Director of Public Prosecutions v NcNiece
[2017] VCC 2043
•22 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00814
| DIRECTOR OF PUBLIC PROSECUTIONS (C’th) |
| v |
| KENNETH McNIECE |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2017 | |
DATE OF SENTENCE: | 22 December 2017 | |
CASE MAY BE CITED AS: | DPP v NcNiece | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2043 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Using carriage service to solicit child pornography material – procuring a child to engage in sexual activity outside Australia – procuring a child to engage in sexual activity – using a carriage service to transmit indecent communication – possession of child pornography material
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – Phillips v R [2012] VSCA 140 – Verdins (2007) 16 VR 269 – DPP and DPP (C’th) v Meharry [2017] VSCA 387
Sentence: TES: 4 years’ 10 months to serve a non-parole period of 2 years’ and 2 months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP (Plea) (Sentence) | Mr A Portelli Mr Stevens | CDPP |
| For the Accused (Plea) (Sentence) | Mr A. Marshall Mr C.K. Wareham | James Dowsley & Associates |
HER HONOUR:
1 Kenneth McNiece, you have pleaded guilty to:
· three charges of using a carriage service to solicit child pornography material, a Commonwealth offence with a maximum sentence of 15 years’ imprisonment;
· one charge of procuring a child to engage in sexual activity outside Australia, a Commonwealth offence with a maximum sentence of 15 years’ imprisonment;
· one charge of procuring a child to engage in sexual activity, a Commonwealth offence with a maximum sentence of 15 years’ imprisonment;
· three charges of using a carriage service to transmit indecent communication, a Commonwealth offence with a maximum sentence of 7 years’ imprisonment; and
· one charge of possession of child pornography material, a State offence with a maximum sentence of 10 years’ imprisonment.
2 I sentence you on the basis of the Prosecution Opening[1], which is an agreed summary.
[1] Exhibit A
3 In brief terms, in two short time frames at the end of 2015 and in mid-2016, you apparently trawled the internet to find teenage boys to whom you could talk in explicit sexual terms and request them to send you images of themselves, to whom you sent pornographic images in one instance, and two of whom you procured to engage in sexual activity.
4 Between 29 and 30 December 2015, on Facebook messenger, you requested SP, a person who you believed to be a 15 year old boy living in the Philippines according to his profile page, to send you images of himself that by your explicit descriptions, clearly constituted child pornography. No images were sent. (Charge 1 - using a carriage service to solicit child pornography material). Your other conversations with this person were explicit and indecent and included you transmitting four images of an erect penis and one displaying semen. (Charge 2 - using a carriage service to transmit indecent communication)
5 Between 30 December 2015 and 1 January 2016, on Facebook messenger, you gave advice and directed JH, a person who you believed to be a 15 year old boy living in the United Kingdom, to engage in sexual intercourse with his girlfriend. (Charge 3 - using a carriage service to procure a child to engage in sexual activity outside Australia)
6 On 31 December 2015, you requested JH to send you images of himself that by your explicit descriptions, clearly constituted child pornography. No images were sent. (Charge 4 - using a carriage service to solicit child pornography material)
7 The next offence occurred in July 2016. On 18 July 2016 you communicated with JC, a person you believed to be a 15 year old boy living in the United States of America according to his profile page. Your conversations with this person were explicit and indecent. (Charge 5 - using a carriage service to transmit indecent communication)
8 On 23 July 2016, you communicated with MJ, a person you believed to be a 15 year old boy living in the United States of America according to his profile page. Your conversations with this person were explicit and indecent. (Charge 6 - using a carriage service to transmit indecent communication)
9 Between 9 and 15 August 2016, you communicated with an undercover police officer, a person you believed to be a 14 year old boy. You asked him to engage in sexual intercourse with you and said that you would teach him. (Charge 7 - using a carriage service to procure a child to engage in sexual activity)
10 On 10 August 2016, you requested that person to send you naked images of himself. No images were sent. (Charge 8 - using a carriage service to solicit child pornography material)
11 Following this online communication with an undercover police officer, on 26 August 2016, police executed a search warrant at your residential address where they arrested you and seized electronic devices. Through analysis of these devices, police located the communications with the underage males. Apart from their names, Facebook accounts and profile pages, these males could not be further identified. The important point is that in each instance, including the communications with the undercover police officer, you believed you were dealing with an underage male.
12 Analysis of the electronic devices also revealed that you were in possession of 283 child pornography image files and three child pornography video files. The majority of the files were in Categories 2-5[2] and depicted children aged between 8 and 16 years of age engaged in sexual activity. (Charge 9 – possession of child pornography)
[2] Ibid, [30]
13 These are all very serious examples of very serious offending. In all communications, there was, or you believed there to be, a significant age difference between you and the people involved.
14 As to the charges of procuring sexual activity, in both instances, the sexual activity you were encouraging was sexual penetration. While the people you were encouraging were, to your belief, just under 16 years, being aged 14 and 15, and while you did not offer inducements to them, you were persistent in both instances of procuring, and took it further by inviting the person in charge 7 to meet up with you for the purpose of sexual activity.
15 As to the charges of soliciting, these were serious attempts to sexualise the children, and, in effect, were requests for those children to make child pornography by taking and transmitting images of themselves. Fortunately, no victim did accede to your depraved request.
16 As to the charges of transmitting indecent communications, the language used was highly explicit and grossly indecent. The offending in charge 2 is made even more serious by including transmissions of the images I earlier described.
17 As to the possession of child pornography, every child depicted in the images you possessed is a victim, not just during the appalling abuse suffered at the time of the creation of the pornography, but forever, as these images cannot be wholly removed from the internet. As they grow older and learn the real significance of what was done to them, if they were not old enough to realise it at the time, they will have to live for the rest of their lives with the awful knowledge that at any given time, someone like you will be looking at them, thereby perpetuating their abuse.
18 While your offending in charge 9 was not committed for profit, and the pornographic material identified did not involve as large a quantity as found in other cases, your participation in the global market involving the possession, production and distribution of child pornography is nevertheless of high seriousness.
19 Although I have no statements describing the particular impact on any of the child victims in these charges, because they have not been further identified, it is presumed that they suffered harm from a sexual offence being committed against them, harm which can be both long term and serious, and both physical and psychological[3], and which includes future harm[4].
[3]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[4]Adamson v R [2015] VSCA 194, [56]
20 For sexual offending against children, it is expected that the court will impose a sentence which reflects the seriousness of such conduct, condemns and denounces the conduct, and provides protection to the most vulnerable in society.
21 As against this most serious offending, I must consider some factors that are to be taken into account in your favour.
22 The first of these factors is your plea of guilty at an early opportunity. This shows that you now accept responsibility for all your offending, and also demonstrates remorse. Because of your plea, you have saved the community the time and cost of a trial, and demonstrated your willingness to facilitate the course of justice, even though the case against you is strong[5]. As a result of the effect of your plea of guilty, the sentence I will impose is less than would otherwise have been the case.
[5]Phillips v R [2012] VSCA 140, [36]
23 Next, I take into account that you have no criminal record and so will be sentenced as a person who had not committed any crimes before December 2015. Also, you have not committed any crimes since. I note that you did not have a computer until 2014, and have not owned a computer since August 2016.
24 Next, I take into account your personal history and circumstances. You turned 45 yesterday. You have a brother and a sister, and your mother is still alive, but you have no contact with any of them. Your parents separated when you were aged 12 months and you met up with your father again when you were 30. Both of your parents were problem drinkers of alcohol, as are you.
25 You grew up living in various houses with your mother, stepfather and siblings and this meant your schooling was disrupted. You were bullied in both primary and secondary school. You left in Year 11 and have had a few unskilled jobs over the years. You began drinking when you left school at age 17 and your habit is to drink in binges “until [you] drop”, or the money runs out. Most of the time you were living with your family they did not speak to you, so you stayed in your room, or went to a hotel to drink.
26 In 2013, you received about $300,000 from your father’s estate after a successful Part IV application, moved in to your own flat and stopped the security work you were then doing to live on your inheritance. You have had no contact with your family since.
27 The only happy times in your life appear to be when you lived with your aunt and uncle for eight years when you were in your early 30’s, and the time you spent umpiring Australian Rules football in the VAFA, which was also your only social contact. You can no longer partake in this pastime due to injuries, and due to the offending for which I am sentencing you.
28 By 2015, you had used up your inheritance with living expenses, drinking, and making loans to others who never paid you back, and so had to leave the flat. You have moved from boarding house to boarding house ever since. You have no close friends and have never had a long term adult intimate relationship. You spend your time in your room or at a hotel, drinking and watching acquaintances play on poker machines.
29 This case first went to court in November 2016. In May 2017, you began seeing a psychologist, to whom you were referred by your GP for treatment. A report was provided to the court[6] dated 14 September, saying that you had been seen by the psychologist six times to then. The psychologist was of the opinion that you initially had a poor understanding of your offending but with the treatment you have come to understand that your victims were highly vulnerable and that you were predatory. You recognise that you previously minimised your offending, and have also begun to understand that you had been a risk for some time but had not wanted to acknowledge it. Longer term counselling was recommended.
[6] Exhibit 3
30 As part of your treatment you also attended alcohol counselling and I received an attendance report from Access Health and Community[7] stating that you had attended for assessment and six sessions of treatment between 14 July and 14 September 2017 but there is no indication of how you responded to the alcohol counselling or what further treatment is required.
[7] Exhibit 4
31 You were also assessed by clinical psychologist Carla Lechner who provided a report dated 27 October 2017[8]. Following a self-report questionnaire, she considered that you presented with Alcohol Use Disorder and Depressive Mood Disorder with some schizoid personality traits such as poor social and communication skills and a solitary lifestyle, and moderate anxiety. She thought it not surprising in your circumstances[9] that you are experiencing symptoms of depression with your use of alcohol inadvertently aggravating your low mood state and poor self-esteem.
[8] Exhibit 2
[9] She described the offender as ‘cognitively, socially and emotionally immature’, ‘not very bright and living in a virtual social vacuum’.
32
You told her that at a hotel you would be drinking and apparently watched child pornography and became aroused, and at home, you apparently masturbated while looking at child pornography. Ms Lechner formed the opinion that you are hebephilic, as your sexual interest is teenage boys, and that your risk of
re-offending is moderate.
33 Based on the information you gave her, Ms Lechner concluded that your offending occurred in the context of depression to the point of being suicidal, heavy drinking, loneliness and some deviant interests. Your counsel submitted on your behalf that this brought into play the principles of a case called Verdins[10] and that the need for my sentence to deter others should be moderated to some extent. He also submitted that the opinion of Ms Lechner that you are likely to struggle in prison in light of your social, cognitive and emotional immaturity should be taken into account as making prison harder for you than for someone without your issues.
[10] (2007) 16 VR 269
34 Your counsel submitted that a community correction order which addressed your rehabilitation and assisted you would reduce your risk of re-offending and thus protect the community, and was therefore an appropriate sentence as an alternative to a term of imprisonment, given the limited period of offending and your difficulties as I have just outlined. You were assessed as being suitable for such an order.
35 The prosecutor submitted that only a term of imprisonment was appropriate for these serious offences, and referred me to a table of comparative cases, as well as statements of principle about cases involving child pornography and procuring offences. In response to your counsel’s submission, he submitted that while a community correction order was available, the court was urged to impose a sentence of imprisonment, where there are options to provide the support for rehabilitation that you require in a parole period.
36 I have decided that the significant social disadvantage suffered by you is relevant as a general mitigatory factor that I take into account in determining the appropriate sentence, but does not invoke the principles in Verdins. As a result of my finding, there is a slight reduction in your moral culpability. However, I find that the principles of specific and general deterrence, by which you and others must be deterred from such offending through today’s sentence, and the principle of denunciation remain of paramount importance in a case involving sexual offending involving children via the use of the internet.
37 I can only sentence you to a term of imprisonment if it is of a severity that is appropriate in the circumstances, and no more severe than is necessary to achieve the purpose for which sentence is imposed.
38 I have considered your prospects for rehabilitation and agree with the prosecution that they are guarded, by reason of the issues set out in the exhibited psychological reports, and the diagnosis of hebephilia. You have begun work on some of these issues which is important and to your credit, but much more needs to be done in order to protect the community from you. I accept that not having a computer reduces your risk of online offending, but the risk still exists, particularly without offence specific treatment and treatment for your alcoholism and underlying issues.
39 As a result of my sentence today, you become a registrable sex offender. You will be required within 7 days of 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. You will now be given a form by my Associate notifying you of your reporting obligations under the Act and asked to sign that to acknowledge that you have receive that form.
40
Mr Wareham, perhaps you might accompany my Associate to explain to
Mr McNiece what the form involves.
41 MR WAREHAM: If Your Honour pleases.
42 HER HONOUR: I have taken into account all relevant matters under the Commonwealth Crimes Act, and the Victorian Sentencing Act, including that if you are to be sentenced to a term of imprisonment, you would be entering custody as a first time offender at the age of 45 and prison would be harder for you because of your depression.
43 I have decided that there is no alternative to imprisonment. Apart from the statements of principle that the prosecutor referred me to, just yesterday, the Court of Appeal said,
“The ease with which offences of this kind are committed using the internet makes it imperative that those who might be inclined to act in this way should be made aware that, if detected, they will face very lengthy terms of imprisonment indeed.”[11]
[11]DPP and DPP (C’th) v Meharry [2017] VSCA 387
44 Now before I proceed to the sentence, I will have provided to counsel my proposed sentence in the hope that is accurate. Thank you.
45 COUNSEL: Thank you, Your Honour.
46 HER HONOUR: Yes, stand up, please, Mr McNiece.
47 You are convicted and sentenced as follows:
48 On charge 3 (Commonwealth) – 2 years 6 months’ imprisonment. That sentence starts today.
49 On charge 7 (Commonwealth) – 2 years’ imprisonment. That sentence starts 21 months before the expiration of the sentence imposed on charge 3.
50 On charge 1 (Commonwealth) – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence imposed on charge 7.
51 On charge 4 (Commonwealth) – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence imposed on charge 1.
52 On charge 8 (Commonwealth) – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence imposed on charge 4.
53 On charge 2 (Commonwealth) – 8 months’ imprisonment. That sentence starts 6 months before the expiration of the sentence imposed on charge 8.
54 On charge 5 (Commonwealth) – 6 months’ imprisonment. That sentence starts 5 months before the expiration of the sentence imposed on charge 2.
55 On charge 6 (Commonwealth) – 6 months’ imprisonment. That sentence starts 5 months before the expiration of the sentence imposed on charge 5.
56 The effective Commonwealth sentence is 3 years 10 months’ imprisonment.
57 I direct that the prisoner serve 1 year 8 months of the federal sentence before becoming eligible for federal parole. If the prisoner is released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If the prisoner fails without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and the prisoner may be ordered to serve the balance of the sentence in prison. The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community, if the prisoner is considered to be suitable.
58 On charge 9 (State) – convicted and sentenced to 12 months’ imprisonment. The effective State sentence is 12 months’ imprisonment. I direct that the prisoner serve 6 months of the State sentence before becoming eligible for State parole.
59 The effect of the orders for commencement of sentences on all charges is a total effective sentence of 4 years 10 months’ imprisonment.
60 I declare that the prisoner has been sentenced as a serious sex offender on charge 9, and direct that this be noted in the records of the court.
61 If you had not pleaded guilty to the State charge, but had been found guilty after a trial, the sentence I would have imposed on that offence is 2 years’ imprisonment with a non-parole period of 12 months.
62 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required.
63 Just take a seat, Mr McNiece. Mr Stevens.
64 MR STEVENS: Your Honour, just in terms of the Commonwealth sentences, I would require a little bit of time just to confirm that the combination of all of those charges reaches 3 years and 10 months as a total effective.
65 HER HONOUR: Yes.
66 MR STEVENS: If Your Honour has done those calculations, then that would - I'd be satisfied that that would be accurate.
67 HER HONOUR: Yes. I would prefer it to be checked.
68 MR STEVENS: Certainly, Your Honour. Just also in terms of the State charge, Your Honour has indicated a total effective sentence for both the Commonwealth and State is 4 years and 10 months. My understanding is that's a combination of the State and Commonwealth offences.
69 HER HONOUR: Yes, that's correct.
70 MR STEVENS: The only question would be when the State offence commences.
71 HER HONOUR: Commences, yes, you're quite right. So to give effect to what I have said, that would have to commence - would that mean that they would have to commence at the expiration of the sentence on charge 6 or is that going to add too much on?
72 MR STEVENS: I'd need, I suppose, to do the calculations on that first.
73 HER HONOUR: Yes, all right. Perhaps what I might do is stand down whilst that is done.
74 MR STEVENS: I'd be grateful for that time, Your Honour.
75 HER HONOUR: Yes, all right. Mr McNiece will be entering into custody, so if I could ask that he be just taken out the back to wait and then brought back in when we have confirmed that - in order to confirm the calculations.
76 MR STEVENS: May I just ask one more question before Your Honour goes off the Bench?
77 HER HONOUR: Yes, certainly.
78
MR STEVENS: And that would be, in terms of the non-parole period for the State offence, is there an intention for that to be served in addition to the Commonwealth minimum term? So in terms of a global total effective
sentence?
79 HER HONOUR: Yes, I follow. Yes, that is so. I think that's right. I tried to copy one I had done previously where it all worked out.
80 MR STEVENS: Yes.
81 HER HONOUR: But I know that one can't express it as - although I have said, "a total effective sentence", it is not a direction that the State offence is added on to the Commonwealth offence, and that is why I have tried to avoid phrasing it that way.
82 MR STEVENS: Yes, Your Honour. Would the end result be a total effective minimum term of 2 years and 2 months?
83 HER HONOUR: Yes, that sounds right.
84 MR STEVENS: Yes.
85 HER HONOUR: Yes.
86 MR STEVENS: Thank you, Your Honour.
87 HER HONOUR: All right, thank you. I will just wait until you have undertaken those calculations, and I am grateful for both of you with that assistance.
88 MR STEVENS: Thank you, Your Honour.
89 MR WAREHAM: If Your Honour pleases.
90 HER HONOUR: Thank you.
91 (At a later stage.)
92 MR STEVENS: Your Honour, I'm grateful for the time. Certainly in relation to the Commonwealth offences, that gives effect to Your Honour's intentions of the 3 year and 10 month total effective head sentence. There is no issue with Your Honour imposing a 1 year and 8 month non-parole period. The issue that arises, in my submission, is that in order to give effect to a 4 years and 10 month head sentence, global head sentence, it would require Your Honour to impose, I guess, total cumulation between the State and the Commonwealth.
93 HER HONOUR: Which wasn't what I intended. Sorry to interrupt you.
94 MR STEVENS: Certainly, Your Honour.
95 HER HONOUR: But what about if we forget about 4 years 10 months - - -
96 MR STEVENS: Yes.
97 HER HONOUR: - - - because the real point is that the sentences on each charge are what I intended.
98 MR STEVENS: Yes.
99 HER HONOUR: And if I had the State sentence starting today - - -
100
MR STEVENS: So one of the options would be, in my submission, that if Your Honour was looking at maintaining the minimum term to be served as being
2 years and 2 months, then the way to effect that would be to commence the State charge at the expiration of the Commonwealth non-parole period.
101 HER HONOUR: Yes.
102 MR STEVENS: And that would ultimately mean that the head sentence was entirely cumulative to some degree, but the minimum term would be - entirely concurrent - I apologise - but the minimum term would be cumulative, entirely cumulative, and that would result in a head sentence of 3 years and 10 months with a minimum term of 2 years and 2 months. If Your Honour was to commence the State sentence today, it would give effect to 4 years and 10 months but it would mean that the minimum term to be served would be 1 year and 8 months, because that would be wholly subsumed - - -
103 HER HONOUR: Yes. Yes, I follow that.
104 MR STEVENS: - - - with the Commonwealth offence. If I can be of any further assistance, Your Honour, I'm available.
105 HER HONOUR: All right, thank you, Mr Stevens. Obviously it is a matter for me what sentence I end up giving.
106 MR STEVENS: Yes, Your Honour.
107 HER HONOUR: Mr Wareham, anything you want to say?
108 MR WAREHAM: Apart from cursing the issue about State and Federal sentencing, I'm indebted to my friend that we've gone through it and I agree with his submission. I don't think I can assist Your Honour any more than he has. As Your Honour indicated, it's your decision on - - -
109 HER HONOUR: All right, thank you. I think what I will do is that I will declare that charge 9, the State charge, is to start on the expiration of the Commonwealth sentence. Is that the correct phrase?
110 MR STEVENS: The Commonwealth non-parole period, Your Honour.
111 HER HONOUR: Non-parole period. I beg your pardon, you did say that. So the sentence on charge 9 is 12 months, and that sentence starts on the expiration of the Commonwealth non-parole period.
112 MR STEVENS: As Your Honour pleases.
113 HER HONOUR: I otherwise confirm the orders.
114 MR WAREHAM: If Your Honour pleases.
115 HER HONOUR: I do thank you both for that, Mr Stevens, in particular, with your expertise, and I apologise for making that difficult at this very late stage of the year.
116 MR STEVENS: May it please the court.
117 HER HONOUR: Yes, thank you very much. Mr Wareham, will you be going downstairs to see Mr McNiece?
118 MR WAREHAM: I will, Your Honour.
119 HER HONOUR: Yes, all right. So, Mr McNiece, Mr Wareham will see you in the custody centre.
120 Thank you. Mr McNiece may be removed.
- - -
ADDENDUM TO SENTENCE DELIVERED 22 DECEMBER 2017
1 At the time of delivering sentence on 22 December 2017, there was some discussion as to whether my sentencing orders achieved the intended outcome.
2 Following that, it was confirmed by the Commonwealth DPP that the orders I made did not meet the total effective sentence that I had intended, and which I announced on that day, of 4 years 10 months’ imprisonment.
3 The legal representatives for the prisoner were informed.
4 Subsequently, I received a helpful email from the Commonwealth DPP to assist me in making the correct orders. The legal representatives of the prisoner have also received this material and had the opportunity to make written submissions.
5 Pursuant to s104A Sentencing Act (Vic), I propose to make the following orders. These amend the orders originally made on 22 December 2017. The outcome is that the total effective sentence is 4 years 10 months’ imprisonment, but the non-parole period is now set at 14 months’ imprisonment. The sentencing date remains as 22 December 2017.
6 The parties do not require a hearing in open court and I do not consider it desirable or necessary in the interests of justice to have one.
7 The orders are as follows:
Orders
8 The prisoner is convicted and sentenced as follows:
9 On charge 9, (State) possession of child pornography – 12 months’ imprisonment. That is a straight sentence; no non-parole period is set. That sentence commences on 22 December 2017.
10 On charge 3, (Commonwealth) use carriage service to procure a child to engage in sexual activity outside Australia – 2 years 6 months’ imprisonment. That sentence starts on the expiration of the State sentence.
11 On charge 7, (Commonwealth) use carriage service to procure a child to engage in sexual activity – 2 years’ imprisonment. That sentence starts 21 months before the expiration of the sentence imposed on charge 3;
12 On charge 1, (Commonwealth) use carriage service to solicit child pornography material – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence imposed on charge 7;
13 On charge 4, (Commonwealth) use carriage service to solicit child pornography material – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence imposed on charge 1;
14 On charge 8, (Commonwealth) use carriage service to solicit child pornography material – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence imposed on charge 4;
15 On charge 2, (Commonwealth) use carriage service to transmit indecent communication – 8 months’ imprisonment. That sentence starts 6 months before the expiration of the sentence imposed on charge 8;
16 On charge 5, (Commonwealth) use carriage service to transmit indecent communication – 6 months’ imprisonment. That sentence starts 5 months before the expiration of the sentence imposed on charge 2;
17 On charge 6, (Commonwealth) use carriage service to transmit indecent communication – 6 months’ imprisonment. That sentence starts 5 months before the expiration of the sentence imposed on charge 5.
18 The effective Commonwealth sentence is 3 years and 10 months’ imprisonment.
19 I direct that the prisoner serve 1 year 2 months of the federal sentence before becoming eligible for federal parole. If the prisoner is released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If the prisoner fails without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and the prisoner may be ordered to serve the balance of the sentence in prison. The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community, if the prisoner is considered to be suitable.
20 The effect of the orders for commencement of sentences on all charges is a total effective sentence on State and Commonwealth offences of 4 years and 10 months’ imprisonment.
21 The total effective non-parole period for State and Commonwealth offences is 2 years and 2 months.
22 I declare that the prisoner has been sentenced as a serious sex offender on charge 9, and direct that this be noted in the records of the court.
23 If the prisoner had not pleaded guilty to the State charge, but had been found guilty after a trial, the sentence I would have imposed on that offence is 2 years’ imprisonment with a non-parole period of 12 months.
24 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required.
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