you were relatively ill‑equipped to handle the rigours of the custodial environment.
45Importantly, and notwithstanding Mr Newton's concerns in relation to your insight difficulties, Mr Newton concluded that:
'With appropriate treatment I believe that Mr McCoy's prognosis for lasting positive adjustment is good.'[6]
[6] Paragraph 56 of his report
46Mr Newton referred to a number of factors justifying this assessment, including many of the factors that I have already outlined today. Mr Newton concluded:
'In the light of such considerations, it would be my respectful suggestion that there are sound grounds for considering Mr McCoy's prospects for continued positive adjustment in the community to be good.'[7]
[7] Paragraph 56 of his report
47I have also had regard to the treatment report of psychologist, Peter Hanley, dated 18 April 2019, tendered on your plea hearing and marked Exhibit 4. Mr Hanley indicated that you had consulted with him on eight occasions since 16 January 2019, where treatment had focused on containing your distress and stabilising your mood, developing your insight into the offending, addressing cognitive distortions related to the coercive nature of your relationship with the victim, and relapse prevention to reduce the risk of recidivism. Mr Hanley indicated that you made solid progress in treatment. You had developed good insight into your offending including the emotional needs that motivated your offending. You had developed good awareness that your perception of the victim's readiness and capacity to consent to the relationship involved self-serving cognitive distortions which served to justify your conduct. You had been able to express a realistic view of your offending behaviour and had expressed empathy for the victim. Importantly, Mr Hanley opines:
'Mr McCoy has expressed the view that he was responsible for his offending behaviour and is responsible for taking steps necessary to reduce his risk of reoffending.'[8]
[8] Paragraph 4 of his report
48As I raised with your counsel this morning, I expressed some concerns in relation to some of the contents of a letter provided by you to the Court after the plea hearing, tendered before this Court and marked Exhibit 5. Your counsel did not press the contents of that letter dealing with the offending behaviour and accordingly I have not taken it into account in sentencing. That is, the portion of your letter which will not be tendered.
49Taking into consideration all of the material provided to the Court by your counsel, I assess your prospects of rehabilitation as being very good. Clearly though, you are in need of further offence‑specific and related treatment.
Risk of Deportation
50Your counsel submitted that your sentence should be mitigated by virtue of the threat of deportation in your case.
51I note that you have been permanently in Australia for the past 16 years, and whilst your brother resides in Sri Lanka, your mother resides here in Australia. You are a non-citizen, currently holding a “resident return” visa. In oral submissions before me, your counsel submitted that you have an expectation that your visa will be cancelled following your sentence, and you will then live with the uncertainty of knowing whether or not you will be deported. It was submitted that the attendant anxiety that you will face during your sentence in relation to the threat of deportation would make a term of imprisonment more burdensome. Having considered the authorities in relation to this issue, I accept that submission.
Sentencing Submissions
52The prosecution in this case submitted that in all of the circumstances, an immediate term of imprisonment was warranted, and that a combined sentence of imprisonment and community correction order would be outside the range of appropriate sentences, as this would not reflect the sentencing purposes applicable in your case.
53Your counsel on the other hand submitted that a community correction order would be appropriate given all the mitigatory factors in your case. In the alternative, it was submitted that it would be open to the Court to consider a shorter than usual non‑parole period due to your excellent prospects of rehabilitation.
Current Sentencing Practices
54Pursuant to s.5(2)(b) of the Sentencing Act, I must consider current sentencing practices. Of course, current sentencing practices are but one factor to be taken into account in the instinctive synthesis and do not set a numerical limit on the upper and lower limits of the appropriate sentence in any particular case.[9]
[9]DPP v Dalgliesh [2017] HCA 41
55Subsequent to the plea hearing in this matter, I called for written submissions from the parties in relation to current sentencing practices. I received written submissions from both the prosecution and the defence, and have considered those submissions carefully. I agree with the prosecution's submission that, “There are relatively few cases to guide the Court.” In relation to sentences imposed regarding s.49C of the Crimes Act or its predecessor, s.48. I also agree that the Sentencing Snapshot from the Sentencing Advisory Council provided by the defence, that is, No.182, is of limited relevance given that it relates to sexual penetration of a child aged between 12 and 16 years.
56It is almost always difficult to compare cases and sentences there imposed, as no two cases are truly alike. Whilst I have considered those referred to, I have principally relied on the circumstances of your case and the relevant sentencing principles, to arrive at an appropriate sentence.
Sentence
57As I indicated at your plea hearing, it is my view that the only appropriate sentence, taking into consideration all of the relevant factors, particularly the gravity of your offending and the need for just punishment, is a sentence of imprisonment. In my view a community correction order does not adequately reflect the gravity of your criminal conduct, its impact on your victim, the need to denounce your conduct, to deter others from so acting and to reflect the principle of community protection. I have concluded that in all of the circumstances a term of imprisonment with a non-parole period is required.
58Upon being sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender in relation to Charges 3 and onwards, and this will be noted in the records of the Court. As noted by the prosecution, pursuant to the Serious Sexual Offender Provisions contained in the Sentencing Act, terms of imprisonment are to be served cumulatively unless otherwise ordered by the Court, and the Court must regard the protection of the community from you as the principal purpose for which the sentence is imposed. The Serious Sexual Offender provisions do not displace the totality principle, and I have applied this in arriving at an appropriate sentence in your case. A degree of cumulation regarding the separate sexual offence charges is required in my view given the distinct and concerning nature of those acts, tempered though, in accordance with the totality principle. In light of your very good prospects of rehabilitation, your lack of prior criminality and ongoing supports in the community, the need for protection of the community from you is also tempered.
59In light of your very good prospects of rehabilitation, I will accede to your counsel's submission, and impose a non-parole period that is significantly shorter than it would otherwise have been for offending of this nature, to provide you with an opportunity to reintegrate into the community as soon as is considered appropriate, on supervised parole.
Sentence to be Imposed
60Mr McCoy, would you please stand.
61On Charge 1, sexual penetration of a 16 or 17 year old child under your care, supervision or authority, which is representative of the first two occasions of penile‑vaginal penetration, you are convicted and sentenced to two years' imprisonment.
62On Charge 2, sexual penetration of a 16 or 17 year old child under your care, supervision or authority, which is representative of 13 occasions of penile‑vaginal penetration, you are convicted and sentenced to three years' imprisonment. This is the base sentence.
63On Charge 3, sexual penetration of a 16 or 17 year old child under your care, supervision or authority, which is representative of five occasions of penile‑oral penetration, you are convicted and sentenced to two years and six months' imprisonment.
64On Charge 4, sexual penetration of a 16 or 17 year old child under your care, supervision or authority, which is representative of three occasions of penile‑anal penetration, you are convicted and sentenced to two years and six months' imprisonment.
65On Charge 5, possession of child abuse material, you are convicted and sentenced to 12 months' imprisonment.
66I order that three months of Charge 1, six months of Charge 3 and six months of Charge 4 be served cumulatively upon each other, and upon the sentence imposed in Charge 2, making a total effective sentence of four years and three months' imprisonment. I order that you serve a period of 26 months before becoming eligible for parole.
67Pursuant to s.18 of the Sentencing Act, I declare 14 days as the period of imprisonment already served on this sentence, and these days will be administratively deducted from your sentence.
68Pursuant to s.6AAA of the Sentencing Act, I indicate that, had you pleaded not guilty, I would have imposed a total effective sentence of five years and 10 months, with a non-parole period of three years and 10 months.
Sex Offender Registration
69Charges 1 to 4 are Class 1 offences pursuant to the Sex Offenders Registration Act and Charge 5 is a Class 2 offence. You will be required to be subject to reporting conditions for the remainder of your life. I will now ask that you sign an acknowledgment that you have received information regarding your obligations under the Sex Offenders Registration Act. My associate will bring the document to you. You can take a seat, Mr McCoy.
70MR PEARSON: Might I approach the dock with Your Honour's ‑ ‑ ‑
71HIS HONOUR: Yes, of course, Mr Pearson.
72MR PEARSON: ‑ ‑ ‑ associate?
73MS MALOBABIC: Your Honour, while this is taking place ‑ ‑ ‑
74HIS HONOUR: Yes.
75MS MALOBABIC: ‑ ‑ ‑ I have a copy of the DNA sample order. I'm not sure if Your Honour has a copy.
76HIS HONOUR: Thank you. Perhaps, Mr Swindon, if you could get a copy of that. Mr Pearson, I take it if you have not already done so you will ensure that Mr McCoy understands his reporting obligations under the Act.
77MR PEARSON: I'll do that, Your Honour. Of course.
78HIS HONOUR: Yes. Thank you. And finally ‑ ‑ ‑
79MR PEARSON: Yes, I think I heard, Your Honour, the prosecutor indicating that an application was being made for a forensic sample.
80HIS HONOUR: Yes, which was flagged ‑ ‑ ‑
81MR PEARSON: It's not opposed, Your Honour.
82HIS HONOUR: Yes. Thank you.
83MR PEARSON: I think I might have said that, but - yes.
84HIS HONOUR: Yes, thank you. The prosecution have made an application in this case for a forensic sample. This was not opposed by you, Mr McCoy, and I make the order in the terms sought based on the seriousness of your offending, the fact that the application is not opposed, and the granting of the order is in the public interest. It will be, as I understand, in the normal course, a saliva sample, is that correct, Ms Malobabic?
85MS MALOBABIC: Yes.
86HIS HONOUR: I must advise you, Mr McCoy, that should you - at the time of the request, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that Mr McCoy?
87OFFENDER: No.
88HIS HONOUR: All right. Perhaps I will say it again. The police are going to take a saliva sample via a mouth scraping in due course, and I understand that this is not opposed by you. I need to advise you that should you at the time of that request refuse to provide that sample, the sample taken can be a blood sample and the police can use reasonable force to obtain that sample from you. All right? Thank you.
89OFFENDER: Okay.
90HIS HONOUR: Yes, I have signed those orders, Ms Malobabic. Is there anything else from either end that I have missed?
91MR PEARSON: I don't know what Your Honour's usual practice is - the accused man's mother is present in Court.
92HIS HONOUR: Yes.
93MR PEARSON: Is Your Honour prepared to just allow the accused man to remain in Court when Your Honour leaves the Bench just for a minute so that his mother can say goodbye to him?
94HIS HONOUR: Well, I think that is potentially subject to those that are in control of Mr McCoy at the back of the Court.
95MR PEARSON: Yes.
96HIS HONOUR: But - just pardon me for a moment. Yes. Well, I propose to allow Mr McCoy's mother to approach her son at the back of the Court subject to permission being granted by those in control of Mr McCoy.
97MR PEARSON: Yes.
98HIS HONOUR: Certainly not our usual course, Mr Pearson, but I will allow Mr McCoy's mother the ability to say goodbye to her son and in those circumstances, I will, rather than ask Mr McCoy to be removed now, I'll simply stand down temporarily, but I am ‑ ‑ ‑
99MR PEARSON: Yes. I'm indebted to Your Honour. I'll make sure that it's his mother and his mother alone who remains in the Court.
100HIS HONOUR: Yes, and it is brief, in the circumstances.
101MR PEARSON: Yes, of course. I understand, Your Honour, thank you.
102HIS HONOUR: Yes. There's another matter that I need to attend to.
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