Director of Public Prosecutions v Northmore
[2018] VCC 2002
•25 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEBASTIAN NORTHMORE (A Pseudonym name) |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF SENTENCE: | 25 October 2018 |
DATE OF RE-SENTENCE: | 12 November 2018 |
CASE MAY BE CITED AS: | DPP v Northmore |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2002 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Child Pornography, Transmit Child Pornography, Carriage Service, Procure a person under 16 years of age for sexual activity.
Legislation Cited: s.19AHA Crimes Act 1914
Sentence:Total effective sentence is two years, six months imprisonment with eighteen months to be served immediately, before being released by way of $5,000 recognisance bond of good behaviour for a period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. King (Re-sentence) | Commonwealth Director of Public Prosecutions |
For the Accused | Mr J. Jassar | Bayside Solicitors |
| Prisoner appeared by videolink from prison. | ||
HIS HONOUR:
1So if I can deal with first of all - well, I am open to any suggestions about should be dealt with first. But I think it appropriate that I deal with the terms of imprisonment first. Do you agree with that?
2MR JASSAR: Yes, Your Honour.
3HIS HONOUR: So we are talking about s.19AHA of the Commonwealth Crimes Act.
4MR JASSAR: Yes, 19, Your Honour.
5HIS HONOUR: Nineteen sorry.
6MR JASSAR: Yes.
7HIS HONOUR: Thank you. Nineteen. And the error appears to be that the cumulation that I put for - sorry, the start date I put for Charge 4 meant that the cumulation was greater than what I had intended.
8MR JASSAR: That is correct, sir.
9HIS HONOUR: And so in order to rectify that and to give effect to what I intended which was a total effective sentence of two and a half years, I am going to amend the start date for Charge 4 to be 24 July 2020.
10MR JASSAR: Yes, Your Honour.
11HIS HONOUR: Now, that should give effect to a total effective sentence for
Mr Northmore[1] of two and a half years. I want everyone to check it now.[1] A pseudonym name
12MR JASSAR: That is correct, Your Honour. I have already got that done in my schedule so that is correct.
13HIS HONOUR: All right.
14MR JASSAR: Yes.
15HIS HONOUR: So formally from the ‑ ‑ ‑
16MR JASSAR: Pardon me for a moment, sir.
17HIS HONOUR: Yes. I will make sure I have got that part right first.
18MR JASSAR: Yes, that is correct. So that will take the year - two years and six months in total.
19HIS HONOUR: Yes, from the date of sentence and then he has had some pre-sentence detention, I think. No, he did not. No, he did not. There was no pre-sentence detention, was there?
20MR JASSAR: No, Your Honour. No. It is from the last ‑ ‑ ‑
21HIS HONOUR: No. So it is two and a half years from that day.
22MR JASSAR: That is correct.
23HIS HONOUR: Yes.
24MR JASSAR: From the start date of 25 October 2018.
25HIS HONOUR: 25 October. Correct.
26MR JASSAR: Yes.
27HIS HONOUR: So that is the first thing. So I am amending the order that I made on 25 October 2018 in respect of the sentence for Charge 4. The time - the period of time is the same. The total effective sentence is two years and six months. The change is - to that part where I have set the commencement date for the sentences and Charge 4's commencement date will be amended from 24 October 2020 to 24 July 2020. That is the first change.
28MR JASSAR: That is correct, sir.
29HIS HONOUR: Now, the second matter is to do with the Charge 5.
Mr Northmore, just for you, just so you understand. Those amendments I have made to the start date for Charge 4 sentence of nine months ‑ ‑ ‑30OFFENDER: Yes, sir.
31HIS HONOUR: ‑ ‑ ‑ has brought it back to being still a total effective sentence of two years and six months.
32OFFENDER: Okay, sir.
33HIS HONOUR: Which is what I sentenced you to on the day. And then on the recognizance release, you were to serve 18 months of that two and a half years. Yes. So that is where we are at the moment. All right?
34OFFENDER: Okay, sir.
35HIS HONOUR: Thank you. Mr Jassar will explain all this to you but I want to make sure you hear it from me.
36OFFENDER: Thank you, sir.
37HIS HONOUR: Now, Charge 5 - on that charge, this is the charge of possessing child pornography which is a State offence. You were convicted and I placed you on a community corrections order for a period of two years which was to commence after your release from prison and it had - basically it was treatment for sex offenders program. That was the condition and you were to be supervised.
38OFFENDER: Yes.
39HIS HONOUR: I am told - reliably informed or submissions - that I cannot give you a community corrections order after that term of imprisonment ‑ ‑ ‑
40OFFENDER: Okay.
41HIS HONOUR: ‑ ‑ ‑ that I have imposed on you.
42MR JASSAR: Your Honour, my submission, Your Honour, how to deal with this charge and how to - and s.104B of the Sentencing Act applies to this particular scenario, Your Honour.
43HIS HONOUR: Yes.
44MR JASSAR: Whereby the penalty is - contrary to law as it stands right now, sir - and Your Honour is not functus officio as you would have been in the past. So s.104B applies. Your Honour, my submission is for Mr Northmore to receive a short term of imprisonment for this matter but it starts on the same day as he was sentenced, so to be served concurrently with the Commonwealth sentence. And the other aspect of this is if Your Honour is minded for him to complete the matters of the community corrections order, the rehabilitative aspect of his sentence, that can still be achieved under the recognizance release order, sir.
45HIS HONOUR: Yes.
46MR JASSAR: If Your Honour looks at the recognizance release order, Part B of the order says that "The accused is to be under the supervision of the Deputy Commissioner, Community Correctional Services and sex offender management or his or her nominee for whatever months or years; and see that the accused is to attend for assessment; and if assessed as suitable, treatment for sex offenders programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and sex offender management or his or her nominee that the accused is to report" - and Your Honour can fashion it still in the same terms as that community corrections order under the recognizance release order, sir.
47HIS HONOUR: Yes, except he is there and we are here.
48MR JASSAR: Yes, Your Honour. I understand that. And it can be faxed across to the court for him to sign. I understand the logistical issues in relation to that but if Your Honour finds that slightly difficult. We can come back another day, reconvene another day.
49HIS HONOUR: No.
50MR JASSAR: But certainly that is what I am submitting, Your Honour. That that rehabilitative process can still continue ‑ ‑ ‑
51HIS HONOUR: Yes. He ‑ ‑ ‑
52MR JASSAR: ‑ ‑ ‑ and the short term of imprisonment under Charge 5 will reflect the criminality but not extend beyond into an extended term of imprisonment.
53HIS HONOUR: Yes. I will not be doing that.
54MR JASSAR: Yes.
55HIS HONOUR: I will tell you now.
56MR JASSAR: Yes, sir.
57HIS HONOUR: And it is because when I formulated this wrong sentence, my intention was to look at it holistically and then punish Mr Northmore in the way I have. That is by the two and a half years and the 18 months to serve. And I saw that as sufficient - I am calling it - I am using the word "punishment". But a proper sentence.
58MR JASSAR: Yes.
59HIS HONOUR: So I will not be doing anything to alter that.
60MR JASSAR: Certainly, Your Honour. And henceforth my submissions that that would cover the aspect of the State as well as Commonwealth. We have the start date of the State sentence, albeit short term, be concurrent ‑ ‑ ‑
61HIS HONOUR: Yes.
62MR JASSAR: ‑ ‑ ‑ and the start date is the ‑ ‑ ‑
63HIS HONOUR: It starts on 25 October.
64MR JASSAR: Yes.
65HIS HONOUR: Yes.
66MR JASSAR: The reason I am saying that that should be the start date, Your Honour, Your Honour will be aware of the ‑ ‑ ‑
67HIS HONOUR: I cannot delay them.
68MR JASSAR: Yes. Court of Appeal decision of Swingler ‑ ‑ ‑
69HIS HONOUR: Yes,.
70MR JASSAR: Where they say it is preferable for the State sentence to commence first, Your Honour.
71HIS HONOUR: That is right.
72MR JASSAR: But as I say, if they are concurrent, then it does not pose an issue in relation to it, sir.
73HIS HONOUR: No. My only concern really is whether or not I go to the extent of seeking to change the recognizance release order I have already asked
Mr Northmore to sign.74MR JASSAR: Yes.
75HIS HONOUR: And I am probably not minded to do that.
76MR JASSAR: If Your Honour is not minded to do that, then the matter just ‑ ‑ ‑
77HIS HONOUR: Stays as it is.
78MR JASSAR: ‑ ‑ ‑ stays as it is, yes.
79HIS HONOUR: That is right.
80MR JASSAR: So there is no further component - but that is ‑ ‑ ‑
81HIS HONOUR: He serves his time. And he is under the recognizance of course but ‑ ‑ ‑
82MR JASSAR: For four years, yes.
83HIS HONOUR: Yes, for good behaviour and the like and ‑ ‑ ‑
84MR JASSAR: That is correct.
85HIS HONOUR: ‑ ‑ ‑ that would leave it to him personally to do anything further to rehabilitate himself that has not already occurred whilst he has been in custody.
86MR JASSAR: Certainly, sir.
87HIS HONOUR: So that is what I propose to do. So in terms of Charge 5, sorry, this is the charge of possessing child pornography, Mr Northmore, I am convicting you and sentencing you for a period of six months. That sentence commenced on 25 October, the day I sentenced you originally, and runs concurrently with all other sentences I imposed on that day.
88OFFENDER: Yes, sir.
89HIS HONOUR: The effect of those two changes to the orders are that the amount of time you spend in custody is exactly the same. The recognizance release order that you signed on the day you were before me here on
25 October is exactly the same. And what has changed is upon your release from prison, there is no community corrections order that you will be required to serve.90OFFENDER: Okay, sir.
91HIS HONOUR: It might sound like a discount. It is not really.
92OFFENDER: Oh no.
93HIS HONOUR: All right. Was there anything further?
94MS KING: No, Your Honour.
95HIS HONOUR: Thank you. Thanks Ms King.
96MR JASSAR: No, sir.
97HIS HONOUR: Yes, and thanks Mr Jassar. And thank you both for revisiting the sentence to ensure that it is correct. I think I will change my approach to Commonwealth sentence in the future and say, "This is what I want to do. Counsel can now write out what the order is." And then we will all agree on it later on that day.
98MR JASSAR: Yes.
99HIS HONOUR: But thank you both for attending to it.
100MR JASSAR: Thank you, Your Honour. There is one further slip that the Commonwealth seeks to amend, sir.
101HIS HONOUR: This is on the recognizance?
102COUNSEL: Yes.
103HIS HONOUR: Yes. Mr Northmore - does he have to re-sign this after the slip? After this is rectified? I will just explain this to you in a minute, Mr Northmore.
104MR JASSAR: Your Honour, it is a slip. It does not change the sentence.
105HIS HONOUR: Yes.
106MR JASSAR: And it is my - I would not have - my submission would be he would not have to sign it. He understood what the sentence was on the day. And ‑ ‑ ‑
107HIS HONOUR: Yes. He certainly does now.
108MR JASSAR: He certainly does now as well.
109HIS HONOUR: Yes.
110MR JASSAR: And any errors that were were not in Your Honour's reasoning and the total effective sentence was just the dates.
111HIS HONOUR: Yes.
112MR JASSAR: And this aspect was an administrative slip by the Commonwealth, Your Honour.
113HIS HONOUR: I will just explain this further matter, Mr Northmore. You will be thinking, What is going on up there? But just bear with me. This is a recognizance. This is a document you signed at the time of the sentence. It is a two-page document. Can you hear me? No. He cannot hear me. It is critical he hears me.
114MR JASSAR: Yes, certainly, Your Honour. I will take that opportunity to say, Your Honour, they are notoriously difficult, these sentences and it is any ‑ ‑ ‑
115HIS HONOUR: Yes. Well, the Commonwealth are now in my court. They are back every time.
116MR JASSAR: Yes. Certainly.
117HIS HONOUR: It is a bad sign for me.
118MR JASSAR: No, no, Your Honour. It is not - after the CCO was imposed, I called up the prosecution straight away and I said, "Look, is this possible or not?"
119HIS HONOUR: Yes.
120MR JASSAR: And I was having thoughts about that and then I was corrected of by the prosecution shortly thereafter.
121HIS HONOUR: Yes. I thought I had come up an absolute formula about how to do Commonwealth and State matters together and I have not.
122MR JASSAR: You are not the only one, sir.
123HIS HONOUR: No.
124MR JASSAR: We are all in that same boat as well.
125HIS HONOUR: Yes.
126MR JASSAR: Well, the good thing about this is it is - back in the day, Your Honour will be functus officio and nowadays ‑ ‑ ‑
127HIS HONOUR: I know. And they are all off to the Court of Appeal.
128MR JASSAR: Off to the Court of Appeal. Yes. So in that sense, now, you have a bit more power to fix all those up.
129HIS HONOUR: Yes. Mr Northmore, can you see and hear me now?
130OFFENDER: Yes, sir.
131HIS HONOUR: Thank you. If you cannot hear me but you can see me just - if you cannot hear me but can see me, just put your hand up and I will know straight away.
132OFFENDER: Thank you, sir.
133HIS HONOUR: Thank you. What I was up to was I was just explaining to you or trying to explain to you. You signed a recognizance on 25 October, the day you were sentenced. And on the second page of it, there is documentation there and I have set out in it where the term of imprisonment was. And unfortunately, the whole sentence was put in as being 18 months' imprisonment when it should have been two years and six months. And I am just amending that part of the recognizance or noting the amendment to it. Do you understand?
134OFFENDER: Yes, sir.
135HIS HONOUR: So that this paperwork, the recognizance matches the sentence I have imposed upon you.
136OFFENDER: Yes, sir.
137HIS HONOUR: And that is the final of three things.
138OFFENDER: Okay, sir, thank you.
139HIS HONOUR: And just finally, when you finish your sentence, good luck when you get out.
140OFFENDER: Thank you, sir.
141HIS HONOUR: And do the best you can.
142OFFENDER: I will, sir. Thank you.
143HIS HONOUR: Yes. Thank you. I will just close the link now. Sorry, Mr Jassar, did you want to have a word to your client after?
144MR JASSAR: If I could, sir, just briefly.
145HIS HONOUR: I will just step out the back whilst you speak to him and then I will come back and then formally close the court.
146MR JASSAR: Thank you, sir.
147HIS HONOUR: Just excuse me for a minute, Mr Northmore.
148OFFENDER: Thanks sir.
149(Short adjournment.)
150MR JASSAR: Thank you, Your Honour, for that opportunity. Much appreciated.
151HIS HONOUR: Thank you. No, that is fine. I mean it is a difficult situation when your client is in custody and somehow he gets hauled out of their prison timetable and they are looking into a courtroom and the barrister they saw a week or two ago and think, What now is going on? And I will bet you that was the very question he asked you.
152MR JASSAR: Indeed, Your Honour. Indeed.
153HIS HONOUR: So hopefully it has been cleared up.
154MR JASSAR: Yes.
155HIS HONOUR: I will sign the formal order relating to the changes that have been made.
156MR JASSAR: Yes, Your Honour.
157HIS HONOUR: If there are any difficulties, come back.
158MS KING: I apologise for not picking up the error earlier, Your Honour.
159HIS HONOUR: Ms King, that is all right. This is difficult, this area for all.
160MR JASSAR: Just wanted to know if that - all that Your Honour has said but has it been formally crossed out - the 18 months been crossed out and two years six months entered?
161HIS HONOUR: Yes.
162MR JASSAR: On the actual recognizance release order?
163HIS HONOUR: The Crown will have that I think.
164MS KING: So Your Honour wants me to do a fresh one?
165MR JASSAR: No, no, the original ‑ ‑ ‑
166HIS HONOUR: No, no. I will ‑ ‑ ‑
167MS KING: I do not have the original.
168MR JASSAR: The court will have the original, Your Honour.
169HIS HONOUR: Have we got the original? Right. It is downstairs. What I will do is I will have it retrieved ‑ ‑ ‑
170MR JASSAR: Yes, sir.
171HIS HONOUR: ‑ ‑ ‑ and I will change it and initial it to two and a half years.
172MR JASSAR: Thank you, Your Honour.
173HIS HONOUR: Initial in that section.
174MR JASSAR: That is correct. It is in "This order has been issued and" ‑ ‑ ‑
175HIS HONOUR: (b)
176MR JASSAR: ‑ ‑ ‑ "(b), the court has been sentenced to a term of two years six months."
177HIS HONOUR: Correct.
178MR JASSAR: And after that has been initialled, if I can request your associate to ‑ ‑ ‑
179HIS HONOUR: Send you a copy.
180MR JASSAR: Thank you, sir.
181HIS HONOUR: I will send a copy to the Crown as well.
182MS KING: Thank you, Your Honour.
183MR JASSAR: As the court pleases.
184HIS HONOUR: Yes. Especially after the news in the last couple of days.
185MR JASSAR: Pardon me, sir?
186HIS HONOUR: Especially after news in the last couple of days.
187MR JASSAR: Yes, yes.
188HIS HONOUR: Long time - sorry, there is a case in Bendigo. Long time ago. Nineteen ninety-something.
189HIS HONOUR: Retain your notebook, Mr Jassar.
190MR JASSAR: Pardon me, sir?
191HIS HONOUR: Retain your notebook.
192MR JASSAR: Yes. I have got a whole bundle of them, Your Honour.
193HIS HONOUR: This is transcribed. I will get into trouble already. All right, thank you both.
194MR JASSAR: As the court pleases.
195HIS HONOUR: Thanks.
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