Director of Public Prosecutions v O'Malley
[2013] VCC 1217
•3 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
Case No. CR-13-01210
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EOUGHAN O’MALLEY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 28 August 2013 | |
DATE OF SENTENCE: | 3 September 2013 | |
CASE MAY BE CITED AS: | DPP v O’Malley | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1217 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Robins | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. McKenzie | Victoria Legal Aid |
HER HONOUR:
1 Eoughan O’Malley, you have pleaded guilty to one charge of using a carriage service to access child pornography material contrary to sub‑s.474.19(1) of the Criminal Code (Cth). The maximum penalty for this charge is 15 years’ imprisonment.
2 This crime arises from events which took place between 4 November 2012 and 17 December 2012, ie over approximately six weeks.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with the prosecution opening (Exhibit A). I sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are very serious and disturbing. Your behaviour was unacceptable, and your explanation for being involved of “curiosity” is most unsatisfactory.
4 I turn to a brief summary of the facts in this case.
5 On 18 December 2012 the Australian Federal Police (AFP) executed a search warrant at your home and seized an Apple iMac desktop computer which contained child pornography. You were arrested on that date and taken to Kyneton Police Station, where a record of interview was conducted.
6 A forensic analysis of your computer located 104 images classified as child pornography based on the Oliver scale of seriousness from Level 1 through to Level 6. There were eight images in Level 1, eight in Level 2, thirteen in Level 3, a concerning and troubling sixty-six in Level 4 demonstrating penetrative sexual activity between children and adults, two in Level 5 reflecting sadism, bestiality, or any form of child abuse, and three in Level 6. In total there were one hundred preview files together with four additional images in the trash folder: two in each of Levels 1 and 2.
7 The prosecution referred specifically to two images in both Levels 4 and 5 as examples of the images you accessed (see paras 7 and 8 of Exhibit A). It is not necessary to repeat those details here, although I did discuss them with Mr McKenzie.
8 I viewed a sample of the pornographic material relied upon by the prosecution in this case. It is disturbing to say the least. There are of course varying degrees of gravity of pornographic images. The images I viewed involved exploitation of the young and defenceless. The images you accessed were no doubt children who had been overborne by cruel and/or manipulative adults to participate in the images. There is the real potential for the children involved in these images to be adversely affected for the rest of their lives. Those who access these images create a market for this exploitation to continue.
9 These are, as has often been stated in the courts, not victimless crimes but rather show the tragic and sad exploitation of children, some very very young.
10 There were, as I have stated, 104 webpage preview files containing child pornography accessed by you.
11 Each webpage preview file had numerous child pornography images contained within them, the figures referred to in paragraph 6 of the prosecution opening being only a single image on each webpage preview file. These files were accessed by you between the dates alleged in the charges.
12 Regarding the four images in the trash file, they remained visible to you and were accessed by you between 12 and 17 December 2012.
13 Further forensic examination of the computer revealed that between 1 May 2011 and 16 December 2012, that is, over a period of approximately eighteen months, you utilised the search engine Google using search terms which included reference to children (para 11, Exhibit A).
14 Between 1 October and 13 December 2012 you searched for files using a peer-to-peer file-sharing program, again using terms referable to children and pornography (para 11, Exhibit A).
15 When you were first spoken to by police at your home on 18 December 2012, you told AFP officers you had searched for child pornography and that “curiosity got me in”. You acknowledged in Google you did type in terms such as “pre-teen”. You said you were interested in 11‑year-old girls, “something around that”. You understood it was illegal to look at child pornography and that you should not do it, but that you thought “Where’s the harm, just sort of by looking at it”. I discussed that response with Mr McKenzie and it defies belief you could access these images and not appreciate the harm to the children involved.
16 You participated in a record of interview on 18 December 2012 at Kyneton Police Station, and exercised your right to answer “no comment” to questions asked likely, it appears, having obtained legal advice. As I have said, it was your right to answer that way.
17 You have pleaded guilty to this charge, and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea been spared the time and cost of a trial. There is significant utilitarian value in your plea of guilty in that this matter has proceeded by way of plea, and it would appear very quickly, given that you entered your plea of guilty at the committal mention on 26 June 2013.
18 You do not have any prior court appearances, and I sentence you as a person of previous good character, however, I also note a number of authorities, when sentencing offenders for offending such as this, ie child pornography, that they refer to prior good character as being of less relevance than might be the case for other types of offending. Of course, prior good character is not eliminated completely. I also note you do not have any subsequent court appearances.
19 Mr McKenzie, who appeared on your behalf, did not attempt to minimise the seriousness of your offending behaviour, and nor could he. I discussed with him my concern that at the time of your offending you said you did not appreciate there were real victims in the images accessed. Now, as a result of counselling recently received from Ms Shuttleworth, you had an appreciation of that and also appreciated the reasons why your offending was illegal, and the gravity and seriousness with which the courts regard offending of this sort. The transcript will reveal that discussion.
20 You are now 62 years of age. Mr McKenzie referred to the stability in your personal life, having been married in the past for twenty-one years and having been productive in your working life, employed up until approximately 2010.
21 You currently had problems with your knees, which may in the future require surgery. You also had high blood pressure.
22 Mr McKenzie was not relying on the principles in R v Verdins & Ors[1], which was an appropriate concession by him, consistent with the material before me, both relevant to the time of your offending, and also to your time if in custody.
[1] (2007) 16 VR 269
23 Following the police attending at your premises the Department of Human Services became involved, I was told, and as a result you were not able to have any contact with your grandson for approximately six months. As I understood it, that contact had resumed.
24 Mr McKenzie submitted you now lived a fairly isolated lifestyle, in part due to your reduced mobility as a result of problems with your knees. He submitted you had gained wisdom regarding your offending as a result of your attendances with Ms Shuttleworth.
25 Two reports were placed before me by Mr McKenzie during the course of your plea hearing. The first was a report from Ms Alexandra Shuttleworth, Psychologist, dated 29 July 2013. You were referred to her by your general practitioner on 27 December 2012, for “opinion and management regarding the problem of depression”. You commenced psychological intervention on 14 January 2013, and had attended eleven sessions as at the date of her report, I was told 15 sessions at the time of your plea hearing.
26 You presented with moderated mixed anxiety and depressed. According to medical records you had suffered a prior episode of depression in 2010, at that time relevant to your employment. Ms Shuttleworth was unable to comment on whether you were experiencing any psychological condition at the time of the offending before me, or whether such caused or contributed to your offending behaviour. Following her assessment as at the date of her report, results of testing reflected a reduction in your depression symptoms over the course of treatment.
27 You had engaged well in counselling and were motivated to explore issues and understand your motivations. It appeared you were also able to demonstrate insight into your offending behaviour and were able to identify factors that led to your offending behaviour. I am concerned, however, that, in relation to your explanation for viewing the pornographic images of children, you told her they looked “cute, soft” and “like they were having fun”. You did, however, acknowledge being “repulsed” by the images where the children looked “upset”.
28 According to Ms Shuttleworth, your family remained supportive of you although no one was at Court during your plea hearing, but I understand there might be a son in court today. You were concerned about the effect of your offending on your family and such had increased your motivation to change your behaviour.
29 You had recently expressed remorse for your offending and pity for the children depicted in the pornographic images, which is a shift from your answers in the record of interview.
30 I am concerned by the reference by Ms Shuttleworth to a future challenge for you, in changing your behaviour as you had a tendency to minimise the seriousness of your offending. Further, she observed you tended to avoid taking full responsibility for your actions. Ms Shuttleworth also expressed fear about the potential for you to act out sexual feelings towards children. She had attempted to address those issues with you. Her concerns are concerns also concern to me. It would be to your benefit to remain in counselling with her or someone equivalent.
31 Overall, she stated you appeared to be accepting of your responsibility regarding seeking out child pornography images, and had a greater understanding that that was abuse of children. At other times, however you tended to diminish your responsibility by claiming your searches on the internet were relatively benign, and that you were unknowingly led to child pornography sites. Further counselling was recommended by her and, as I have said, urged by me.
32 There was also a report before me from Dr Andrew Carroll, Consultant Psychiatrist, dated 17 July 2013.
33 Dr Carroll noted that, in terms of your insight regarding your offending behaviour, you were now remorseful and had a greater understanding of the damage to the victims involved, as the result of the therapeutic work with Ms Shuttleworth.
34 There were details provided in Dr Carroll’s report regarding your background and history. You were born and brought up in Geelong, the youngest of four boys. You missed significant periods of primary school as a result of chest infections. You left school at 15, and thereafter had a strong work record in various manual jobs, retiring from your most recent work as a forklift driver approximately two years ago.
35 You provided details of your psycho-sexual history which was contained in his report (para 20).
36 The marriage to your wife lasted 22 years, ending ten years ago, at which time your wife moved to Darwin and you apparently “kept the children”. You had ongoing contact with her. Since the breakdown of the marriage you had two relationships, the longest lasted approximately a month.
37 You had previously been a heavy smoker, although ceased twelve years ago. There appeared to be no issues regarding excessive alcohol consumption or illicit drug use.
38 You were currently living with your 26‑year-old daughter at the time of plea although it appeared she was due to move overseas soon to finish her study.
39 You are on a disability support pension.
40 Turning to your offending behaviour, you reported to Dr Carroll you had been involved in pornographic chat sites on the internet for several years where people exchanged images of various kinds. Through your work with Ms Shuttleworth you said you were now aware of the damage to the children involved, and recognised why such images were illegal. I am concerned by Dr Carroll’s reference in his report to you fantasising in relation to the young children, (para 39). Dr Carroll stated you instructed you “will cease” using chat rooms. I discussed this future intention with Mr McKenzie, and accept Dr Carroll may have misunderstood your instructions. I am told you do not have a computer and do not use computers at all.
41 Turning to his opinion, there was no evidence you suffered from a mental illness, personality disorder or substance-use disorder. You did, however, meet the criteria for “paedophilic disorder”, although he observed there was no evidence you had ever acted on those fantasies by engaging in contact sexual offending. Your disorder was not of a nature that would have affected your mental capacity or functioning to understand the wrongfulness of your offending, to make appropriate judgments, or control your emotions or faculties.
42 In the opinion of Dr Carroll based on the assistance you had been receiving from Ms Shuttleworth, the likelihood of the recurrence of such behaviour by you was low, although not negligible. There was nothing to suggest your paedophilic disorder of itself would make imprisonment more difficult for you or have an adverse effect upon your mental health. As previously stated, Mr McKenzie was not relying on any of the principles in Verdins[2].
[2] Ibid
43 Dr Carroll concluded that your prospects for rehabilitation appeared to be very good. Whilst I have ongoing concerns based on some of the concerns raised by both Dr Carroll and Ms Shuttleworth, I accept you have made efforts towards your rehabilitation by continuing your involvement with Ms Shuttleworth.
44 If the Court were contemplating any conditions to minimise further the risk of you being involved in this offending again, such Dr Carroll thought could be directed to your involvement in chat room discussions and also being formally assessed for the sex-offender program.
45 Turning to sentence, Mr McKenzie submitted you could be dealt with appropriately for your offending by imposing a sentence which would not require you to be incarcerated for any period of time, referring to your lack of prior criminal history, and anything subsequent, amongst other matters. Further, I note you have agreed to your computer seized by the Federal Police, being the subject of a forfeiture/disposal order.
46 Mr Robins, who appeared on behalf of the Commonwealth Director of Public Prosecutions, submitted a sentencing range considered appropriate for your offending.
47 He referred to the 15 year maximum penalty that applied to this charge, and that the penalty had been increased by Parliament from 10 years and that objectively it was a significant maximum sentence.
48 He stressed the importance of general deterrence when sentencing for offending of this kind, and referred me to the decision of DPP v D’Alessandro[3].
[3] (2010) 26 VR 477
49 Relevant to the gravity of your offending, he submitted that the bulk of the images were in Categories 4 and 5. Further, the children in the images were between the ages of 4 and 15, with most of the images in the 7 to 11 year old age group.
50 That there were 104 images, which he conceded and I accept is at the low end in relation to number of images accessed, compared with other cases that have come before the courts.
51 I also accept there was no evidence you profited from these images, which would be an aggravating feature. However, the absence of profit is not mitigatory.
52 Mr Robins referred me to R v Gent[4], a decision frequently referred to in child pornography cases such as this which sets out a number of relevant sentencing principles.
[4](2005) 162 A Crim R 29
53 He also referred me to s16A Crimes Act (Cth) and s16A(2), and the matters therein, which I must and do take into account.
54 Mr Robins submitted it was relevant to your contrition that you had undergone fifteen sessions with Ms Shuttleworth and had acknowledged your computer could be forfeited. He further conceded you pleaded guilty at the first opportunity and were co-operative with police.
55 Whilst he observed there were no prior court appearances, he also noted, consistent with authority, prior good character was of less weight when sentencing for child pornography offences than might apply in other cases.
56 Mr Robins noted with some concern comments made by Ms Shuttleworth in which she expressed concern at your diminishing of your responsibility for your offending (specifically at p.4 of her report).
I turn to the legislation and authorities
57 The Crimes Legislation Amendment (Telecommunication Offences and Other Measures) Bill (No. 2) 2004 Second Reading Speech is referable to the charge before me. In that Bill there were a range of measures instigated to deal with the use of the internet when used to facilitate or exploit sexual abuse of children, including use of the internet for access, transmission and making available child pornography and child abuse material, as well as the possession or production of such material with intent to place it on the internet.
58 The Explanatory Memorandum of the Bill in 2004 stated:
“The Bill contains important new offences that will prescribe appropriate penalties for persons involved in the sexual abuse of children in a number of different contexts. Producing, distributing and accessing child pornography and child abuse material rightly outrages the Australian community. New offences targeting the exploitation of children in this way are included in the Bill. The proposed offences prohibiting child pornography and child abuse material focus on the use offenders make of the anonymity of new technological tools, such as the Internet, to further their exploitative ends.”
And referring specifically to s.474.19 (in 2004):
“The maximum penalty for the proposed offence is 10 years imprisonment, reflecting the seriousness of this type of conduct. This penalty is the same as the maximum penalty for the importation or exportation of child pornography in hard copy under section 233BAB of the Customs Act 1901.
The proposed offence is particularly aimed at use of the Internet, email and other online applications to trade or traffic in child pornography. It is intended to cover the range of activities that a person can engage in when using these applications, including, amongst others, viewing; copying; downloading; making available for viewing, copying or downloading; sending and exchanging.”
59 In the Crimes Legislation Amendment (Sexual Offences Against Children) BilI 2010, the explanatory memorandum provided further insight into this legislation, and the increase in penalty from 10 to 15 years which reflected Government concern regarding the internet creating even greater demands for material of “ever greater levels of depravity and conception”.
60 And further:
“(such) offending has become pervasive and widespread”.
61 And further:
“Children, in addition to being victims of the initial abuse required for the production of the material, are exploited on a massive scale through the repeated distribution of the image or images, throughout international networks”.
62 Turning to prior good character, it is apparent from the authorities that when considering offences of this kind, it has less significance, although is not eliminated.
63 In Gent[5], the Full Court of New South Wales noted:
[5] Ibid
“There is authority in support of the approach of attaching less weight to prior good character for child pornography offences.”
And further:
“It appears to be a common feature of offences under s.233BAB and offences under State law for possession of child pornography that the offender is otherwise of good character, is in good employment and of sound reputation…”
And further:
“There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography. It appears that such offences are committed frequently by persons of otherwise good character. General deterrence has been referred to as the ‘paramount consideration’ on sentence for this class of offence … The fact that the offence is, in a sense, committed in secret is also relevant to this issue.”
64 General deterrence has been referred to as the paramount consideration when sentencing for child pornography offences. I digress and state I am aware your offending before me does not involve importation. However, the principles referrable to prior good character, to which I have previously referred in Gent, and general deterrence when sentencing for the offences involving child pornography, in my opinion, also apply to you and the offence that is before me.
65 Further, in Gent[6], the Court referred to a number of factors relevant when assessing the objective seriousness of the offence in that case of importation of child pornography. Again, I note you are not charged with importation, nevertheless, these factors are, in my opinion, also relevant to an assessment of the objective seriousness of your offending that is before me. Those factors include:
[6] Ibid
(a)the nature and content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed;
(b)the number of images or items of material possessed by the offender;
(c)the number of different children who are depicted and thereby victimised;
(d)whether the possession or importation is for the purpose of sale or further distribution; and
(e)whether the offender will profit from the offence;
and I have addressed these issues.
66 In R v Booth[7], the Court reinforced the significance of general deterrence referrable in that case to possession of child pornography also, in my opinion, relevant to the charge of accessing child pornography for which you are to be sentenced, and stated:
[7] [2009] NSWCCA 89
“In sentencing for such a crime it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in under-developed or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.
And further
“What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
And further
“And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
And further
“It is for that reason that this is a crime in respect of which general deterrence is of particular significance.
And further
“… the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. So also is denunciation of those who engage in this callous and predatory crime.”
67 Crimes such as yours are not victimless crimes. I am perplexed and concerned that you say you did not apparently appreciate, given the images you viewed, of which I saw a sample, that the children involved were victims.
68 Without attempting to mention all cases that have dealt with offences involving child pornography, a number of principles relevant to sentencing have been repeatedly articulated. Relevant authorities include R v OIiver & Ors[8], DPP v D’Alessandro[9], R v Jongsma[10], R v Fulop[11]. This list is by no means exhaustive.
[8](2003) 1 Cr App R 28
[9](2010) VSCA 60
[10](2004) 150 A Crim R 386
[11](2009) VSCA 296
69 I am of course aware of other cases involving accessing child pornography where the numbers of images have been much greater than in your offending and have occurred over a longer period of time.
70 It is difficult comparing cases factually as facts vary enormously case to case, as do matters relevant to each offender in mitigation. Statistics also, whilst relevant, have their limitations. Ultimately, I have to determine the appropriate sentence for your offending, taking into account your offending, all matters in mitigation, as well as established principles relevant to sentencing for offending of this type and the maximum penalties applicable.
71 When sentencing for Federal offences, s.16A(1) Crimes Act (Cth) 1914 states that the primary obligation of a sentencing Judge is to impose a sentence that is of severity appropriate in all the circumstances of the offence. I must also take into account when determining sentence, the matters listed in s.16A(2). I have taken all those matters relevant and known into consideration when determining the appropriate sentence. I am also required to impose a sentence that is “of a severity appropriate in all the circumstances of the offence”.
72 As I previously stated, I must take into account matters that are personal to you and those matters in mitigation. You do not have any prior convictions and there are no matters subsequent. I am aware this is your first time in custody. Whilst I take those matters and other matters into account in your favour, the authorities, as I have already outlined, are clear that less weight is to be given to prior good character in the context of offences involving child pornography.
73 The maximum penalty that has been provided for the offence before me, to which you have pleaded guilty, and denunciation of your conduct are also relevant sentencing considerations.
74 I am conscious of s.17A(1) Crimes Act (Cth), which essentially re-states the common law position that:
“(1) The Court shall not pass a sentence of imprisonment on any person for a Federal offence … unless the Court, after having considered all other available sentences, was satisfied that no other sentence is appropriate in all the circumstances of the case.”
75 In determining the appropriate disposition, I have taken into account matters which include the circumstances of your offending, the nature and quality of the pornographic images, the quantity of those pornographic images, the period of time over which your offending occurred (approximately six weeks), your early plea of guilty, your age, prior good character, and the material tendered on your behalf.
76 The reports of Dr Carroll and Ms Shuttleworth give me some hope you can be successfully rehabilitated. Whilst Ms Shuttleworth expressed the concerns to which Mr Robins referred, you have it seems come a long way in appreciating the gravity of your offending and adverse impact on the children in the images.
77 Turning again to general deterrence, the common law requires that such be taken into account in sentencing for the offence before me under the Commonwealth legislation.
78 There is an element of specific deterrence required in sentencing you. I am particularly concerned regarding the period of time over which you committed the offending before me, ie approximately six weeks.
79 I am also required to consider the protection of members of the community from you and bear in mind the likelihood of your re-offending. Whilst one can rarely predict the future, I hope you take up further counselling which will ultimately assist you to avoid accessing such sites in the future. There is some comfort in the conclusion of Dr Carroll that he regards you as a low risk of re-offending.
80 I must also when sentencing manifest the community’s denunciation of your conduct and generally impose a just punishment.
81 As I discussed with Mr McKenzie, in my opinion a short term of imprisonment is the only appropriate disposition for your offending. Thereafter, in my opinion, it is appropriate you be bound to the court by way of a Recognisance Release Order, to hopefully ensure there is not a repeat of your offending behaviour.
82 I will just stop there for the moment. As we discussed last time, I cannot remember the date, but we had discussed the sentence that I was proposing. I intend to continue with that just to remind you. There is one thing however, Mr McKenzie, it seems appropriate to me when I said that it would be one month, the remaining nine months on a Recognisance Release Order for 18 months. I think it is appropriate there be a condition in relation to the Sex Offender program but having said that I have not extended the time because I am still of the view if there is not enough time it is the appropriate sentence and I hope there is time for him to be assessed and participate in a sex offender program but I consider it would be inappropriate to make it any longer simply to allow that to occur. So I have not changed the sentence as such, duration, but I will add that condition in relation to be assessed and hopefully part of the sex offender program, but at the end of the day it may not be so. Do you have anything to say?
83 MR McKENZIE: I don’t have anything to say, I think it's an appropriate precaution to take.
84 HER HONOUR: Yes, all right. Mr Robins, giving you a chance, do you have anything to say about that?
85 MR ROBINS: No, Your Honour.
86 HER HONOUR: I do hope that someone at the other end who manages these orders has that in mind and can do something perhaps in the next month to see if he can take part in a program because it seems clear to me that both Ms Shuttleworth and Dr Carroll have expressed concern, in particular Dr Carroll says such a condition is appropriate and should be added but in the end that's it.
87 MR ROBINS: As Your Honour pleases.
88 HER HONOUR: So what I want from you, Mr Robins, is as I read out this sentence just make sure the structure is right.
89 MR ROBINS: yes, Your Honour.
90 HER HONOUR: And if you want time you can have as much time as you want. I don't want an error.
91 MR ROBINS: Thank you, Your Honour.
92 HER HONOUR: On charge 1 you are convicted and sentenced to 10 months’ imprisonment. That sentence is to commence today, 3 September 2013. You are to serve one month of that sentence, then you are to be released and then subject to a Recognisance Release Order for the remaining 9 months. So 9 months plus 1 month is the 10 I have sentenced you to, for a period of 18 months. That is how long the Recognisance Release Order lasts. There will be a condition on that Recognisance Release Order, I will check the wording, but it is something like to be assessed and take part in a sex offender treatment program.
93 I will leave Mr Robins to think about that. What that means in language I hope you understand, because the legislation says I have to explain it in language that you are likely to understand, so pardon me if it sounds a bit simple but you will immediately serve one month’s imprisonment. Thereafter, you return to the community and the remaining 9 months of the sentence (of 10 months) is effectively hanging over your head under what is called a Recognisance Release Order which will last for 18 months. This means that in that 18-month period if you commit another offence punishable by imprisonment then first of all you are going to forfeit the $400 because the Recognisance Release Order is in the sum of $400. You do not pay unless you come back. Do you follow?
94 PRISONER: Yes.
95 HER HONOUR: But if you come back you don't have to worry about the $400. In addition you will then be required to serve the remaining 9 months of this sentence. So you go back in for another 9, in general terms. Now I hope that's clear enough. Does that sound clear to you, Mr McKenzie.
96 MR McKENZIE: Yes, Your Honour.
97 HER HONOUR: Does that sound clear to you, I have to explain it in words you would understand? There's a section that says that.
98 PRISONER: Yes, Your Honour.
99 HER HONOUR: We'll just finalise and fine tune the sentence.
100 MR McKENZIE: There is an issue about PSD, Your Honour.
101 HER HONOUR: I haven't got there yet.
102 MR McKENZIE: Yes.
103 HER HONOUR: Mr Robins, does all that - - -
104 MR ROBINS: Yes, Your Honour, that structure seems fine to me, I see no issues with that.
105 HER HONOUR: You can add that condition in relation to Sex Offender Program?
106 MR ROBINS: I see - that's fine, I don't see any problem with that, as you said, there could be potentially an issue in the fact it may not be completed within that 18 months but Your Honour's cast your mind to that.
107 HER HONOUR: Yes, I have.
108 MR ROBINS: So I don't see any issues with that, Your Honour.
109 HER HONOUR: He has to sign that, doesn't he?
110 MR ROBINS: He does, Your Honour, I've provided my friend's instructor with a copy of the bond forms, I was hoping that he would have them in court today.
111 HER HONOUR: He looks like he doesn't have anything.
112 MR McKENZIE: I have the file but I don't have the forms.
113 HER HONOUR: Otherwise we have to go and he has to come back on another day and that all seems awfully inconvenient so you should have them, Mr McKenzie, it seems you don't. Are you going to take any objection to a faxed copy being presented to the court now so that he can sign it?
114 MR McKENZIE: I'm happy with that to happen now, Your Honour.
115 HER HONOUR: Do you agree that that can occur?
116 MR McKENZIE: Yes.
117 HER HONOUR: And that would not become an issue at any stage in the future?
118 MR McKENZIE: Indeed, Your Honour.
119 HER HONOUR: You agree?
120 MR McKENZIE: I'll give that undertaking.
121 HER HONOUR: All right. I'll keep going and then we'll fax that, all right? Have I expressed that simply enough do you think, Mr Robins?
122 MR ROBINS: Yes, Your Honour.
123 HER HONOUR: Yes, all right.
124 The prosecution made application for a forfeiture order. This was consented to by counsel on your behalf and I make the order in the terms sought.
125 Following a finding of guilt in relation to the charge before me, you are to be placed on the Sex Offenders Register for a period of 8 years, such being mandatory, as the charge before the court is a Class 2 offence. Mr McKenzie agreed such a classification and duration applied to you. At the end of these sentencing remarks, my Associate will approach you and ask you to sign, simply acknowledging receipt of the paperwork. You are not being asked if you want to be on the register, I have made that order. You are simply being asked to acknowledge receipt of the paperwork that tells you all about it, that is all.
126 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 6 days in custody up to and including yesterday, 2 September 2013, by way of pre-sentence detention and I direct this be entered into the records of the Court. I would like that checked.
127 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict. In other words if you had pleaded not guilty and run your trial I would have sentenced you to 18 months gaol. I would have directed you serve 12 months of that and I then would have placed you on a Recognisance Release Order for the remaining 6 months for a period of 18 months. That is if you had pleaded not guilty and been found guilty. You would have done 12 months actual, 18 in total arguably.
128 All right, now I don’t know if that is clear enough.
129 Any other orders?
130 MR ROBINS: No, Your Honour.
131 HER HONOUR: First of all, that's the only order? Do you agree with PSD? Is PSD right up to and including yesterday, 2 September?
132 MR McKENZIE: I think it's only five days, Your Honour.
133 HER HONOUR: All right. Let's check. What - - -
134 MR McKENZIE: It was the 28th or the 29th? 28th, I'm sorry.
135 HER HONOUR: So six days up to and including yesterday. I direct that that be entered into the records of the court; Anything else?
136 MR McKENZIE: No, Your Honour. Could you tell me that s.6AAA one again?
137 HER HONOUR: It was 18 months gaol. 12 months to serve. The balance of six months on a Recognisance Release Order for 18 months.
138 MR McKENZIE: Yes, thank you, Your Honour.
139 HER HONOUR: Are you right with that?
140 MR McKENZIE: Yes, all right.
141 HER HONOUR: All right. So there's an amount of $400 which you will see on this recognisance release order. You do not owe it unless you see me again and if you see me again I wouldn't worry too much about the $400.
142 Mr Robins, are you in a position to somehow fax this to us right now?
143 MR ROBINS: My understanding is that it's been faxed to you at this moment.
144 HER HONOUR: Good. We need the forfeiture order as well?
145 MR ROBINS: Your Honour, Mr O'Malley has entered into an agreement with the Commonwealth so I don't see that there is further orders necessary.
146 HER HONOUR: All right. Do you agree with that?
147 MR McKENZIE: That's correct, Your Honour.
148 HER HONOUR: All right, well then I don't make that order. I'll leave it there just in case something goes wrong but I won't actually make one but it's there if you need it.
149 (Orders signed and acknowledged.)
150 HER HONOUR: Can you remove Mr O'Malley, thank you. Thank you both.
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