Director of Public Prosecutions v O'Brien
[2021] VCC 1178
•16 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-20-00058/
CR-20-01741/CR-21-01576
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON JOHN O'BRIEN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2021 | |
DATE OF SENTENCE: | 16 August 2021 | |
CASE MAY BE CITED AS: | DPP v O'Brien | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1178 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of sexual assault – one charge of sexual penetration of a child under the age of 16 (different victims) – seven charges of failing to comply with reporting obligations of a registrable sex offender – two charges of possession of methylamphetamine – eight summary charges of committing an indictable offence whilst on bail.
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:
Sentence: Total Effective Sentence of 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 11 months. s.6AAA: 7 years’ imprisonment with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Martin | Solicitor for Public Prosecutions |
| For the Accused | Mr T Sullivan | Martin Irwin and Richards |
HER HONOUR:
1Cameron John O’Brien, you have pleaded guilty to the following offences:
(a) On Indictment K12024640.1 (“the first indictment”), one charge of sexual assault, which carries a maximum penalty of 10 years’ imprisonment.
(b) On Indictment L12196927A (“the second indictment”), one charge of sexual penetration of a child under the age of 16 years, which carries a maximum penalty of 15 years’ imprisonment.
Related to that charge of sexual penetration is Summary Charge 2 of committing an indictable offence on bail, which carries a maximum penalty of three months’ imprisonment or 30 penalty units.
(c) On Indictment L12196927B (“the third indictment”), you have pleaded guilty to seven charges of failing to comply with the reporting obligations of a registrable offender under the Sex Offenders Registration Act 2004, each of which carries a maximum penalty of five years’ imprisonment, and two charges of possessing a drug of dependence (methylamphetamine), each of which carries a maximum penalty of five years’ imprisonment.
In addition, there are seven related summary charges of committing an indictable offence whilst on bail, each of which carries a maximum penalty of three months’ imprisonment or 30 penalty units, as well as one additional charge of failing to comply with reporting conditions as a registrable offender pursuant to the Sex Offenders Registration Act, which carries a maximum penalty of two years’ imprisonment.
2As far as all of the summary charges are concerned, you consented to them being transferred from the Magistrates’ Court to the County Court and pleaded guilty to them.
3In the light of the significant number of charges, I propose to append the prosecution’s summaries in relation to each indictment and the related summary charges to these sentencing remarks.
4You are currently aged 29 years, having been born on 18 May 1992. You have admitted a limited criminal history as follows:
· On 18 January 2017, you became before the Mildura Magistrates’ Court for contravention of a Family Violence Intervention Order. Without conviction you were given an adjourned undertaking for a period of six months with a condition that you make a donation of $400 to the Mallee Domestic Violence Service.
· On 13 February 2020, you appeared before the Mildura Magistrates’ Court on a charge of sexual assault. You were convicted and placed on a Community Correction Order for a period of 24 months, with conditions of unpaid community work, supervision, mental health assessment and treatment as directed and offending programs as directed. You were sentenced as a registrable offender pursuant to the Sex Offenders Registration Act with a reporting period of eight years.
5The conviction on 13 February 2020, related to an offence committed on 12 May 2018. However, as you were not convicted of that sexual assault until 13 February 2020, it is not a prior conviction for the purpose of the offending charged on the first indictment.
The first indictment
6The offending on the first indictment was committed on 20 July 2019. You attended for a relaxation massage at the Korean Massage in Mildura. You were alone in the massage room with your young female victim who was to give you the relaxation massage. From the outset, you behaved in a sleazy fashion by gratuitously exposing your genitals to her and engaging in inappropriate sexualised conversation while your victim was conducting the massage. You, then, touched her bottom on the outside of her clothing and asked for hugs, and tried to kiss her. You ultimately assaulted your victim in three ways. You put your hand inside her trousers and touched her bottom and kissed her neck. This was followed by you groping her breasts and touching the outside of her bra. You then put your hand inside her trousers and underwear and touched her vagina, before she forced you off and fled from the room. These three acts form this one rolled-up charge of sexual assault.
7You were ultimately arrested on 2 August 2019 and denied the offending, claiming that it had all been a “misunderstanding”. You were remanded in custody and released on bail on 13 August 2019. You conducted a contested committal, during which your victim was cross-examined. The matter ultimately resolved into a plea of guilty to the charge of sexual assault one year and five months after the offending, namely on 16 February 2021. By that stage, you had been charged with subsequent offending for which you had been remanded in custody. Your bail on the charge on the first indictment had been revoked on 2 February 2021 on your own application.
The second indictment
8At the time of committing the offences on the second indictment, you were on bail for the offending on the first indictment, as well as being on the Sex Offenders’ Register and also subject to the Community Correction Order. The prosecutor, Ms Martin, conceded that the fact that you were on bail should not be treated as an aggravating factor of the offending on the second indictment, as you have been charged with a separate summary offence of committing an indictable offence on bail relating to that. Nevertheless, the fact that you were on the Sex Offenders’ Register and on a Community Correction Order are aggravating factors.
9Your offending on the second indictment was committed on 14 September 2020. You victim was aged only 15 years and was staying at her aunt’s home. You had had some Facebook communication with her aunt, whom you had not previously met. However, on that day, when the aunt told you that her niece had been speaking to a mental health nurse because she was suicidal, you offered to come over and “help” by providing her with cigarettes.
10I will not detail the consensual sexual behaviour of yourself and your victim’s aunt which took place on this day. However, the long and short of it was that you introduced yourself to your young victim and, in the course of talking with her about depression, she had her head on your shoulder and was crying. Her aunt was coming and going from the room and you kissed your young victim on the neck about three times and offered to give her a massage. Her aunt was present for some of this, but then left the room. While she was away, you massaged your young victim’s thighs and, then, you put your hand inside her underwear by pulling her underwear to the side, massaged her genital area, and then inserted your fingers in her vagina. Twice after this, you told your young victim to promise to keep what had happened between you.
11Shortly afterwards, you left the home of your victim’s aunt. Your victim then revealed to her aunt what you had done and police were called. When asked about it, you denied the offending, but indicated your intention to plead guilty to the charge of sexual penetration of a child under the age of 16 years on 9 March 2021.
12Charge 2, the related summary charge, relates to you committing this indictable offence of sexual penetration of a child under the age of 16 years whilst you were on bail.
The third indictment
13Your offending on the third indictment involves seven charges of failing to comply with your reporting obligations pursuant to the Sex Offenders Registration Act after you had been placed on the sex offenders’ register on 13 February 2020. When interviewed by police relating to details for the register on 2 March 2020, you failed to reveal that you had an email account in the name “[email protected]” (Charge 1), that you had created Facebook accounts in the name of “Caneron.Jones” and “Caneron.Jones.10” (Charge 2”), and another in the name of “camchain43” (Charge 3), and yet a further account in the name of “cam obrien” (Charge 4). Subsequently, it was discovered that on 29 March 2020, you had failed to report that you had created another account in the name of “Caneron John” (Charge 5) on 27 March 2020, and also between 1 May 2020 and 30 June 2020 had created a further account in another name “cameronjohn1992” (Charge 6). Further, on 4 August 2020, you failed to report that you had obtained a new internet service provider (Charge 7). Charges 8 and 9 on that third indictment involve charges of possessing methamphetamine on 11 and 14 September 2020 respectively.
14Related to the charges on the third indictment are seven summary charges of committing an indictable offence on bail (Charges 15, 17, 19, 23, 25 and 27). All of these relate to the fact that whilst on bail you failed to comply with your reporting obligations under the Sex Offenders Registration Act on the dates of the indictable offences. In addition, Charge 28 involved you failing to comply with the reporting conditions by not advising that you possessed and owned a KTM 500 dirt bike.
15The charges on the third indictment resolved at committal mention on 8 December 2020.
16Up until the sentencing hearing today, you have spent a total of 312 days in custody across all three indictments.
17In a plea on your behalf, Mr Sullivan acknowledged the seriousness of your offending and the fact of your relevant prior conviction for sexual offending which occurred on 12 May 2018. At that time, when you were aged 25, at 1.00am you collected the 16 year-old victim in a vehicle and drove to a park where you began kissing her and were holding her head as she pulled away from you. Your victim got out of the car but later got back in and tried to speak with you, as she wanted to be taken home. You then started putting your hand up her shirt. She protested and told you to stop and that she was not comfortable with it. You then began kissing her and pulled down her bra and touched her breasts. Your victim was telling you to stop, but you kept going and began biting her nipples, causing her pain, until a security car drove past, following which, you drove your victim home. Your victim made a complaint to police on 14 August 2018 and you were ultimately interviewed on 12 December 2018. You initially denied even knowing the victim. When confronted with Facebook images of messages between you and the victim, you agreed that they were your messages but denied ever having gone to meet her, and denied the offending.[1]
[1]Exhibit “F”
18Mr Sullivan conceded that the only appropriate sentence for your offending was an immediate custodial term of imprisonment comprising a head sentence and a non-parole period. However, he urged that, in the light of your relative youth (currently aged 29) and a good work history, the support of your parents and other family members and the offer of a job by an aunt, a “shorter than usual non-parole period” was appropriate, submitting that your prospects of rehabilitation were good provided you could overcome a drug problem.
19Mr Sullivan stated that you come from a stable and caring home, with both parents employed and an older brother and sister. After leaving school partway through Year 10, you had worked for about one year as a landscaper and paver, and then began an apprenticeship as a boilermaker at STE Engineering in Mildura in 2011. In 2015, you qualified as a boilermaker and, thereafter, spent time working and travelling in New Zealand and also at Port Lincoln in South Australia. However, he stated that, by early 2019, you had become increasingly reliant upon methylamphetamine and were dismissed from your employment after failing a random drug test. He submitted that your offending had occurred in the context of methylamphetamine use, and relied upon the report of Mr Ball, forensic psychologist, dated 10 May 2020.[2]
[2]Exhibit “1”
20Mr Ball noted a stable upbringing, but that you had not liked school and had been suspended on a number of occasions before ultimately being expelled during Year 10. He took a history from you that you had started drinking alcohol at about age 16, with consistent weekend binge drinking until you were about 21. Thereafter, you largely abstained from alcohol but began using methylamphetamine over approximately the last eight years, and stated that you would use, at times, up to .5 of a gram daily. You acknowledged the negative impacts of your substance abuse on the relationship with family and friends, and noted that your daily use was a factor in your offending, as you stated that methylamphetamine increased your sex drive.
21You told Mr Ball that, in April 2019, you had been stabbed without warning to the neck and suffered life-threatening injuries, which caused you to be transferred by helicopter to the Alfred Hospital for emergency surgery to save your life. I have read the sentencing remarks relating to the offender, and it seems that the attack occurred after he had heard a conversation between others describing you as “a sex pest”.[3]
[3]Reasons for Sentence of His Honour Judge Dean in DPP v Bugeja [2020] VCC 1165 at [9], page 2
22You told Mr Ball that, at times, you still experience severe nightmares, hypervigilance and flashbacks relating to this attack upon you. Mr Ball considered that your symptoms satisfy the DSM-V diagnostic criteria for Post-Traumatic Stress Disorder. He noted that, whilst in custody, you have been prescribed the antidepressant, Citalopram, to help manage symptoms of depression and Post-Traumatic Stress Disorder.
23It was not suggested by Mr Ball that the Post-Traumatic Stress Disorder symptoms had played a role in your offending save that you claim you had been using methylamphetamine in part to self-medicate the sequalae of being stabbed. He considered that you satisfy the DSM-V diagnostic criteria for severe stimulant abuse in early remission in a controlled environment. He expressed the opinion that your drug abuse underpinned your sexual offending by obscuring your judgement and causing hypersexuality. He stated that you did not satisfy the DSM-V diagnostic criteria for paedophilic disorder.
24Overall, he assessed you as being at moderate risk of re-offending. Factors which increase that risk are that you have not completed an adult sex offender treatment program, have untreated Post-Traumatic Stress Disorder, and have a risk of relapsing back into substance abuse. He considered that, if these risk factors were addressed, that would assist your rehabilitation. He also noted that you would greatly benefit from developing an understanding of the effects of sexual abuse upon your victims, and the link between your Post-Traumatic Stress Disorder and self-medicating your condition with stimulants.
25Mr O’Brien, I have no doubt that when you were stabbed in April 2019 it must have been a truly dreadful experience for you. However, I do not accept that the offending for which I must sentence you is directly attributable to any Post-Traumatic Stress Disorder symptoms, as distinct from you appearing to have no concept of sexual boundaries, even when someone like your victim on the first indictment was plainly making her lack of sexual interest in you clear. On your own admission, you have been a regular user of methylamphetamine for some eight years, going back to the time when you were about 21 years old. This drug abuse preceded the stabbing incident by a long time.
26You had already demonstrated yourself to have an issue relating to inappropriate treatment of women by contravening a Family Violence Intervention Order protecting a former partner. For this offending, you were given an adjourned undertaking, without conviction, on 18 January 2017. Then, you committed the offence against a 16 year-old girl on 12 May 2018, for which you were sentenced to the Community Correction Order in February 2020. By early 2019, you had lost your employment as a boilermaker and welder because of your drug abuse. No material was put before the Court as to the extent to which you had engaged with the Community Correction Order, which had a condition specifically directed towards your mental health.
27In these circumstances, I have some reservation about the references tendered on your behalf, particularly that of Mrs Julie Walters dated 1 July 2021,[4] who describes having known you for some 12 years through the local motorbike club in which you were heavily involved in both participating and volunteering. She described you as respectful and caring and keen to assist others, but having “gone a little off the track” after the stabbing incident, and effectively been “failed” for quite some years by all available agencies when you were “crying out for help”.
[4]Exhibit “3”
28Leaving aside that Ms Walters either is not aware of, or does not acknowledge, the seriousness of the offending for which you are before the court, there has been no material tendered that you were endeavouring to receive assistance from agencies, either for your mental health or for your drug problem, and that they “failed you”.
29Another reference from Mr Glen Dichiera dated 13 July 2020,[5] states “I’m aware that Cameron will be pleading guilty to a (sic) serious sexual assault charges and believe he is sorry for his actions”. He describes you as a friendly, hardworking and helpful neighbour whom he has known for four years, and describes what you have done as out of character. It would appear that, in all the time Mr Dichiera has known you, you have been a user of methylamphetamine and that you have been out of employment since early 2019. It is difficult to accept his statement that your sexual offending is “out of character” when it is evident that you have offended against three separate women in 2018, 2019 and 2020.
[5]Exhibit “B”
30Mr O’Brien, you should be in no doubt as to the serious nature of your offending and its adverse effect upon your victims. The Victim Impact Statement from your victim of the offending charged on the first indictment, details a devastating impact upon a young woman who enjoyed her job as a masseuse, but then became so afraid after you assaulted her that she was unable to continue in it. She has suffered financially and emotionally to a very significant extent.
31Your young victim of the offending charged on the second indictment, whom you already knew to be vulnerable because she was suffering from depression and suicidal thoughts, describes in her Victim Impact Statement[6] feeling scared, confused, anxious and helpless and suffering ongoing sleep and appetite disturbance, lack of energy, isolation and ongoing suicidal thoughts necessitating prescription medication and other treatment. As correctly pointed out by the prosecutor, Ms Martin, there is a presumption of harm when a child under the age of 16 is the victim of such offending.
[6]Exhibit “E”
32Your counsel described your offending on the first and second indictments as being situational in nature rather than premeditated. On the material before me, I am unable to determine what was going on in your mind and the extent, if any, of preplanning on your part. However, your sexual offending on both the first and second indictments was certainly brazen in its nature. Your victim on the first indictment was simply carrying out her work, and you took advantage of the fact that you and she were the only people in the massage room, and were persistent in your sexual assaults. Your victim on the second indictment was 13 years younger than you. She was a 15 year-old girl whom you had been told was having suicidal thoughts and having mental health counselling on the very day upon which you offended against her. Having ostensibly undertaken the role of comforting her as she cried on your shoulder, you offered to give her a massage to relieve her lower back pain. You then took advantage of the trust that she had placed in you. You cunningly waited until her aunt was out of the room before you sexually assaulted her. Subsequently, you twice told her to keep it between the two of you to try to ensure that she did not make a complaint.
33At the time of committing the offence on the second indictment and the associated summary offence, you were in breach of the Community Correction Order which you had been given only seven months previously. Also, you knew that you were yet to face a court in relation to the charge on the first indictment.
34Your offending on the third indictment shows a serious disregard for your obligations as a registered sex offender. Your failure to disclose multiple different username accounts, email addresses and a changed internet service provider are particularly concerning. All of these things are part of the essential monitoring of the sex offenders’ register to ensure that people do not sexually prey upon others. As far as the related summary offences of committing an indictable offence whilst on bail are concerned, I do take into account that they involve the same factual basis of failing to comply with your reporting obligations, however, you were clearly not at all mindful of your undertaking of bail or your obligations under the Community Correction Order.
35Your counsel stated that you have been abstinent from illicit drugs since you were last remanded in custody on 22 October 2020, and have been working as a billet whilst in custody, initially undertaking cleaning duties and later carrying out work in the signage industry run at Hopkins Correctional Facility. He also stated that you are currently housed in a “cottage” at that facility, which you instructed him was an indicator that you had not been involved in any incidents and had been of good behaviour whilst in custody. You also instructed Mr Sullivan that you had renewed your white card for employment purposes whilst in custody and completed a cleaning program. However, you claim that you have not been subjected to any drug screens at all whilst in custody and are presently on a waiting list for a drug and alcohol course.
36I must say that, at the present time, I am guarded about your prospects of rehabilitation. Your offending against your two female victims was self-indulgent and has led to significant adverse consequences for each of them. Whether it is or is not due to your methylamphetamine use, I am unable to say. The prosecutor pointed out that the orders made by the magistrate on 13 February 2020, placing you on a Community Correction Order, do not contain any condition for assessment and treatment of drug abuse. According to the certified extract of orders from the Magistrates’ Court, this is so. This is somewhat puzzling given that, on your own admission, you have been using methylamphetamine since you were about 21 years of age. Given the length of such drug abuse, it is not likely to be something which will go away without significant treatment and there is no evidence that you had taken any initiative to undertake any before being remanded in custody in August 2019 or, again, in February 2021.
37Moreover, I note that Mr Ball, in his report, indicates that you need to acquire insight into the impact of your offending, and it is plain that you must undertake a sex offender course. Until such time as you have undergone a significant drug rehabilitation and education program, along with a sex offender course, I consider it difficult to assess your prospects of rehabilitation.
38I acknowledge that you have support from your parents and others in the community whom you know through your interest and volunteer work at the motorcycle club. However, you had the support of these people at the time of your offending and, clearly, that did not prevent your offending.
39In sentencing you, the court must denounce your conduct and place emphasis upon general deterrence, so that a message goes out to those in the community that this uncivilised, gratuitous, selfish fulfilment of sexual urges at the expense of the wellbeing of young females in the community simply will not be tolerated and will meet with appropriate punishment.
40In the light of you having now sexually offended on three occasions and repeatedly breached your obligations under the Sex Offenders Registration Act, as well as repeatedly breaching your bail, emphasis must also been placed on specific deterrence and just punishment. In all of the circumstances, I currently see a need to protect the community from you.
41In sentencing you, I acknowledge your pleas of guilty, which probably have some remorse attached to them albeit short of true insight, particularly in relation to the impact upon the victims of your sexual offending. Your plea in relation to the offending on the first indictment was not an early one. However, I take into account that, following the committal, a more serious charge was not proceeded with by the prosecution. Otherwise, your pleas of guilty are relatively early ones and you should be given credit for having facilitated the course of justice and saved the State the time and cost of a trial, as well as your victims having to give evidence at a trial.
42I have found there is some remorse and feeling of shame attached to your offending, and I find that the utilitarian benefit of your pleas of guilty is greater by reason of the fact that the pleas were indicated during the pandemic where restrictions have made it difficult, and at times impossible, to conduct criminal trials in the State of Victoria.
43As far as your period in custody is concerned, I acknowledge that at least part of it has been during a period of restrictions, occasioned by the pandemic. These have included less out of cell time for prisoners in order to facilitate social distancing, a substantial decrease in the number of rehabilitative programs available, and a lack of contact visits from family and friends. The Court acknowledges that all of these factors have made and at the present time are continuing to make serving a period in custody more onerous, particularly as you do have some ongoing symptoms of Post-Traumatic Stress Disorder and depression, which require prescription medication. The latter makes serving a term of imprisonment more onerous than would be the case if a prisoner did not suffer such conditions.
44In sentencing for the charge on the second indictment, I am mindful of the fact that it is a standard sentence offence with a nominated period of six years’ imprisonment. I have taken this into account in determining the sentence to be imposed, being mindful that a standard sentence is not a mandatory sentence but a legislative guidepost as to the seriousness of the offence, and is not the determinative factor in arriving at a sentence. The intuitive synthesis remains the appropriate sentencing approach, taking into account current sentencing practices albeit that they are not the dominant or controlling factor, and the ultimate sentence must be a just one in all of the circumstances of the case.
45In this regard, I note that the charges on the second and third indictments, and all of the summary charges were committed whilst you were on bail and therefore attract the provisions of s.16(3C) of the Sentencing Act, which carries a presumption of cumulation should a term of imprisonment be imposed. However, in the interests of totality and also bearing in mind that the factual basis for the summary charges relating to the third indictment is the same as the charges on that indictment, I consider that total cumulation is inappropriate.
46On the first indictment on one charge of sexual assault, you are convicted and sentenced to 20 months’ imprisonment.
47On the second indictment on one charge of sexual penetration of a child under the age of 16 years, you are convicted and sentenced to be imprisoned for a period of three years.
48On the third indictment on Charges 1, 2, 3, 4, 5, 6 and 7, failing to comply with reporting obligations contrary to s46(1A) of the Sex Offenders Registration Act, you are convicted and sentenced to an aggregate sentence of 14 months’ imprisonment. On Charges 8 and 9, possession of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to be imprisoned for an aggregate period of six months’ imprisonment.
49I direct that two months of the aggregate sentence imposed on Charges 8 and 9 on the third indictment be served cumulatively upon the aggregate sentence of 14 months’ imprisonment imposed on Charges 1-7. The total effective sentence imposed on the third indictment is thus 16 months’ imprisonment.
50On Summary Charge 2, committing an indictable offence of sexual penetration of a child under the age of 16 whilst on bail, you are convicted and sentenced to be imprisoned for a period of one month.
51On Summary Charges 15, 17, 19, 23, 25 and 27, committing an indictable offence whilst on bail by failing to comply with reporting conditions, you are convicted and sentenced to an aggregate period of imprisonment of five months.
52On Summary Charge 28, being a registrable offender under the Sex Offenders Registration Act and failing to comply with reporting obligations in relation to possession and ownership of a KTM 500 dirt bike, you are convicted and sentenced to one month imprisonment.
53The base sentence is that of three years imposed on the second indictment. I order that 12 months of the sentence imposed on the first indictment, 10 months of the total effective sentence imposed on the third indictment, the one month imposed on Summary Charge 2, three months of the aggregate sentence imposed on Summary Charges 15, 17, 19, 23, 25 and 27, and the one month imposed on Summary Charge 28 be served cumulatively upon the base sentence of three years imposed on the second indictment and upon each other.
54The total effective sentence is five years and three months’ imprisonment.
55I order that you serve a period of 3 years and 11 months’ imprisonment before becoming eligible for parole.
56I declare a period of 312 days pre-sentence detention across all three indictments to be time reckoned as already served pursuant to the total effective sentence imposed this day.
57Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed this day would have been seven years’ imprisonment with a non-parole period of five years.
58On 13 February 2020, you were declared a registrable sex offender pursuant to s11 of the Sex Offenders Registration Act and ordered to comply with the reporting obligations under the Act for a period of eight years. Your conviction on Charge 1 on the second indictment is a conviction for a Class 1 offence pursuant to Schedule 1 of the Sex Offenders Registration Act. You have now been found guilty of one Class 2 offence and one Class 1 offence. Pursuant to s34(1)(c)(ii) of the Act, you must now comply with the reporting obligations pursuant to that Act for the rest of your life.
59On Charge 1 of the second indictment, having been convicted of the charge of sexual penetration of a child under the age of 16, the court orders pursuant to s78(1) of the Confiscation Act 1997 the forfeiture to the State of the property referred to in the Schedule, and further directs that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed. The property in the Schedule is one pair of grey and orange leggings, one green towel, one piece of black underwear and a tube of Fisiocrem massage cream.
60Upon conviction of you on Charge 1 on the second indictment, together with the convictions for the charges on the third indictment, the court orders pursuant to s33(1) of the Confiscation Act that the property referred to in the Schedule be forfeited to the Minister. This property is one Apple iPhone.
61Upon conviction of Charge 1 on the first indictment, the Court orders pursuant to s78(1) of the Confiscation Act the forfeiture to the State of the property referred to in the Schedule, and further directs that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed. The property in the Schedule is one Montec brand jumper and one set of black clothing.
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IN THE COUNTY COURT Indictment No: K12024640.1
OF VICTORIA
AT MELBOURNE
Court Reference: CR-20-00058
DIRECTOR OF PUBLIC PROSECUTIONS
-v-
CAMERON JOHN O’BRIEN
AMENDED SUMMARY OF PROSECUTION OPENING FOR PLEA
| Date of document: | 29 July 2021 |
| Filed on behalf of: | The Prosecution |
| Prepared by: Abbey Hogan Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: 7539 |
Background
The accused was born on [redacted] and is currently aged 28 years. At the time of the offending he was aged 28 years and was residing with his parents [redacted].
The victim in this matter is [redacted]. [redacted] was born on [redacted] and is currently aged [redacted] At the time of this offending she was employed as a masseuse at [redacted].
Circumstances of Offending
On 20 July 2019 at approximately 5:45 pm, the accused entered the Korean Massage. He was served by [redacted] and he paid for a relaxation massage at the front counter.[7] The massage was to go for approximately one (1) hour. A co-worker, [redacted], prepared the massage room.
[7] [redacted], Brief page 18, para 4
When [redacted] entered the massage room the accused had his pants on. The accused immediately took off his pants while facing her, exposing his genitals.[8] The accused was covered with a towel when he got on the massage table.
[8] [redacted], Brief page 18, para 7.
The accused told [redacted] that he was 26 years old and later told her that he had a scar on his neck.[9]
[9] [redacted], Brief page 18, para 6.
In the latter part of the massage, the accused proceeded to have a sexually motivated conversation with [redacted] whilst she was conducting the massage. He asked her if she had a boyfriend; if she liked sex; he said that she was “sexy”; and he asked what her Facebook and phone number was. He said that they should “go out.”[10]
[10] [redacted], Brief page 19, para10.
The accused then touched [redacted] bottom on the outside of her clothing (context evidence) and asked her for hugs. [redacted] became scared and hugged him.[11]
[11] [redacted], Brief page 19, para14.
Towards the end of the massage the accused offered [redacted] money. She refused and she tried to push him away. The accused then tried to kiss her. (context evidence).
The accused put his hand inside [redacted]’s trousers and touched her bottom and kissed her neck.[12] (Charge 1 – Sexual assault. This is a rolled-up charge).
[12] [redacted], Brief page 20, para16.
10.He groped her breasts, touching the outside of her bra.[13] (Part of Charge 1 – Sexual assault).
[13] [redacted], Brief page 20, para16.
11.The accused then put his hand inside [redacted]’s trousers and underwear and touched her vagina before she forced him off and fled the room.[14] (Part of Charge 1 – Sexual assault).
[14] [redacted], Brief page 20, para16.
12.The accused dressed and carried his shoes as he left the.
Complaint evidence
13.At approximately 8.00pm the complainant telephoned her manager, [redacted], and told her that there was a “serious problem” and that “a man had attacked her”. [redacted] noted that the complainant sounded “scared”. [redacted] contacted police and went to the business.[15]
[15] [redacted], Brief page 27, para 4.
14.The police attended and [redacted] told [redacted] what had happened and [redacted] translated the complaint to the police. [16]
[16] Senior Constable AYSON and First Constable GEARY
15.[redacted] later made a complaint to her co-worker [redacted].[17]
[17] [redacted], Brief 24, para 6.
Investigation
16.The police investigation produced evidence that the accused DNA was located on the complainant’s breast swab[18] and neck.[19]
[18] Nicole Haycraft, NAW, Sample 1B-1.
[19] Nicole Haycraft, NAW, Sample 1A-1.
Arrest and Record of Interview
17.On 2 August 2019 a search warrant was conducted at the accused’s home and he was arrested. He was conveyed to the Mildura Police Station where he participated in a Record of Interview during which he stated that he attended the business to get a massage; that he and the masseuse did not talk much during the massage; that there was a “misunderstanding” and the masseuse fled the room after he stood to show her an issue with his shoulder and the towel he was wearing fell away; and that he put on his clothes and left, carrying his shoes.
Plea of guilty
18.The matter resolved on 16 February 2021.
19.Section 6AAA of the Sentencing Act 1991 applies.
Maximum Penalties
Charge 1
Sexual assault
10 years imprisonment pursuant to s.40(2) of the Crimes Act 1958.
Prior Convictions
20.The accused has a limited criminal history for relevant offending.
Pre-sentence Detention (PSD)
21.The accused was remanded following his arrest on 2 August 2019 and was released on bail on 13 August 2019. The accused’s bail on this matter was revoked on 2 February 2021 on his own application and he has remained in custody since this time.
22.The period of pre-sentence detention to be declared in this proceeding is the period between 2 August 2019 and 13 August 2019 and the period between 2 February 2021 and 29 July 2021 (but not including the day of the plea hearing).
23.This period comes to a total of 188 days.
Serious Offender Provisions
24.Part 2A of the Sentencing Act 1991 (the Act) is not applicable to this proceeding.
25.Charge 1 on the Indictment constitutes a sexual offence within the meaning of s.6B(1) of the Act.
26.The accused’s conviction on 13 February 2020 for the offence of Sexual assault resulted in him receiving a Community Corrections Order for a period of 24 months. Therefore, the combination of this conviction and the accused’s conviction on the current Indictment does not result in the accused meeting the definition of a “serious sexual offender” under s.6B(2)(a) of the Act.
Fiona Martin
Prosecution Counsel
IN THE COUNTY COURT Indictment No: L12196927A
OF VICTORIA L12196927B
AT MELBOURNE
Court Reference: CR-20-01741 and CR-21-01576
DIRECTOR OF PUBLIC PROSECUTIONS
-v-
CAMERON JOHN O’BRIEN
FURTHER AMENDED SUMMARY OF PROSECUTION OPENING FOR PLEA
| Date of document: | 29 July 2021 |
| Filed on behalf of: | The Prosecution |
| Prepared by: Abbey Hogan Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: 7539 |
Background
The accused was born on [redacted] and is currently aged 28 years. At the time of the offending he was aged 27-28 years and was residing with his parents [redacted].
On 17 January 2020, the accused entered an Undertaking of Bail in relation to Magistrates Court Proceeding Number K12024640.[20]
[20] Exhibit 4 – page 241 of the Hand-Up Brief
On 13 February 2020, the accused was declared a registrable sex offender pursuant to s.11 of the Sex Offender Registration Act 2004 (the Act) and was ordered to comply with the reporting obligations under the Act for a period of eight (8) years.
Pursuant to s.14(1) of the Act, a Registered Sex Offender (RSO) is required to report, amongst other things, the following personal details to Victoria Police:
(da) his or her telephone number (if any);
(db) his or her email address (if any);
(dc) if the registrable offender has an Internet service provider, the name of that Internet service provider;
(dd) any —
(i) Internet user names; or
(ii) instant messaging user names; or
(iii) chat room user names; or
(iv) other user name or identity —
used or intended to be used by the registrable offender through the Internet or other electronic communication service;
(h) the make, model, colour and registration number (if any) of any motor vehicle or caravan owned by, or generally driven by, him or her;
Pursuant to s.17(1) of the Act, an RSO must report to police any change to his/her personal details within seven (7) days of the change.
On 2 March 2020 at 2.00pm, the accused attended his RSO Initial Interview with D/S/C Fleur ROYDS at the Mildura Police Station. During this interview the accused reported the following details[21]:
[21] Exhibit 1 – RSO Initial Interview Form, pages 228-233 of the Hand-Up Brief
That his internet service provider was Telstra and he only connects to the internet through his mobile phone, not through any other device
That his mobile phone number is 0417 764 108
That his only email address is ‘[email protected]’
That his Facebook user name is ‘Cameron O’BRIEN’
That his Snapchat user name is ‘Camchain16’
He reported contact with his nieces
Following his interview the accused signed an Acknowledgement of Reporting Conditions confirming he had received notification of his reporting obligations and that he must comply with all reporting obligations imposed on him by the Act.[22]
[22] Exhibit 2 – Acknowledgement of Reporting Obligations, page 236 of the Hand-Up Brief
Circumstances of offending – Indictment L12196927A – victim [redacted]
The victim in this matter is [redacted]. [redacted] was born on 7 November 2004 and is currently aged 16 years. At the time of the offending she was aged 15 years and was living with her aunty, [redacted], at [redacted]. [redacted] met the accused through Facebook on 29 June 2020. [redacted] met the accused through her aunty [redacted]. [23]
[23] Statement of [redacted] dated 15 September 2020, paragraph 3, from page 114 of the Hand-Up Brief
On 14 September 2020 at 9.30pm, the accused called [redacted] over Facebook and asked to come over to her house. He asked her why she had not answered his earlier calls and she told him it was because she was dealing with [redacted] who had been speaking to a mental health nurse about killing herself. The accused offered to come over and “help” [redacted] by providing her with cigarettes.[24]
[24] Statement of [redacted] dated 15 September 2020, paragraphs 5-6
10.Sometime between 9.30pm and 10.00pm the accused arrived at [redacted] and this was the first time the accused and [redacted] had met in person. They had a cigarette together on the front step of [redacted]’s home and engaged in sexual activity but stopped after a few minutes.[25]
[25] Ibid paragraphs 7-10
11.They went inside [redacted]’s home and they commenced talking to [redacted] through the door of her bedroom. The accused introduced himself and started taking to [redacted] about depression. [redacted] left to get a drink and a cigarette and when she returned the accused was sitting on [redacted]’s bed and she had her head on his shoulder and was crying. [redacted] states that the accused wanted her to go out the front with him and while [redacted] was getting a drink he grabbed the back of her neck and kissed her and he did this at least three times during the period he was at the home. (Uncharged)[26]
[26] Ibid paragraphs 11-12
VARE of [redacted] dated 17 September 2020 Q&A 17-18 and 74-81
12.[redacted] and the accused left and went to the [redacted] office where they engaged in sexual activity before [redacted] returned home while the accused remained in the office to clean himself up. [redacted] was taking to [redacted] about her lower back issues when the accused returned and offered to give [redacted] a massage. [redacted] was okay with this and [redacted] went and got cream from her daughter’s bedroom and took it to [redacted]’s room.[27]
[27] Statement of [redacted] dated 15 September 2020, paragraphs 13-15 and 108-110
VARE of [redacted] dated 17 September 2020 Q&A 18-19
13.Either the accused or [redacted] suggested [redacted] take her top off and she did. She lay on her stomach on her bed. The accused stood next to her and massaged her back before he moved to sitting on top of [redacted] by straddling her lower legs. At this point, [redacted] was massaging the accused’s shoulders as he was on top of [redacted] massaging her lower back.[28]
[28] Statement of [redacted] dated 15 September 2020, paragraphs 15-16
VARE of [redacted] dated 17 September 2020 Q&A 19, 112-124 and 179
14.The accused commenced massaging [redacted]’s thigh and told [redacted] that her thigh was “tight”. [redacted] felt [redacted]’s thigh and agreed. [redacted] told [redacted] that it was up to her if she wanted the massage to move to her thighs and it was up to her if she wanted to keep her pants on for this. The accused suggested [redacted] remove her pants and she did but she kept her underwear on. [redacted] left and went to another room to get blueberry moisturiser to massage [redacted]’s feet.[29]
[29] Statement of [redacted] dated 15 September 2020, paragraph 17
VARE of [redacted] dated 17 September 2020 Q&A 129-133, 141-145 and 285
15.[redacted] returned to the room and the accused was still massaging [redacted]’s thighs so she commenced massaging [redacted]’s feet. This continued for approximately 10 minutes and then the accused suggested to [redacted] that she run [redacted] a bath and she left to do this and left the accused still massaging [redacted]’s thighs.[30]
[30] Statement of [redacted] dated 15 September 2020, paragraphs 18-19
VARE of [redacted] dated 17 September 2020 Q&A 135-137
16.When [redacted] was gone the accused told [redacted], “I wanna massage your inner things but I can’t because I’ll accidently touch somewhere” and she replied, “It’s ok”. The accused then said, “I don’t wanna accidently touch you there” and she replied, “It’s ok.” At this point, the accused yelled out to [redacted] to put bath salts in the bath.[31]
[31] VARE of [redacted] dated 17 September 2020 Q&A 138-149 and 168-169
17.The accused massaged [redacted] and put his hand inside her underwear by pulling her underwear to the side. He massaged [redacted]’s genital area and then “fingered” her. This caused her pain as she still had the massage cream on his fingers. [redacted] states that this occurred for a minute or two. The accused told [redacted] “Promise you’ll keep this between us.”[32] (Charge 1 – Sexual penetration with a child under 16 / Summary Charge 2 – Commit Indictable offence on bail)
[32] Ibid Q&A 151-162
18.[redacted] got up off her bed and got into the bath. Initially, she was wearing her underwear and had a towel still wrapped around her as the accused still in the bathroom. The accused asked to have a shower and he had a shower at the same time [redacted] had a bath. The accused finished his shower and told [redacted] to “keep it between us.” He then left the bathroom, leaving [redacted] in the bath. He then left [redacted]’s home and told her he was attending McDonald’s.[33]
[33] Statement of [redacted] dated 15 September 2020, paragraphs 20-25
VARE of [redacted] dated 17 September 2020 Q&A 27, 171-174, 181 and 191-193
19.[redacted] states that she heard [redacted] tell the accused she was aged 15 years.[34]
[34] Ibid Q&A 274
Complaint evidence
20.After the accused left [redacted] went to her bedroom. She heard [redacted] get out of the bath and she came to her room and told her that the accused had “touched” her. [redacted] called the accused over Facebook and accused him of touching [redacted] and he denied doing so.[35]
[35] Statement of [redacted] dated 15 September 2020, paragraphs 27-28
VARE of [redacted] dated 17 September 2020 Q&A 28, 198 and 212-214
21.[redacted] told [redacted] to call 000 and she did.[36]
[36] Exhibit 7 – 000 call, pages 251-264 of the Hand-Up Brief
VARE of [redacted] dated 17 September 2020 Q&A 29 and 229
22.Following the 000 call [redacted] told [redacted] that when she went to run the bath the accused “touched me” and when asked by [redacted] if this was “inside or out?” she replied, “both”. [redacted] called the accused a second time over Facebook and turned the phone to [redacted] for her to confront him. He denied touching her and [redacted] ended the call.[37]
[37] Statement of [redacted] dated 15 September 2020, paragraphs 30-35
23.At 11.13pm the accused attended the McDonald’s on [redacted]. He used his phone to search Facebook for [redacted]’s name.[38]
[38] Exhibit 27 – CCTV stills from McDonalds, pages 340-344 of the Hand-Up Brief
Exhibit 29 – Extraction Report, page 381 of the Hand-Up Brief
Investigation
24.The 000 call made by [redacted] was made at 11.38pm on 14 September 2020.[39]
[39] Exhibit 7 – 000 call, pages 251-264 of the Hand-Up Brief
25.In the early hours of 15 September 2020 police attended [redacted] and a disclosure was taken from [redacted]. [redacted] was present when this occurred.[40]
[40] Statements of First Constables Bailey Sowter and Ali Youssofzay, Constable Ben Athorn, Sergeant Adam Jepson and D/S/C Jamin Middleton.
Statement of [redacted] dated 15 September 2020, paragraphs 39-40
26.[redacted] was conveyed to the Mildura SOCIT office for an examination with Dr. Gerald Murphy.
27.On 17 September 2020, [redacted] participated in a VARE interview and disclosed the offending.
Arrest and Record of Interview
28.At 2.03am on 15 September 2020, the accused was arrested at his home and conveyed to the Mildura Police Station. He participated in a Record of Interview during which he denied touching [redacted] and denied that he was alone in the room with her. He stated that when [redacted] left to run the bath he washed his hands and left the home. He admitted receiving the call from [redacted] accusing him of touching [redacted] when he was at McDonalds and the reason he pulled into the waiting bay was because of the shock caused by the accusations.
Summary charges related to Indictment L12196927A
29.Upon committal for trial of the accused a number of summary charges were transferred pursuant to section 145 of the Criminal Procedure Act 2009:
·Charge 2 – Commit indictable offence on bail
30.It is intended that Charge 2 will be prosecuted following as part of the plea on Indictment L12196927A.
Circumstances of offending – Indictment L12196927B
31.On 15 September 2020, the accused was arrested in relation to the proceeding for Indictment L12196927A. His mobile was seized at the time of his arrest. The accused was ultimately released from police custody.
32.On 29 September 2020, the accused provided police with permission to audit his online accounts and on 30 September 2020, the accused’s mobile phone was analysed.
33.The analysis of the accused’s mobile phone and online accounts revealed the following[41]:
[41] Exhibits 3 and 28-38 of the Hand-Up Brief
·On 4 August 2019, the accused created the email account ‘[email protected]’ and did not report this to police during his RSO Initial Interview on 2 March 2020; Charge 1 – Fail to comply with reporting obligations / Summary Charge 15 – Commit indictable offence on bail
·On 6 September 2019, the accused created the Facebook account names of ‘caneron.jones and caneron.jones.10’ and did not report these to police during his RSO Initial Interview on 2 March 2020; Charge 2 – Fail to comply with reporting obligations / Summary Charge 19 – Commit indictable offence on bail
·On 3 September 2016, the accused created the username ‘camchain43’ for his Instagram account. The username is linked to his ‘[email protected]’ email address and his mobile phone number. The accused did not report this username to police during his RSO Initial Interview on 2 March 2020; Charge 3 – Fail to comply with reporting obligations / Summary Charge 23 – Commit indictable offence on bail
·The accused had the Facebook account name of ‘cam obrien’ and this account was registered to his ‘[email protected]’ email account on a date before his RSO Initial Interview on 2 March 2020 and he did not report this during the interview; Charge 4 – Fail to comply with reporting obligations / Summary Charge 25 – Commit indictable offence on bail
·The accused was the owner of a KTM 500 motorbike and did not report this to police during his RSO Initial Interview on 2 March 2020; Summary Charge 28 – Fail to comply with reporting obligations
·On 20 March 2020, the accused created the Facebook account name of ‘caneron john’ and did not report this to police as required under s.17 of the Act; Charge 5 – fail to comply with reporting obligations / Summary Charge 17 – Commit indictable offence on bail.
On 6 September 2019, the accused linked his then Facebook account ‘Caneron John’ to his ‘[email protected]’ email address and to his mobile phone on 14 November 2019. The accused deactivated this Facebook account name and reactivated it on 2 February 2020 which was prior to his RSO Initial Interview. This account was still active as of 6 September 2020 when the accused added Ashleigh BARKER as a friend to this account. (Uncharged)
As above, on 20 March 2020 the accused created the new Facebook account name of ‘caneron john’.
·Between 1 May 2020 and 30 June 2020, the accused created the username ‘cameronjohn1992’ for his Pornhub account and linked the username to his ‘[email protected]’ email address. He did not report this username to police as required under s.17 of the Act; Charge 6 - Fail to comply with reporting obligations / Summary Charge 21 – Commit indictable offence on bail
·On 4 August 2020, the accused changed his internet service provider to Optus and did not report this to police as required under s.17 of the Act; Charge 7 – Fail to comply with reporting obligations / Summary Charge 27 – Commit indictable offence on bail
Arrest and Record of Interview
34.On 22 October 2020, the accused was arrested a second time in relation to the material revealed during the phone analysis. He participated in a Record of Interview during which he stated, inter alia, the following:
· That on 11 September 2020 he attended the Sandors Motor Inn to visit his friend Ashleigh BARKER and they smoked ice[42]; Charge 8 – Possession of a drug of dependence (Q&A 61-62, 72-83, 88, 104-107, 286, 290, 397-398, 811-812, 817-830 and 835)
[42] Exhibit 5 – Sandors Motor Inn visitor log, page 243 of the Hand-Up Brief
· That on 14 September 2020 he again attended the Sandors Motor Inn to visit BARKER and they smoked ice[43]; Charge 9 – Possession of a drug of dependence (Q&A 61-62, 72-83, 88, 104-107, 286, 290, 397-398, 811-812, 817-830 and 835)
[43] Ibid
· He admitted to creating and using the multiple usernames and account names that were not reported to police but claimed that he did not report these because he forgot about them
· In relation to his use of the Optus service provider he disputed that he commenced using this on 4 August 2020 and stated that he did not have a working phone at that time. He further stated that he reported this change to police members in September (Q&A 532-545)
· He stated that he reported his gmail email address to police during his RSO Initial Interview even though it was not recorded on the extract (Q&A 318-327)
· In relation to the KTM500 motorbike he stated that he was not asked about his ownership of motorbikes in his RSO Initial Interview and he did not know he had to report this (Q&A 740-757)
35.The accused was charged with this offending on 26 October 2020.
Investigation
36.It is the prosecution case that the accused was fully aware of his reporting obligations under ss.14 and 17 of the Act and that he did not have a reasonable excuse for failing to comply with his reporting obligations.
Summary charges related to Indictment L12196927B
37.Upon committal for trial of the accused a number of summary charges were transferred pursuant to section 145 of the Criminal Procedure Act 2009:
·Charges 15, 17, 19, 23, 25 and 27 – Commit indictable offence on bail
·Charge 28 – Fail to comply with reporting obligations
38.It is intended that these summary charges will be prosecuted as part of the plea.
Plea of guilty – Indictment L12196927A and Indictment L12196927B
39.The matter involving Indictment L12196927B resolved at a Committal Mention on 8 December 2020.
40.The matter involving Indictment L12196927A resolved on 9 March 2021.
41.Section 6AAA of the Sentencing Act 1991 applies.
Maximum Penalties
Indictment L12196927A
Charge 1
Sexual penetration of a child under the age of 16
15 years imprisonment pursuant to s.49B(2) of the Crimes Act 1958
**This is a standard sentence offence
Summary Charge 2
Commit an indictable offence on bail
3 months imprisonment or 30 penalty units pursuant to s.30A of the Bail Act 1977
Indictment L12196927B
Charges 1-7
Failing to comply with reporting obligations
5 years imprisonment pursuant to s.46(1A) of the Sex Offenders Registration Act 2004
Charges 8 and 9
Possession of a drug of dependence
5 years imprisonment pursuant to s.73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 Summary Charge 28
Failing to comply with reporting obligations
2 years imprisonment pursuant to s.46(1B) of the Sex Offenders Registration Act 2004
Summary Charges 15, 17, 19, 21, 23, 25 and 27
Commit an indictable offence on bail
3 months imprisonment or 30 penalty units pursuant to s.30A of the Bail Act 1977
Prior Convictions
The accused has a limited criminal history for relevant offending.
Pre-sentence Detention (PSD)
In relation to Indictment L12196927A, the accused was remanded into custody following his arrest on 15 September 2020 and was released from custody on 16 September 2020. The accused’s bail on this matter was revoked on 26 October 2020 after he was arrested in relation to the offending for Indictment B.
In relation to Indictment L12196927B, the accused was remanded into custody following his arrest on 22 October 2020 and he has remained in custody since this time.
The period of pre-sentence detention to be declared across Indictments A and B is the period between 15 September 2020 and 16 September 2020 and the period between 22 October 2020 and 29 July 2021 (but not including the date of the plea hearing).
This period comes to a total of 282 days.
Standard Sentence regime
47.Charge 1 on Indictment L12196927A is a standard sentence offence.
48.Pursuant to s.49B(3) of the Crimes Act 1958 the standard sentence for this offence is 6 years imprisonment.
Sex Offence Registration
49.On 13 February 2020, the accused was declared a registrable sex offender pursuant to s.11 of the Sex Offender Registration Act 2004 (the Act) following his conviction for a single charge of Sexual assault. He was ordered to comply with the reporting obligations under the Act for a period of eight (8) years.
- Sexual assault is an offence listed in Schedule 4 Item 1 to the Act. Pursuant to s.34(4)(b) of the Act this offence is deemed to be a Class 2 offence and this is how the 8 year reporting period was calculated.
- Charge 1 on Indictment L12196927A is a Class 1 offence pursuant to Schedule 1 to the Act. Pursuant to s.6(1) Note 4 of the Act the accused’s conviction on this offence means that he is to be declared a registrable offender on Charge 1 on Indictment L12196927A and must comply with the reporting obligations of the Act.
- Charges 1-8 on Indictment L12196927B do not constitute registrable offences under section 7 of the Act and therefore the accused’s conviction on this Indictment does not alter his current reporting period.
- The accused has now been found guilty of a single Class 1 offence and a single Class 2 offence.
- Pursuant to s.34(1)(c)(ii) of the Act the accused must now comply with the reporting obligations of the Act for life.
- The effect of s.34(1) of the Act means that the accused’s conviction on 13 February 2020 for a Class 2 offence and his conviction on Charge 1 on Indictment L12196927A operate to create a reporting period of life on the Order to be imposed in this proceeding.
Serious Offender Provisions
56.Part 2A of the Sentencing Act 1991 (the Act) is not applicable to this proceeding.
57.Charge 1 on Indictment L12196927A constitutes a sexual offence within the meaning of s.6B(1) of the Act.
58.Charges 1-8 on Indictment L12196927B do not constitute sexual offences within the meaning of s.6B(1) of the Act.
59.The accused’s conviction on 13 February 2020 for the offence of Sexual assault resulted in him receiving a Community Corrections Order for a period of 24 months. Therefore, the combination of this conviction and the accused’s conviction on Indictment L12196927A does not result in the accused meeting the definition of a “serious sexual offender” under s.6B(2)(a) of the Act.
60.Should the accused be sentenced to a term of imprisonment on Charge 1 on Indictment K12024640 in proceeding CR-20-00058, the accused will have been found guilty of two (2) sexual offences within the meaning on s.6B(1) of the Act. In the event the accused is convicted of a third and subsequent sexual offence within the meaning of s.6B(1) of the Act, he will fall to be declared a serious sexual offender on that subsequent offence.
Ancillary Orders
61.Application is made for the destruction of the following exhibits that were seized during the investigation:
·Exhibit 12 – Grey and orange leggings
·Exhibit 13 – Green towel
·Exhibit 14 – Black underwear
·Exhibit 15 – Tube of Fisiocrem massage cream
·Exhibit 23 – 1 x Apple Iphone in a black case
Fiona Martin
Prosecution Counsel
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