Director of Public Prosecutions v McFarlane (a pseudonym)
[2020] VCC 588
•11 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN MCFARLANE (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 April 2020 |
DATE OF SENTENCE: | 11 May 2020 |
CASE MAY BE CITED AS: | DPP v McFarlane (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 588 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under 16 – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), s 49B(1); Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic)
Cases Cited: Clarkson v R (2011) 32 VR 361
Sentence: 9 years 10 months’ imprisonment
Section 6AAA declaration: 12 years and 8 months’ imprisonment with a non-parole period of 10 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hamill | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr M. Brogden | Criminal Lawyers Victoria |
HIS HONOUR:
1Sean McFarlane,[1] you have pleaded guilty to six charges of sexual penetration of a child under 16, for each of which the maximum penalty is a term of imprisonment of 15 years. The standard sentence for this offence is a term of imprisonment six years.
[1] Sean McFarlane is a pseudonym.
2Tendered on the plea as Exhibit 1 was an Amended Summary of Prosecution Opening dated 24 April 2020. I incorporate that document into my reasons for sentence. However, I will briefly outline the circumstances of your offending.
3The victim of your offending is Stephanie Lawlor,[2] who at the relevant time was just 13 years of age. You were Stephanie's uncle, married to her maternal aunt, Rachel McFarlane.[3] At the relevant time you were aged 46, working as a truck driver and frequently driving interstate from your depot in Melbourne. You were living with Rachel and her son, Alexander,[4] in Cranbourne. In 2018 Stephanie's father became terminally ill and by September was in palliative care. Stephanie was struggling with her grief and her relationship with her mother was particularly difficult.
[2] Stephanie Lawlor is a pseudonym.
[3] Rachel McFarlane is a pseudonym.
[4] Alexander is a pseudonym.
4To give respite to both, your wife Rachel invited Stephanie to come and live in your family home, an offer that Stephanie readily accepted. She lived with you as a member of your family from 18 September 2018 until 12 November 2018. Within a week of moving into your household, she expressed a desire to call you dad. Stephanie was unquestionably a vulnerable child and equally clearly looked upon you as a parental figure.
5Stephanie's father, Ethan[5], died on in September 2018 and his funeral was held in October 2018. Your sexual misconduct towards Stephanie commenced two to three days prior to her father's funeral. You kissed her, firstly on her forehead and then on her lips and told her that you had feelings for her. You asked her about her sexual experiences and whether she wanted to have sex. She replied, 'No, not at the moment'. You later told Stephanie that if any kissing or hugging took place it must be a secret between you two. She promised you that no one would ever know. You then kissed her every day for the following few days. These are all uncharged acts that are led for context only.
[5] Ethan is a pseudonym.
6About one week later with relations strained between Stephanie and your wife, Rachel asked you to take Stephanie to work with you in your truck. You readily agreed and whilst parked at a truck stop in Albury, New South Wales, you took Stephanie into the bunk area at the back of your truck's cabin where you had full penile-vaginal intercourse with her. You ejaculated inside her. This was the first time that Stephanie had had sex, and this is also an uncharged act.
7During the period that Stephanie lived with you and Rachel, she accompanied you on numerous truck journeys to New South Wales. Over a four-week period you had sex with Stephanie in the truck once or twice on each trip. These are all further uncharged acts. They provide a context for your charged offending. They do not aggravate that offending, nor do they attract a separate penalty.
8In mid-October Stephanie was completing her schoolwork by way of home schooling online. On one occasion Rachel was not home and Stephanie went to your room. You started kissing and hugging before having penile-vaginal intercourse. This is Charge 1.
9About four days later, you again engaged in penile-vaginal intercourse with Stephanie, this time on the couch in the loungeroom. This is Charge 2.
10Charge 3 occurred when Rachel and Alexander were away at Phillip Island. Stephanie was watching Netflix on the couch and said to you, 'come over here'. You started to kiss her and then engaged in penile-vaginal intercourse for about 25 minutes before you ejaculated inside her.
11The next instance also occurred whilst Rachel was out of the house with Alexander. Stephanie was preparing to go out and she asked you how she looked. You told her she looked good before making out with her and engaging in full penile-vaginal intercourse. This is Charge 4.
12On 12 November 2018, Stephanie moved back to her mother's house due to the deterioration of her relationship with Rachel. You spoke to Stephanie regularly on the phone, attracting the attention of both Rachel and Stephanie's mother. On 15 November 2018, Stephanie ran away from her mother's home and was reported missing on 17 November 2018. On 16 November 2018, Stephanie had arranged for you to pick her up and take her on an interstate truck journey that evening. You then returned with her to your empty house as Rachel and Alexander were both away for the weekend. You showered together before you engaged in penile-vaginal intercourse in the master bedroom. This is Charge 5.
13On 18 November 2018 you were contacted by a police officer who was looking for Stephanie. You stated that you had not seen Stephanie since 12 November. This was a deliberate lie driven by self-interest and a wilful disregard for the best interests of Stephanie or indeed of the concerns of her immediate family. Stephanie later returned home.
14On 30 November 2018, you obtained permission from Stephanie's mother to take her on an interstate truck journey. You again engaged in penile-vaginal intercourse with her while at a rest stop in New South Wales, a further uncharged act.
15By early December 2018 Stephanie's social media posts, wherein she intimated that she was in a physical relationship with you, had come to the attention of your wife and of Stephanie's paternal aunt and uncle, Abigail[6] and Hayden[7] Powers. This had led to various discussions between the four of you. On one occasion when asked why you continued to speak to Stephanie, you told Hayden that it was because her father, now deceased, had sexually assaulted her since she was 10. During another of these discussions you bizarrely stated that you had been drugged whilst Stephanie was present and after you woke up you discovered that you had ejaculated.
[6] Abigail Powers is a pseudonym
[7] Hayden Powers is a pseudonym
16On 3 December 2018, Abigail and Hayden Powers came to your home. Hayden took you for a walk to a nearby park to speak to you privately and, again, you repeated the account of being drugged and of having ejaculated whilst under the influence of the drug. After further probing from Mr Powers, you admitted having sex with Stephanie 10 to 15 times and that she was a virgin before you had had sex with her. Mr Powers reported the matter to Frankston police station the following day.
17On 4 December 2018, the Powers told Stephanie's mother of what you had told Hayden. Mr Powers then spoke to Stephanie privately and she disclosed to him that you had been having sex with her. On 7 December 2018, Stephanie participated in a video and audio recorded evidence statement (VARE) and disclosed two instances of sexual penetration and various instances of other sexual contact.
18On 9 December 2018, you sent Stephanie a text message requesting to see her. She reluctantly agreed to see you and told her mother that she was meeting a friend for an hour. You eventually persuaded Stephanie to go away with you in your truck, despite her initial reluctance. She eventually agreed to go with you but spent most of the journey sleeping. When Stephanie did not arrive home, she was reported missing.
19On your return to the Dandenong truck depot, you parked your truck a few blocks away. You moved into the cabin. Stephanie told you that she was sore and did not want to have sex with you. You persisted in urging her to have sex with you before holding her arms above her head. Stephanie did not have the strength to resist you but yelled, 'Sean, don't, get the fuck off me, this isn't right, please stop. This is for real now'. You ignored her protests and inserted your penis into her vagina for about 15 minutes until you ejaculated inside her. Stephanie continued yelling at you. This offending underpins Charge 6.
20You then took Stephanie to lunch before dropping her off at a park near your home. Rachel had called to tell you to come and collect your belongings she then told alerting the police of this arrangement. You were arrested upon your arrival home and taken to Narre Warren police station for interview. In that interview you conceded that Stephanie accompanied you on work trips in your truck but you denied any sexual activity. You variously denied the offending behaviour or responded 'no comment' as you are entitled to do. In your record of interview, you were at pains to present yourself as someone who was present and listening throughout to Stephanie and her needs, and acting only in her best interests. Stephanie had made complaint to you of her uncle Hayden, 'trying it on' with her. You had told Hayden some things that were not true because he, Hayden, had been ‘playing police officer’.
21Police collected Stephanie from a nearby park. She participated in a second VARE with police before undergoing a forensic examination. High internal swabs from Stephanie's vagina tested positive for your semen. Stephanie stated that you did not wear a condom on any occasion of sexual intercourse but that she had been on oral contraception. A few months later, Stephanie expressed to her aunt, Abigail Powers, that she wanted to disclose further information to police and she completed a third VARE on 8 April 2019.
22CCTV collected from the truck depot showed you were there with Stephanie on
16, 17 and 30 November 2018 and also on 10 December 2018.23You pleaded guilty to the charges now before me on the morning of a contested committal hearing. I find that your plea was entered at an early but not the earliest opportunity.
24Tendered on the plea was a victim impact statement of Stephanie, Exhibit 2, and of her mother, Brooke Floyd,[8] Exhibit 3, and of Stephanie's maternal aunt, your then wife Rachel McFarlane, Exhibit 4, and victim impact statements from her paternal aunt and uncle, Abigail and Hayden Powers, respectively Exhibits 6 and 5.
[8] Brooke Floyd is a pseudonym
25Stephanie writes of her shame and of her guilt because she ‘did not have the courage to tell an adult as I didn't think anyone would believe me as I am just a kid'.
26School friends taunted her and trolled her on social media and boys saw her only as a sexual object. In consequence she had to start a new school. She has struggled with her mental health. She has self-harmed and contemplated suicide as a means of dealing with her overwhelming emotions. She requires counselling and she keenly feels the loss of family relationships, noting that she has been blamed quite unfairly by other and older female members of her family who assume, wrongly, her complicity in your offending against her. She says to you:
I am and was just a kid with problems no different than any other 13-year-old who grows up around dysfunctional adults but that should not have given you the right to sexually abuse and molest me.
27Exhibits 3–6 describe in stark detail the complete fracturing of the family and the breakdown of relationships within the family flowing directly from your offending.
28Whilst these statements cannot be permitted to overwhelm the sentencing process, there can be no doubt that the impact of your offending upon Stephanie and upon her immediate family has been truly devastating.
29I turn now to your personal circumstances. You are currently 47 years of age. You offended against your victim, Stephanie, when you were age 46. You were raised in regional Victoria by your parents until their separation when you were 12 years of age. You then resided at the back of you uncle's fish and chip shop and ultimately left formal education in grade eight. You initially worked in a variety of unskilled labour roles, including at the fish and chip shop, on rubbish trucks and driving delivery trucks for the Footscray market. At age 26 you commenced working as an interstate truck driver, work that you enjoyed and in which you had continuous well-paid employment until your arrest. You intend to return to truck driving upon your eventual release from custody.
30You have been married twice to age-appropriate partners. You married Charlotte[9] when you were 18 before separating in 2010. You and Charlotte have two sons now aged 22 and 28. You met your second wife, Rachel, in late 2012 and married her in April 2018. You separated from Rachel around the time of your arrest and are currently in divorce proceedings. You have since reconciled with your first wife and I was told you intend to live with her upon your release.
[9] Charlotte is a pseudonym
31You are fortunate to be in good physical health and have not experienced any significant or chronic health issues in the past. You have experienced stable mental health throughout your life. You do not have substance abuse issues, however, I was also told that you have regularly abused amphetamines whilst driving long distances at night.
32You maintain the support of your mother and younger brother through phone communication and prior to the outbreak of COVID-19, in person visits. You also have the support of your ex-wife, Charlotte, and your youngest son after an apparent reconciliation following your remand on these matters.
33You have one prior matter for contravening an intervention order in 2016. This is not relevant to my sentencing discretion.
34You have been in custody since your arrest. You have not made an application for bail. You have continued to demonstrate a strong work ethic whilst in custody, working in the numbers plate factory for six to seven hours per day five days a week.
35Tendered on the plea as Exhibit 9D, was a report from Jeffrey Cummins, forensic psychologist dated 16 April 2020. Mr Cummins conducted a video conference with you on 7 April 2020.
36You presented as of average intelligence with no indicators of any mental disorder or cognitive distortion. You were mildly anxious and mildly depressed, concerned regarding the ceasing of visits due to the COVID-19 restrictions but you were coping relatively satisfactorily upon remand. Mr Cummins raised the prospect of you having been dependent upon amphetamines but any connection between such drug use and this offending was purely speculative.
37You told Mr Cummins that at the time of your offending you felt sexually attracted to your victim. On several occasions she had told you that she was not a virgin prior to your first sexual contact with her, although you acknowledged that whether or not she was a virgin did not change the seriousness of your offending. You thought it made some difference to the wrongfulness of your actions because Ms Lawlor, your victim, was consenting, that is going along with your actions. During the interview you repeatedly acknowledged that you did the wrong thing by having sexual contact with your victim.
38Whilst you spoke in a manner indicating that you were taking responsibility for your offending behaviour, Mr Cummins was of the opinion that you 'required further education concerning the concept of victim empathy’ and specifically in relation to how victim empathy will be relevant for Ms Lawlor.
39You reported that at the time of the offending you were experiencing difficulties, including sexual difficulties, and general conflict within your marriage.
Mr Cummins thought it unlikely that you offended against your victim solely because she was underage, although he accepted that by definition your offending behaviour was indicative of a sexual attraction to persons who were post pubescent but under the legal age of consent. He assessed you as a low or average risk of committing further sexual offences against an underage person.40Mr Cummins stated that in his view your comments at interview indicated, 'you had learnt your lesson'. In light of one video conference, I find that to be a most surprising conclusion, as is the descriptor of your offending as being, 'situationally motivated’ and ‘opportunistic'. Mr Cummins I note did not give evidence on your plea.
41Mr Cummins concluded and noted it was both necessary and appropriate for you to participate in offence-specific treatment, mainly 'so that he learns more about victim empathy and develops more insight into the concept of victim empathy'.
42I turn now to the submissions of counsel. Ms Hamill on behalf of the prosecution submitted correctly that general and specific deterrence, denunciation and protection of the community were the primary sentencing purposes in your case.
43Whilst recognising the value of your plea, she submitted that this was serious offending over a period of some two and a half months consisting of six separate occasions of full unprotected penile-vaginal intercourse representing a gross breach of trust upon a vulnerable victim who in Charges 1–4 was in your care. The impact of your offending was devastating. There was a significant age disparity and a degree of planning and premeditation. No protection was worn by you. Charges 1–5 were in the midrange of seriousness for the offences of this kind. There was in Charge 6, she submitted correctly, the added aggravation of your victim's resistance, placing that offence in the upper range of seriousness. She submitted your moral culpability was high and there was slight evidence of remorse.
44She reminded me of the standard sentence and serious offender provisions applicable in your case. On Charges 3–6 protection of the community was a paramount sentencing consideration. She did not seek a disproportionate sentence. She submitted there should be appropriate orders for concurrency.
45On your behalf Mr Brogden recognised the serious nature of your offending and its devastating impact upon the family of your victim. I was told that having read the victim impact statements, perhaps for the first time you now deeply regret your actions and accept responsibility for them.
46Mr Brogden accepted general and specific deterrence and protection of the community were relevant sentencing considerations and that a significant and substantial term of imprisonment was the only appropriate disposition. But in mitigation of your sentence, he relied upon the following.
47Your plea of guilty, entered at an early, although not the earliest opportunity. Your plea saved the community the time and cost of a trial and saved your victim and family members the trauma of giving evidence about such intimate matters. As such your plea had real value which required to be recognised. I agree.
48He submitted that your plea was also an indication of your remorse. You told Mr Cummins that you knew you had done the wrong thing and that you must therefore be punished.
49He submitted that you have good prospects of rehabilitation having regard to your prior good character, your work history and the family support that you now enjoy. You have continued to work whilst on remand and you have engaged in programs. You are ready to participate in sex offender treatment programs upon your sentence.
50Once you had served your term of imprisonment you would wish to regain your employment and 'move on' with what will be left of the rest of your life. As I understood you were intending to live with your first wife, Charlotte.
51Mr Brogden submitted that you present a low risk of reoffending, that you felt sexual attraction to your victim but you were not attracted to pubescent girls in general.
52He submitted that current restrictions within the custodial setting make prison more onerous for you than it otherwise would be outside of the current
COVID-19 environment.53He reminded me of the overarching principle of totality. He submitted there should be no crushing sentence.
54His ultimate submission was that a term of imprisonment with a lengthy period of eligibility for parole could suitably address all relevant sentencing purposes.
55Mr McFarlane, sexual offending against children will always be viewed as most serious offending. There has been a growing recognition by the courts of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived. Children who have been sexually offended against have had their innocence and their sense of self stolen from them. They blame themselves for acts committed against them by adults and for which acts they are completely without blame. They struggle to engage in healthy relationships. They struggle to find their place in the world. Crimes against children are crimes against our common future and against our common humanity and the courts have repeatedly stated that they will do everything within their power to protect children.
56Further, there is an absolute prohibition on sexual activity with a child which is founded upon a presumption of harm and that prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity. That is activity before the age when a child can give meaningful consent. It is indeed for this reason that a child's consent is more accurately referred to as apparent or ostensible consent. Sexual activity between adults and persons under the age of 16 can have a lasting impact upon the emotional and psychological wellbeing of victims of such offending.
57In the circumstances of Charge 1–5 your victim, Stephanie, gave consent which of itself is not and can never be a mitigating factor, nor can that consent be considered in isolation, rather the Court will need to investigate ‘the circumstances in which the consent came to be given.’[10] Thus, in assessing the gravity of the offending the Court's attention must be focused not upon the consent as such but upon the circumstances in which the consent came to be given.
[10] See Clarkson v R (2011) 32 VR 361, [5].
58Your victim, Stephanie, was your niece by marriage, a member of your close family. You attended her first communion when she was 10 years of age. She had a difficult relationship with her mother, your wife's sister. By Winter 2018, her father Ethan was terminally ill and receiving palliative care. Stephanie was not coping and she was acting out. She came to live with you and your wife Rachel. Your home was intended to be a refuge for that troubled child. She was clearly needful, as evidenced by her request to call you dad within one week of moving into your home. You were some 33 years older than Stephanie and occupied a parental role. She clearly needed your care at such a difficult time. You may now struggle to comprehend quite why it was that you offended against Stephanie. What is clear is that over a period of some two and a half months she became for you a mere object to be used for your own sexual gratification. Your offending represented a gross breach of Stephanie's trust and of the trust placed in you by her family. It has had a devastating impact upon Stephanie and has truly atomised the family.
59You gave, I find, no thought to the impact of your offending upon your victim. On all charges you had full, unprotected penile-vaginal intercourse with your victim, exposing her to the risk of sexually transmitted infection. When Stephanie had been reported missing to the police, you denied having seen her, although she had in fact accompanied you on an interstate run and you had then brought her back to your home and sexually penetrated her, see Charge 5. When Stephanie told you on another occasion, the occasion of Charge 6, that she did not want to have sex with you, you said, 'I know you want to' and you proceeded to hold her down despite her cries of protest. When challenged by members of your victim's family about the appropriateness of your relationship with Stephanie, you said that you were merely trying to support her and you falsely claimed that she had told you that her own father had sexually abused her. As your lies demonstrate, you well knew that what you were doing was wrong.
60In your record of interview, you denied any sexual misconduct and maintained that you were trying your best to look after the child. You sought to suggest that other male members of her family had sexually abused her. Your record of interview contained a tissue of lies. It demonstrated no remorse. Your offending was not opportunistic. It manifested a degree of planning and premeditation. It was persistent and it was predatory and the moral culpability for your offending is high.
61Mr McFarlane, the sentencing process is not about revenge. It is not about retribution. It cannot give back to your victim and to her family that which they believe they have lost. In sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general and specific deterrence, that is I must deter others from behaving as you did, and I must consider the need to deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct. I must consider the need to protect the community from you and I shall promote, if possible, your rehabilitation. I must take into account the impact of your offending upon your victim and I must try to balance your personal circumstances with the circumstances of your offending.
62Finally, in addition to the matters I am required to take into account under s 5(2) of the Sentencing Act, I must also take into account that sexual penetration of a child under 16 is a standard sentence offence and I must therefore have regard to the standard sentence of six years' imprisonment and to the current sentencing practices under that sentencing regime. The prosecution submitted that with reference to the standard sentence, the offending in relation to Charges 1–5 was midrange and Charge 6 in the upper range of seriousness for offences of this kind.
63The standard sentence is a sentence for an offence in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.
64The standard sentence does not assume a dominant role in the determination of the sentence. It is but one of the factors to be considered and does not have primacy in the exercise of my sentencing discretion. It is part of the instinctive synthesis of the sentencing process along with all the other factors relevant to a sentence that are just and appropriate in all the circumstances of the case.
65The maximum sentence and the standard sentence are both to be taken into account as legislative guideposts in the sentencing process. The provisions do not require the standard sentence to be imposed nor is the standard sentence to be viewed as a starting point.
66Insofar as consideration of current sentencing practices are concerned, sentences imposed prior to the introduction of the standard sentence regime may be relied upon for general principles. However, s 5B2(b) of the Sentencing Act requires me to only have regard to sentences previously imposed for the offence as a standard sentence offence.
67Clearly in your case principles of general and specific deterrence, denunciation and protection of the community are to the fore. On Charges 3–6, I am required to sentence you as a serious sexual offender and ordinarily that means that I will be required to impose a sentence that is cumulative upon the other sentences. The prosecution has not sought to persuade me that I should impose a disproportionate sentence and I do not propose to impose a sentence that involves total cumulation. It is the duty of the Court to impose no longer sentence than is necessary in all the circumstances. It seems to me that justice can be done in this matter and the public can be adequately protected by a measure of concurrency that I think adequately deals with all of the sentencing considerations.
68I have regard to your plea of guilty which, although entered in the face of a strong, if not overwhelming prosecution case, brings with it the substantial benefit of saving the community the time and the cost of a trial and of saving your victim and her family from the trauma of having to give evidence.
69I have regard to your developing awareness of the impact of your offending upon your victim.
70I have regard to your assessed low/average risk of reoffending.
71I have regard to your prospects of rehabilitation and the support of your first family, to your character and antecedents. As Mr Cummins makes clear however, there is work to be done in sex offender programmes.
72I have regard to the uncertainties attending the custodial setting at a time of the
COVID-19 pandemic and I have regard to the overarching principle of totality.73Nonetheless, as you must be only too well aware, your offending is such that it can only be met by a substantial and significant term of imprisonment.
74Having identified and considered the relevant sentencing factors in assessing the appropriate sentence as part of my synthesis, including the maximum penalty and the standard sentences for each charge, in this case, I form the view that the sentence I will impose on Charges 1 to 5 is lower and the sentence on Charge 6 is above the standard sentence. I have greatly moderated the orders for concurrency I would otherwise have made, having regard to the principle of totality. Now, if you would be so good as to stand up, Mr McFarlane.
75On Charge 1, Sexual Penetration of a Child Under 16: you are sentenced to a term of imprisonment of five (5) years.
76On Charge 2, Sexual Penetration of a Child Under 16: you are sentenced to a term of imprisonment of five (5) years and two (2) months.
77On Charge 3, Sexual Penetration of a Child Under 16: you are sentenced to a term of imprisonment of five (5) years and four (4) months.
78On Charge 4, Sexual Penetration of a Child Under 16: you are sentenced to a term of imprisonment of five (5) years and four (4) months.
79On Charge 5, Sexual Penetration of a Child Under 16: you are sentenced to a term of imprisonment of five (5) years and ten (10) months.
80On Charge 6, Sexual Penetration of a Child Under 16: you are sentenced to a term of imprisonment of seven (7) years.
81I direct that four (4) months of the sentence on Charge 1, five (5) months on the sentence on Charge 2, six (6) months of the sentence on Charge 3, seven (7) months of the sentence on Charge 4, twelve (12) months of the sentence on Charge 5, run cumulative to each other and cumulative to the sentence on Charge 6. This makes a total effective sentence of nine (9) years and ten (10) months.
82I direct that you must serve a period of seven (7) years and two (2) months before you are eligible for parole.
83On Charges 3–6, you are sentenced as a serious sexual offender and I direct that this be entered into the records of the Court.
84Pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a total effective sentence of twelve (12) years and eight (8) months with a non-parole period of ten (10) years.
85Pursuant to s.18(4) of the Sentencing Act, I declare that you have served 517 days of the sentence that I have passed upon you and I direct that this be entered into the records of the court. Pursuant to s 34 of the Sex Offenders Registration Act you are now a registrable offender and subject to the provisions of the Act, you must comply with the reporting obligations under part 3 of the Act and the period of your required reporting is for the rest of your life.
86Now, Mr McFarlane, if you would be so good as to take a seat.
87OFFENDER: Thank you, Your Honour.
88HIS HONOUR: Now, Mr Brogden, my associate has caused the SORA documents to be emailed to the prison. They have been scanned and emailed to the prison and I understand authorities will make those available to Mr McFarlane so he can sign them and return them to the court whilst making a copy, yes.
89MR BROGDEN: Yes. Thank you, Your Honour.
90HIS HONOUR: Mr Brogden, I am sure that you or Mr Barbaro will be having a conference with Mr McFarlane in due course, so you can explain to him the core requirements of the Act. Mr McFarlane at a suitable time after your release you will have to go down to the local police station where you live and to make your report. These are one of the obligations that you have under the Sex Offender Registration Act, to which you will now be subject for the rest of your life.
91You have to give certain details, your name, your address, you age, your occupation, the registration of any vehicle but most importantly in this modern world, you must give every single online identity, avatar, password, domain name that you use. The Court takes breaches of the requirements, reporting conditions under the Act, most seriously. Police always prosecute and if you come in front of the courts for such breaches almost inevitably the sentence is a term of imprisonment. All right, Mr McFarlane? Now, Mr Brogden, any custody management issues?
92MR BROGDEN: No, Your Honour, there are no custody management issues for Your Honour to note and I will convey ‑ ‑ ‑
93HIS HONOUR: All right, Mr McFarlane, are you in receipt of any medication,
Mr McFarlane?94OFFENDER: No, Your Honour.
95HIS HONOUR: No. All right, sorry, I spoke over you, Mr Brogden.
96MR BROGDEN: I was just confirming, Your Honour, that I will convey those instructions in regards to the Sex Offenders Registration Act to Mr McFarlane.
97HIS HONOUR: All right, thank you for that. Now, there was a forfeiture order in relation to the Samsung phone. That is right, Ms Hamill?
98MS HAMILL: Yes, that is correct, Your Honour. I understand that is by consent.
99HIS HONOUR: Yes, it is consented to Mr Brogden?
100MR BROGDEN: That is correct, Your Honour.
101HIS HONOUR: All right, well I will sign that order. That is done so now. Ms Hamill, that will make its way duly signed to your instructor.
102MS HAMILL: Yes, Your Honour.
103HIS HONOUR: Thank you, Ms Hamill and your instructor and Mr Brogden and your instructor.
104MR BROGDEN: Thank you, Your Honour.
105HIS HONOUR: All right then, I am going to stand down.
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