Director of Public Prosecutions v Norman
[2019] VCC 862
•13 June 2019
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00696
Indictment No. J12755149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN JOHN NORMAN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 27 May 2019 | |
DATE OF SENTENCE: | 13 June 2019 | |
CASE MAY BE CITED AS: | DPP v Norman | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 862 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Sexual penetration of a child under 16 – Serious example of offence – Victim known to accused – Non-consensual penis/vaginal penetration – Loss of virginity – Breach of trust – High moral culpability – Substantial victim impact – Principle of restorative justice – Child offender – Plea of guilty at earliest forensically reasonable opportunity – Prior good character – Serious and extensive subsequent offences – Serving lengthy sentence of imprisonment for unrelated offending – Delay giving rise to loss of opportunity to have matter dealt with in the Children’s Court – New single non-parole period fixed – Sex offender registration order made
Legislation Cited: Sentencing Act 1991 s 14 – Sex Offenders Registration Act 2004 s 11(2), 35 (2)
Cases Cited:DPP v Toomey [2006] VSCA 90 – Adamson v The Queen (2015) 47 VR 268 – R v G [2009] 1 AC 92 – Clarkson v The Queen (2011) 32 VR 361 – R v Rumpf [1988] VR 466 – Alexandros v Birchell (2000) 31 MVR 307 – DPP v Rongonui (2007) 17 VR 571 – Bellizia v The Queen [2016] VSCA 21 – Atholwood v The Queen (1999) 109 A Crim 465 – Cameron v The Queen (2002) 209 CLR 339 – Barbaro v The Queen (2012) 226 A Crim R 354 – Sherritt v The Queen [2015] VSCA 1 – R v Boland (2007) 17 VR 300 – CNK v The Queen (2011) 32 VLR 641 – Cairns v The Queen [2017] VSCA 333 – Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063 – R v Rich (No 2) (2002) 4 VR 155
Sentence: Imprisonment for 2 years with cumulation of 1 year and a new single non-parole period which adds 8 months to the existing earliest release date
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D R Cordy | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr C F Morgan Ms S G Wallace | Ann Valos Criminal Law |
HIS HONOUR:
1 Stephen John Norman, you have pleaded guilty to one charge of sexual penetration of a child under 16. The maximum penalty for this offence is 10 years’ imprisonment.
2 The prosecution filed a summary of prosecution opening dated 26 April 2019, which I was told by your counsel I can treat as a summary of agreed facts.[1]
[1] Exhibit P1.
The facts
3 You are currently 23 years old and at the time of the offending you were aged 17 years.
4 The victim, whom I will refer to by the pseudonym of ‘Frances Jones’, was 14 years of age at the time of the offending. You were known to each other.
5 On 1 December 2012, the victim and a girlfriend finished school for the day and were sitting by a lake close to your house. The girls were engaged in an online conversation with you and a male friend of yours via the Facebook messenger service.
6 You and your friend offered to pick the girls up and take them to your home on the understanding that you would provide the girls with alcohol. The victim and her girlfriend agreed with this proposal and arranged to meet you and your friend.
7 You and your friend met up with the girls at the lake. You had with you a slab of pre-mixed Jim Beam and cola cans. You and your friend supplied the girls with alcohol and cigarettes. The four of you commenced drinking at the lake. When the slab was finished, you and your friend offered to take the girls to get more drinks, to which they agreed.
8 The four of you left in your motor vehicle, which you drove to a liquor store in Echuca, where you purchased two bottles of vodka.
9 From there, you all travelled to Moama Beach and consumed the two bottles of vodka between the four of you. Once this alcohol was consumed, you and your friend suggested that the girls go back to your house where there was more alcohol. The girls agreed and you drove them and you friend to your home.
10 At approximately 6.30pm, you arrived at your home, which is a farmhouse in an area isolated from other homes. The house is owned by your parents, who were not home at the time.
11 Upon arrival, you all went inside, whereupon you and your friend produced some beer, which the four of you consumed. When the beer was finished, the four of you consumed cans of pre-mixed bourbon. By this stage, the victim’s girlfriend states that she was ‘pretty drunk’.
12 When the bourbon cans were finished, a bottle of Jim Beam bourbon was produced and the four of you began drinking shots.
13 Your friend had a conversation with the victim’s girlfriend regarding his personal circumstances. While this was occurring, you produced your phone and showed the victim a video of what appeared to be a female performing oral sex on you. According to the victim’s girlfriend, the victim looked uncomfortable at this stage.
14 Some time later, you and the victim’s girlfriend left the room and the victim went searching for you. She found her girlfriend and you in your bedroom. Upon seeing you, the victim’s girlfriend got up and left the room stating ‘Steve wanted to talk to you’. By this stage, the victim describes her condition as being ‘kind of really drunk’.
15 You and the victim started talking, before you both consensually kissed. You then began trying to help the victim get undressed. You took the victim’s leggings off, while she kept her t-shirt on. You told the victim to lie on the bed, which she did. At some point, you placed a condom on your penis.
16 While the two of you were lying on your bed, you said to the victim ‘Are you ready to lose your virginity?’, to which the victim replied ‘No, I want to stay a virgin’. You then inserted your penis into the victim’s vagina and said ‘Too bad, now you’re not’.
17 You continued to penetrate the victim’s vagina with your penis before stopping and asking her to suck your penis, which the victim refused to do. You then requested the victim to turn around and bend over, which the victim also refused to do. You continued penetrating her vagina until you ejaculated. These facts and circumstances give rise to the charge of sexual penetration of a child under 16.
18 The victim states that she ‘just laid there’. She says that she wanted to kill herself, that she felt dirty, was ashamed and just wanted to go home. You left the room and had a shower.
19 While you were out of the room, the victim’s girlfriend came in and asked if the victim was okay. The victim just looked at her girlfriend and said nothing.
20 A short time later, the victim’s friend began vomiting as a result of her state of extreme intoxication. You and your male friend carried her to your car. By this stage, the victim was crying. The four of you drove to the Echuca Hospital, where the victim’s friend was assessed by medical staff.
21 The victim remained with her friend until their mothers arrived. The victim returned home in the company of her mother, who was very angry with her regarding what had occurred with her friend. The victim’s mother was screaming at her and the victim says that she tried to tell her mother about what had happened to her, but her mother was not listening but simply screaming at her.
22 When she arrived home, the victim went to her bedroom, which she shared with her sister. The victim’s sister followed the victim to the room and asked her why she was so upset. The victim told her sister that ‘Steve’ had taken her virginity and she did not want him to. She then related the circumstances of this offence to her sister more or less in the terms I have previously described.
23 She told her sister that you wanted to have sex with the victim, and she told you that she did not want to, before you said to the victim ‘too late’ and ‘stuck it in her’. The victim by this stage was sobbing as she told her sister what had occurred. She said that she felt disgusting and dirty. The victim continued to cry throughout that night.
24 The victim participated in a video recorded statement on 21 November 2017.
25 You were interviewed on 8 August 2018. You gave a largely ‘no comment’ record of interview, although you did admit that you knew the victim.
26 This proceeding was booked in for a contested committal hearing. The informant reviewed a phone call which had been brought to his attention by corrections’ staff as a result of a review of ARUNTA calls from prison made by you. It appears that on the night before the contested committal hearing, you spoke to your mother on the phone and, during that conversation, your mother said ‘Do your lawyers know you actually did it?’ To which you replied that your lawyers knew but that ‘They can’t go against me’.
27 The substance of this conversation was relayed by the informant to the police prosecutor, who informed your counsel. There followed a conference between you and your counsel, which ultimately led to you pleading guilty in the Magistrates’ Court to the charge which is before me. No witnesses were called on the contested committal hearing.
Victim impact
28 The victim prepared a victim impact statement dated 22 May 2019.[2] This was read in open court by the prosecutor. Your counsel took no objection to any of its contents.
[2] Exhibit P2.
29 It is clear that your offence has had a devastating effect on the victim. She is suffering severe and ongoing psychological sequelae. She has changed from being a ‘happy person’ to one who is now ‘sad and angry’. It affected her relationship with her mother and made her feel unhappy and unsafe in her own home. She suffers from depression and has, on occasions, been suicidal. As a result of suicide attempts, she has scars, which are a constant reminder to her of what you did to her.
30 As a result of your conduct, her school life became unbearable for her because of gossip and rumours that were spreading around her school regarding this offending. The victim was bullied and victimised at school and she lost friends and became socially isolated.
31 This is simply another example of the extreme trauma suffered by the victims of child sexual abuse. For a few minutes of sexual gratification, you have completely destroyed this young woman’s life.
32 In her closing paragraphs, she says:
I still live with the impact, I still can’t be touched without wanting to cry sometimes. I live with broken relationships and scars, I still get scared to be around males alone. I suffer from anxiety that still gets in the way of things I enjoy. It made me suffer in the workplace. I even stopped working cause (sic) it was too much on me.
That night ruined me and no matter how hard I try I won’t be able to forget that night.
33 The Victorian Court of Appeal has recently reaffirmed the important role restorative justice plays in the criminal justice system. In Talbot (a Pseudonym) v The Queen[3] the Court approved the statement of Vincent JA in DPP v Toomey[4] concerning the notion of social rehabilitation. In Toomey Vincent JA said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse 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 notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. 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.[5]
[3] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[4] [2006] VSCA 90.
[5] Ibid [22] cited in DPP v DDJ (2009) 22 VR 444, 454 [40].
Offence seriousness
34 Sexual offending by men against vulnerable children is a scourge on our society. Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment. The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm that sexual offending against children causes to the innocent victims and the community at large.
35 General deterrence assumes significant importance as a sentencing consideration, as does denunciation of such conduct in order to preserve community standards, which should serve to protect children.
36 In relation to your victim, your counsel accepted that you fall to be sentenced on the basis that by your act of sexual penetration of her, you deprived her of her virginity. This has the effect of increasing the objective gravity of your offending conduct.[6]
[6] Adamson v The Queen (2015) 47 VR 268.
37 In Adamson v The Queen[7] the Victorian Court of Appeal quoted with approval the judgment of Baroness Hale in R v G[8] where her Ladyship said:
Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.[9]
[7] Ibid 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[8] [2009] 1 AC 92.
[9] 108-9 [48]–[49]. See also Clarkson v The Queen (2011) 32 VR 361, 368–369 [26]–[28], 370–1 [32], 372–3 [40], [42], 375 [25] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
38 The reference in that passage to children aged under 13 is referrable to the particular legislative provisions which were before the House of Lords in that case. However, in my opinion, Baroness Hale’s comments are equally applicable here, where your victim was aged 14 at the relevant time.
39 It was and remains quite clear from your victim’s vehement protestations made prior to your act of penetration, that she was determined to preserve her virginity and you brazenly took it from her. Your contumelious disregard of her clear and forceful protestations makes this a serious example of this offence. Having said that, you are not to be sentenced for the offence of rape for which you have not been indicted.
40 Moreover, as the victim’s friend you took advantage of your position of trust. I assess you moral culpability as being high.
Personal circumstances
41 You are the youngest of seven children and the only one with any significant criminal history.
42 Your parents separated when you were in Grade 5 at school, and you were subsequently raised by your mother alone. You completed your schooling to the end of Year 11. You have a reasonable work history, having worked with your brother who is a shipwright in Echuca.
43 You have a history of drug and alcohol abuse in your late teens and early twenties. This has led to subsequent offending by you, largely in the context of your substance abuse. You have no prior criminal record in relation to these matters. However, I was provided with your LEAP criminal record which was admitted by your counsel on your behalf.[10]
[10] Exhibit P3.
44 It is your plan, when you are ultimately released from custody, to resume living with your mother. Whilst you were in custody in Malmsbury, you obtained your forklift licence, and you have also undertaken hospitality courses whilst in prison. It is your expectation that you will continue working with your brother.
45 You have a number convictions and findings of guilt dating back to 26 November 2013, including appearances in this Court for largely dishonesty offences, with some offences involving violence. In the past, you have received a sentence of 15 months’ in a youth justice centre. You are presently undergoing a sentence imposed on you in this Court, which is a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and three months. I was told, your earliest release date is 19 September 2019 and your current sentence expires on 10 March 2021.[11]
[11] Exhibit P5.
46 While subsequent convictions and findings of guilt cannot be taken into account in the same way as prior convictions can be, they bear upon my assessment of your character and shed light on your risk of recidivism. This is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offence. Subsequent offending is also relevant to my assessment of your prospects of rehabilitation.[12]
[12] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310-1 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]-[78] (Santamaria JA).
47 You also have a subsequent finding of guilt in relation to a sex offence. You were before the Bendigo Children’s Court on 1 April 2015 on a charge of indecent assault for which you were without conviction fined $500. I was told this was a rolled-up charge involving three criminal acts committed against the same complainant, who is not the present victim. I was provided with the brief of evidence in respect of this matter,[13] which I have read.
[13] Exhibit P4.
48 The circumstances are set out in the summary of charges attached to the brief. I have only had regard to the three criminal acts that were rolled-up in the charge, which were committed by you on 11 July 2013 and comprise, touching of the victim’s breasts over her clothes, touching the victim’s breasts under her clothes and the slapping of the victim’s buttocks. These facts were admitted by your counsel on your behalf.
49 It appears that you and the victim developed a friendship which commenced when you were both attending the same high school. After leaving school, you and the victim continued a non-sexual friendship and you saw each other on a regular basis. It is clear from the summary that on a number of occasions during that friendship you acted inappropriately towards the victim and made her feel uncomfortable. You treated her protestations as if your actions were a joke. This was material lead by the prosecution as uncharged acts by way of relationship evidence.
50 So far as the circumstances of the charge you pleaded guilty to are concerned, on 11 July 2013, you slapped the victim on the buttocks. You were surprised, apparently, at the victim’s angry reaction. You then used physical force on the victim by grabbing at her breasts and vagina over her clothes. The victim was struggling and resisting your efforts to hold and touch her. Whereupon you placed your hand underneath her shirt and grabbed both her breasts. At the time of this offending, you were 17 years of age and the victim was 18 years old.
51 Whilst you are not to be punished again for this offence, it does indicate an attitude on your part of disrespect for women and an inability to recognise and act upon their resistance to your sexual advances. This offence was committed by you some seven months after the offence which is before me.
52 Your demonstrated attitude towards young woman is relevant to my consideration of the Crown’s application that you be placed on the Sex Offenders’ Register, which I will deal with after I have sentenced you.
Mitigating circumstances
53 You pleaded guilty at an early stage in the proceedings; just prior to the commencement of a contested committal hearing. At that hearing you faced a charge of rape, which the prosecution withdrew upon you pleading guilty to the present charge. In these circumstances, I accept that it was forensically reasonable for you not to have pleaded guilty at an earlier stage in the proceedings. Accordingly, I will treat this as a guilty plea at the earliest reasonable opportunity.[14]
[14] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
54 It may well be that the revelation of your prison telephone conversation with your mother was what encouraged you agree to plead guilty to the present charge, however, I cannot make any finding in this regard.
55 Your early plea of guilty has utilitarian benefit. It means that the victim does not have to go through the trauma of giving evidence at a trial. It also indicates an acceptance of responsibility on your part and a willingness to facilitate the course of justice. However, there is insufficient evidence before me to make a finding in your favour that there is true contrition and remorse in your case.[15] I did not understand your counsel to submit to the contrary.
[15] See Barbaro v The Queen (2012) 226 A Crim R 354, 364-365 [32]-[38] (Maxwell P, Harper JA and T Forrest AJA).
56 I accept that you fall to be sentenced as a person with no prior convictions and that, at the time of committing these offences, you were a person of good character. I also accept that at the time you committed these offences, you were aged 17 years and 2 months and therefore were a child yourself.
57 Delay is a significant factor in your case. There were nearly five years separating the commission of this offence and the complainant’s report of it to police and a further ten months delay before you were charged. Whilst I accept that such delay is not uncommon in cases of this kind, by reason of that delay you have lost the opportunity of having this charge dealt with in the Children’s Court as a child, where a more benevolent statutory sentencing regime would be applied, which would place significant emphasis on your rehabilitation over the application of the principles of denunciation and general deterrence.[16] You have also lost the opportunity of having some of the present sentence made concurrent with other past sentences imposed on you.
[16] See eg Sherritt v The Queen [2015] VSCA 1 [33]–[35] (Priest JA, Maxwell P agreeing); R v Boland (2007) 17 VR 300, 304 [16] (Nettle JA, Ashley and Dodds-Streeton JJA agreeing).
58 At 23 years of age you still fall to be sentenced as a youthful offender with no prior convictions. I must structure a sentence which maximises your prospects of rehabilitation within the restrictions imposed on me by your current custodial circumstances.
59 Your counsel submitted that you have ‘demonstrated prospects for rehabilitation’. I can only adopt a cautious approach to your prospects for rehabilitation given your subsequent offences. However, I do note that you have in place a number of protective measures, including the support of your mother and father, who were both present in court supporting you during the plea hearing. I was told you intend to reside with them on your release from custody.
60 I take into account that you have taken positive steps towards your rehabilitation whilst you have been in custody. I was provided with ten negative urine drug screens,[17] encompassing the period from 4 November 2017 until 12 April 2019, demonstrating you have remained drug-free during this period whilst in custody.
[17] Exhibit A2.
61 You have undergone a number of rehabilitative programs, which include a ‘Moderate Intensity Violence Intervention Program’, the ‘Talking Change Program’, the ‘Skating on Ice Program,’ a six hour ‘AOD and Ice Effects Program,’ a 24 hour ‘Relapse Prevention Program’ and a 44 hour ‘Semi-Intensive Drug and Alcohol Program Level IV’.[18]
[18] See exhibit A3.
62 You have undertaken academic training in a certificate II in cleaning operations and a family law program and you have obtained a Responsible Service of Alcohol Program Certificate. You have also participated in the Karreenga Inaugural Football Grand Final, in which your team were runners up.[19]
[19] Ibid.
63 I have read the testimonial from Mr James Hardy, the founder of Hard Cuddles, dated 15 May 2019.[20] He speaks very highly of you and notes that both of you have been working together since September 2018. He says:
what I found is a young man with a strong personality. Stephen is a natural leader, he possesses unique qualities that see people to gravitate towards him. The problem as I see it is Stephen has been using his leadership potential in a fashion that can only be described as un-resourceful towards the community.
[20] Ibid.
64 He opines you have:
built up a fierce resilience over his life and is now working on adding different tools to assist him with his journey. He has been looking for a specific male role model that he could relate to help him with the next steps he needs to take.
65 He notes that you have ‘discovered a real passion for working with juvenile offenders and using his story to help other people’. He concludes by saying ‘I’m really proud of him and I think he will have a bright future’. I understand Mr Hardy is prepared to employ you in his organisation on your release from custody.
66 The work you have done to date towards your rehabilitation is to be commended and supported by the community through the sentence I must impose on you.
67 Nonetheless, the offence you have committed is a serious one and it has had a devastating effect on your victim. There is a need to balance your prospects of rehabilitation with other relevant sentencing principles, including general deterrence, denunciation and just punishment, while having due regard to your relatively young age at the time of committing this offence.[21]
[21] See CNK v The Queen (2011) 32 VLR 641, 643–4 [4]-[15]; cf Cairns v The Queen [2017] VSCA 333 [28]–[36]. See also Best v The Queen [2019] VSCA 124 [46].
68 However, I do accept that you have found the current period of time you have spent in custody a salutary lesson as to what your future holds if you continue on your anti-social and non-law abiding path. Accordingly, I am prepared to sentence you on the basis that, whilst I will give some weight to specific deterrence and protection of the community, that weight does not need to be as great as might otherwise have been the case.
Application of sentencing principles
69 I have had regard to current sentencing practices in relation to the charge of sexual penetration of a child under 16 in light of the decision of the High Court of Australia in Director of Public Prosecutions v Dalgliesh (a pseudonym).[22] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.
[22] (2017) 91 ALJR 1063.
70 It is difficult to gauge more than a very general yardstick from so called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. For example, the recent case of Best v The Queen[23] bears some similarities to this case; however, the relative seriousness of the offending conduct, the harm suffered by the respective victims, and the offenders’ personal circumstances differ from your situation in significant ways. Nonetheless, to the extent that I have been able to gain any assistance from so-called ‘comparable cases’, I have sought to do so in your case.
[23] [2019] VSCA 124.
71 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it and your personal circumstances.
72 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society. General deterrence and denunciation, sensibly moderated on account of your age at the time of offending, remain important sentencing considerations for the offence with which you fall to be sentenced.
73 Whilst just punishment, general deterrence and denunciation must be given consideration in my instinctive synthesis, I am of the view that in your case specific deterrence and protection of the community must also be given some weight in light of the nature of your offending conduct and your subsequent criminal history. As I said earlier, I cautiously consider your prospects of rehabilitation are reasonably good provided you continue taking the positive steps towards your ultimate rehabilitation your have commenced upon.
Stand up Mr Norman
74 On the charge of sexual penetration of a child under 16 you are convicted and sentenced to 2 years’ imprisonment.
75 I direct that 12 months of that sentence is to be served cumulatively upon the existing total effective sentence imposed on you by Judge Gaynor on 1 May 2017. You have already served a significant portion of that sentence. Of course you will get the benefit of the time that you have already served.
76 Pursuant to section 14 of the Sentencing Act1991 I must fix a new single non-parole period. It is critical that I make it clear when that period commences.
77 There are two ways this can be done. I can either backdate the new single non-parole period I declare to the date of Judge Gaynor’s sentence or I can direct that it commence from today. I am cognizant of the views expressed by Brooking JA in R v Rich (No 2)[24] that ‘there should be uniformity of practice’ and that ‘all new single non-parole periods should be made to commence on the date on which they are fixed’.[25]
[24] (2002) 4 VR 155.
[25] Ibid 166–7 [106] (Brooking JA, Winneke P and Charles JA agreeing at [9]).
78 Apparently, a number of judges of this Court have adopted the latter approach in the past and this has caused significant problems in the manner in which the sentence calculation authorities in Corrections Victoria interpret the order. What is critical is that there is certainty as to when the new single non-parole period I am fixing today commences and I will provide that certainty in these reasons.
79 I fix a new single non-parole period of 2 years and 11 months commencing on 1 May 2017, the day upon which you were sentenced by Judge Gaynor. My intention is to add a period of 8 months’ imprisonment to your current earliest parole eligibility date. If my orders do not have this effect, I reserve liberty to apply to the parties to mention this matter so that any need for clarification of my orders can be dealt with.
80 There is no pre-sentence detention to declare in this case. Judge Gaynor’s declaration of 235 days pre-sentence detention remains unaffected by my orders.
81 Pursuant to s 6AAA of the Sentencing Act 1991, I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 3 years’ imprisonment. I would have cumulated 18 months of that sentence and added 12 months to your present non-parole period.
Sex Offender Registration Order
82 I have before me an application for a sex offender registration order in your case. You have been convicted of a Class 1 offence as defined by the Sex Offenders Registration Act 2004 (‘the Act’). Because you were a child at the time of committing that offence, I have a discretion whether or not to make the order sought. I may only make an order under the relevant provision if, after taking into account any matter that I consider appropriate, I am satisfied, beyond reasonable doubt, that you pose a risk to the sexual safety of one or more persons or of the community. It is not necessary that I am able to identify a risk to particular people, or a particular class of people.
83 In light of the circumstances of your offending conduct in the present case and the subsequent offence of indecent assault for which you were dealt with in the Bendigo Children’s’ Court on 1 April 2015, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community, and I grant the application.
84 By reason of the fact you were a child at the time you committed the present offence, you will be subject to the reporting obligations under the Act for a period of 7 years and 6 months from when you are released from custody.[26]
[26] See s 35(2) of the Sex Offenders Registration act 2004.
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