Director of Public Prosecutions v McCusker (a pseudonym)
[2022] VCC 970
•21 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Shane McCusker (A pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2022 | |
DATE OF SENTENCE: | 21 June 2022 | |
CASE MAY BE CITED AS: | DPP v McCusker (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 970 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Blackmail; Threats to Disseminate Explicit Images; Inherently Serious Offence; Breach of Trust; Concerning Degree of Persistence; Plea of Guilty; Good Character; Excellent Prospects of Rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Okutgen, Unal [1982] VicSC 501; Loftus v The Queen [2019] VSCA 24; Aitken v The Queen [2017] VSCA 103; Boulton v The Queen [2014] VSCA 342
Sentence: Community Corrections Order for a period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Petric | The Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue and George |
HER HONOUR:
1Shane McCusker[1], you have pleaded guilty to one charge of blackmail pursuant to s87 of the Crimes Act[2]. The maximum penalty for this offence is 15 years' imprisonment. The blackmail charge covers a three-month period from26 February until 21 May 2021.
[1]A pseudonym.
[2]Crimes Act 1958 (Vic) s87.
Circumstances of offending
2The full circumstances of your offending are set out in the Summary of Prosecution Opening which is dated 6 June 2022.That was tendered and marked as Exhibit A on the plea. I am not going to go through the entirety of this document, and repeat it, it was necessarily lengthy and very detailed, rather what I am going to do is summarise the circumstances of your offending.
3So, at the time of your offending you were 47 years old. You worked for a logistics company. Your victim, Maya O’Connor[3], she also worked for this company and you were her manager. Ms O’Connor was in a relationship with another man but had engaged in an intimate affair with you in 2018. Ms O’Connor had a number of intimate images and videos of herself taken between February and October 2020, that she had stored in an iCloud account accessible from her mobile phone.
[3]A pseudonym.
4In the early evening of 26 February 2021, you registered a new mobile phone number in your own name, and minutes later, you sent Ms O’Connor a text message from that number. You did not identify yourself and she was unaware that it was you that was operating the mobile phone in question.
5The text message read ‘Hey, been going to txt you for months but was not sure about [name omitted][4]. Did you mean to email me? Not complaining but not expecting them either’. Ms O’Connor proceeded to ask you to identify yourself, and suggested you had the wrong number. Throughout the text message exchange that followed, you sent Ms O’Connor intimate photographs and videos of herself, requested further intimate images, and refused to identify yourself. This was the first night, in what became a protracted period of escalating harassment and blackmail.
[4]The name has been omitted from these anonymised remarks.
6Within a period of 3 days, on March 1, your initial request for further intimate photographs escalated into demands for both sexual photographs and videos, accompanied by threats to communicate with, and share Ms O’Connor’s photographs with her partner. Bolstering your threats, you directly contacted her partner, and ensured that she was aware you had actually done so.
7
In the days that followed, between March 2 and March 4 of 2021, you texted
Ms O’Connor incessantly. You demanded sexual material and threatened to share what material you already possessed with her then partner. You repeatedly refused to disclose your identity and refused to answer phone calls from
Ms O’Connor. The way you communicated with Ms O’Connor became increasingly aggressive and threatening. You told her that were you to share the material you possessed with [name omitted][5] ‘it will finish ya (sic)’, that you were getting ‘annoyed’, and that you required a ‘one minute close up clear video of your full body playing with your cunt and boobs’ for the harassment and blackmail to cease.
[5]The name has been omitted from these anonymised remarks.
8Throughout this period you also messaged her partner. You sent him four to five text messages. In the evening of 4 March 2021, both Ms O’Connor and her partner blocked the phone number you had used.
9
Nearly two months later on 30 April 2021, you attempted to connect with
Ms O’Connor via Instagram, using a profile you had created with the handle [name omitted][6]. Ms O’Connor did not accept your request and attended upon a police station to notify them about the creation of this account. Between the time of Ms O’Connor’s’ interaction with police, and 10.44 pm of that evening, you had uploaded 16 explicit images of Ms O’Connor to this Instagram account.
[6]The name has been omitted from these anonymised remarks.
10You used this Instagram account to contact Ms O’Connor and her Instagram friends to publicise the explicit photos. In the messages you said “Ready to start posting all contact me!' and sent her work email address. Your messages continued, you said, 'Do you want me to post more or delete all? Do you know what I want [name omitted][7]? Up to you. Should I send your work emails? Better if you give what I want.” You continued to send messages on this night. Ms O’Connor did not reply. You created a second Instagram account, with the handle [name omitted][8], and continued to make demands and threats.
[7]The name has been omitted from these anonymised remarks.
[8]The name has been omitted from these anonymised remarks.
11
On 1 May 2021, you registered another mobile phone, this time in the name of a co-worker. Between 1 May and 5 May 2021, you used this phone to communicate with Ms O’Connor via her work email address. You sent explicit material to this work email address, accompanied by demands, threats and requests. In particular, you threatened to distribute the explicit material to
Ms O’Connor’s work colleagues. And I should indicate, when I refer to threats, I am not referring to threats of physical harm to Ms O’Connor or anyone else, but threats to disseminate the explicit images and videos that you had.
12Another fake digital account was created, this time an email address in the name of [name omitted][9]mailto:. From this account you emailed intimate images of Ms O’Connor to the general workplace email, to her personal work email, and to your own work email. This was the first time you were visibly present in any context in your offending, albeit under the guise of a bystander.
[9]The name has been omitted from these anonymised remarks.
13
Over the course of these few days your language escalated. You referred to
Ms O’Connor’s needing to be ‘punished’, being ‘dumb’, and stated that her refusal to comply was ‘dumb and stubborn’, and that ‘burners are cheap and easy to get. Almost time for a new number, Hey?' You also further threatened to distribute material of Ms O’Connor to Pornhub.
14Finally, on 21 May 2021, you registered a third mobile telephone, again in the name of your co-worker. From this number you sent sexual images and a GIF of a woman being dominated sexually. You invited Ms O’Connor to arrange to meet you to engage in like sex. Ms O’Connor did not reply to any of these messages and received no further contact from that number.
Investigation arrest and interview.
15Police investigators made inquiries into the Instagram and Gmail accounts used in connection with the messages. They were traced to an IP address registered to the name of Brittany Gillis[10], of an address in the north-west of Melbourne, Victoria.
[10]A pseudonym.
16Ms Gillis is your partner and that address is your address. You were arrested at home on 26 July 2021. Your personal and work mobile along with a personal iPad were seized. You were taken to a police station where a record of interview was conducted. You did not admit your offending during this interview.
17On 29 July 2021, Victoria Police investigators analysed your personal mobile and located the following;
(a)
16 picture and 1 video message sent by the accused to the mobile number [number omitted][11] and that was one of the phone numbers registered to
[11]The number has been omitted from these anonymised remarks.
your co-worker on 24 May 2021.The photos and video showed Ms O’Connor and were explicit in nature.
(b) Next, a password protected app called "Photo Vault" which contained two folders, one called "Main Album" which contained 234 photos and 33 videos of Ms O’Connor, the majority of which were explicit in nature.
(c) Inside the "Photo Vault" app, the following was also located:
i.a video recorded by you where you are viewing CCTV from their workplace. The CCTV recording shows Ms O’Connor entering the pin for her mobile phone;
ii.a screenshot showing that photos were transferred from O’Connor’s’ iCloud to the Accused’s Gmail account on 11 September 2020;
iii.a photo of O’Connor’s mobile phone showing her partner's details;
iv.a photo of your co-worker’s drivers licence;
v.and a folder called "Things I will Do To You" which contained explicit material that appears to have been obtained from the internet and is the same as that which was sent to Ms O’Connor from the second mobile telephone number registered in your co-workers name.
Victim Impact statement
18In her victim impact statement, Ms O’Connor described that during the offending she could not sleep, and she was anxious all the time. Further she said that the content of the emails was so detailed, she felt like she was being stalked and watched by someone in the industry or at her own work, she was right. Ms O’Connor was scared to report the offending and described being fearful in her own home. The incident has affected every aspect of her life, and Ms O’Connor experienced the need to see a psychologist. She's experienced ongoing anxiety and trauma, a lack of trust, and being fearful at home alone.
19Ms O’Connor described having high hopes of getting her life back to normal. It is hoped that through her involvement in the court process, your acceptance of responsibility and the finalisation of this matter, Ms O’Connor can gain some closure and move forward with her life. I note also that there was an intervention order that was taken out on behalf of Ms O’Connor, and that's been in place now for probably over a year, and that there's been no breach of that order, and there's been no further contact between yourself and Ms O’Connor.
Nature and gravity of offending
20
Mr McCusker, blackmail is an inherently serious offence. It is evidenced by the
15-year maximum penalty. Your offending extended over a period of three months and involved threats to release very personal and intimate images of your victim,
Ms O’Connor. No doubt you exploited the fact that Ms O’Connor would find the release of these images and videos very embarrassing. You demanded very personal and intimate footage to be provided in exchange for not making good your threat. Your offending involves a breach of trust in circumstances where you had previously had an intimate affair with Ms O’Connor, and you were her direct supervisor at work. Over the course of the three months of your offending, you registered three separate mobile phones, created two Instagram accounts and two email accounts, with the sole purpose of using these to engage in your crime. In my view this shows a concerning degree of persistence and a certain level of sophistication.
21When you were initially interviewed by the police you denied your offending. It is clear from your plea of guilty that you now fully acknowledge and accept responsibility for your wrongdoing. In addition, I am now told that you appreciate the seriousness of your actions, and the profound impact of what you did has had upon your victim. I accept that, that is the case.
Personal circumstances
22
It is appropriate at this point to describe your personal history. You are 48 years old, and both a husband and a father. You have been in a relationship with your wife for nearly 28 years, and a parent for 16 years, your two daughters being
16 and 13 years of age.
23You were the last of three children born to what could be described as a working class family who lived in Sunbury. Your parents separated when you were 12, and the years preceding this separation were marked by instability. You bore witness to volatility and abuse that characterised your parents’ relationship. Your father drank to excess, and your mother suffered significant mental health difficulties, resulting several times in ‘breakdowns’ and threats of suicide. You reported that these years did not interrupt your early schooling, and that you obtained basic literacy and numeracy skills, though often cast yourself in the role of class clown.
24Your parents separated and upon your father’s departure you remained with your mother, and began attending high school. In the years that followed you had limited, sporadic contact with your father, and became increasingly oppositional at school, being regularly subjected to corporal punishment. After finishing Year 9 and being asked to leave your school at the time, you made a brief attempt at obtaining a Year 10 education at a different school, though left after a short time with the school year unfinished.
25You briefly engaged in a motor mechanics apprenticeship, though found little joy in the work. A six-month stint was undertaken labouring in Cairns, before you returned to Melbourne to reside with your father and begin work as a forklift driver, with a company you would remain with for some 13 years. You progressed to the level of leader or supervisor in this employment without formal training. In this period, you made a concerted effort to reconcile your family, and you have stated that there was real improvement made to family relationships.
26You have maintained steady employment primarily in managerial positions in logistic companies. By the time of this offending, you had come to work at the workplace you shared with Ms O’Connor. Not surprisingly, because of this offending you were sacked. You have since gained alternative employment as a casual forklift driver which has resulted in your income being halved.
27In terms of relationships, at the age of 21 you met your now wife, Brittany Gillis, with whom you have been in a relationship since that time. Although a relationship of considerable length, it has not been without difficulty. In the face of an early decline in intimate relations, you were involved in an extramarital affair, although this was ‘worked through’ by you and Ms Gillis. You have reported that there has been a total cessation of intimate relations in your marriage, and that it was within this context, you began an affair with your victim, Ms O’Connor. Despite this history of difficulty and infidelity, Ms Gillis remains supportive of you, and you have expressed a strong commitment to family life and both of your daughters.
28
At the commencement of your relationship with Ms Gillis, you significantly reduced what had been substantial consumption of alcohol, and have been since that time, no more than a social drinker, except probably around the time of the offending. Similarly, within the context of this relationship, you ceased the cannabis use you had indulged in throughout your twenties when you and
Ms Gillis decided to have children.
29Although you admit you have on occasion used cocaine and amphetamines through your adulthood, you have not done so in recent years. Historic drug use played no role in the offending before the court today, however, your alcohol consumption had increased and was somewhat problematic.
Plea of guilty
30I accept that your plea of guilty was entered at a very early stage in the proceedings. This, together with your letter of apology, and statements made by you to psychologists, family and friends is indicative of your remorse. Although you initially denied the offending when confronted by police in your record of interview, it wasn’t long before you accepted responsibility for what you had done and indicated your intention to plead guilty. In these circumstances I accept your remorse is genuine.
31In addition, there is a significant utilitarian benefit in your plea of guilty in that you have spared witnesses the need to give evidence and you have spared the Court from what would have been a time-consuming trial. Most importantly, you have spared the victim the ordeal of reliving this traumatic event in the witness box.
32In addition, I note what the Court of Appeal recently said in the case of Worboyes v The Queen [2021] VSCA 169 at paragraph 39[12]:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
[12]Worboyes v The Queen [2021] VSCA 169, 39.
33As a result of these factors I propose to allow a significant discount for your plea of guilty.
Prior convictions
34This is your first appearance before the court at the age of 47 years. Good character is an important and significant factor in your favour. This is particularly so, given that you are a mature first offender[13]. This is of course qualified by the gravity of the offending and other sentencing purposes, but I agree with your counsel’s submission that it is a grave step to imprison a first offender.
[13]R v Okutgen, Unal [1982] VicSC 501.
35Several testimonials were tendered on your behalf during the course of the plea primarily from close family members. They all describe you as a dedicated family man who is there for others, someone who is a hard worker, conscientious and reliable. Invariably, your offending behaviour was met with shock and disbelief by those who know you well. To this extent I accept that you have acted entirely out of character.
Psychological and mental health
36Two psychological reports were tendered on your plea. The first from your treating Psychologist, Geoffrey Burrows and the second from Dr Matthew Barth.
37Dr Barth described your adult life has been impacted by periods of moderate mood disturbance, which has often occurred in connection to difficulties around the intimate aspect of your marriage, some difficulties faced by your daughter with respect to her mental health, and tragically, the suicide of a close friend of yours. You have been prescribed Escitalopram, since 2007, and in the face of the shame you have felt around your present offending, experienced your own suicidal ideation.
38Dr Barth identifies your mental state as being characterised by depressive and anxiety related symptoms, central to which is your guilt over your offending. This in turn has caused a considerable level of withdrawal from possible support, and a punitive internal dialogue that continues to undermine your sense of self-worth.
39Fortunately, despite the moderate degree of distress you have been experiencing, it did not result in you acting upon your suicidal ideation, nor to a destruction of your daily routine. Any symptoms you were experiencing were not so severe as to warrant the diagnosis of a psychological disorder, nor could it be said that you had any mental disorder at the time of your offending. There was also no indication of any sort of disordered cognitive functioning, and you have been described as lucid and as of normal intelligence.
40Irrespective of your outward demeanour, you are described as a surprisingly fragile and insecure man, and sensitive to criticism. To combat your feelings of inadequacy, you aim high, and set big goals, but if you fail to reach them, you take that as evidence of that felt inadequacy.
41In reference to your consultation with Mr Burrows, Dr Barth notes that you have engaged with diligence and have made particularly good progress with respect to victim empathy, as well as restructuring some disordered thought processes which assisted you in rationalising your offending at the time. However, he noted that your insight into the interpersonal factors that motivated your offending was not yet well developed, and that further treatment is the single most important factor.
42With respect to your risk factors for further sexual offending, Dr Barth has found some risk factors present. Of particular concern is your use of psychological coercion in the course of your offending, and the escalating intensity with which it was applied.
43On the other hand, it is noted that your personal background does not indicate any lasting sexual deviance, nor is your history one of antisocial attitudes or violent conduct. Similarly, though not completed, your engagement in, and willingness to engage in, specialist sex offender treatment feeds into the overall assessment of risk. In summary, you have been found as being of ‘low-moderate risk’ of sexual recidivism.
44Dr Barth suggests that you receive treatment that focuses on assisting you in gaining insight into the emotional and interpersonal factors that motivated your offending, and that you be educated as to the impact of the type of coercion you exercised against and over Ms O’Connor. He has also indicated that you would benefit from ongoing psychological assistance to enhance your ability to cope with emotional responses and to improve your self-esteem.
45In summary, your pro-sociality, strong employment history, and ongoing support from your family, go some way to advance your rehabilitative prospects despite the seriousness of your offending, and the dysfunctional aspects of your interpersonal adjustment that contributed to it. Provided you receive adequate treatment and support, there is real optimism with respects to your prospects in the community.
Rehabilitation
46Since the offending you have engaged in an impressive episode of treatment in a sex offender program. You are well engaged in therapy and although you have made progress you have a way to go. I am satisfied that you are committed to your treatment and if allowed you will see it through. You have a supportive partner and extended family. You have a solid work history and are currently employed.
47Importantly, you have been assessed as a low moderate risk of sexual recidivism which is likely to reduce further by the completion of the specialist sex offender program together with supervision and support.
48In all the circumstances, I find that you have excellent prospects for rehabilitation.
Sentencing considerations
Sentencing
49I consider that the relevant sentencing principles that must be applied in your case are general deterrence, specific deterrence, denunciation, protection of the community, and just punishment. I also consider the principles of parsimony and proportionality as part of the sentencing exercise. I am of the view that community protection in your case can best be achieved by your rehabilitation. Mr McCusker your offending was outrageous and it is denounced by this court.
50I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991[14], where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offences, particularly the charge of blackmail, to which you have pleaded guilty.
[14]Sentencing Act 1991 (Vic) s5.
51I have considered in particular the Court of Appeal decisions of Loftus[15] and Aitkin[16]. What is clear from those decisions, is that blackmail can occur in many and varied ways, and the sentence imposed must reflect the seriousness of the particular circumstances of each individual case. I note that a sentence of imprisonment is very often imposed for blackmail offences.
[15]Loftus v The Queen [2019] VSCA 24.
[16]Aitken v The Queen [2017] VSCA 103.
52Your counsel referred to the case of Boulton[17] and submitted that a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. I have given consideration to Appendix 1 in the case of Boulton and in particular the general principles set out.
Firstly, a CCO is a new and flexible sentencing option, well it was at the time, which can be for a term of up to the maximum term of imprisonment prescribed for the offence in question. It serves a different purpose from community-based orders or suspended sentences, which have now been abolished.
In some cases, it will be appropriate to impose a CCO, with or without an added sentence of imprisonment, for relatively serious offences, which would previously have attracted quite substantial terms of imprisonment. In determining whether to sentence an offender to a CCO, the court should first assess the objective nature and gravity of the offence, and the moral culpability of the offender.
The court should then consider whether, the crime as so assessed, is so serious that nothing short of a sentence, wholly comprised of immediate term of imprisonment will suffice to satisfy the requirements of just punishment. Or, a CCO, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
[17]Boulton v The Queen [2014] VSCA 42.
53Under the heading of 'Just punishment', in part 2, where the question is stated ‘imprisonment or CCO?’ The Court of Appeal said,
'axiomatically, nothing is as punitive as prison.' At the same time, the opportunities for rehabilitation in prison are severely limited and imprisonment can be seriously detrimental for the offender.
54I just pause to note, that that's probably even more the case now, given the limitations of the COVID-19 pandemic.
In practice therefore, a conclusion that imprisonment is the only
appropriate punishment is a conclusion that the retributive and deterrent purposes of punishment must take precedence. A CCO is also intrinsically punitive and depending on the length of the order, and the nature and extent of the conditions imposed, is capable of being highly punitive. Mandatory conditions attached to each CCO by force of s45(1)[18], affect an offender's liberty and autonomy. During the period of the order, the offender must report to and receive visits from the Secretary, must notify the Secretary of any change of address or employment, must not leave Victoria without the Secretary's permission, and must comply with any direction given by the Secretary to ensure compliance.
[18]Sentencing Act 1991 (Vic) s45(1).
The conditions which maybe attached to a CCO, are variously coercive, restrictive and/or prohibitive. When a condition of that kind is attached to a CCO, the offender's life will be regulated for the duration of the order. By the obligation to comply with the conditions subject to any contrary order, contravention of any condition attached to a CCO, except for a contravention of a direction by the Secretary, is itself an offence, punishable by three months imprisonment. Contravention of a CCO, also carries with it, the prospect that the offender will be resentenced on the original offence.
In terms of general deterrence, as until now a sentence of imprisonment has been conceived of as providing the greatest degree of general deterrence. A CCO can however, provide substantial general deterrence on account of the punitive effect described above. If a CCO is to operate as an effective general deterrent, it is essential that the sentencing court sufficiently explain its reasons for concluding that the CCO will be sufficient punishment of the offender for the offence.
A sentence of imprisonment may operate as a specific deterrent, but a CCO can also provide very substantial specific deterrence. First, it will be a real punishment and therefore should deter repeat offending. Secondly, there is also the mandatory condition attached to every CCO prohibiting the commission of an offence, punishable by imprisonment. The commission of such a breach in offence will potentially lead to the imposition of three separate penalties as follows. A penalty for the offence itself, a penalty for the contravention of the CCO condition, and a resentencing for the original offence, in respect of which the CCO was first imposed.
Thirdly, the focus of conditions attached to the CCO will be to minimise the risk of reoffending, by ensuring appropriate treatment to address the causes of offending and/or by prohibiting the offender from visiting places, or associating with persons which might lead to criminal activity. In that way a CCO can serve the purpose of protecting the community, which is the object of specific deterrence.
A CCO demands of the offender that he take personal responsibilityfor
self-management and self-control and depending on the conditions, that he pursue treatment and rehabilitation, refrain from undesirable activities and associations, and avoid undesirable persons and places.
In many cases, therefore, a CCO will enable all the purposes of punishment to be served simultaneously in a coherent and balanced way. Even in cases of relatively serious offences, which would previously have attracted a medium term of imprisonment, such as for example, aggravated burglary, intentionally cause serious injury, some forms of sexual offences involving minors, some kinds of rape, and in some rare and exceptional circumstances, homicide.
The sentencing court may find that a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects for rehabilitation.
Disposition
55After, anxious consideration of what is the right penalty for you, in this case, and balancing as best I can, the nature and gravity of the circumstances of your offending, your moral culpability, with your previous good character, and all the factors that you have in your favour, I have come to the conclusion that a community correction order is the appropriate penalty in your case.
56I have had you assessed for such an order, and you have been assessed as suitable. So, Mr McCusker, I'd ask that you stand.
57In relation to the charge of blackmail, you are convicted and you are placed on a community correction order for a period of 3 years. The conditions of this community correction order include
(a) 400 hours of unpaid community work over that three year period
(b) Assessment and treatment for alcohol use
(c) Offending behaviour programs, in particular the sex offender program. And I anticipate that you will continue to see Geoffrey Burrows and complete the program.
(d) Supervision by the Office of Corrections.
58Now with regard to the 400 hours of unpaid community work, I am prepared to offset 150 hours of community work against the treatment. So what that means is, if you do 150 hours of treatment, that will come off the 400 hours. I do not know that I need to motivate you, but it is a motivator towards the treatment. The treatment is really important. The 400 hours is there to punish you. And I expect every time that you get in your car to drive to Corrections, you will think about what you did to Ms O’Connor. You probably have every day since it happened, but I expect that you will, and you will for the next three years, as you are doing your 400 hours of community work, no doubt, you will think of her.
59You will also be subject to judicial monitoring, so I want to see you back here, I want to make sure that you are doing this order. So the first date that I propose for that to occur is 12 August at 11 am. Now, I might be able to negotiate the time with you, if need be, to fit around work, and to fit around community work probably more importantly, or treatment. But 12 August is the date that I want to see you back.
60OFFENDER: Yes, Your Honour.
61HER HONOUR: We can probably also do that by Webex or remote, if need be, but Corrections will be able to help you with that and it might even be, I have some people who appear actually at the Corrections Office, with their Corrections officer, so we can work that out. I believe very strongly that you will comply with this order, otherwise, I probably would not have done it. I think that you have a good work history and that the 400 hours will be very achievable for you. I also think that you have got, or I am of the view, that you have demonstrated - a really good start to rehabilitation with your treatment, and so I expect that you will continue with that. Had you not done that treatment, I do not think I would have given you this order.
62So, in addition to those conditions, there's some standard conditions that I have got to tell you about. These were explained to you the other day, but I need to repeat them. So they are first and foremost, that you must not commit any offences punishable by imprisonment during the next 3 year period of the corrections order. Now this is going to be hanging over your head for three years. Not only will you have to keep up the supervision, but it's hanging there. If you breach that by committing another offence, then you will be back before me and you will be sentenced as I read out from the case that I referred to, you will be sentenced for the breaching offence, and you potentially get sentenced again for this offence, and could well go to gaol. You also need to report within two working days to the nearest Corrections Office. All right, so that will be after today.
63You are required to advise your supervising Corrections office of any change of address where you are living or working within two clear working days. And it is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their prior permission. If you breach any of those conditions or you do not comply with those conditions, that is also a contravention of the order. And it would mean that you could be brought back before me and you would be dealt with for breach and likely receive a term of imprisonment, so do not breach it.
64OFFENDER: I won't, Your Honour.
65HER HONOUR: I can only place you on a corrections order if you agree, so do you understand what is involved?
66OFFENDER: One hundred per cent, Your Honour.
67HER HONOUR: All right. And do you consent?
68OFFENDER: One hundred per cent, Your Honour.
69HER HONOUR: All right. Now, pursuant to s6AAA of the Sentencing Act[19] if not for your plea of guilty I would have sentenced you to a 12 months' imprisonment with the same corrections order. So with a corrections order in those same terms as what I have done, but you would have got the additional 12 months in prison. So, that's what you have spared yourself, and that is taking into account Worboyes and the other factors. Is there anything else?
[19]Sentencing Act 1991 (Vic) s6AAA.
70MS PARSON: Just to sign the order, I think, when Your Honour's ready.
71MR PETRIC: Your Honour, Mr Petric here, we'll be just seeking a disposal order on the phone with the images therein.
72MS PARSONS: There is no issue with that Your Honour.
73HER HONOUR: All right, I'll make that order, thank you Mr Petric.
74MR PETRIC: As Your Honour pleases.
75HER HONOUR: All right. Now I'll sign the order and I'll get my associate to get you to sign that order, or Ms Parsons if you could explain it and have Mr McCusker sign it.
76MS PARSONS: If I can, thank you, yes.
77HER HONOUR: All right. We'll make some copies and give them. You can have a seat Mr McCusker.
78OFFENDER: Thank you, Your Honour.
79HER HONOUR: I'm aware that Ms O’Connor is present with a support person, and I just wanted to wish Ms O’Connor all the best in the future and pass on the court's concern and desire or hope that you can get over this and move forward. I want you to know that I appreciate just the impact that this would have had and that the impact is ongoing. So, just to let you know that the court is fully aware of just how devastating this would have been. But now this part is over hopefully you can go forward with your life and put it behind you.
80
Good luck with the order Mr McCusker, and I'll see you on
12 August.
81Sorry, just one other thing, the media have requested a copy of the indictment and the opening, Mr Petric, is there any problem with that from your point of view?
82MR PETRIC: No, just as long as the victim is not identified in any way.
83HER HONOUR: Yes. I'm sure that they understand, but I'll repeat it. So, if anyone reports Ms O’Connor’s name, that will be a breach of law, and so, any reporting of this matter should not identify her in anyway. Ms Parsons, the media have also requested defence documents. Not sure what your practice is, no one ever consents, so I never release them, but - and I take it that's - - -
84MS PARSONS: That would be same thank you. Thank you, Your Honour.
85HER HONOUR: Yes, all right.
86MS PARSONS: No consent relating to defence documents, given the sensitive nature of the material that's contained there.
87HER HONOUR: Yes.
88MS PARSONS: In relation to the opening, at paragraph 54, Mr McCusker’s partner is named, first and second name, and also their home address.
89HER HONOUR: Yes.
90MS PARSONS: Would Your Honour consider that being redacted?
91
HER HONOUR: Yes. I would. So, we'll redact the name and address and I would strongly encourage that not to be reported either. I know it's been said in
open court, but it's redacted for a reason. Mr McCusker deserves to probably be reported upon, but his family don't deserve anything of that nature.
92MS PARSON: Thank you, Your Honour.
93HER HONOUR: All right, so we'll adjourn.
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