Director of Public Prosecutions v Rametta
[2017] VCC 299
•23 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-02087
Ind F11860008.1 & F11860008P
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| Andrew Joseph RAMETTA |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 3 October-11 October 2016 | |
DATE OF SENTENCE: | 23 March 2017 | |
CASE MAY BE CITED AS: | DPP v Rametta | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 299 | |
REASONS FOR SENTENCE
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Catchwords: sexual penetration of a child under 16 years x 4. Indecent act x 2, Using carriage service to transmit indecent communications x 5.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms MacDougall | Office of Public Prosecutions |
| For the Accused | Mr G Traczyk at trial | C. Marshall and Assoc Tony Hargreaves and partners |
HIS HONOUR:
Andrew Joseph Rametta, following a short trial on 11 October 2016, you were found guilty of four charges of sexual penetration of a child under 16 years of age, and two charges of committing an indecent act with a child. Those charges each carry a ten year maximum term of imprisonment. In addition, you had earlier in April of 2016 pleaded guilty to five charges of using a carriage service to transmit indecent communications to a person under 16 years of age. Those five offences are Commonwealth offences and are punishable by a seven year maximum term of imprisonment. The procedural history is far more involved than that, as the chronology attached to the Crown opening will make plain enough. There had earlier been a trial on the trial indictment containing the six sexual offences in April 2016 but the jury were discharged almost immediately following on from your counsel’s inappropriate defence response. I should say that was not Mr Carr at that trial. Further, after verdict in October of last year, and leading into the plea date fixed in December, you then, for whatever reason, sacked your legal team, engaged new practitioners and the matter has then hung around in the list with a change of plea application foreshadowed as a possibility at one point. So I am dealing with you in March 2017. But for your efforts since verdict, of course, I would have finalised this matter last year.
2 You have admitted a criminal history of no relevance to my task and so I put that aside altogether.
Facts
3 Your victim who I will not identify in my sentencing reasons is now 15 years of age, but had only recently turned 13 at the time of the sexual acts. She had not even yet started in secondary school. Her date of birth is in 2001[1]. Your date of birth is 21 March 1986 so you were 28 at the time of those sexual acts. You had moved into the home occupied by the victim, her mother and her godfather, and you moved into that house in mid-August 2014. I see no need to set out the full details of your offending. This matter proceeded as a contested trial. Her allegations had been recorded in a VARE and faithfully stated in the amended prosecution trial summary of opening in this matter. They are also referred to in the prosecution ‘opening following trial’ document dated 9 March 2017, which was marked as exhibit A on the plea. The conduct on the trial indictment related to three incidents involving these six sexual acts. There were three acts of penile vaginal intercourse, one act of oral penetration of the complainant’s vagina and the two indecent touchings. All the acts occurred in her home where you were a lodger. There were a number of uncharged acts and I am satisfied beyond reasonable doubt that they did occur but I have regard to them only in the very limited way suggested by Mr Carr. The offences for which I must pass sentence after all are not representative charges. You do not fall to be sentenced in any way for any of that uncharged conduct.
[1] Date of birth removed to prevent identification of victim.
4 This young girl had no sexual experience at all. I am satisfied of that beyond reasonable doubt. I am equally satisfied that she was vulnerable. Her parents had separated. She had no or very limited contact with her father, and her mother was labouring under the twin effects of the separation and of having lost her two sons in that separation. She, the mother, was in a depressed state at the time of your conduct and was clearly not able to look out for her daughter's needs as might otherwise have been the case. Your counsel concedes all this. You said yourself in discussions with Ms Lechner that the victim's, mother was neglectful of her daughter. It is apparent that quite quickly the relationship between you and the young girl became totally inappropriate. Well your victim was just 13. She has every excuse under the sun. She was a child. No doubt her age and her family circumstances made your attentions flattering. Any attentions from anyone would have been welcome to her, I suspect, in this time frame, but you, you have no excuse. You were an adult. You were 28 years of age and clearly should never have permitted this relationship to become sexual. But it did. There were a host of text messages spelling out the nature of the relationship between you and your victim. A series of those emails sent at a later time, so in April 2015, found the five charges on the plea indictment. By then you were 29. They were clearly indecent, they were clearly improper communications and with the girl, whatever you may tell Ms Lechner in that respect. Ultimately your victim, as we know, ran away from the family home. She absconded from the Department of Health and Human Services and was on the run for quite some time. You and she planned to obtain a unit to move in together. You had expressed the view that you loved her, that you wished to take her to Queensland when she was 16. Well she was but 13 and you sexually penetrated her on the four occasions when she was 13.
5 I am satisfied beyond reasonable doubt that you, a 28 year old man, had sex with her and it was her first experience of that act. I am satisfied on her account that you instigated the sexual contact. Condoms were utilised on each occasion. This was serious criminal conduct.
6 You ran a trial in relation to the sexual charges and you chose not to go into evidence, which of course was your right. Your then counsel had endeavoured to exclude all the evidence of texts and no doubt, had he succeeded, the submission would have been made to the jury that there was nothing at all to suggest anything other than a purely platonic relationship. I did not exclude a number of pieces of evidence and instead your then counsel conceded that it was an inappropriate relationship but disputed that there was any of the sexual conduct as described by the complainant. The jury obviously disagreed. The jury has reached their conclusion as to the happening of the sexual acts.
Victim Impact
7 Your victim has made a victim impact statement which was marked as Exhibit B on the plea. No issue was taken by your counsel as to that impact statement and I do take it into account. It is a very sparse statement and I see no need to set it out in my reasons. So too has the mother made a victim impact statement and other than the matters which clearly are not relevant and which were identified to me by the prosecutor, I take that into account as well. The mother has lost a sense of trust in others. She has also, as a result of what happened to her daughter, felt a sense of guilt.
8 These offences exist to protect young people, not just from older people, but even sometimes from themselves. They are judged to be potentially immature and in need of protection from those who are a good deal older. Well you were a good deal older. You knew her age. You had knowledge of her isolation from a caring mentor, and you have acted quite deliberately and have committed undoubtedly serious crimes. I take into account the impact of your crimes.
9 Submissions In mitigation
10 Mr Carr raised a number of matters in mitigation. Primarily they were:
· The absence of any particularly relevant past offending;
· The guilty plea in relation to the plea indictment. He abandoned any claim as to the presence of any remorse;
· The increased custodial burden owing to your physical complaints;
· He relied upon the report of Ms Lechner and references from your mother and others which spelt out a most disadvantaged background;
· He argued that you had relatively good prospects of rehabilitation.
11 He conceded the seriousness of the offending, especially the sexual offending. He argued that owing to the absence of many common aggravating features, the sexual penetration offences did not fall into the gravest category of such offending. He accepted, though, the inevitability of an immediate term of imprisonment. He conceded that prison was also required in relation to the plea indictment matters. He argued in favour of a substantial level of concurrency in relation to some of the sentences to be imposed, though recognised the impact of the serious sexual offender legislation in this area, though not in his written submissions. He also conceded that there would need to be some cumulation as between the sentences on the two indictments.
Crown Submissions
12 Ms MacDougall, appearing on behalf of the Director of Public Prosecutions, made virtually no submissions as to sentence. That is not a criticism of her. It was no doubt owing to the very high quality of Mr Carr’s realistically pitched plea.
Background
13 I turn now only very briefly to your personal background. I see no need to go through your personal background in great detail. Your counsel saw no need to do so on the plea and for good reason. I have no reason not to accept the personal background that is placed before me in this case. It is set out in the report of Ms Lechner and is detailed in your mother’s very long letter. That letter makes for hard reading indeed. I accept that it was a very disadvantaged background and I take it into account in the way argued by your counsel in paragraph 11 of his written outline.
14 In the broadest of terms, you are now 31 years of age, born on 21 March 1986. You have had sizeable health issues as some of the other filed material makes very plain to me. There is nothing directly in your personal background that actually explains this offending. Mr Carr asked that the court draw an inference along the lines set out in paragraph 12 of his written outline with the contention that your offending was shaped by your childhood background with an impaired capacity to develop appropriate relationships flowing from that background. He conceded, though, that no such explanation was contained in the expert report of Ms Lechner. I am not allowed to guess about these things. I am not guessing when I state that you have had a life of disadvantage and that such events in a person's past are not just shrugged off. But the extent to which your past life has contributed to this offending is impossible for me to know. You have been unfortunate also to have had the very significant health issues afflicting you leading to spinal surgery conducted in 2015. It had been difficult for you to work for many years owing to your physical complaints. You were in something of a slump at the time of the offending owing to the breakdown of what had been a long-term relationship with your girlfriend Christina.
Criminal History
15 You have admitted a criminal history but, as I have said already, it does not have any matters of a similar nature and it is, in my judgment, simply irrelevant to my task.
Increased burden
16 Your counsel suggested that there is an increased custodial burden here produced by your physical conditions as described in the report of Dr Baglar that was placed before me as well as in the medical notes attached to that exhibit. That was Exhibit 3. Well, I accept that submission. I do accept that life will be more difficult for you than for many going to prison owing to those physical factors. Also your anxiety about being caught up in any sort of physical violence which might be particularly serious for a person with your physical condition. In addition, pain relief has never been entirely satisfactory for you but it will be harder still to manage, I would think, in a prison setting. So I take all of these matters into account in mitigation. I also take into account the very unpleasant conditions in which you were housed for some six or so weeks following on from the riots in 2015.
Ms Lechner’s report
17 I turn to Ms Lechner's report. Not much time was taken by Mr Carr on the plea going to the report of Ms Lechner. Mr Carr conceded that none of the principles from Verdins were attracted here and that concession, I am sure, was correctly made. The report is still of some value. It has a risk assessment. You are judged to be a moderate low risk of re-offence. You are not judged to be a paedophile. Your conduct is said to be hebephilic in nature. The report comments also on your past family background. I take into account the report in the ways urged upon me. It is, however, silent as to the sexual offending and the reasons for it and does not contain any theory at all. In fact, of course, you deny to Ms Lechner the contact offending and deny even communicating indecently with the girl and seemingly raise as a potential excuse some confused state flowing on from the use of painkillers in the time frame of those communications. Your account in those areas is self-serving. It has no connection to the reality of what you did and I reject what you told Ms Lechner. Your actual communications speak for themselves. They do not lie. You do and for some reason did on this topic to the expert, but I hasten to add that that is in no way a matter in aggravation.
Rehabilitation
18 Your counsel was suggesting that you have relatively good prospects of rehabilitation. In that area he was arguing that you have no similar past offending and, of course, a decent level of family support. Your mother stands by you and so too your girlfriend. The offending was situational. He was relying upon the relatively favourable risk assessment in the report of Ms Lechner that I referred to a moment ago, and I am told that you have resumed your relationship with Christina, your past girlfriend. The offending had, it would seem, occurred at a pretty low point in your life when you and she had separated. You were unemployed and experiencing pain management issues with your injury.
19 It is very hard to know what to make of your prospects as it is hard to understand how you actually came to commit these serious offences. They were not spontaneous offences. As I have already said, Mr Carr raises a theory in paragraph 12 of his outline, but it really is no more than that; a theory. It is entirely speculative, and I am certainly not satisfied of that theory on the balance of probabilities. The fact is, you have denied any sexual offending against your victim. It is clear that you have committed the offences and clear from the text evidence that your were in a sexual relationship with her. You knew her age. Well you have committed serious sexual offences with a very young girl. She was 13.
20 This is quite unlike a case as sometimes exists, where a person has pleaded guilty and talks frankly with a psychologist as to the offending, in a setting where an expert can then provide, or attempt to provide at least, some explanation of the offending. Indeed it is plain enough that you are not even being frank about the matters to which you have pleaded guilty, and it was for those reasons that your counsel abandoned any claim as to remorse on the plea indictment.
21 Here, there is no real explanation placed before me and this is not offending in relation to an older girl approaching womanhood, or by a man much closer in age where there might be some blurring of the boundaries or some vaguely explicable attraction. This was a vulnerable 13 year old girl. She was not yet even in secondary school. You were more than twice her age.
22 It is true that there is nothing relevant in your past criminal history, and I have accepted that already. I can only be relatively guarded, given the nature and extent of the offending and the lack of explanation as well as your strange attitude in relation even to the obviously proven conduct such as the texts. The lengthy sentence I will impose, I am sure, will have a significant deterrent effect upon you. I would expect that, whatever your current attitude now, you will be required to participate in a sex offender's program and you will be registered for life under the Sex Offenders Registration Act. All of those things will likely reduce your level of future risk. Assessing risk here is not simple, but I am prepared to act on Ms Lechner’s assessment. I am prepared to conclude that you do have quite good and realistic prospects of rehabilitation.
Current sentencing practice
23 I take into account, as I must, current sentencing practices. I have looked at the relevant Sentencing Advisory Council snapshots, so sexual penetration of a child 12 to 16 (No.181 of 2016), and No.178 of 2015, dealing with indecent act. I have looked also at the Judicial College of Victoria's sentencing manual cases dealing with victims over ten both by way of overview and case summaries. Also summaries of indecent act cases.
24 But one has to be very careful in looking at other cases, more so in this area than many others. There are sometimes differing maximum penalties applicable, dependent upon the age of the given victim. There are sometimes representative charges dealt with in other cases.
25 The sentencing snapshot for sexual penetration discloses that the median length of imprisonment, where imprisonment was imposed, was two and a half years. Well that is the median. That is a statistical term. That is, half the sentences are shorter, half are longer. Well, I am not required to sentence by imposing the median sentence. The most common range of sentence was between two to three years. But there was also a very sizeable proportion of offenders sentenced to terms greater than three years and less than four years. The Judicial College of Victoria overview of sentences discloses many instances of sentences of four years or greater, even for those who have pleaded guilty.
26 The statistics are a pretty crude tool. They say nothing about the individual factors of a case. They say nothing as to whether the offender pleaded guilty or not guilty, or had remorse or not, or had relevant criminal history or not. Undoubtedly, very many of the instances in the sentencing snapshot would result from a guilty plea. What I know in this case is that in relation to the trial indictment charges you have conducted a trial. This, of course, was your absolute right and obviously you cannot be punished for that stance. However, what is plain is that the very sizeable and understandable allowances that are made for a guilty plea and one evidencing remorse have no application at all here for those six charges on the trial indictment. There is obviously no remorse in relation to those matters. There are no utilitarian benefits applying to a guilty plea, because you did not plead guilty. You ran a trial. It is, of course, entirely different in relation to the Commonwealth matters. There you have pleaded guilty and I make plain that you get the full benefit for those guilty pleas and the early stage at which they were entered. I do not water that discount down courtesy of your later consideration of changing your plea or the stance you adopted with Ms Lechner. There is a utilitarian benefit in pleading guilty as you did. You have facilitated the course of justice. You have taken responsibility. The community is saved the cost and effort of a criminal trial in those matters, so you have facilitated the course of justice. However there is no remorse as you still seem to totally downplay that conduct in discussions with Ms Lechner. As to the State trial indictment, as I have said, the very sizeable mitigatory matters that are sometimes present in some cases are not present here.
27 But no amount of looking at statistics, no amount of looking at other sentencing outcomes in other cases can provide the answer to the correct exercise of my sentencing discretion in your case. In this case. That is because each case is very different and so too is every offender.
Offence gravity
28 But what I have to do in every case is pay regard to the gravity of the offence, or offences, before the court. Turning to the sexual offences, of course, here there was a large age difference, and you knew her age, as you were living in the same house.
29 Not every sexual penetration of a child under 16 is the same. There are some offences committed, for instance, by a far younger man upon a far older girl, a girl closer to 16, and they are obviously much less serious than your style of offending. There is less imbalance in that sort of setting often. Well, you were not close in age. You were more than double her age and she had just turned 13. Not just 13, but a vulnerable 13. You knew of the difficult circumstances faced by this young girl. You knew she was vulnerable, with little by way of true parental support or care at the time in question. You were 28. The offending was not isolated. There were the three incidents with the six charged acts. Of course, they occurred in what we know to be a tight time frame over a handful of days.
30 There was no physical force or physical compulsion. There was no abhorrent or extravagant behaviour. There was no pregnancy. There was no perversion attached to the actual conduct. There were no threats. Indeed it is obvious that at the time your victim was agreeable to the conduct that you and she had formed a form of relationship. But I want to make plain, that is not mitigatory. The consent of someone of this age is not mitigatory, as your counsel himself made clear, and he is right. These offences are founded on the presumption of harm. She could not consent and for good reason. See Abad [2016 VSCA]. In this area the law seeks to protect young persons from harm. She was a child and you were an adult. Children must be protected. They must be protected from sexual exploitation. I accept, though, that there were absent many matters of aggravation that sometimes do exist. That is as far as that goes. The absence of aggravation does not then magically render the offences minor. They were not. The age and the circumstances of the young girl are matters of seriousness here. I accept that the indecent acts were obviously less serious and they were acts leading into penetrative acts.
31 As to the Commonwealth offences, I was reminded by your counsel that you are not charged with procuring or grooming style offences. Of course, by that stage, in April 2015, you had been in a sexual relationship with the girl already. These indecent communications did not contain indecent images or the like. It was the words.
32 I accept that your offending, therefore, was not at the very highest levels of seriousness, assuming one can even still use that sort of phrase following the High Court case of Kilic. Your offending was still, however, very serious indeed, and by the time I come to sentence on Charge 3 on the trial indictment, you fall to be sentenced, as a serious sexual offender.
Sentencing considerations
33 I have taken into account all of the submissions made and the exhibits that have been tendered before me. I have not seen the need to descend to the detail of your mother's or partner Christina’s letters but I do take them into account. I have read them again since the day of the plea.
34 Sentencing is never an easy task. There are very many matters which a court must take into account. I have to take into account the maximum penalty. Here, ten years for the sexual offences and seven years for the Commonwealth offences. I have to pay regard to current sentencing practices and to the impact of the crimes. I must also, of course, consider your prospects of rehabilitation. You must be punished for your crimes, justly and proportionately, and this court must denounce your conduct. These are important matters, punishment and denunciation. You should be ashamed of yourself for engaging in these various acts with your victim, of sending the texts. You plainly are not.
35 I must consider the protection of the community. Indeed, by the time I come to sentence on Charge 3 on the trial indictment, I must regard the protection of the community as the principal purpose for which the sentence is to be imposed. My conclusion, though, as to future risk in this case must be factored into the weight given to that purpose.
36 You must also be deterred. Your counsel argues that that principle can be moderated to a degree, and I agree it can be to a degree. Specific deterrence is still a relevant consideration here. I must pay it some weight but I am prepared to moderate the weight to be given to it given my conclusions as to there being a relatively low risk of your re-offending in the same way in the future. It is still relevant, though. You must never contemplate committing crimes such as these ever again. I believe also that the process of your being charged and brought before the court and sentenced will all go some distance to deterring you in the future. So too your registration under the Sex Offenders Registration Act 2004 and the likelihood of your being required to participate in a sex offenders program in custody. So I do moderate this purpose to a degree.
37 This court must also seek to deter or to dissuade others who might be minded to commit this type of offending. That purpose is known by us lawyers as general deterrence. It is a highly relevant purpose of sentencing for these sorts of crimes. The courts must make crystal clear to likeminded people that conduct such as yours simply will not be tolerated and will be punished sternly indeed. Young girls must be protected. It is not to the point that they may be agreeable at the time of the conduct. The offence, as I have said, reflects a presumption of harm. The courts then will protect them and will punish those who exploit them sexually, as you obviously did. The courts have a role in sending a strong message to those in the community who might think it open to exploit younger persons in a sexual fashion. Likewise in this day and age where virtually every person has a smartphone and the means to communicate with a large range of people, the message must be conveyed that sending indecent communications to children will not be tolerated, not by the courts. I pay regard to the relevant sentencing matters in the Commonwealth sphere including, of course, those relevant matters set out in s.16A (2) of the Crimes Act 1914.
Totality
38 I must pay regard to the principle of totality of sentence in considering the extent of cumulation to be imposed as between individual sentences imposed by this court and as between the two indictments. As to the State sexual matters, there were three separate incidents occurring over a relatively short period of time. On some occasions, more than one act occurred. For instance, on the second of the incidents before me, three offences occurred and on the final incident two acts occurred. However, I cannot lose sight of the fact that they were each individually serious sexual crimes. The second incident moved from an indecent act to two different forms of sexual penetration. Penetration of your victim's vagina by your tongue and of her vagina by your penis.
39 Charge 5 was also a prelude to Charge 6, so I cannot ignore the temporal connection here, and it seems to me, at least in some instances, to demand a substantial level of concurrency.
Serious offender provisions
40 However, I am sentencing you as a serious sexual offender from Charge 3 on the trial indictment. I hasten to add that none of the plea indictment charges have that as a consideration. Under the serious sexual offender provisions within our Sentencing Act 1991, unless I otherwise direct, the sentences passed upon you from Charges 3 through to 6 would be served cumulatively upon the earlier sentences imposed and upon each other and upon other sentences imposed this day. (See s.6E of the Sentencing Act 1991).
41 Additionally, for the sentences imposed from that point on the trial indictment, as I have said, I must regard the protection of the community as the principal sentencing purpose. The court has available the power to impose a disproportionate sentence in relation to such charges to achieve that purpose, but I want to make very clear that I do not do that here. No one suggests that I should, and I will not, so I will not pass any disproportionate sentences in this case.
42 But I cannot ignore these specific provisions. I must give weight to the serious offender provisions. (See DPP v HPW [2011] VSCA 88). This rule as to cumulation has an evident object and one that is not to be defeated merely by the court’s exercise of the discretion to direct otherwise. To adopt that as a course would be to compromise and to undermine what is a clear legislative policy. These provisions gives effect to the legislative will that serious offenders are in a special category of offenders. (See Beyer v R [2011] VSCA 15 and R v RHMcl [2000] 203 CLR 452. See also HBW). So I must give weight to this provision, to s.6E, and the nature of your offending, but it is clear I still must pay regard to the principles of totality, as modified by this rule. Despite the primacy of community protection, I must also inform myself by reference to the level of risk of re-offending in this same way, and as I have said, I believe it is, as best I can judge, relatively low.
43 I have given consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you, and to ensure that the overall effect is consistent with your overall actual criminality.
Sentence/Section 17 Crimes Act 1914
44 Sending a person to prison is always a matter of last resort. As your counsel correctly concedes, there is simply no alternative here. Your crimes are just too serious. All of them. I believe it is open to me to impose an aggregate term in relation to the Commonwealth matters for the reasons announced on the plea.
Forensic sample
45 Application is made for a forensic sample order and that is not opposed or consented to. So I have signed that order and I now pronounce it.
46 Having considered the seriousness of the circumstances and of the various forensic sample offences, I am satisfied that the making of the order is justified owing to the seriousness of the circumstances of that offending, the fact that the order is by consent, or not opposed, and that the granting of the order is in the public interest.
47 This relates to the taking of a swab. That is what I am authorising, Mr Rametta, that, pursuant to the provisions of the Crimes Act, I am ordering that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant Crimes Act provisions, until a sample of sufficient standard is obtained for placement on the database. It is not an invasive procedure, it is a swab run around the inside of your mouth. The authorities will engage in that act and they can use reasonable force to obtain that sample. If they experience difficulties, no doubt they will be back before me applying for a blood sample, which to this point I have not authorised, but that is what that is all about. I have authorised that, I have signed it and have pronounced it.
TO COUNSEL:
48 I will have brought down a document for each of you so you can follow this process. It is not easy, as I am having to deal with two indictments, I am having to deal with cumulation, I am having to deal with extent of concurrency.
49 Stand up, please, Mr Rametta.
Sentence
50 Turning, firstly, to the State trial indictment, on Charge 1, I convict and sentence you to three years and nine months' imprisonment. That is the base sentence.
51 On Charge 2, I convict and sentence you to ten months' imprisonment.
52 By Charge 3, you fall to be sentenced as a serious sexual offender, and on that charge, Charge 3, I convict and sentence you again to three years and nine months' imprisonment.
53 On charge 4, I also convict and sentence you to three years and nine months' imprisonment.
54 On Charge 5, you are convicted and sentenced to one month's imprisonment.
55 On Charge 6, you are convicted and sentenced to three years and nine months' imprisonment.
Cumulation and Concurrency Section 6E
56 I am now going to make orders both for cumulation and the extent of concurrency. You are just not going to follow this, but I am going to tell you at the end of this what it all amounts to, all right?
57 Firstly, cumulation. So the base sentence is the 45 months that is imposed on Charge 1. Three years and nine months is 45 months.
58 So two months of the sentence imposed on Charge 2 will be served cumulatively upon the base and other part cumulative sentences.
59 From Charge 3, you have been sentenced as a serious sexual offender and rather than pronounce cumulation, I am obliged under the Sentencing Act to note the extent of concurrency. That is the extent to which I otherwise order under the provisions of s.6E of the Sentencing Act.
60 I direct that 33 months of the 45 month sentence imposed on Charge 3, 39 months of the 45 month sentence imposed on Charge 4, and 36 months of the 45 month sentence imposed on Charge 6 are to be served concurrently upon the base sentence and other sentences. The sentence imposed on Charge 5 will be served entirely concurrently. These mixed orders as to cumulation and then the extent of concurrency ordered produce total cumulation of 29 months upon the base sentence by my calculations.
Total effective sentence
61 This results in a total effective sentence on the trial indictment of 74 months or six years and two months’ imprisonment.
Non-parole period
62 I direct that you serve a period of four years and three months' imprisonment before becoming eligible for release on parole.
Commonwealth charges indictment number F11860008P
63 As indicated, I am going to impose an aggregate sentence in relation to the Commonwealth indictment, which I now turn to. Mr Carr urged this course upon me, and I believe it is the appropriate course to impose an aggregate term. This conduct could have as easily been set out in a single charge between those handful of dates.
64 So, on those five charges on that plea indictment, I convict and sentence you to an aggregate period of six months' imprisonment. It is my intention to cumulate a portion of that sentence upon the State sentence. Regrettably, it is not as simple as pronouncing cumulation, though it plainly should be. I achieve cumulation in the Federal sentencing regime by fixing the commencement date of that Federal sentence. I order then that the Federal sentence commence four months before the expiration of the State non-parole period. By commencing it at that time it follows that it will add two months for you to serve beyond the State non-parole period before you can then be considered for actual release on parole. Given the dimensions of that Federal sentence, there is no requirement for me to fix a recognisance release order and no point in doing so given that the sentence will have expired by the point that you can be ultimately considered for possible release by the Adult Parole Board.
65 So what does all this mean to you? It is my intention that you have a State head sentence of six years and two months, a State non-parole period of four years and three months and that your total liability as a result of the interaction between the State and Federal sentences is that you will spend no less than four years and five months in custody before becoming eligible for possible actual release on parole. That is owing to the two months Federal cumulation beyond the expiry of the State non-parole period. Of course I cannot factor in whether you will be released on parole or not. I have no control over that and I must proceed on the assumption that you will serve every day of the head sentence that I have passed upon you
Section 18
66 You have served 357 days in custody already and that period will be declared as a period served pursuant to this sentence. It will be noted in the records of the Court.
Sentenced as sexual offender
67 You have been sentenced as a serious sexual offender on Charges 3,4,5 and 6 on the trial indictment and that declaration likewise is to be noted in the records of the court.
68 Grab a seat, please. There are some other things I have to tell you, but it will take a little bit of time. I do not want you standing up to hear all this.
Sex Offenders Registration Act 2004
69 As a result of sentencing you in relation to the offences on the trial indictment, you must now comply with your reporting and other obligations under the Sex Offenders Registration Act 2004, for the remainder of your life. That is accepted to be the case by Mr Carr. I will shortly have handed to you a document that explains your many obligations under that Act. You will need to acquaint yourself with it in due course. Initially, though, I am simply having you sign that document to indicate that you have received it. It is a lengthy document. I am not expecting you are going to sit there and read it all now.
70 The Sex Offenders Registration Act 2004 imposes a number of conditions upon you, including impediments to future employment in a variety of areas. You really must familiarise yourself with these matters, because any breach of that Act or any breach of your reporting obligations under that Act is itself a serious criminal offence, one often, if not usually, punishable by itself by a term of imprisonment.
71 Mr Carr, you have seen these forms, before I am sure and you have seen how lengthy they are. It is not my expectation he is going to sit down there and read or digest it now. It would be impossible. That is not what this is all about. This is him simply signing acknowledgment of the receipt of his reporting obligations that are actually spelled out in the document. That is all he is doing. So I will have that go down with you and with my associate and if we could have it signed in the relevant portion, please.
72 MR CARR: Yes, Your Honour.
73 HIS HONOUR: But you understand the limits here.
74 MR CARR: Yes.
75 HIS HONOUR: It is not expected he is going to digest this here and now.
76 MR CARR: No, he understands that, Your Honour.
77 HIS HONOUR: He will need to - - -
78 MR CARR: He understands all he is doing is acknowledging that he's received the document.
79 HIS HONOUR: Yes, that's it. All right. If you would go down and my associate will have that signed in the relevant area, please.
80 All right. Well, you will get a copy of that, and as I say, it is important that you familiarise yourself with it. You will need to read it very carefully.
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81 On the plea indictment I have sentenced you to an aggregate term of six months' imprisonment. Had you pleaded not guilty and been convicted by a jury I would have imposed a 15 month term of imprisonment. I would have cumulated an eight month portion of that sentence upon the State sentence, and that should be noted in the records of the court.
82 Mr Carr and Ms MacDougall, I have handed down that document just to assist you in following the cumulation and the concurrency. It is a confusing thing switching from cumulation to measures of concurrency. I do not find it easy. You have got the individual terms, you have got my proposals in terms of concurrency and cumulation. Is the mathematics correct or not?
MR CARR: It seems to be to me, Your Honour.
HIS HONOUR: Yes.
MS MacDOUGALL: And to me also, Your Honour.
HIS HONOUR: All right. I have fixed, as I am required to, a State non-parole period in the circumstances, and that much is pretty plain. What I have done in terms of the Commonwealth offence - well, offences - every time I go near a Commonwealth matter I almost shudder, I think. The sentencing regime is ridiculous. But the sentence I have imposed is a simple one in this respect. It is an aggregate term. It is, given its dimensions, not one that requires the fixing of a recognisance release order, and I have cumulated by the commencement date. It is commencing four months before the expiry, or expiration of the State non-parole period, and doing the sums, then that, adds two months then beyond his earliest eligibility date for parole. Does everyone agree at least with the structure of the sentence? I am not talking about the measure or the dimensions of it, but there is no reason to think I am breaching any arcane provisions of the Commonwealth Crimes Act 1914?
MR CARR: No, Your Honour, it's in accordance with authority
HIS HONOUR: Yes, all right.
MS MacDOUGALL: I agree with that, Your Honour.
HIS HONOUR: Any other matters I need to deal with then at all or not? Mr Carr, no other matters?
MR CARR: No, Your Honour.
HIS HONOUR: Your client is currently in custody, so there is no need for me to make any endorsements. You will go down and see him downstairs, will you?
MR CARR: Of course, Your Honour.
HIS HONOUR: Yes, thanks very much. All right. Thanks very much, Mr Carr, for taking up the matter in the way that you did, and it is never easy taking on another case that has been run by others, and you have discharged your function admirably. All right.
Mr Rametta can be removed then. Thank you. .
Yes, all right. I have signed the relevant court documents, so that completes the matter.
I should have thanked you for your efforts as well, Ms MacDougall, obviously, throughout the case.
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