Director of Public Prosecutions v Murphy
[2020] VCC 1570
•1 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00803
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS MURPHY |
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| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May 2020; 1 October 2020 |
| DATE OF SENTENCE: | 1 October 2020 |
| CASE MAY BE CITED AS: | DPP v Murphy |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1570 |
REASONS FOR SENTENCE
---Subject: Criminal law
Catchwords: Use a carriage service to groom a person under 16 years of age
Legislation Cited: Criminal Code (Cth); Disability Act (Vic); Crimes Act 1914 (Cth); Sentencing Act (Vic)
Cases Cited:R v Verdins& Ors (2007) 16 VR 269; DPP v Singh [2017] VSCA 146; Meadows v The Queen [2017] VSCA 290; R v Nahlous [2013] NSWCCA 90; Ramply v The Queen [2010] NSWCCA 293; DPP (Cth) v Haynes (2017) 270 A Crim R 455; DPP (Cth) v Boyles [2016] VSCA 267; R v Gajjar [2008] VSCA 268; R v De Leeuw [2015] NSWCCA 183
Sentence:10 months imprisonment; recognisance release order to be released forthwith upon giving security by recognisance in the amount of $1000 to be of good behaviour for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Armstrong | Victoria Legal Aid |
| For the Accused | Mr A. Malik | Commonwealth Department of Public Prosecutions |
HER HONOUR:
1Nicholas Murphy, you have pleaded guilty on indictment to one charge of use a carriage service to groom a person under 16 years of age, which is contrary to s.474.27(1) of the Criminal Code (Cth).
2The offending that gives rise to this charge occurred over a period of about two months between 30 January 2017 and 25 March 2017.
3When sentencing you for this crime I must have regard to the maximum sentence for the offence that you have committed. The offence of use a carriage service to groom a person under 16 years of age carries a maximum penalty of 12 years imprisonment.
4In terms of the circumstances of your offending, they are set out in a document, which is detailed, and titled 'Summary of Prosecution Opening on Plea' dated 5 May 2020. It is what we call an agreed document and represents an acceptance by you of the elements of the offence to which you have pleaded guilty, and the factual basis on which I am to sentence.
5I do need to go through some of the details. In short compass, from a date prior to 31 January 2017 you began speaking to 'Katie' through Skout, an online dating application. Katie identified as a 14 year old girl. In your ongoing conversations she repeatedly referred to her age, to being grounded – or not being allowed to use her laptop – her schooling and her father.
6When you asked how old Katie was, and what she was looking for on Skout, she said she was 14 and 'bored'. You told her that her photo looked older than 14 and you repeatedly referred to Katie as 'sexy' and 'a sexy little angel'.
7The summary of prosecution opening details several conversations that you had with Katie. In these conversations you made explicitly sexual advances in the context of Katie expressly stating, on several occasions, that she was under the age of 16 years. I will not describe these contents in detail, as they are set out in that document, but I will briefly outline some of them in order to fully understand the serious nature of your offending.
8At various stages you asked Katie if she wanted to come to Werribee and watch Netflix or movies with you and offered to pick her up; referred to your penis as being too big for her, later indicating that you were only kidding; requested photographs from her; offered to drive up to see her to grab a movie – indicating you would probably want to kiss her if she was a few years older; told Katie not to tell her father your real age but to say that you were 21; and told Katie it would have to be ‘their secret’ if she did want to give you a ‘blow job’, as well as you going to gaol. You described to her what you meant by a ’blow job’ in detail and also referred to cunnilingus and to sex talk. You later apologised, stating that you did not want to make her feel uncomfortable.
9On 25 March 2017 there were conversations on Skout that indicated that the father of Katie was now communicating using the account, and that he was angry for what you had said and for trying to take advantage of his daughter. In response, you apologised. You said that you had said things that you should not have, but would never harm anyone. You stopped communicating with Katie from that point.
10On 25 and 26 March 2017 there were conversations referencing you being blackmailed by persons unknown and you were initially trying to find the money to pay. You said you never wanted to hear from Katie again and wanted to get on with your 'pathetic life', as you described it.
11On 31 March you attended Werribee Police Station, where you reported the alleged blackmail and provided a statement to police. You advised police that on 25 March 2017 a man had attended your residence demanding $9,000 or he would post online and email to your friends and colleagues screenshots of the conversations between you and Katie.
12You indicated, further, that on 31 March 2017 you had received a call from a man threatening to ruin your life if you did not transfer the $9,000 into the account provided.
13In response, police attended your residence in Werribee on 1 April 2017 and spoke with Sheree Miller, who invited police inside once it was explained to her that they were investigating an online blackmail allegation. In the lounge room, Ms Miller pointed to a Samsung tablet indicating that this was the only device that you used online, police looked at that device, intending to take photographs of messages relating to the alleged blackmail.
14Upon looking at the messages, police seized the device on the basis that the messages indicated possible grooming offences committed by you.
15Police later attended your residence that day, arrested you, and your mobile phone was seized. Further photos were taken of visible messages on Skout. You were conveyed to the Werribee Police Station, where you were then interviewed by police.
16In your interview you admitted engaging in conversations with Katie, believing she was 14 years old. You made substantial admissions.
17At conclusion of your interview you were released pending summons.
18In sentencing for online child exploitation offences general deterrence is paramount and an immediate term of imprisonment is ordinarily warranted. There is a clear public interest in such given this kind of offending can, firstly, be difficult to detect, and secondly, appears to be prevalent. The internet is a covert means of allowing such offenders to remain hidden and anonymous. Children must be protected from conduct that would otherwise inappropriately sexualise them at an age where they may be ill-equipped to protect themselves or respond either appropriately or even in their own interests.
19At the time of your offending you were well-aware of Katie's stated age, and I note the considerable age difference between you and your apparent victim. Your conduct is no less reprehensible because, unknown to you, Katie was a lure for blackmail, and I accept that this is a somewhat unusual circumstance for this offence to occur. It makes it no less serious. Your conduct appears predatory in terms of your request to meet, and arrangements to do so, and that your communications were of relatively high frequency within the two month period in which they were conducted. Although no materials or photos were actually exchanged, your communication with Katie involved graphic and explicit content. You desisted only when you believed you were the victim of a blackmail threat, not realising that this would then lead to police then investigating your own illicit activity.
20I do take into account your personal circumstances, which are significant in the sentencing of this matter. They have been helpfully outlined in both written and oral submissions and materials tendered on your behalf.
21You were born on 27 September 1976 - and if my maths is correct - you are now 44 years of age. You were aged 40 at the time of the offending. You were born in Port Lincoln, South Australia, and are the eldest of four children to your parents, Michael and Maryanne. You maintain a relationship with your younger brother, who lives nearby. The rest of your family reside interstate.
22Post-immunisation, at three months of age, you became ill and were observed to have delays in your development milestones such as sitting, crawling, walking, talking and even toilet training. At 15 months of age you collapsed and were admitted to hospital without known cause. These attacks continued, and when you were three years of age you were referred to a neurologist and received a diagnosis of epilepsy. It was confirmed around this time that you had, in fact, experienced a stroke.
23You did manage to complete Year 12 at school but struggled. You suffered from a speech impediment and learning difficulties, which required the assistance of a teacher's aide. You report being teased and bullied at school and did not have any friends.
24At the age of 19 you began using marijuana and reported heavy weekend use for some four to five years, but have been abstinent for in excess of 20 years.
25On leaving school you worked at Woolworths.
26In 2003, when 27 years of age, you moved from Port Lincoln to Thredbo, New South Wales, to live with your then partner, Ms Sheree Miller. In 2004 you both moved to Melbourne. You worked for a sports club for about 12 years, until approximately 2017. This was another year which led to significant change in your life. Obviously it was the year of the offending before this court.
27In September of 2017, you were the victim of a physical assault, having been struck while sitting in your car outside a supermarket. As a result of this assault your level of functioning deteriorated further. You are now unable to manage your own basic care needs and, in effect, withdrew from social activities. You have not worked or driven since this time, preferring not to leave your house, and that has led to what has been described as significant weight gain. I do not mean to be offensive with that reference.
28You and Ms Miller also ended your relationship in 2017 but continued to live together, and indeed continue to live together, with Ms Miller continuing to provide support to you with domestic chores and laundry, transporting you to appointments and assisting you to manage your finances. You are currently in receipt of the disability support pension and live a somewhat isolated lifestyle.
29You have no prior criminal history but were dealt with in the summary stream for subsequent dishonesty offences.
30Your plea before me commenced on 20 May 2020.
31A neuropsychological report authored by Dr Loretta Evans dated 12 June 2019, and a supplementary report also authored by her dated 8 March 2020, were tendered on your behalf. I do take the contents of each of these reports into account, which are of significance in the sentencing exercise. They were not the subject of challenge and are detailed as to your deficits and areas of relevance.
32In her first report you endorsed indicators for suicide. You were assessed with a full scale IQ of 57, indicating that your cognitive function was within the mildly intellectual disability range. Consistent deficits in perceptually based cognitive domains, as well as sub-optimal speed of mental and psychomotor processing speed, were also identified. Your literacy skills, despite your best efforts, were broadly equivalent to a Grade 5 level. You do not possess the cognitive skills required for effective problem solving. Your ability to maintain a degree of independent function is largely as a direct consequence of your familiarity with your environment, having been there some 15 years, well-learnt habits in that context, as well as having the continuing support of Ms Miller.
33Between assessments Dr Evans had been provided with details of this offending.
34In her addendum report of 8 March 2020 Dr Evans confirms her previous assessment as to your intellectual function. You also present with an underlying neurodevelopmental disorder that is permanent, with onset in your early childhood, and was likely to be present – and perhaps obviously so – at the time of your offending. Dr Evans found that the central factor to your offending appears opportunistic and reactive, as opposed to being considered or organised. Your cognitive profile is such that you can appreciate right from wrong at a simplistic level, and your capacity to make informed decisions which are truly reasoned is one she describes as 'basic'. You lack the ability to fully appreciate the consequences for your actions on others, and in my view therefore cannot be readily criticised for a lack of victim empathy or insight.
35Because of the complexity of your presenting problems and impairments
Dr Evans raised concerns about your prospects for rehabilitation. She recommends referral to intensive sex offenders treatment programs, concerned that you present with a high risk of re-offending which may possibly be mediated by your involvement or focus in alternative activities or employment over the longer term.36In a custodial setting Dr Evans opines that you will respond well to structure and predictability but that your poor non-verbal reasoning, inability to identify social cues and the likelihood of responding inappropriately in that setting is likely to lead you to be irritating to others, placing you at risk. Your cognitive deficits would make you potentially vulnerable to exploitation or manipulation, and you are also likely to experience a heightened degree of psychological distress and would need, on entering prison, to be monitored given expressed suicidal intent.
37Your counsel calls into your aid the principles of R v Verdins& Ors (2007) 16 VR 269. I am satisfied, largely based on the report of Dr Evans, that all limbs are engaged, and no challenge is taken to that by the prosecution.
38In addition, I have received and taken into account two letters from Anthony Stott, psychologist, dated 5 March 2019 and 19 March 2020. He opines, in his letter dated 19 March 2020, that you have made significant positive moves in your life and that you appear to fully understand that you do not have a future unless you act seriously and consistently to improve your life. At the time of his second letter he also observed that you had lost some 47 kilograms, which demonstrates an effort by you to make those improvements.
39A letter from Dr Rafael Milone dated 24 February 2020 was also tendered on your behalf and attached to your medical history. You have a confirmed diagnosis of epilepsy, experienced arthroscopy of your right knee in the year 2000 and 2004, had a radical orchiectomy for embryonal cancer and left yolk sac tumour in 2011, of which there was a relapse in 2012. You suffered Vitamin D deficiency in 2012, hepatic steatosis in 2017, idiopathic intracranial hypertension in 2018 and have reoccurring issues with cellulitis and diabetes. Dr Milone identifies your morbid obesity as your primary health concern. In essence, your physical health is poor. You remain substantially housebound and almost entirely reliant on Ms Miller's continued assistance.
40As referred, you suffer from recurrent cellulitis of the legs, which affects your mobility and daily activities. You were admitted as an inpatient at Werribee Mercy Hospital from 9 February to 14 February 2019 for treatment for cellulitis and consequent bacteria in the blood. You were re-admitted on 12 March 2019 for further treatment and your condition at that time remained severe. Any wounds apparently healed poorly and you have experienced sepsis through secondary to lower limb cellulitis. You have had multiple hospitalisations for this condition over the past year, including in March of this year. In addition, in February of this year you were admitted to the Royal Melbourne Hospital for investigation of suspected severe sleep apnoea and your mobility was described as being severely impacted.
41Following on from these hospital admissions you have engaged in significant weight loss in preparation for gastric surgery, resulting in some increased mobility and some improvement in your diabetic management. The COVID-19 pandemic has delayed this intended surgery until 2021 and you still present as morbidly obese.
42I have no information to assist as to how these conditions can be managed in the custodial setting and must presume that they would be properly addressed. I accept, however, that you would be understandably anxious that this would in fact be so, adding to the burden of imprisonment.
43In my view, delay also has a role to play in the sentencing exercise.
44You were arrested and interviewed on 1 April 2017 and charged on
15 September 2017. The matter proceeded by way of straight hand-up brief with committal to the County Court on 18 April 2018, as the informant had been unavailable to attend previously listed committal proceedings, and that was likely to remain the case. On 20 August 2019 a pre-trial ruling refused an application made on your behalf to exclude the evidence located by police on search of your premises in April of 2017. In response to that ruling you were then arraigned on 30 September 2019, where you entered your pleas of guilty to the current indictment and your trial was vacated. These court processes, whilst natural, have meant that this matter has been hanging over your head for some three years, and in circumstances where Dr Evans' assessment would indicate that you are particularly vulnerable to those stressors. This period also offers, in effect, opportunity to assess your future prospects.45It appears that the legal argument for the exclusion of evidence was a legitimate attack on the Crown case. Once a determination was made you entered your plea of guilty, representing what amounted to, in those circumstances, the first reasonable opportunity to do so. Your plea has saved the court the time and expense of contested proceedings. Whilst your remorse is less apparent, that factor carries less weight in terms of the assessment of your low cognitive functioning. These matters, in effect, will be all taken into account in your favour.
46On your behalf it is argued that I should deal with your offending by way of a community corrections order. I was referred by your counsel to the decisions in DPP v Singh [2017] VSCA 146 and to Meadows v The Queen [2017] VSCA 290. It was submitted by your counsel that the weight attached to the principles of deterrence and denunciation be moderated in light of your mild intellectual disability. As indicated, I accept this submission.
47The Crown position, as I understood it, was that a term of immediate imprisonment and a recognisance release order was the appropriate sentence. In addition to the decisions of Singh and Meadows the Crown referred me to a list of comparative cases, including R v Nahlous; Rampley v R; DPP v Haynes; DPP v Boyles – and I was also referred to the decisions of R v Gajjar and
R v Delu.48I have had recourse to the decisions to which I have been referred.
49The Crown submits the grooming offences have been held to fall within the class of offending for which general deterrence is the primary sentencing consideration: there is paramount public interest in promoting the protection of children, principles which I have already indicated are without question. The submission, at first instance, was that there was nothing extraordinary about the circumstances of your case such as to displace the need for a clear message that a sentence of actual incarceration is ordinarily warranted.
50At your original plea hearing your matter was adjourned for further plea in order that an extended pre-sentence report could be prepared as to your suitability for a community corrections order, with a justice plan attached, so that I was better informed. The position of the prosecution on that occasion, and remains, that such a disposition is not available under the Federal sentencing scheme and submissions have been provided to that effect. For reasons which will become clear I do not intend to settle that debate.
51In terms of the reports obtained I have received a statement of intellectual disability confirming that you do have an intellectual disability within the meaning of the Disability Act (2006). You have the concurrent existence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour – each of which became manifest before the age of 18 years.
52A disability overview report dated 25 September 2020 confirms that you are deemed eligible to receive assistance from disability services as of July of this year, and that you had not had prior contact with them. You expressed a willingness to continue to engage with Disability Justice to further identify support needs and future goals. You have been assisted to approach the National Disability Insurance Scheme. The report confirms that a disability justice co-ordinator will continue to support you through the process for eligibility and into the future. In effect, you are now linked in with disability services. This would appear to be a support not previously available to you and capable of offering you considerable and appropriate assistance.
53In addition, I have received an extended pre-sentence assessment from the Department of Justice and Community Safety dated 9 July 2020. That report assesses you at low risk of general offending but, for obvious reasons, did not assess your risk of sexual reoffending. The report writer expresses some concern about your ability to comply with a community corrections order. This is not a reflection of your willingness to be involved but a genuine concern about your presenting barriers in terms of your physical health and intellectual function. You are otherwise suitable for a community corrections order.
54A justice plan has also been formulated recommending that you engage with a disability justice coordinator from the Department of Health and Human Services and that you participate in a referral process for offence specific treatment as recommended. It appears to me, based on the reports and submissions from the parties, that you will be able to work with a disability justice coordinator independent of any justice plan and that there are mechanisms with which to implement offence specific treatment.
55The federal sentencing regime is set out in Part 1B of the Crimes Act 1914 (Cth). Under that regime the court must impose a sentence that is of a severity appropriate in all of the circumstances. That requirement must be read together with the need to ensure that the person is adequately punished for the offence.
56Section 16A(2) sets out a non-exhaustive list of factors that the court must take into account where they are relevant and known to the court. Of particular relevance to your case are the nature and circumstances of the offence, general deterrence, specific deterrence and prospects of rehabilitation, contrition, guilty plea, the need for adequate punishment and your character, antecedents, age, means and physical or mental condition. Section 16A(2AAA) requires the court to have regard to the objective of rehabilitation when sentencing for a Commonwealth child sex offence.
57Accepting the evidence of Dr Evans as to your future risk, I am otherwise satisfied that you do present with reasonable prospects of rehabilitation. For you there has been both sanction and deterrence from the court process. I accept that you are deeply ashamed. You have considerable pro-social support in your lasting friendship with Ms Miller and additional supports can be put in place to assist you. You have completed some psychological work with Mr Stott and are motivated to have a healthier lifestyle which will be further assisted by the surgery contemplated in the new year. This assessment also factors into account that you have no prior criminal matters and nothing since your offending period, a description which encompasses the two months the subject of the charge on the indictment and the offences of dishonesty committed in November of 2017 and January of 2018. This represents a relatively confined period of your life overall. There have been no matters in over two and a half years. Important to this assessment is your now formerly recognised intellectual disability, the neuropsychological assessment of Dr Evans, and the assessments undertaken by the Department of Community Safety and Disability Services which are capable of tailoring treatment to your now identified needs.
58I will make the ancillary orders as sought for forfeiture of electronic devices used in connection with the commission of the offence which was not opposed. I understand I am required to put you on the Sex Offenders Register for a period of eight years.
59For Mr Murphy's purposes he will be required to report and subject himself to a regime of supervision for that eight year period and you will be provided with documents also which set out your obligations under that regime and Mr Malik can helpfully assist you with.
60Overall, I am satisfied that the gravity of your offending and the need for general deterrence still needs to be reflected in the imposition of a prison term. In the Commonwealth sentencing regime, gaol does remain a situation of last resort. In my view there are aspects of your case which are “out of the ordinary.” The combination of your personal circumstances, particularly those relating to your physical health and cognitive function, are such as to take your situation from the norm where the term of imprisonment to be imposed is not one that needs to be immediately served. There remains in my view a place for mercy.
61Accordingly in relation to Charge 1 you are convicted and sentenced to 10 months imprisonment commencing from today but I make a recognisance release order in your case and order that you be released forthwith upon you giving security by recognisance in the amount of $1000 to comply with the conditions that you be of good behaviour for a period of two years and you submit for treatment conditions.
62The purpose of these orders is to punish you for the crime you have committed. The effect is that you will have a sentence of ten months hanging over your head from today for a period of two years during which time you must not commit another offence punishable by imprisonment as that will put you at risk of breaching your recognisance as you may then be ordered to serve a period of ten months in prison.
63Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty. If not for your plea of guilty I would have sentenced you to 18 months imprisonment with a requirement that you serve ten months before release on a recognisance release order to be of good behaviour for a period of 18 months.
64Hopefully that is all relatively clear for you, Mr Armstrong, and please let me know if I have made any errors.
65MR ARMSTRONG: Your Honour, specifically you are correct about the Sex Offenders Registration Act order but, Your Honour, can I bring to your attention s.20, the recognisance release order provision, in particular sub-s.(1) and paragraph (d), I do not know whether Your Honour has that easily available to you, but again it is a relatively new provision.
66Should I read it to Your Honour or the relevant parts at least?
67HER HONOUR: Yes, thank you.
68MR ARMSTRONG: If Your Honour does not have it immediately available to you it provides that, Your Honour, when you sentence to a recognisance release order under s.20(1)(b) you may direct that the person be released upon giving security of the kind referred to, and Your Honour has done that.
69Then it goes on now, Your Honour, to say, '(1) if none of the offences is a Commonwealth child sex offence either immediately or after the person has served the specified period of imprisonment relevantly', then the parts.
70The second sub-paragraph, Your Honour, reads as follow: 'If at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances after the person has served a specified period of imprisonment that is calculated in accordance with sub-s.(19AF)'.
71I will take Your Honour to that if necessary, but finally sub-paragraph (b)(iii) reads, Your Honour: 'If at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances it be directed the person may be released immediately', which is what Your Honour intends to do.
72My simple submission, Your Honour, is to alert you to that new provision. Again there may be debate as to its applicability given the differentiation between the provisions of the Act at the time of the offending as opposed to now as they are at the time of sentencing.
73But since Your Honour has already in your reasons for sentence found that these are circumstances out of the ordinary in the case of Mr Murphy it may be as a matter of caution, Your Honour, that that would easily translate into a finding that these are exceptional circumstances if s.20(1)(b) raises its head at any stage, Your Honour.
74HER HONOUR: Mr Armstrong, I should have asked you about that at the outset so my apologies to you and Mr Malik. I had taken the view that the s.16(2AAA), that I did ask you about, did have application to this matter and invited a response from you.
75I had also taken the view that the requirement to find ‘exceptional circumstances’ did not apply to this matter but I did not raise that with you for which I do owe you an apology. I took the view that it was not applicable to this matter because of the timing but I did not raise that with you.
76MR ARMSTRONG: I just wanted to make sure, Your Honour, that as I anticipated Your Honour was aware of it but that when particularly Your Honour made the comment that you found that the circumstances were out of the ordinary that that was an appropriate time to make sure that Your Honour was aware of this new provision, that is all.
77HER HONOUR: Yes, in terms of that particular sentence I will amend that so that in my view there are aspects of your case which are out of the ordinary if not exceptional.
78MR ARMSTRONG: If Your Honour pleases.
79HER HONOUR: But that is my reference in any event independent about the debate we have just engaged in about whether that particular section has relevance to this case which I am not sure that it does. But either way the circumstances of this case can be so described whether I need to or not.
80MR ARMSTRONG: Yes, in my submission Your Honour's made it clear that if by some argument or operation of principle s.20(1)(b) applies then Your Honour's finding is that there are exceptional circumstances in this case.
81HER HONOUR: It is, Mr Armstrong.
82MR ARMSTRONG: If Your Honour pleases.
83HER HONOUR: Mr Malik, did you want to be heard in relation to that or indeed any other slip ups I might have made?
84MR MALIK: No, thank you, Your Honour.
85HER HONOUR: You have quite the task ahead of you, Mr Malik, because you will need to explain as best that you can what I have just done. The bottom line for Mr Murphy is I am not locking him up.
86MR MALIK: Yes, Your Honour, I think he understands that and just one other matter from me, Your Honour, in relation to the plea hearing on 3 April which was vacated due to the coronavirus pandemic if I could ask for a certificate for that particular date, Your Honour?
87HER HONOUR: Of course, Mr Malik.
88MR MALIK: Thank you very much, Your Honour.
89MR ARMSTRONG: Your Honour, could I ‑ ‑ ‑
90HER HONOUR: I would be grateful if you can take - sorry, I will come back to Mr Armstrong. Mr Malik, I would be grateful if you can take your client through the release order when it comes through. I am going to need to check that anyway.
91I think it is relatively clear what I intend to be contained but I await Ms Simpson's interpretation of those. We have received a draft apparently. Actually I might stay and have a look so was there anything else that you wanted?
92I want you to explain the sexual offenders registration to your client too if you do not mind.
93MR MALIK: Of course.
94HER HONOUR: Anything else from your end before I return to Mr Armstrong?
95MR MALIK: No, Your Honour.
96HER HONOUR: Mr Armstrong?
97MR ARMSTRONG: Your Honour, I was just going to tell you that the draft order had been sent through by my instructor.
98HER HONOUR: Thank you. I might run through it then with all of you if that is all right once I have had a quick look myself.
99MR ARMSTRONG: Your Honour, can I speak to the draft document? I have had a bit of an opportunity to look through it.
100HER HONOUR: Yes, you can. I am not working off anything at the moment and have we got one through to Mr Malik as well?
101MR ARMSTRONG: Yes, it was provided to all the parties, Your Honour.
102HER HONOUR: Just give me a moment. That looks pretty spot on to me. What did you want to say, Mr Armstrong?
103MR ARMSTRONG: Only that it looked pretty spot on, Your Honour.
104HER HONOUR: What phrase would you like to describe it, Mr Malik?
105MR MALIK: Your Honour, perhaps if I can just come to the conditions that would appear to incorporate conditions under both the corrections order and a justice plan in that Mr Murphy will be supervised by one corrections and by DHHS if that was Your Honour's intention.
106HER HONOUR: It seems to me that that supervisory role will be there which is definitely my intention.
107MR MALIK: I just query whether there is a double up of services, if you like, in a sense that he is currently subject to a corrections order that the treatment conditions are more properly administered by DHHS as opposed to Corrections under the justice plan that has been provided as opposed to involving community corrections.
108HER HONOUR: My experience is that they in effect sort that out between themselves.
109MR MALIK: As Your Honour pleases.
110HER HONOUR: But if you have got any particular concerns I am happy to hear from you.
111MR MALIK: It is more really about a doubling up of resources and whether involving both Corrections and the Disability Justice Coordinator that there is in effect a doubling up is the only issue that I raise given that the treatment conditions are more likely to be administered by the Disability Justice Coordinator as opposed to Corrections.
112HER HONOUR: For such assistance that it offers, which is probably none, my experience is that a double up of resources does not occur when one agency does not have to do anything, they happily handpass it to the other, but do you have a difficult with it because I am quite happy with it myself?
113MR MALIK: No, Your Honour.
114HER HONOUR: Which is not meant to put any pressure on you.
115MR MALIK: No, there is no difficulty with the order, it was just I wanted to raise the issue about doubling up of resources but no doubt the two departments will sort it out between themselves.
116HER HONOUR: Mr Murphy, I am just going to turn to you for a moment before I disappear so that you can speak to Mr Malik because there is a number of documents you are going to be asked to sign, but in terms of the order that I have made I have indicated that you are not going to gaol. I know that was a concern for you, so that is the first thing.
117But there is gaol hanging over your head so you need to be good for two years.
118OFFENDER: Yes, that is easy, I am going to be very good.
119HER HONOUR: I think that is right, Mr Murphy, but otherwise apart from promising to be good for two years you will have some supervision from the correctional services so that will require you to show up or make contact with their office within two days and it is the office in Werribee so that is hopefully close.
120You will be required to report to and receive visits from them and I know that you have got some idea about how they work. You do need to let them know within two days if you change where you are living or your work. You cannot leave Victoria without their permission.
121You have to obey their lawful instructions or directions. It is part of the order that you do engage with the Disability Justice Coordinator. I am really pleased that that is going to be available to you and you do have to engage with support services and treatment services that they think might help you.
122You will be referred for what we call offence specific treatment. That is for you to be assessed to work out whether you need help to make sure you do not get in this sort of trouble again.
123OFFENDER: Yes.
124HER HONOUR: There is also a requirement that you engage in counselling that Disability Justice organise for you to help with your mental health.
125OFFENDER: No worries, thank you so much.
126HER HONOUR: That seems to cover the bases as far as I am concerned. So I will give you the chance to speak to Mr Malik as soon as I quieten down and he will discuss that with you and he will discuss the sex offenders registration. This will be signed by me and then sent through to the Werribee court.
127We have discussed you need to be there between 3.15 and 3.30 to sign the documents and then it will come back to me.
128OFFENDER: That money, can I pay that today?
129HER HONOUR: You do not have to pay that. The money only becomes at risk of being paid if you break this order.
130OFFENDER: So I do not have to pay $1000 today or not?
131HER HONOUR: Not today and hopefully never.
132OFFENDER: No worries, thank you so much.
133HER HONOUR: Because you are going to promise me to be good for two years.
134OFFENDER: Yes, I will promise to be good anyway, yes, sorry, I got confused.
135HER HONOUR: That is all right. Mr Armstrong, anything further?
136MR ARMSTRONG: No, thank you, Your Honour.
137HER HONOUR: Can I thank you for your enormous assistance today and also for that of your instructor? Mr Malik, anything further?
138MR MALIK: No, thank you very much, Your Honour.
HER HONOUR: Thank you again for your assistance as well. I will close the court, thank you.‑ ‑ ‑
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