Director of Public Prosecutions v Packard [a pseudonym]
[2016] VCC 1686
•11 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE PACKARD [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April, 11 May, 22 August and 4 November 2016 | |
DATE OF SENTENCE: | 11 November 2016 | |
CASE MAY BE CITED AS: | DPP v Packard [a pseudonym] | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1686 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991;
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms D Mandie | Office of Public Prosecutions |
| For the Accused | Mr J Jassar | Slades & Parsons |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused and victims
HER HONOUR:
1 George Packard[1], you have been found guilty by jury verdict on Indictment E13335677.1A of five charges of incest. Those crimes arose out of events which took place between 1 December 2013 and 30 September 2014 and involved your stepdaughter, Gabrielle Farrer[2]. The maximum penalty applicable to the charge of incest is 25 years.
[1] George Packard is a pseudonym.
[2] Gabrielle Farrer is a pseudonym.
2 You have also subsequently pleaded guilty on Indictment E13335677.2 to two charges of possessing child pornography, and the maximum penalty applicable at the time of your offending is five years’ imprisonment. You were arraigned and entered pleas to those charges on 6 April 2016.
3 It is not necessary for me to recount in great detail the facts of the incest charges as they are on the transcript, having been ventilated in great detail during the course of your trial hearing. I proceed to sentence you on the basis of the evidence at the trial and as I discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case in my opinion are most serious and disturbing.
4 Regarding the charges of possessing child pornography, the prosecution relied upon a summary of your offending (Exhibit A), and I also regard that offending as serious and disturbing.
5 By way of background to the charges of incest. You were the stepfather of the complainant, Gabrielle Farrer. She was born on 19 November 2001 and at the time of your offending was 12 years of age.
6 Gabrielle lived with you and her mother and three younger sisters. You had lived with her family since Gabrielle was 5 years of age. The younger two of her sisters are children of your relationship with her mother.
7 Charge 1 referred to an occasion around Christmastime towards the end of 2013 when you introduced your finger into her vagina in your bedroom.
8 Charge 2 relates to a second occasion in the bathroom when you digitally penetrated Gabrielle around May 2014.
9 The prosecution also alleged a number of other occasions, not the subject of any charge, where digital penetration occurred, as part of tendency evidence relied upon.
10Charge 3 related to offending that occurred when you introduced your penis into Gabrielle’s vagina. This occurred around "school athletic day" in your bedroom.
11Charges 4 and 5 referred to offending that occurred in your bedroom on the same day. You penetrated Gabrielle by introducing your penis into her anus (Charge 4) and then into her vagina (Charge 5).
12There was evidence before the jury of complaint by Gabrielle in relation to Charges 3, 4 and 5 to her school friends at most a few weeks after your offending in Charges 3, 4 and 5. It was not until July 2015, however, in her second VARE she told police of your offending in Charges 1 and 2.
13The prosecution during your trial, as I have said, also relied upon tendency evidence in addition to the other digital penetrations not the subject of any charge, and I ruled upon that at the commencement of your trial.
14You denied each and every one of the charges and also denied any sexual interest in Gabrielle. The jury, however by their verdicts, were satisfied beyond reasonable doubt you committed the offences on that Indictment.
15An aggravating feature of your offending involved the gross breach of trust of Gabrielle and her mother, who trusted her daughter in your care, and with violence such as restraining her by her hands, as she described in her evidence, over and above that required in essence to commit the offending.
16It was of course your right to proceed to trial, although in having done so I am unable to find you are remorseful for your offending.
17I turn to a brief summary of your offending relevant to the two charges of possession of child pornography to which you have pleaded guilty. Your offending occurred on 12 August 2012 and between that date and 22 October 2014.
18On 22 October 2014 police searched your home and located a computer tower, iPad and Western Digital external hard drive kept in your bedroom.
19On 5 January 2015 police delivered a number of items to E-crime for analysing. The hard-drive contained ten images of child exploitation material, as well as other images.
20The images located on the Thermaltake Computer Tower were described (Exhibit A, paragraph 12), and the images located on the Western Digital External HDD were also described (Exhibit A, paragraph).
21The images seized were categorised as Category 1 Child Exploitation Material (CEM) depicting "no sexual activity". The images (hard copies were provided to me on 4 November 2016) and I viewed them in Court.
22At your plea hearing on 11 May 2016, I discussed with Ms Mandie the level of "sophistication" in categorising the images. At the hearing on 22 August 2016 Ms Mandie conceded the description of those images, as described by Mr Jassar, was accurate. Further, there was no complicated movement of the images from one device to another and deletion of them.
23You have pleaded guilty to those two charges and you are entitled to have that taken into account in mitigation of sentence on those two charges. I also take into account the timing of your pleas of guilty to those two charges and can well understand and appreciate you not formally pleading guilty to those until after your trial was concluded. I accept your plea of guilty is indicative of remorse for that offending.
24In addition to other material placed before me on 11 May 2016, Mr Jassar sought to rely upon his written outline of submissions dated 10 May 2016 (Exhibit 1).
25It became apparent within a short time of this plea commencing that Mr Jassar wanted to obtain a Forensicare Report.
26This discussion took some time on 11 May 2016, and I ordered transcript of that hearing to enable both Mr Jassar and Ms Mandie to address me if they wished about matters then raised in your future hearings.
27There were issues, in particular, with recent instructions from you regarding "gender identity issues" and the lack of reference to that by Dr Hussain in his report. Mr Jassar sought time to address those issues raised in your recent instructions and about which Dr Hussain had been silent.
28Further, it became apparent the prosecution had prior to 11 May 2016 advised Mr Jassar they wished to cross-examine both Dr Hussain and Dr Kumar regarding their conclusions and basis of their opinions, and would need them to attend Court.
29Mr Jassar submitted that the adjournment was to explore whether principles 1-4 in Verdins & Ors[3] had any application when sentencing you. I discussed with Mr Jassar the possible applicability of Verdins principles 5 and 6 (although that was yet to be determined), subject of course to prosecution submissions in that regard and further material.
[3] (2007) 16 VR 269
30Your further plea was then adjourned to 22 August 2016 at Mr Jassar’s request to enable Victoria Legal Aid to consider funding the "expert" witnesses’ attendances and additional reports. The transcript of the hearing on 11 May 2016 should be read in conjunction with my reasons for sentence to understand the issues then canvassed in Court.
31You do not have any prior court appearances. You therefore come to the Court as a person of otherwise good character. I am advised that apart from the charges currently before me on the two Indictments, there is nothing pending or any offending subsequent to the charges before me.
32I was provided with a number of documents during the course of your plea hearing. There was a psychological report prepared by Dr Hussain dated 17 April 2016.
33You were referred to him in October 2014 following report of a fluctuation in your mood and anxiety in relation to these criminal charges.
34Details were provided in that report of your background and history.
35You are 33 years of age at time of sentence. You were born in Melbourne and the youngest child in a sibship of three. Your parents separated when you were 3 years of age, and you were primarily raised by your mother as a single parent.
36Your mother suffered with bipolar disorder and was often emotionally erratic and unpredictable, at times hospitalised for her condition. You described your relationship with your father as "distant" and that he was "emotionally unavailable". You described a strange relationship with your siblings.
37You provided details of you being the victim of sexual abuse as a child.
38You did not report any difficulties with alcohol or drug use.
39At school you ultimately achieved Year 12. You worked on a farm for two years in a part-time role during your later years at school, but ceased that when you met your wife.
40In 2006 you went to university and tried a number of courses, but abandoned those as you had a low tolerance for homework and assignments.
41Between 2006 and 2011 you were on Centrelink, spending most of your time at home with your wife.
42In 2012 you got a part-time job at Crown (nightclub) and later a security job at the Port of Melbourne. You worked there for about one-and-a-half years until the current charges. Just prior to your trial you were working at casual cleaning jobs with Coles.
43You described a tumultuous relationship history, as contained within paragraphs 13 and 14 of the report, which I will not repeat here.
44Turning to your psychological history, you reported in early childhood severe anxiety and feelings of abandonment.
45At assessment you stated you continued to battle with themes of abandonment, and that your anxiety and depression was exacerbated as a result of the breakdown of your relationship with your wife.
46At the time of this assessment you were referred to a psychiatrist for further assessment. You had apparently been diagnosed with bipolar disorder (such a diagnosis now not relied upon) and dependent personality disorder.
47You were prescribed diazepam for anxiety, and you reported positive results of that medication, although you said you were not taking medication at the time of your remand.
48Your counsel at your most recent plea hearing having received the report from Dr Deacon (Exhibit 8) submitted any diagnosis of bipolar disorder was "dead and buried".
49You maintained your denial of this offending to Dr Hussain.
50Turning to your mental state examination, you did not have any significant impairment of cognitive functioning, and although not formally tested, Dr Hussain considered your level of intelligence to likely be in the average range. You displayed a high level of psychological and emotional distress regarding your current predicament. Psychological testing indicated you were in the extremely severe range for depression, anxiety and stress.
51Turning to his opinion, your poor psychological functioning and current clinical picture appeared to have arisen in the context of early childhood maladjustment. You had poor emotional regulation skills, social skills and were quite immature for your age. Your entrenched maladaptive personality traits may have had a bearing on your subsequent alleged offending.
52You had attended a cognitive behavioural psychological treatment program between 14 October 2014 and 29 January 2016, that is over approximately 15 months. You had attempted to employ strategies discussed in a variety of situations and reported positive outcomes. You had also developed effective management of your moods. You attended treatment sessions regularly, complying with all instructions. You had an understanding of the need for help to deal with your issues. Regarding a term of imprisonment, such “could” exacerbate your existing psychological vulnerabilities.
53Also tendered was your prescription history (Exhibit 2).
54There was also a report from Dr Manoj Kumar, Consultant Psychiatrist, dated 9 May 2016, who reviewed you on 5 November 2014. At that time you presented with mood symptoms, obsessive compulsive and anxiety symptoms, and significant psychosocial stress. I note Dr Deacon’s description of Dr Kumar’s assessment following that single consultation as "largely unhelpful" (Exhibit 8 para 5).
55There was also correspondence from Dr Wasef of Gap Road Medical Centre, Sunbury, dated 13 April 2016, setting out your medical history with that clinic. You first attended the medical centre on 25 September 2007, first presenting with Dr Wasef on 10 October 2014. At that time you presented with anxiety due to the allegations of sexual offending and were prescribed medication and attendance with Dr Hussain. You had not been seen in a clinic prior to that attendance for any of those conditions (Exhibit 3).
56Turning to the first Indictment relevant to the findings of guilt by the jury, Mr Jassar conceded your offending was serious and that a term of imprisonment was the only appropriate disposition. I agree. He conceded there was a breach of trust and harm to Gabrielle and the use of force, that is, restraining her.
57Mr Jassar, however, submitted it was unknown if there was unprotected penile penetration and that I should therefore not conclude the sex was unprotected (R v Khem[4]). I am ultimately not satisfied beyond reasonable doubt such is an aggravating feature in your case.
[4] (2008) A Crim R 186
58Mr Jassar submitted your offending was not protracted and did not continue over a long period of time. I do not accept that. It occurred over a significant number of months. He submitted there were no threats made to the victim of harm or that she would be hurt if she told anyone. That, in my opinion, minimises however what was said to the victim, including that this was a test, also bearing in mind her confused state, that is, loving you as a stepfather and yet being abused by you.
59Mr Jassar also turned to your background and history, and much of this material was contained within the reports to which I have previously referred.
60You described your father as physically violent towards you, and that you last saw him when you were in Grade 3, then again in Grade 6 when he obtained custody of you. Your mother, you said, was unwell at times and could not look after you due to her Bipolar Disorder since you were a baby.
61Mr Jassar submitted your mother was in and out of psychiatric units and at times you were left by yourself, and during those episodes you would not attend school.
62When your mother returned from psychiatric units she was often heavily medicated. After Grade 6 you ran away from your father, found your mother and stayed with her. You lived with your mother until the end of Year 7, then returned to your father due to your mother’s continuing illness.
63Your father placed you into a boarding school in Hamilton, and you said at that college, senior students physically abused and molested you most nights.
64You described running away from boarding school at the end of Year 8 and sleeping in parks in Hamilton. You did not have many friends at school as a result of changing schools on a regular basis.
65You described that your schooling was disrupted, moving between New South Wales and Victoria. You thought you had attended in excess of 30 primary schools. As previously noted you were truant at times and not well supervised by your mother when you were living at home with her.
66You described you could not recall attending Grades 4 or 5 at all, and said you were absent most of the time from Year 9. In Year 9, you went to Taree High School.
67At 20 years of age, you went to Victoria University to complete Years 11 and 12 and it was there you met Lorena Baric[5].
[5] Lorena Baric is a pseudonym.
68Turning to your alcohol and drug use, you described that you had commenced drinking alcohol at age 13, often drinking to excess. You “dabbled” in marijuana then stopped it immediately but continued to consume alcohol.
69Following the birth of your daughters, you were motivated to get a proper full-time job and completed certificates in security then worked in that industry. You enjoyed the work and were promoted to team leader, although had been unable to continue in that work as a result of your arrest and being charged with these offences.
70You instructed when you were in Grade 4, one of your mother’s partners sexually assaulted you. You also described when 12 years of age, being sexually abused by your mother’s female friend. You did not tell your mother what had happened. You had discussed your prior sexual abuse with your wife and she confirmed that at the committal hearing, Mr Jassar said, when she gave evidence.
71Mr Jassar also referred to your recent instructions regarding "gender confusion". That submission led to an adjournment of this plea hearing to enable investigation. You instructed that from a very early age you were confused about your gender and your inclination was more towards being female. You said your sister used to dress you up as a girl and you would also take her clothes and make-up and secretly dress as a female.
72You said you also used to wear your wife’s clothing but when you moved in to live with her, ceased due to pressure from her that you be more masculine and “macho”.
73You instructed you were torn between being a man and a woman and if you could, would have a sex change. You reported feeling vulnerable in custody should you reveal your inclination, although I note from the recent report of Dr Deacon you do not object to being called Abigail by your friends in custody.
74You said that over the years you had tried to repress your gender confusion, to be more like what “a father should be” and to make your family proud.
75You instructed you had discussed that "in passing" with Dr Hussain but not in great detail, you said, being embarrassed and unable to open up about that aspect of your life. I discussed the doctor’s lack of reference to such a significant issue had it been raised by you. This, as I say, prompted the seeking of another adjournment to enable examination of this, in particular any relationship to principles 5 and 6 of Verdins.
76You instructed that your longest relationship had been with Lorena Baric, having met her at Victoria University.
77You described not having any fatherly instincts until the birth of your first daughter. When you moved in with your wife you stopped drinking and smoking.
78You said Ms Baric isolated you from your friends and described the relationship with her as “extremely toxic”, involving physical abuse by her towards the children and also to you.
79You said you felt unable to leave the relationship, and feeling further entrenched with the birth of your second daughter.
80Turning to your Bipolar Disorder, you instructed that since October 2014 you attended Dr Hussain over 40 sessions over a 15 month period. Dr Hussain, you said, had diagnosed you with Bipolar Disorder and Dependent Personality Disorder. You were also referred to a psychiatrist, Dr Kumar, who diagnosed you as having a Bipolar Affective Disorder, Adjustment Disorder with Depressive and Anxiety symptoms and Cluster B personality traits. Since then, of course, I have received a more recent report.
81You were prescribed medication for anxiety and for your Bipolar 1 Disorder.
82As previously noted, as I have just said, following the recent report of Dr Deacon, a diagnosis of bipolar disorder was dead and buried.
83I also heard evidence from Dr Kumar, Psychiatrist and Dr Hussain, Psychologist, during your plea hearing.
84You saw Dr Kumar on 5 November 2014 at which time he conducted a psychiatric assessment and a mental state examination over approximately one hour.
85You described as part of your background being bullied by siblings and that your sister forced you to cross-dress. No other information was provided by you during the interview regarding any gender identity issues, and nor was there any mention of any cross-dressing.
86Dr Kumar diagnosed significant mood symptoms, specifically a differential bipolar affective disorder.
87His conclusions were based upon your self-report and information from your mother who attended that interview.
88He said he prescribed Seroquel, a mood stabilising medication, and Clonazepam to assist your anxiety and sleeping. He recommended you see Dr Hussain.
89He was cross-examined by Ms Mandie. He agreed being charged with criminal offences before me could (in part) explain your state of mind (mood) at the time of interview. He agreed he was not provided with any previous psychiatric material apart from being made aware you were seeing Dr Hussain.
90He had diagnosed differential bipolar affective disorder and also adjustment disorder. The symptoms of the latter, he said, included stress which he thought was the result of the charges before the Court.
91He described his diagnosis as “differential”, as he was not sure of the impact of your criminal charges upon your stress and overall need. He was not sure if your diagnosis was Bipolar 1 or 2.
92He gave evidence of your self-report of mood elevation in the last six years or so.
93He agreed there was a difference between his and Dr Hussain’s description of your moods, the latter describing it as manic, and he as hypomanic. As I understood his evidence, he could not say 100 per cent if you had had a manic episode.
94When shown your prescription history (Exhibit 3) he agreed that from that material no further Seroquel had been prescribed for you, after he had seen you in November 2014.
95In custody he expected there would be a worsening of your mood disorder, although if you were to receive medication, that would assist. In Dr Kumar’s opinion, you would be affected by stress more than other prisoners.
96Evidence was also given by Dr Qusai Hussain, Clinical and Forensic Psychologist, who had been treating you since October 2014. He had seen you for 42 sessions of approximately one hour each. He had not seen you since January 2016.
97Regarding your personal history, you described being bullied as a child and said your sister dressed you up as a girl. That disclosure was raised by you in the context of you being bullied.
98You described wearing your wife’s underwear, with her knowledge, in the context of your sexual activity.
99You did not mention any specific gender issues to Dr Hussain, nor make any mention of confusion regarding your sexuality.
100 In paragraph 19 of his report, Dr Hussain diagnosed you with Bipolar 1 disorder (now abandoned, as you know) which he described as a clinical disorder and also of having a dependent personality disorder.
101 He gave evidence medication could help to manage a lot of your symptoms and that the medication he understood you were taking had stabilised you.
102 Over the 42 sessions your presentation had improved taking your medication.
103 Regarding your mental health, he said such "may" have a deleterious effect upon you in custody. If you were to receive medication and therapy, you may be able to manage your symptoms, as there would likely be an increase in the levels of your anxiety.
104 Had you mentioned gender identity issues with him, he would have referred you to a specialist.
105 In cross-examination, Dr Hussain agreed he did not review any previous psychiatric files nor was he aware of any history of your medication.
106 In his report at page 2 he agreed your presenting problems at the time of his initial interview revolved around your criminal charges.
107 He referred to your description of manic states in your childhood which he described as increased activity, difficulty with sleeping, racing thoughts, distractibility, and being fixated on projects. In my opinion, however, he was unclear as to the duration and dates of such episodes. He ultimately agreed with counsel that it was not entirely clear to him if those symptoms had lasted for at least a week (Exhibit 2).
108 In cross-examination Dr Hussain agreed your presentation was also possibly consistent with you having been charged with criminal offences.
109 He referred you to Dr Kumar in 2014. He understood you were taking Seroquel and was not aware you had ceased that medication. If you had ceased after taking the 60 tablets referred to in the prescription history (Exhibit 3) you had nevertheless seemed stable to him at the interviews.
110 There were no gender identity issues mentioned by you in the 42 sessions with him. Whilst you had made reference to wearing your wife’s underwear during sexual encounters with her, he did not regard that as a mental health issue.
111 In prison, if you had therapy that would be sufficient to stabilise you and if you were stabilised, there would not necessarily be a deleterious effect on you in custody.
112 Reiterating matters in mitigation of your sentence, Mr Jassar again referred to your lack of prior convictions of which I am well aware.
113 He submitted there was only one victim of your offending "not multiple victims", and that your offending had not occurred over a very protracted period. He also, as I have said previously, yet again referred to what he described as a lack of serious violence over and above your offending.
114 In a recent decision of DPP v Dalgleish[6], however, the Court rejected as mitigatory that no harm was really done to the victim or alternatively no violence (paragraph 45).
[6] [2016] VSCA 148
115 Mr Jassar again submitted you were otherwise a person of good character, relying upon the character references tendered, to which I shall shortly refer.
116 He submitted you had been isolated from your two daughters in particular, as there is a Family Violence Intervention Order against you since October 2014.
117 Mr Jassar also referred to your good employment history, family support and “unfortunate” background.
118 Turning to your prospects of rehabilitation, Mr Jassar submitted you had attended with a psychologist and voluntarily sought treatment. You did not have any prior convictions, no subsequent offending, and had previously complied with bail for this offending and complied with the Intervention Order.
119 Your counsel, Mr Jassar, then sought yet another adjournment of this matter to obtain a further report to explore "gender identity" issues, and the further plea was then adjourned to 21 October 2016.
120 I received a report prepared by Dr Adam Deacon, Forensic Psychiatrist, dated 17 October 2016, you had then been in custody on remand awaiting sentence for approximately seven months.
121 Dr Deacon also referred to your employment history, relationship with Lorena Baric and your children.
122 I will not repeat those details again in any great detail.
123 Dr Deacon noted you had made friends in custody, although preferred to be in isolation and read.
124 From around the age of 9 you said you had wanted to be a girl, preferring the company of females, liked wearing female clothing and you secretly wore female clothing to avoid becoming ostracised. You said your wife supported your wearing female clothing and makeup. You described your relationship with her as “chaotic”, and that you were persistently unhappy in the relationship, being verbally and physically abused by her.
125 Regarding the pornography charge, you told Dr Deacon you liked looking at the female figure whether in clothes or naked but denied forming a pornography addiction. You described ten of 2,000 images were considered child pornography. As I say, I am aware of the small number of images and their content.
126 Turning to your psychiatric history, you referred again to sexual abuse of yourself when you were 12/13 and that you said you were confused by those experiences, which at times gave you intrusive memories.
127 You reported being troubled by mood problems from early childhood, and that you had attempted suicide by hanging on three occasions.
128 Following your arrest, you described a marked decline in your mental health and feeling abandoned by your family and friends.
129 You referred to attending with Dr Hussain in October 2014 and attending 30 sessions, you said, after informing your legal counsel about your behavioural problems and family history of mental illness. You described the counselling as helpful, and it enabled you to move forward and return to work.
130 You described attending a single session with Dr Kumar, Psychiatrist, having been recommended by Dr Hussain. You told Dr Deacon you did not tell Dr Kumar about your gender identity issues as you wanted to retain some dignity and not have family and friends learn of it.
131 You described within a few weeks of being at Ararat Prison, being placed in a management unit then transferred to mainstream where you were sexually harassed. You were recently moved to a management unit again and you were coping better but still occasionally harassed.
132 You had attended with a psychiatric nurse and psychiatrist in custody, although neither had confirmed a diagnosis of Bipolar Disorder, however you were given treatment with mood stabilising medication.
133 Reference was made to your reported sleep problems in custody, with you continuing to experience suicidal ideation.
134 You said you would actively pursue gender change when released from prison.
135 Information was also contained in the note report from Justice Health since your incarceration. On 9 March 2016 there was reference to “no previous suicide attempt”. On 6 April 2016 “describes good sleep patterns, seven to 11 hours sleep per night”. On 19 August 2016, “Slightly better in mood swings as less ups, however, still gets more lows or remains flat otherwise.” “Impression – cyclothymic personality complex with gender identity issues" (I note at that stage not further defined) – sodium valproate increased from 200 milligrams to 400 milligrams per day, referable to mood swings.
136 In the opinion of Dr Deacon, your development was marked by instability and trauma. The history you reported was strongly suggestive of Gender Dysphoria Disorder. You continued to prefer being feminine rather than masculine but you continued to largely function as a male. You described yourself as heterosexual. You described wanting to pursue hormone therapy and genital reassignment surgery after release from custody.
137 You had a limited formal psychiatric history, and your ability to maintain stable employment in security and as a cleaner, whilst not excluding a mental disorder, indicated you were able to function reasonably well.
138 Dr Deacon regarded the letter from Dr Kumar, who assessed you on one occasion only, as “largely unhelpful”.
139 Dr Deacon also noted your “rather vague and imprecise history of mood-related problems”. It was difficult for him to ascertain whether the history you provided was genuine or feigned for the purposes of ongoing legal matters.
140 In the opinion of Dr Deacon, your past history of mood problems did not correlate with a diagnosis of Bipolar Affective Disorder, and again conceded by Mr Jassar to be "dead and buried". Should your self-report be genuine and valid, you might have a diagnosis of Cyclothymic Disorder – fluctuating mild, high and low mood states, possibly a low-grade mood disorder.
141 Clinical notes from the prison suggested it was likely you had been the subject of harassment regarding your feminine disposition and presentation, and it was the experience of Dr Deacon that openly gender dysphoric prisoners experienced more stress and anxiety in custody. I can understand and appreciate that. He noted at that time you had grown facial hair to lessen the likelihood of harassment, however, had refused to cut your hair. This was discussed with Mr Jassar, as was the female name you apparently like to be called in custody.
142 Dr Deacon concluded you had a rather brittle personality, were not particularly resilient or robust. You had poor coping skills with a possible mild mood disorder which may create more difficulties for you than the average prisoner without those difficulties.
143 In the opinion of Dr Deacon, however, your purported mood disorder did not appear to have contributed to significant problems for you thus far. You were currently prescribed medication that may assist.
144 Mr Jassar submitted following the report of Dr Deacon and his conclusions that Verdins principle 5 was enlivened.
145 Ms Mandie, for the prosecution, submitted that none of the Verdins principles had been enlivened as there was still no mental health diagnosis. Whilst conceding matters raised by Dr Deacon “would result in your time in custody being more difficult for you than prisoners without these issues", such she said, would be given little weight in mitigation of sentence. I agree with both her submissions.
146 I have carefully assessed all the evidence before me, as I am required to do (Binse v The Queen[7]). In my opinion, the evidence does not enliven Verdins principle 5. However your mental health, as described by Dr Deacon, and gender identity issues, also described by Dr Deacon, I accept, consistent with general sentencing principles, will make your time in custody more difficult than for a more able mental health prisoner, and such is relevant in mitigation of your sentence. However, based on the report of Dr Deacon, mitigation of your sentence is moderate, as I discussed with counsel at the most recent plea hearing on 4 November.
[7] [2016] VSCA 145
147 I was also provided with five references tendered on your behalf (Exhibit 4). A reference from Timothy Miles dated 17 April 2016. He had known you for the past 18 years. Your friendship had extended from when you attended school together. He saw you frequently and described you as an honest and fiercely loyal friend. You were a proud father and devoted husband. Despite moving away from each other as you have grown up, you stayed in touch, sharing significant family milestones and seeing each other on a fairly regular basis.
148 Mr Miles referred to your difficult relationship with your mother and her mental health issues.
149 There was a reference from your brother-in‑law, undated, who has known you for about seven years. He described you as a person with common sense, a calm nature, who tried to resolve situations in a pleasant manner. Your offending was out of character.
150 A reference from your brother, dated 5 April 2016. Your offending came as a complete surprise to him. He described you as always easy-going, reliable, understanding and friendly to family and friends. You were not an angry or aggressive person. You met regularly with a psychologist to deal with your issues.
151 There was a reference from your grandmother, dated 6 April 2016. She confirmed that you had been attending for psychological assistance and that the charges were out of character.
152 There was also a reference from your mother, dated 6 April 2016. She described you as always supportive of her and her bipolar disorder. The charges were out of character. She described you as a loving, caring, family man with a responsible job as a security officer. She said you were honest and trustworthy. She confirmed your attendance with a psychologist to assist in dealing with your anxiety.
153 There are no Victim Impact Statements before me. Gabrielle had been given the opportunity to prepare such a statement but has declined.
154 Whilst there is not any statement from her, in Dalgleish, the Court stated:
“Moreover, as this Court explained in Clarkson v R[8], the absolute prohibition on sexual activity with a child is ‘founded on such a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.” [47]
[8] (2011) 32 VR 361
155 Both Mr Jassar and Ms Mandie addressed me on Dalgleish. I do not accept the submission by Mr Jassar that Dalgleish was only referrable to mid-range and higher offending.
156 Uplifting of sentences was referred to in Ashdown v R[9] and Poyner v The Queen[10], and also recently in Dalgleish (paragraph 118) and also DPP v Clunie[11].
[9] (2011) 37 VR 341
[10] (1986) 66 ALR 264
[11] [2016] VSCA 216
157 There is also the importance of social rehabilitation.
158 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[12], in which Vincent J referred to the social rehabilitation citing DPP v DJK[13] (allowing for differences of course in those factual circumstances in those cases from yours). His Honour said:
“… each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour". With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[12] [2006] VSCA 90
[13] (2003) VSCA 109, paras 17 & 18
159 Mr Jassar submitted that there should be some concurrency between the offences, but urged full concurrency in relation to Charges 4 and 5 on the trial indictment, which involved the same incident. I disagree with the latter proposition of full concurrency.
160 He also submitted principles of totality would apply and mercy apply in your case. I accept principles of totality apply when sentencing you. I do not, however, consider the principle of mercy to be applicable (Osenkowski[14]). I do, however, accept as previously stated, consistent with general sentencing principles your time in custody will be more difficult, consistent with the "expert" reports before me.
[14](1982) 5 A Crim R 394??
161 I turn now to the Indictment to which you have pleaded guilty, specifically the two charges of knowingly possessing child pornography.
162 Mr Jassar referred to the images not showing sexual activity and falling within the lowest category, both of which I am aware. There were also a very small number of images involved.
163 Mr Jassar submitted the images did not display gross exploitation of children and I agree that many images seen in this Court unfortunately fall into the gross exploitation of children images. Yours not such a case. However, in the recent decision of DPP (Cth) v Garside[15], the Court (majority judgment) referred to care when categorising the pornographic material by way of category one, et cetera.
[15] [2016] VSCA 74, [67]-[71]
164 In Garside the Court also referred to the relevant principles applicable when sentencing on such charges, including possession of child pornography as well as other child pornography offences (in particular paragraphs 18-25).
165 Mr Jassar submitted, and I have also noted, there was no sale or distribution of the images or any profit was derived by you. Whilst he conceded these were in your possession for a number of years, the images on the HDD had been deleted in 2012.
166 Mr Jassar also referred to the number of duplicate images.
167 Mr Jassar submitted the appropriate disposition for that offending would be a fine, not an immediate term of imprisonment.
168 As previously stated, I accept you indicated that you would be pleading guilty to these charges in August 2015, albeit the plea was entered late, but there were reasons for that which I can well understand.
169 Ms Mandie, who appeared on behalf of the prosecution, provided a written prosecution opening for the plea and also written submissions regarding disposition (Exhibit A).
170 Ms Mandie submitted, as I have noted, that following a sentence of imprisonment in relation to Charges 1 and 2 on the trial Indictment, you were then to be sentenced as a serious sexual offender on Charges 3, 4 and 5 and also Charges 1 and 2 on the plea Indictment. Mr Jassar agreed such applied to you.
171 Turning to s.6D Sentencing Act 1991, Ms Mandie submitted the prosecution was not seeking a disproportionate sentence. I am of the opinion that I can sentence you without the need to impose a disproportionate sentence.
172 Ms Mandie also referred to s.6E Sentencing Act 1991, that any sentence of imprisonment imposed in relation to the subsequent charges must be served cumulatively. I am conscious of this, as I am also conscious of RHMcL v R[16] and whilst taking into account totality also being mindful to not compress such sentences, see also in Dalgleish ([58]-[60]). Totality is still, however, relevant.
[16] (2003) CLR 452
173 I turn to Ms Mandie’s submissions regarding the nature and gravity of your offending.
174 Ms Mandie submitted that Gabrielle was 12 years of age at the time of your offending, and that clearly, from her evidence, she adored and trusted you. There was therefore a high level of abuse of trust and a deleterious impact upon her.
175 Ms Mandie submitted that incest, by its nature, was often a crime of exploitation of the vulnerable by those entrusted with their care, referring to Reid v R[17], and that:
“… incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care. It is now seen to be a crime which – when perpetrated by an adult parent (or step-parent or grandparent) against a child – is erosive of human relations, the prominent features of which include ‘the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable and fundamental damage to the victim’.”
[17] [2014] VSCA 145
176 Since that decision the Court of Appeal has recently handed down Dalgleish [see [79]-[83]:
“The offences of incest ‘ordinarily’ ought to attract condign punishment.”
177 I regard your offending involving Gabrielle as at least mid-range.
178 The prosecution referred to aggravating features of your offending and submitted that, ultimately, this was a serious example of such offending and that sentencing should be towards the higher end of the range. Dalgleish referred also to the length of appropriate range of sentences on the spectrum for charges of incest.
179 Further, the prosecution referred to your offending not being isolated or transitory, involving not only the nature of the acts but physical force to overcome Gabrielle’s resistance.
180 Turning to your offences of child pornography, Ms Mandie referred to recent decisions of the Court of Appeal (DPP (Cth) and DPP v Watson[18] and DPP (Cth) v Garside[19]). I have read those decisions.
[18] [2016] VSCA 73
[19] [2016] VSCA 74
181 When sentencing for child pornography offences, Ms Mandie submitted general deterrence was the paramount consideration. I agree. She submitted a term of imprisonment was ordinarily warranted for this type of offending.
182 Further, that such offences of knowingly possessing child pornography were considered grave offences, reflected by recent increases in maximum penalties for such offences, although noting as do I the increase in the penalty of possession of child pornography, pursuant to s.70 Crimes Act 1958 postdates your charged acts, and therefore that the lower penalty of five years applied.
183 The Court was, she submitted, required to have regard to various factors in assessing the object seriousness of the offending in any given case of possessing child pornography and to consider the circumstances of your offending as a whole (see Watson).
184 I am required also to consider the nature and content of the material and I note in this case, the children involved were not very young, rather it appears, in early to mid-teens. Ms Mandie conceded the material was Category 1, that is the content was at the lowest end of the scale of gravity, however, noted the faces of the children were identifiable. Again, in assessing categorisation of material, I am mindful of the statement in Garside [para 67]. As you know, I viewed the material.
185 Ms Mandie also noted the relatively small number of images possessed, specifically as I understood it, six images in total on the computer tower (two being duplicates on the same device), and a few other images on the external hard drive (two being duplicates of images on the computer tower).
186 However, Ms Mandie submitted the images were accessed and stored for a number of years back, in August 2012, on the external drive and created/accessed at various dates between August 2012 and in 2013 and 2014 on the computer tower. In addition, the images were transferred from one device to another (iPhone to computer tower and computer to external drive, though then deleted).
187 The prosecution conceded in all the circumstances of that offending, your offending was the least serious example of this offence, however, referred to it as not being an isolated incident and the need for general deterrence paramount.
188 Turning to the charges of incest of which you were found guilty by jury verdict, Ms Mandie referred to a number of factors that aggravated your charges:
(i) That Gabrielle was a child and only 12 years of age at the time of the offending;
(ii) That you used force and emotional manipulation including locking Gabrielle’s wrists together and overcoming her by force so she could not move;
(iii) Telling her that it was a test and that she thought she was then doing the right thing and that all fathers did “stuff like that”;
(iv) The offending itself caused pain referrable to the digital penetration;
(v) Pushing Gabrielle onto the floor in the bathroom;
(vi) Stopping Gabrielle getting up with the use of your foot;
(vii) When lying next to Gabrielle, locking her in a position where she could not move.
189 In my opinion, factor (iv) to which I have just referred, is pain directly related to the act, and not one that I would regard as an aggravating feature.
190 Further, that you blamed Gabrielle following the offending (Charge 3), saying that, “They shouldn’t do it again” and told her to promise she would never come back into your room, which she did promise. That also aggravates your offending.
191 Ms Mandie submitted there was a gross breach of trust by you and that Gabrielle was very confused by your offending, otherwise adoring her stepfather, ie: you. This was clear from her evidence at the trial. Wrestling games were converted into sexual abuse and Gabrielle was blamed or co-opted into responsibility for the conduct, being told that it was a test for her to resist for her own good.
192 Further aggravating your offending was that it involved repeated offending and not isolated incidents, rather, four separate incidents over ten months. Ms Mandie submitted the likelihood was that this was unprotected sex, given that there was no evidence condoms were used and Gabrielle had expressed concern she might be pregnant. I have previously referred to this. That such may indicate no condoms were used, however, I am not satisfied to the requisite standard there was lack of condom use.
193 Turning to the other sexual misconduct, Ms Mandie conceded correctly these were not aggravating features of your offending, rather, prevented extension to you of any leniency with regard to the number of occurrences.
194 Turning to the aggravating features of the charges of child pornography, Ms Mandie submitted there were a number of images on two devices, although she conceded not a large number. Further, the obtaining and possessing of those images occurred over a period of years, including transfer from mobile telephone to computer tower and transfer of images from computer to external drive, though they were then deleted.
195 Ms Mandie conceded there were a number of mitigating factors relevant to your sentencing. Firstly, that you did not have any prior convictions of which I am certainly aware, or I note, subsequent.
196 By virtue of you having been found guilty of the five charges on the trial Indictment E13335677.1A, you are to be sentenced as a serious sexual offender following terms of imprisonment being imposed on Charges 1 and 2, which means therefore for the purposes of Indictment E13335677.1A, you are to be sentenced as a serious sexual offender on Charges 3, 4 and 5. Again I note, of course, Charges 4 and 5 are referrable to the same occasion.
197 Regarding Indictment E13335677.2, you are also to be sentenced as a serious sexual offender on charges 1 and 2.
198 Sections 6D and 6E Sentencing Act therefore have application. In sentencing for those offences the Court must regard the protection of the community from you as the principle purpose for which the sentence is imposed.
199 Regarding your offending, I also note the Courts have referred to such offending as yours. Sexual offending against children is very serious, and in particular sexual offending of a parent/child.
200 Also, the courts have repeatedly referred to the seriousness of sexual offending involving children (see Burnett[20], Roosmalen[21], Wayland[22], Parente[23], and recently DPP v DJK[24], DPP v CPD[25] and Clarkson v The Queen[26], (recently DPP v Dalgleish[27]). The list is not exhaustive.
[20] (1993) 70 A Crim R 469
[21] (1989) 43 A Crim R 358
[22] 14/9/1992 CCA Victoria
[23] 20/2/1996 CCA Victoria
[24] [2003] VSCA 109
[25] [2009] VSCA 114
[26] [2011] VSCA 157
[27] [2016] VSCA 148
201 In Dalgleish the Court referred to uplifting of sentences for incest. From Dalgleish, it is open to a sentencing court to not visit current sentencing practices upon an offender if he or she pleaded guilty before an uplift in such practices and is sentenced after the uplift. However, in your case yours was a plea of not guilty.
202 A person who pleads not guilty prior to uplifted sentencing practices may be sentenced with respect to these practices if sentence is imposed after the uplift (see for example, Poyner v R[28] and Ashdown v R[29]).
[28] (1986) 17 A Crim R 162
[29] [2011] 37 VR 341
203 Turning to your prospects of rehabilitation, I have guarded optimism. I do however accept you have been in the past in age-appropriate relationships and have been able to work consistently since leaving school. Further, you have started to discuss your gender identity issues with professionals. This, however, will be a long process. You will also need to participate in sex offender programs to address your offending behaviour, offending which you at the moment deny. Addressing these issues will improve your rehabilitation prospects and reduce the risk of your sexually reoffending.
204 When sentencing you I must seek to maximise your chances of rehabilitation as they may be.
205 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this, referable to both indictments.
206 There is also a need for specific deterrence when sentencing you. Whilst I note you do not have any prior court appearances, your offending nevertheless on Indictment E13335677.1A occurred over a significant period of time, ie: approximately nine months as indicated in the five charges, and involved four separate offending occasions, that is, not a "one off" occurrence.
207 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.
208 I am called upon by the Sentencing Act1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
209 In sentencing you I have taken into account the principles of totality and proportionality.
210 I sentence you as follows.
Indictment E13335677.1A
211 On Charge 1, you are convicted and sentenced to 5 years' imprisonment.
212 On Charge 2, you are convicted and sentenced to 5 years' imprisonment.
213 On Charge 3, you are convicted and sentenced to 6 years' imprisonment.
214 On Charge 4, you are convicted and sentenced to 6 years' imprisonment.
215 On Charge 5, you are convicted and sentenced to 5 years' imprisonment.
Indictment E13335677.2
216 On Charge 1, you are convicted and sentenced to 60 days’ imprisonment.
217 On Charge 2, you are convicted and sentence to 60 days’ imprisonment.
218 Charge 4 on Indictment E13335677.1A, that is the trial indictment, is the base sentence and I direct the following in relation to cumulation and concurrency.
219 I direct that 12 months of Charge 1 on Indictment E13335677.1A be served cumulatively upon Charge 4.
220 I direct that 12 months of Charge 2 on Indictment E13335677.1A be served cumulatively upon Charge 4.
221 From now on, as I am sentencing as a serious sexual offender, the sentences will be worded slightly differently.
222 I direct that 4 years and 8 months of Charge 3 on Indictment E13335677.1A be served concurrently and 16 months cumulatively upon Charge 4.
223 I direct that 4 years of Charge 5 on Indictment E13335677.1A be served concurrently and 12 months cumulatively upon Charge 4.
224 I direct that 46 days of Charge 1 on Indictment E13335677.2, the plea indictment, be served concurrently and 14 days cumulatively upon Charge 4 on Indictment E13335677.1A.
225 I direct that 46 days of Charge 2 on Indictment E13335677.2 be served concurrently and 14 days cumulatively upon Charge 4 on the trial Indictment E13335677.1A.
226 For clarity, the orders for cumulation are upon each other and upon the base sentence.
227 That results in a total effective sentence of 10 years 4 months and 28 days' imprisonment, and I direct you serve a period of 7 years before you are eligible for parole.
228 Pursuant s.18(4) Sentencing Act1991, I declare you have spent 247 days in custody (up to and including yesterday, 10 November 2016) by way of pre-sentence detention and direct that that be entered into the records of the Court.
229 Pursuant to s.6AAA Sentencing Act 1991 the sentence that would have been imposed on Indictment E13335677.2 if convicted of those two offences after trial, I would have sentenced you to 4 months’ imprisonment on each charge and ordered some cumulation between the two. Beyond that, I have not further stated upon any other indictment, but just those separately.
230
Simply for completeness, a s.6AAA declaration does not apply on Indictment
E13335677.1A as you proceeded to trial, which of course was your right, but it does not apply.
231 I declare you have been sentenced as a serious sexual offender on Charges 3, 4 and 5 on Indictment E13335677.1A and on Charges 1 and 2 on plea Indictment E13335677.2, and direct that this be entered into the records of the Court.
232 Turning to the Serious Sex Offenders Registration Act to which I have previously referred, the offences of incest are classified as Class 1 offences and possession of child pornography offences are classified as Class 2 offences. You were therefore a registrable offender and subject to mandatory registration under that Act for life. Your counsel, Mr Jassar, agreed such would apply when sentencing you.
233 Following this sentencing, my associate will approach you and ask you to sign acknowledging receipt of the paperwork, if you like, that tells you about the Registration. You are not being asked if you want to be on the Register, I have already made that order. You are simply being asked to sign for acknowledgment of receipt of the relevant paperwork.
234 The prosecution made application for a forensic sample pursuant to s464ZF(2) Crimes Act 1958. Mr Jassar did not oppose that order being made. It will be for a saliva sample and I make the Order on the basis of the seriousness of your offending. I must advise you, the authorities may use reasonable force in order to obtain that sample.
235 There was a disposal order that came my way recently that was going to be sought by the prosecution. Do you have an attitude to that, Mr Jassar? What do you say about the disposal order?
236 MR JASSAR: Sorry, Your Honour. There's no issue with that, Your Honour.
237 HER HONOUR: So can I say it is not opposed?
238 MR JASSAR: Yes, Your Honour.
239 HER HONOUR: A disposal order was also recently sought by the prosecution, which is not opposed, and I make the order in the terms sought.
240 Let us check the rest. PSD, have I got it right?
241 COUNSEL: Two four seven.
242 HER HONOUR: Yes.
243 MR JASSAR: Yes, Your Honour. Not including today.
244 HER HONOUR: Right, good. Got that. The declarations are right, I am sure of that.
245 MR JASSAR: There's one thing, Your Honour. My learned friend and I picked it up, is that on Charge 5, which is a five year sentence, Your Honour - - -
246 HER HONOUR: No, six. Hold on five. Yes.
247 MR JASSAR: Your Honour stated in your sentencing remarks - - -
248 HER HONOUR: Yes, four years.
249 MR JASSAR: - - - five years to be served concurrently and 12 months cumulative.
250 HER HONOUR: Four years. Good, maths.
251 MR JASSAR: We don't mind five months' concurrence, Your Honour.
252 HER HONOUR: No, I had just better confirm that. No, you are quite right. Good pick up. So Charge 5 was five years, and I direct that four years of Charge 5 be served concurrently and 12 months cumulatively. I am sorry about that.
253 MR JASSAR: That's all right, Your Honour.
254 HER HONOUR: It is pretty clear, but you are quite right. It is wrong. But it is right now. Is that clear?
255 COUNSEL: Yes.
256 HER HONOUR: Does anyone else want any help with any of the maths?
257 MR JASSAR: No, I'm just adding, but it's all right, Your Honour.
258 HER HONOUR: No, just double check it. I am not asking if you like it, just if the figures are right, that is all. How did you go with the maths?
259 MR JASSAR: That's correct, Your Honour.
260 HER HONOUR: I mean, they all add up and you do not need me to repeat anything? No?
261 COUNSEL: No, Your Honour.
262 HER HONOUR: All right, excellent. Thanks very much. Now, Mr Jassar, regrettably because there are two files, the plea and the trial.
263 MR JASSAR: Yes, Your Honour.
264 HER HONOUR: There are two sets of documents that he is going to be asked to sign regarding the Sex Offenders Registration Act.
265 MR JASSAR: Yes.
266 HER HONOUR: So there will be two. One for each of them.
267 MR JASSAR: I'm just a bit reticent about that. In the second one, I'm not sure whether it's a life - - -
268 HER HONOUR: It might not be.
269 MR JASSAR: Yes.
270 HER HONOUR: Life would certainly take priority.
271 MR JASSAR: Of course. But I'm sure with that - - -
272 HER HONOUR: We had better check that. You might be right.
273 MR JASSAR: Yes, it may only be eight years, Your Honour, on that.
274 HER HONOUR: It could well be. You might well be right. So we had better check that.
275 MR JASSAR: I didn't appreciate that, Your Honour, until Your Honour just mentioned that.
276 HER HONOUR: Neither did I, obviously, or I would have looked at it in more detail. Yes, I want an answer to that, please, Madam Prosecutor. Make sure it was right. There are the disposal orders. That is that.
277 Now, class two, I was told. Have you found it?
278 MS WESTLAKE: Sorry, Your Honour, I'm still looking at the Act. I believe that it won't be. I don't believe that class two is life.
279 HER HONOUR: No, it should not be. No, you are right. I think that sounds pretty right. I think Mr Jassar is on the ball there.
280 MS WESTLAKE: Your Honour, I'm just reading here.
281 HER HONOUR: Yes?
282 MS WESTLAKE: Sorry, so for a class - - -
283 HER HONOUR: It is a class two offence.
284 MS WESTLAKE: The reporting period of life will be if the accused has been found guilty of two or more class one offences.
285 HER HONOUR: I have done that. Incest.
286 MS WESTLAKE: Yes. Getting down to limb three, one class one offence and one or more class two offences. So we have incest being a class one offence, and - - -
287 HER HONOUR: I see, because of the combination.
288 MS WESTLAKE: Yes.
289 HER HONOUR: So it is life in total.
290 MR JASSAR: Yes. So it doesn't make any difference.
291 MS WESTLAKE: For having both.
292 HER HONOUR: It is life in total.
293 MS WESTLAKE: Yes, Your Honour.
294 HER HONOUR: So long as that is abundantly clear. All right, it is because of the other indictment that it makes the second plea indictment fall into that category of life.
295 MS WESTLAKE: Yes, Your Honour.
296 HER HONOUR: Because it is a combination, Mr Jassar.
297 MR JASSAR: Thank you.
298 HER HONOUR: But having said that, you still have to get two documents.
299 MR JASSAR: Yes, Your Honour.
300 HER HONOUR: That is how it is explained, and it is on the transcript. All right, all signed?
301 MR JASSAR: Yes, Your Honour.
302 HER HONOUR: I thank counsel very much for their assistance. Thank you, thanks Mr Packard. You will have to go out, please, if you do not mind. Thank you very much.
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