Director of Public Prosecutions v Murchison (a pseudonym)
[2017] VCC 453
•8 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN MURCHISON (a pseudonym)[1] |
[1] A pseudonym
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2017 | |
DATE OF SENTENCE: | 8 March 2017 | |
CASE MAY BE CITED AS: | DPP v Murchison (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 453 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Sexual offences
Catchwords: Indecent assault of a person under 16 years – no memory of committing these offences
Legislation Cited: Judicial Proceedings Reports Act 1958, Jury Directions Act 2015,
Cases Cited: R v Lomax [1998] 1 VR 551, Ibbs v R (1987) 163 CLR 447, R v Sheriff (unreported) VSCA 19 March 1998, DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, DPP v Toomey [2006] VSCA 90, R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, HMcL v R (2000) 174 ALR 1
Sentence: TES 16 months imprisonment in combination with a 2 year community correction order and Registered Serious Sex Offender with lifetime reporting obligations.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Henderson | OPP |
| For the Accused | Mr J. Taaffe | Doogue O’Brien George |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the accused and the complainant in these reasons. The complainant will be called Julia Trenerry. The accused will be known as Brian Murchison. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for the use of pseudonyms.
[2] Section 4 Judicial Proceedings Reports Act
2 Brian Murchison[3], you have pleaded guilty to two charges of indecent assault of a person under 16 years, an offence which at the time of the offending had a maximum sentence of 5 years’ imprisonment.
[3] A pseudonym
3 I proceed to sentence you on the basis of the Prosecution Opening[4] which was read out in court as an agreed summary. I will briefly outline your offending.
[4] Exhibit A
4 In 1977, you married, and in 1979, your daughter Julia[5] was born. A son followed in 1981. One evening in 1991, when Julia was aged 11 years, you went into her bedroom, and after telling her to pull down her pyjama pants, you began touching her breasts under her pyjama top, and then with your other hand, you inserted a finger into her vagina. This penetration is the subject of Charge 1. You masturbated her, described graphically in the materials, until she said she needed to urinate. You let her leave the bedroom to do so, but were still there on her return.
[5] A pseudonym
5 When Julia got back into bed, you told her to pull down her pants again, and you again penetrated her, this time with two fingers, and proceeded to masturbate her, again graphically described in the materials. This penetration is the subject of charge 2. She said she needed to urinate again, but you told her she didn’t and to keep quiet. You told her to remember what you were doing as you were teaching her. After masturbating her for some time, you eventually stopped and allowed her to go to the toilet again. When she was in the bathroom washing her hands on her way back to bed, you asked her for a ‘proper’ kiss goodnight, putting your tongue in her mouth, and pressing yourself against her.
6 The charges allege the offending occurred between 1 January and 3 August 1991. On 4 August 1991, the law changed, and the type of act you perpetrated on your daughter became an offence of sexual penetration which, in the circumstances, would then have a maximum sentence of 15 years’ imprisonment. I must have regard to the maximum sentence for the offences to which you have pleaded guilty – 5 years – but the law is clear that the sentencing judge must look at the facts and circumstances in the particular case, and have regard to the express stipulation of Parliament on 4 August 1991 that what formerly was not characterised as sexual penetration was thereafter to be included as such for the purposes of the definition of sexual offences of the most serious kind.[6]
[6] R v Lomax [1998] 1 VR 551, 559 citing Ibbs v R (1987) 163 CLR 447; R v Sheriff (unreported) Victorian court of Appeal, 19 March 1998, 11-12
7 That penetration took place and that those acts were committed on your daughter are features that characterise the offences of the indecent assaults you committed as most serious, viz:
“extreme invasion of the victim’s person; exploitation of a vulnerable child; violation of societal norms; long-term and severe victim impact; serious breach of the trust reposed in [you] by the child …; and an undermining of the familial roots of society.”[7]
[7]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [72]
8 Your offending is also made more serious by the following:
· First, you told her to be quiet, and this, together with the confusion arising from the breach of trust and the event itself, I find contributed to Julia, now Ms Trenerry, feeling a need to protect you and not tell anyone about it, even when asked;
· Next, the impact on Ms Trenerry has been substantial and ongoing, as I will describe in a moment;
· Next, the offences occurred in her own bed, in a place where she was entitled to feel safe; and
· Lastly, you did not stop when you had the opportunity to do so when she went to the toilet for the first time, but instead you inflicted even more violation on her body when she returned.
9 What distinguishes offending calling for the maximum sentence to be imposed from less serious offending is the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred. On the one hand, you took advantage of your daughter; were persistent, by repeating the behaviour when she returned to the bedroom; were brazen in your offending against her, with your wife in the lounge room; and the acts themselves as described by Ms Trenerry involved what could be categorised as considerable force on a prepubescent child. On the other hand, it is sadly the experience of this court that there are worse examples of this type of offence. I make the finding that yours is not in the category calling for the maximum sentence to be imposed primarily because your offending was on one night only, and never repeated despite your daughter being accessible to you. Overall, my assessment is that I find your offending is at the high end of the range.
10 Ms Trenerry, now aged 36 years, courageously read her Victim Impact Statement[8] to the court. That statement was an eloquent and moving recital of the hurt, betrayal and long-standing issues that your offending has caused her. You, and all those who support your rehabilitation, need to recognise that Ms Trenerry’s rehabilitation has a long way to go, and she has not, in my view, received the support from family that you enjoy.
[8] Exhibit B
11 It has been recognised by the courts[9] that
“rehabilitation of the victim may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired…
The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.”
[9]DPP v Toomey [2006] VSCA 90, [22]
12 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[10], and which includes future harm[11]. In this case, the harm you caused to Ms Trenerry covers all these aspects, and has spread across the whole of the family, as she has decided to cease contact with you, and as your wife - her mother - continues to support you, ceased contact with her too. Your son has also ceased contact with you.
[10]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[11]Adamson v R [2015] VSCA 194, [56]
13 I want to say some things to Ms Trenerry. Nothing I say or do can take away the pain and suffering you have endured, and continue to endure. But you have shown your inner strength by reporting the offending even when it had been, as you describe it, ‘a family secret’ for so many years, and you have been vindicated by hearing the pleas of guilty he said out loud. You should always remember that you are not to feel guilty; the only one who is guilty is the one who pleaded guilty to abusing you. Consider yourself as a strong person who has survived; you now have children who depend on you, and who should be your continued focus when things get too much to bear. I echo your hope that ‘the hard and dark days are less often’, and I also hope that now that this case has been dealt with, there will be something brighter in your future. I wish you well.
14 Returning to you, Mr Murchison: I agree with your counsel when he said you have a complicated and concerning criminal history. It is important to say at the outset of consideration of this history that you maintain that you do not remember any of the offences for which you have appeared in court and pleaded guilty, including the two involving your daughter. It is to your credit that you have always accepted that if the victims say it happened it must have happened. However, despite your history of alcoholism to the age of 36 years, investigations have shown that there appears to be no organic reason for you to have memory loss for sexual offences you committed[12]. You do however, retain memories for sexual offences committed against you from 12-15 years, and of sexual experimentation you engaged in when you were aged 10. The expert opinion is that the memory loss for your crimes is psychological in nature[13]. It appears on the face of it that your memory for sexual matters is unusually selective, but I note that the results of your ‘Test for Memory Malingering’ indicated that you did not make a deliberate attempt to perform badly[14].
[12] Exhibit 4
[13] Ibid
[14] Ibid
15 Against that background, I turn to your offending history. You first offended against an 11 year old girl in 1983[15], when you were 29 years old. She was the child of family friends. This was not dealt with until 2009, when you were convicted and fined $1500 for one charge of indecent assault[16], and registered as a sex offender. It is likely that you were sentenced on the basis that this was the first offence you had committed, but it is also likely that it was taken into account that you offended subsequently, offending for which you had appeared in court by 2009. The allegation to which you pleaded guilty for the 1983 offence was that you touched this child on the breasts and vagina. Her mother apparently confronted you at the time, and you and your wife were no longer permitted to attend their home. So you were aware from 1983 that it was alleged that you had sexually offended in that way against a child.
[15] Details obtained from Exhibits A, 1, 3, and particularly 6.
[16] Cummins’ report prepared for the 2009 court appearance refers to two charges, but the criminal record - Exhibit C – lists only one.
16 You next offended in 1991, against two girls, aged 8 and 11, who were in the same grades respectively as your children, and who were family friends. Again, you touched them on the breasts and vagina. The offending apparently extended over 12 months. It seems to have been reported to police at the time because in 1992, you appeared in court for this offending. You were convicted and released on a 2 year community based order for two charges of indecent assault, with conditions to continue at Alcoholics Anonymous (AA) and attend psychiatric treatment.
17 This was the first time you had appeared in a court. I do not know what the court was told then, but as it would have appeared from the lack of criminal record that you had not committed any offences at that time, you were probably sentenced as a person who had not offended in this way before; that is, unless the court was advised that you had in 1983 allegedly committed similar acts against a girl of the same age because, as I stated a moment ago, you were apparently aware of this allegation, even if you did not remember the actual incident.
18 As a result of the 1991 offending being dealt with soon after it happened, your daughter was questioned by the police and by workers from the then Department of Human Services (DHS) about whether anything had happened to her. In her Victim Impact Statement, Ms Trenerry said she did not say anything to the DHS workers as they were strangers, and “said they would put [her] dad in gaol”. Elsewhere in that statement, Ms Trenerry says that she had to keep everything secret and protect her dad to keep the family together. I do not know if DHS were made aware of the 1983 allegation.
19 Ms Trenerry also said in her Victim Impact Statement that she told you and her mother about what you did to her a year or two after the event. You and your wife accept that you were confronted with the allegation, and that you slumped to the floor, cried and apologised. I accept that this reaction is a demonstration of remorse. You said you could not remember the offending.
20 You were an alcoholic at the time, and you stopped drinking ‘cold turkey’ when arrested for the offences against the two girls in 1991 and began attending AA. You, and your wife, were convinced that alcoholism was the cause of the offending that by 1992 or 1993, to your knowledge, had involved possibly four prepubescent girls, including your daughter. Your wife gave evidence on your plea and said that she did think of leaving you and taking the children, after your daughter told you both what you had done, but she decided not to, as you had “stopped drinking and [had taken] responsibility”.
21 It was submitted that you had not had any counselling or offence specific treatment; because the focus was on your alcoholism being the cause of your offending, your treatment was for that, and for depression.
22 According to Mr Cummins’ report[17], prepared for the 2009 court appearance, and provided to me by your counsel, you told Mr Cummins that “for perhaps up to one year prior to attending court in 1992, [you] received treatment for [your] alcoholism and the sexual offending from a Mr Ken Dungey, psychologist.”
[17] Exhibit 6
23 Also in that report, Mr Cummins noted that as at August 2008, you were attending on another psychologist, Mr Barry Cripps. Although you told Mr Cummins that you had been seeing Mr Cripps since 2007 for treatment of depression, you also said to Mr Cummins that you discussed with Mr Cripps your own sexual abuse at ages 12-15. It seems unlikely that such a topic would be discussed in a vacuum, and more likely that such a discussion would arise in the context of discussing the sexual offences for which you were about to appear in court, and also likely to be in the context of discussing the other sexual offending for which you had already been dealt with.
24 I do not know if Mr Dungey or Mr Cripps supplied reports to the court for the 1992 and 2009 appearances respectively. I do note that the 1992 court order included a condition “to attend psychiatric treatment”. As there is no material before me as to either attending on a psychiatrist, or failing to comply with this condition, the condition may have been meant to refer to attending on a psychologist, and continuing with that treatment would be consistent with you having attended Mr Dungey, psychologist, before the court appearance.
25 In any event, this material from Mr Cummins’ report, shows, at the very least, attendances on psychologists in which sexual matters were discussed to some extent. However, I accept that it may be that you did not receive from them what is now described as ‘offence-specific treatment’, designed to reduce the risk of re-offending.
26 Returning to your offence history, you next appeared in court in 2013 for failing to comply with a reporting obligation under Sex Offenders Registration Act. You were sentenced to 2 months’ imprisonment wholly suspended for 18 months. This related to a failure to disclose to the authorities an internet messaging username within the timeframe required by that Act.
27 You next offended against underage girls in 2014-2015. I accept your counsel’s submission that on the material before me, there appears to be two discrete periods of offending: 1983-1991, and 2014-2015 for contact offending, or from 2013 if the non-compliance offence is set as the beginning of the second period. The 2013 matter is relevant because it would have brought to the front of your mind the consequences of your past sexual offending, and the potential consequences if you re-offended during the period of the suspended sentence.
28 In the offending in late 2014 to early 2015, the girls were aged 14 and 12, and you touched them on the breasts and vagina, over their clothing. This offending led to you being dealt with on 16 August 2016, for four charges of committing an indecent act on a child under 16 years, and you received a total sentence of 4 months’ imprisonment on two of those charges, and on the other two charges were convicted and, following service of a period of imprisonment on other charges, to be released on a community correction order for 2 years with conditions of supervision, unpaid community work, and mental health treatment. There was no condition imposed for offence specific treatment, or completion of the Sex Offenders Program.
29 The offending against these girls breached the suspended sentence imposed in 2013 and that sentence was restored and ordered to be served cumulatively on the 4 months’ imprisonment. As a result, from 16 August 2016, you served 6 months’ imprisonment. In a peculiar piece of timing, your plea before me was on 16 February, the day you were eligible for release to commence your community correction order. You have remained in custody pending this sentence.
30
I turn next to the matters that I must take into account in your favour. The first of these matters is the fact that you pleaded guilty and did so at the earliest opportunity. This shows that you accept responsibility for your offending, and also demonstrates remorse for the impact of what you did on your daughter.
I have also had regard to the fact that you are pleading guilty, as you have on all previous occasions, despite professing to have no memory of any sexual events involving you as the perpetrator. Further, your plea of guilty has not only saved the community the time and cost of a trial, but importantly it has saved your daughter from the ordeal of giving evidence. As a result of your plea of guilty, the sentence I will impose is less than would have been imposed had you been found guilty by a jury after a trial.
31 I also have regard to the expressions of remorse found in the references provided by your wife and siblings[18], and in the letter you wrote to your daughter, which she does not want to see, but which was tendered to the court[19] and read by me.
[18] Exhibit 5
[19] Exhibit 2
32 Next, I heard submissions as to the effect on the sentence of you being dealt with about 25 years after the offences. You have been aware of the offending since 1992 or 1993 when your daughter confronted you. It was thought by you and your wife that as you had stopped drinking after the other offending in 1991, you would commit no further offences, and it seems from Ms Trenerry’s Victim Impact Statement that it is her perception that it was seen by you, her parents, as unnecessary to go to the police about your offending against your daughter. In those circumstances, the passage of time before report to police is not a significant matter that I take into account in your favour.
33 Further, the law recognises it is a common occurrence for victims of sexual offending, especially children, to find it difficult to report, and some never do.[20] The passage of time cannot significantly mitigate your crimes, because you contributed to your daughter’s inability to complain about it. I do accept to a small extent that once you had been confronted with these offences in 1992 or 1993, you may have had it in the back of your mind that your daughter would one day report to police and that this day in court would come.
[20] Section 52 Jury Directions Act 2015
34 When considering whether the time before this matter came to the attention of police is a mitigating factor, it is also relevant to consider what has happened in your life over the passage of time since you committed the offences. As I have outlined, you had already offended against two similarly aged girls in the same year as you offended against your daughter, and you then offended again 23 years later against two underage girls. Your wife described the effect of you being arrested in 2015 for the latest offending as ‘shattering’, as the realisation hit you, and her, that your offending was not caused, nor contributed to, by your alcoholism. It follows that while there was a long period in which you did not re-offend, it cannot be said that in the time since the offending against your daughter you did rehabilitate yourself, as you committed very similar offences, albeit against older girls, and over clothing.
35 I also have regard to the clear statements of the Court of Appeal that
“despite the antiquity of the offences and [your] apparently blameless life since then”[21] ,
“it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators”.[22]
[21]DPP v Toomey [2006] VSCA 90, [14]
[22] Ibid [17]
36 In your case, while you have contributed to society through your working life of over 40 years, your life since 1991 has not been blameless, and you have achieved very little by way of rehabilitation.
37 After the latest offending, you began seeing Dr MacKenzie, a clinical psychologist. She saw you on 14 occasions from February 2016, and her report[23] deals with your treatment but specifically does not address your risk of re-offending. Dr MacKenzie lists the goals of therapy: to reduce your long-standing symptoms of depression and anxiety; to increase your stress management skills; to explore your failure to remember your offences; to address offence specific issues; and to prepare you for ‘potential court outcomes’, which was in reference to the August 2016 plea hearing.
[23] Exhibit 3
38 Dr MacKenzie lists the offending that she was told about, which was confined to court appearances. She does not mention, and so presumably was not told about, the offending against your daughter[24]. That makes it hard for me to assess the “good progress in treatment” to which Dr MacKenzie refers, and the value of her impression that you are “committed to developing a greater understanding of [your] behaviour and [have] demonstrated a willingness to address the difficult and complex aspects of [your] past that are likely to be the major contributory factors to [your] offending.”
[24] Mr Cummins does not mention, and presumably was also not told about this in 2009, as it is not mentioned in his report.
39 Based on the information that she had, Dr MacKenzie considered she was not in a position to make a definitive diagnosis of paedophilia, which you deny, although she did not dismiss the possibility. I do not know if that position would be different had she known about the offending against your daughter. As I mentioned earlier, you discussed with Dr MacKenzie the sexual experimentation you engaged in at the age of 10, and the non-penetrative sexual abuse perpetrated on you from ages 12-15, neither of which apparently affected you adversely. Dr MacKenzie did note that these childhood experiences may have laid the foundation for possible cognitive distortions underlying your offending.
40 Dr MacKenzie has not provided an update to her report since the charges regarding your daughter were laid on 4 August 2016, nor since you were imprisoned on the most recent offending on 16 August 2016, as she has not seen you.
41 On all the material before me, I agree with the candid assessment of your counsel that your prospects for rehabilitation are guarded at best. I find that you still pose a risk to underage girls with whom you come into contact. Because of your apparent lack of memory, and, what I consider is your failure to be completely open about all the offending of which you have been made aware, there is little value in the opinions of the experts who have seen you and whose reports I have read. Yours is a most unusual case, and only complete frankness with the treating practitioners will allow a thorough exploration of the reasons for your offending, and allow the prospect of beginning to address these and reduce your risk.
42 For the same reasons, I do not consider it a significant mitigating factor that you voluntarily took steps towards your rehabilitation. While it is true that you began seeing Dr MacKenzie before you were ordered to do so by a court, it was after you had been arrested and charged with the latest offending, that timing no doubt due to a lack of memory, and you were not completely open with her as I have found. I do, however, take account of the fact that you have begun the long process of rehabilitation, and that regardless of today’s outcome, you intend to continue treatment with her. That is in your favour.
43 I have also taken into account your personal circumstances and background, which was comprehensively set out by your counsel in his written and oral submissions[25]. I note that you had a difficult upbringing, and were introduced to high alcohol consumption from the age of 16 by your father, but I also note your immediate and successful cessation of drinking all alcohol in 1991. Such prospects for your rehabilitation as there may be are enhanced by the ongoing support provided to you by your wife and your siblings, and the strength you displayed in becoming and remaining abstinent.
[25] Exhibit 1
44 There are two final matters before I turn to sentence. The first is that you are to be sentenced as a serious sexual offender for both charges, as a result of your earlier convictions.
45 Because of your status as a serious sex offender, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that.
46 It is also necessary for any sentences of imprisonment I impose today to be cumulative on each other unless I order otherwise, because of your status as a serious sex offender.
47 I have had regard to the serious sex offender sentencing regime and recognise that this regime places limits on the application of the principle of totality[26]. However, I have still considered the need for today’s sentence to reflect to an extent the totality of your offending in 1991: that is, four charges of indecent assault committed against three girls aged less than 12[27].
[26]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
[27] Two charges of indecent assault of a child under 16 against his daughter; and in respect of other offending in 1991 for which sentence was passed in 1992, two charges of an indecent assault of a child under 16 in respect of two girls.
48 Taking into account the multiple challenges of sentencing a person for offences committed on one occasion more than 25 years ago, current sentencing practice, the totality principle, although limited in its application in this case, and the factors to be taken into account in your favour, I will order that there be other than the total cumulation required by the serious sex offender regime.
49 The second matter is that as a result of my sentence today, you become a registrable sex offender once more, this time for life. You will be required within 7 days of today, or your release from custody, to report your personal details and begin a regime of annual reporting as required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life.
50
Your counsel conceded that in your case, there is a need for my sentence to deter other men from committing sexual offences against children, known as general deterrence; to deter you from re-offending, known as specific deterrence; to express the denunciation of the community of the crimes you have committed against your daughter; and to provide just punishment. He submitted that while a sentence of imprisonment, and even a substantial one, was an appropriate disposition, all of the purposes of sentencing in your case could be met by wholly suspending any sentence of imprisonment. He submitted that this would also permit you to begin the community correction order and recommence your rehabilitation, particularly the treatment with
Dr MacKenzie.
51 The prosecutor submitted that only a term of imprisonment to immediately be served was appropriate in the circumstances of your case.
52 I have decided that I have no alternative to a term of imprisonment in this case, and that there must be time to be served, because of the features I have outlined that lead to the conclusion that your conduct was at a high level of seriousness, and because of the risk you still pose to underage girls in the community. However, because of the steps you have taken towards beginning your rehabilitation and because Dr MacKenzie may now have a fuller context to your offending in which to assess and treat you, I have decided that after a period of imprisonment which I will announce in a moment, you are to be released on a community correction order for two years.
53 Because of the combined nature of the sentence I am imposing, and the punitive aspect of the community correction order, the sentences of imprisonment on each charge may appear to be lower than what would be imposed if you were to be sentenced to a term of imprisonment alone. The period of imprisonment will, however, be of such a period as to mean that you will not commence the community correction order which was due to commence on 16 February. I consider that it is vital to the protection of the community that you undertake the Sex Offenders program, and while that could be done as a program in custody before release on parole, I consider there is a need for you resume the therapeutic relationship you have established with Dr MacKenzie as a further step in protecting the community. Overall, I am satisfied that in all the circumstances, a combined sentence of imprisonment and community correction order is the appropriate disposition.
54 You have previously had explained to you the core conditions that are attached to every community corrections order, but I am obliged to inform you in this sentence. Those conditions are that you must report to and receive visits from Community Corrections; must notify Community Corrections of any change of address or employment; must not leave Victoria without the permission of Community Corrections; and must comply with any direction given by Community Corrections to ensure compliance.
55 I will also order that you comply with other conditions during that 2 years: you must be under supervision; you must attend for mental health treatment and assessment as directed by Community Corrections; you must undertake and complete a Sex Offenders program as directed by Community Corrections; and you must attend Dr MacKenzie or her nominee or as directed by Community Corrections for such a period as is deemed necessary for your rehabilitation. The assessment conducted this morning indicated a preparedness by Community Corrections to monitor this. Do you agree to be released after imprisonment to undertake a community correction order with these conditions?
DEFENDANT: Yes.
HER HONOUR: If your circumstances change after you commence the community correction order, you may apply to the court for the order to be varied or cancelled. If you do not comply with a condition of the order, you will be brought back before me to be re-sentenced and that may involve more time in prison. Do you understand what will happen if you do not complete a condition of the order?
DEFENDANT: Yes Your Honour.
56 HER HONOUR: You are convicted and sentenced as follows:
57 On charge 1 – 12 months’ imprisonment;
58 On charge 2 – 14 months’ imprisonment.
59 Charge 2 is the base sentence. I direct that ten months of the sentence imposed on charge 1 be served concurrently with the sentence imposed on charge 2. In other words, two months of the sentence imposed on charge 1 will be served cumulatively on the sentence imposed on charge 2.
60 That makes a total effective sentence of 16 months’ imprisonment, after which you will be released on a community correction order for two years with the conditions I just outlined.
61 By law, the community correction order will commence on your release from prison. Community Corrections are directed to notify me of the actual commencement date, as that is dependent on when the Corrections authorities release you from custody.
62 I declare that you have served 20 days in pre-sentence detention not including today, and that these are to be deducted administratively from your sentence.
63 I declare that in respect of both charges, you have been sentenced as a serious sex offender and that this be noted on the record.
64 You will now be asked by my Associate to sign two documents. The first is acknowledging that you now receive a form notifying you of your reporting obligations under the Sex Offenders Registration Act. The second is to show that you agree to abide by the conditions of the community correction order. Your lawyer will assist you with these forms.
65 I have also signed the community correction order and a copy of that will be provided to your lawyer after I have left the Bench.
66 Finally, if you had not pleaded guilty but had been found guilty by a jury of both charges after a trial, the total sentence I would have imposed is 4 years 6 months with a minimum of three years.
67 HER HONOUR: Are there any other orders required?
68 MR HENDERSON: No Your Honour.
69 HER HONOUR: All right thank you, yes Mr Murchison may be removed. Thank you, the video link can be disconnected and I will stand down now until the trial is brought on.
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