Director of Public Prosecutions v Rice

[2013] VCC 1077

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00587

DIRECTOR OF PUBLIC PROSECUTIONS

V

JASON RICE

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2013
DATE OF SENTENCE:	18 July 2013
CASE MAY BE CITED AS:	DPP v. Rice
MEDIUM NEUTRAL CITATION:	[2013] VCC 1077

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Roper
For the Accused	Ms. E Ruddle

HER HONOUR:

1       Jason Rice, in December of last year you used your 15 year old sister's Facebook account to make contact with one of her Facebook friends.  She was the daughter of a close friend of your father's, and the families had had contact with each other over the years.  According to the agreed summary, she had put her age up to 14, although she was in fact not quite 13, and you had put yours down to 21, although you were in fact 26.  You later told police that you thought that she was 17, but I find that most unlikely given the family connection.  You must have known that she was younger than your sister.  In any event, over the course of a day you communicated through Facebook by telephone and Skype.  You asked her to send you a photo of herself, and she did, fully clothed.  In return, you sent her an image of an erect penis. 

2       You arranged to meet her the following day.  You did not pick her up from her home, but rather from the street somewhere nearby.  You drove her to a bottle shop, where you bought two four packs of bourbon.  The two of you drank the bourbon over the next hours and she became obviously intoxicated. 

3       Over the course of several hours, you drove her to a number of different places and engaged in repeated sexual acts with her.  They included these: You masturbated in her presence, you kissed her and touched and kissed her breasts, and you had her perform oral sex on you on three occasions.  At one stage she was so intoxicated and dizzy that she got out of the car and lay on the ground, dressed only in her underwear.  You assisted her to get back in the car and drove her away again.  You smoked ice in her presence and persuaded her to smoke it too, telling her it would sober her up. 

4       Eventually, you dropped her off near her home.  When she arrived home she was still visibly intoxicated and, when questioned, told her mother that she had been drinking and smoking ice.  It was not until the following day that she revealed the sexual activity and the police were informed.

5       You sent her a number of messages later in the night of the day that you dropped her home and over the following days.  You arranged to meet her again four days later, but instead, by reason of the police involvement, you were arrested at the meeting place.

6       You were interviewed and made partial admissions.  You admitted using your sister's Facebook account to make contact with the victim, continuing to communicate through Skype and text messages and sending the photo of the penis to her.  You admitted meeting her on 16 December and supplying her with alcohol, although you minimised the amount that she drank.  You admitted to sexual activity, although portraying yourself as a reluctant recipient of her advances. 

7       When confronted with the detail of the sexual activities which had actually occurred, you became so distressed that you began dry retching.  Nonetheless, you asserted that you believed that she was 16 or 17.  You denied using ice in her presence or supplying her with ice.  Urinalysis showed that there was still amphetamine and methylamphetamine in her system two days after the events.

8       After arrest, you were remanded in custody and spent the next 20 days on remand before being released on bail. 

9       It is as a result of these events that you have now pleaded guilty before me to one charge of sexual penetration of a child under 16, that being a representative charge and covering the three acts of sexual penetration that I have detailed; one charge of indecent act with or in the presence of a child under 18, that again encompassing the range of behaviours that I have detailed, and most particularly your conduct in kissing the victim and kissing and touching her breasts.  In addition, you have pleaded guilty to a number of related summary charges.  Transmission of objectionable material, that is the sending of the image of the erect penis; supplying liquor to a minor, the bourbon; using a drug of dependence, the ice; unlicensed driving - enquiries later revealed that you were unlicensed at the time and it was not the first time you had been unlicensed as a result of licence loss or cancellation; driving under the influence of alcohol, that is driving after your drinking of the bourbon; and driving under the influence of drugs, that is after your smoking of the ice.  It is clear by your pleas, too, that some of the denials made in the interview have now been resiled from by you.

10      The indictable offences of sexual penetration of a child under 16 and indecent act with a child under 16 are serious offences and they are punishable, each of them, by terms of imprisonment of up to ten years.  Apart from the charge of supply liquor to a minor, which is punishable only by a fine, all of the other summary charges are punishable either by a lesser term of imprisonment, ranging somewhere from three months to two years, or fines.  In addition, there is a mandatory period of licence disqualification for two years for the driving under the influence charges.  It is a serious lot of charges then and a serious lot of offending that brings you before this court.

11      All crimes of sexual offending against children are serious, and there are some features of the offending here which clearly count in evaluating its objective seriousness.  There was a significant age disparity, 13 to 26.  You were twice her age.  She was the child of a family with whom your family was friendly, and you took advantage of your younger sister's friendship with the victim to make contact with her.  You lied about your age, and on the most favourable interpretation to you, you either turned a blind eye or chose not to enquire about the victim's real age in circumstances where you must have known that she was unlikely to be any older than your younger sister.  You plied her with alcohol and drugs and took advantage of her intoxication to act as you did. 

12      This was not a case of young love, this was opportunistic casual sex, and for you, no more than a fling.  At the time, you were living with your long-term partner with whom, from all accounts, it would appear you had a satisfactory emotional and sexual relationship.  On the other hand, I take into account that this was a single episode and although you took gross and opportunistic advantage of a young person, there was no pre-existing relationship whose trust you breached.  You did not groom her, you did not subject her to humiliating or degrading acts, inflict violence on her or threaten her in an attempt to keep what you had done secret.  These are aggravating features that are often present in such cases. 

13      As her victim impact statement makes clear, she was too young to be able to make decisions like those about drinking, taking drugs and having sex, and you, as the person older and who should have been more sensible, wiser and responsible for her, are responsible for putting her in a position where she made decisions which, as her victim impact statement makes very clear, she now seriously regrets.

14      The need for denunciation, for deterrence, both general and specific, and just punishment are all clearly of great importance in cases such as this and in your case particularly.  People at the mature age of 26 cannot take advantage of teenagers, thirteen year olds, cannot, for their own transient sexual pleasure, take advantage of somebody so young and cannot feed them with drugs and alcohol without understanding that if they do so, they deserve to be condemned generally and they deserved to be punished.  Any sentence imposed on them must stand not only as a deterrent to them from acting in like fashion again, but to deter others who could think that that moment of transitory pleasure is worth the harm and the pain that it has caused as a result.

15      At the age of 26 up until the time of the commission of this offence, you were properly someone who could be described as having squandered the opportunities that have been offered to you.  You left school at 15 and you had been apparently a rebellious student, not interested in learning and who had not taken advantage of the opportunities offered at school. 

16      Although you immediately gained employment and maintained employment up until the time you were charged, mainly as a plasterer and a truck driver, your life since the age of 15 had revolved not around work, not around family, not around relationships, but around drugs.  It would appear you have tried just about everything except heroin; alcohol, cannabis, speed, ice, cocaine, ecstasy, MDMA and GHB, although speed and ice, it would appear, had been your drugs of choice.

17      

For the purposes of the plea hearing, you were assessed and a comprehensive and very helpful report was provided by the psychologist,

Dr Michelle Wauchope.  As she said in her report,

"Mr Rice is a reasonably educated 26 year old man whose childhood appears to have been characterised by anger, impulse control problems at times and by teenage rebellion and difficulties with authority figures and being told what to do.  There seems to be a pattern of him pushing back against the rules or ignoring them or breaking them, and this led to early substance use and abuse and delinquent behaviour at times.  It seems that this need to do his own thing and, at times, break the rules has followed him into adulthood, and like a lot of 26 year old men, it seems that he hasn't yet matured enough to fully realise and understand the real consequences of his behaviour, and of course his ongoing substance use abuse would only have been exacerbating all of these issues and, in effect, preventing him from or being a barrier to him gaining the maturity and insight one generally develops as we move out of that teenage young adult phase, and that helps us move from a very insular and
self-focused way of looking at the world to a more balanced and mature and measured attitude that considers external factors as well.". 

18      This immaturity had not stopped you from forming long-term relationships.  Your first long-term relationship resulted in you fathering a child, although your relationship with his mother came to an end soon after his birth four years ago.  Until you were charged with these offences, you had maintained regular contact with that child and his mother, although she stopped that contact following this. 

19      You re-partnered soon after the break-up of that relationship and, up until the time of the offending, had been living with your new partner and her six year old son.  That relationship continues, although residential bail conditions have meant that you have not been living with your partner since being charged with these offences; however, she has provided a letter of support that makes it clear that the relationship is continuing and that she sees very significant and positive changes in you and has high hopes of the continuation of the relationship with a better and more mature person.

20      You have a loving and supportive family.  You grew up, it would appear, in a stable and happy home.  Your parents, although not high income earners, have always had steady employment, and there has been no blighting of family life by drug or alcohol abuse by your parents, no history of family violence, no mental health issues within the family, no social dysfunction. 

21      You have two younger siblings considerably younger than you. They are 18 and 15. It would appear that certainly in the last ten years your relationship with them has not been close, although since being charged with these offences it appears again you have tried to mend your bridges with them and forge better relationships with them.

22      Consistently with the history that I have recounted, you have amassed a sizeable criminal history.  You have had seven court appearances between your first in the Children's Court in 2003 and your last in 2012.  All court appearances were for multiple offences.  They were either driving-related or dishonesty or a combination of both.  I am told that the dishonesty offences all relate to your drug habit.  The record tends to support that, so does the history recounted to Ms Wauchope and the conclusions that she has expressed and that I have already referred to.

23      You have served short terms of imprisonment for your more recent unlicensed or driving whilst disqualified offences, as well as for some of your dishonesty offences.  You have also served a sentence by way of an intensive corrections order for dishonesty offences, and I note that you successfully served that sentence without breach.

24      

It is clear that no previous court appearance or past sentence, whether

non-custodial, intensive corrections order or term of imprisonment actually served, has served to deter you from further offending or to make you recognise the effects that drugs had had on you, the connection with your offending or to provide you with any motivation to change.  This history then stands in stark contrast to your conduct since being charged with these offences.  Before dealing with the change, I also must note that you have no previous convictions for sexual offending and, on the material before me, have had a history of age appropriate heterosexual relationships. 

25      It was during your time on remand I was told that you acknowledged to yourself and to your father that you needed help and wanted to give up your drug use and that you saw the connection between your drug use and this offending as well as the connection between your drug use, your past offending and the likely connection between drug use and continued offending and incarceration if you were not to change.  It was, your father said in his evidence before me, the first time that you had acknowledged to him that you had a problem with drugs and the first time that you had asked for his help.  He had, in the past, had to stand by helplessly, reminding himself, with that hopeless love that parents have, that you were an adult, that you had to make and be responsible for your own choices, unhappy as he and your mother obviously were about them.  But it seems that this offending has finally made you appreciate that.  You do not want to live the life you have been where your judgment and your choices are so impaired by you drug abuse that you do things that stand at odds with the values that your family has brought you up to believe in and respect.

26      Your physical response to being confronted with what you had done to this girl may well be an indicator of the innate decency you have in you and that you were deeply ashamed of what you had done and when you were forced to confront it and may well be an indicator that that was the start of the determination in you to change your ways. 

27      Whatever brought about that desire to seek help, to tell your father you needed help and that determination to change, your father was sufficiently convinced by your expression of determination to change, and by his hope that you could, that he sought out a drug rehabilitation program for you, and you were eventually bailed to a drug-free rehabilitation centre, Narconon.  Your father, on his meagre income, borrowed $7000 against the mortgage of the house, a mortgage that was already in arrears, in order to pay for your admission and the down payment of your enrolment in that course. 

28      You were accepted and initially did very well.  The report from Narconon makes that very clear.  After only six weeks, though, you were suspended for a period of two weeks because, contrary to the rules, you had consumed alcohol on the premises.  Although you were not the person responsible for bringing the alcohol onto the premises, it is clear that you knew you were not to consume it and you made a conscious choice to do so and were suspended as a result.

29      You were unable to return to Narconon at the end of the two week suspension, although Narconon was prepared to have you back, because your father had been unable to raise the balance of the money, $21,000, that was required for you to continue the course.  He had made application to draw down some of his superannuation in order to do so, but the time delay in that was greater than he had anticipated.  As a result, your bail was varied again and you returned to live at home with your parents and you have remained there until the hearing of the plea.

30      Returning to live with your parents involved another considerable family sacrifice over and above the financial sacrifice your father, or really your whole family, had made as a result of the drawdown of the superannuation.

31      As a result of the nature of the charges and the way you had used your sister's Facebook account to contact the victim, DHS have become involved and imposed a requirement that you were not to live in the same place as your sister whilst the charges were pending.  A family decision was made pending your return to Narconon, once funding was available, to give you the place in the house and to move your sister out and into the care of family friends.  That, I hope, is a punishment and a burden of responsibility you understand and wear heavily.  She has been an unwitting victim of this and an innocent victim of your misbehaviour in more ways than one.  Your family have been put in an almost intolerable position of having to try and decide between their children, try and do the best by each of them, but having to remove their 15 year old daughter from their care as a result of their desire to try and assist you.  It is a burden of responsibility I hope you will understand and carry for the rest of your life, and a burden of gratitude I hope you will carry to your parents for the rest of your life.

32      You have honoured the trust and sacrifice that your parents and your family have placed in you.  On the material before me, it is clear you have not returned to drug use, you have not committed further offences and you have abided by the conditions of your bail.  Your father continues to maintain the same faith, trust and hope in you that he has, and has now secured the drawdown of a substantial portion of his meagre superannuation to pay to Narconon for the balance of your treatment there.  That no doubt is a family decision.  It is one that affects your mother, who because of recent injury is now unable to work, and your younger siblings as well, but such is the level of love for you and the level of trust in you, that that is what  they have decided to do.  Again, that is a big responsibility for you to have to carry.

33      I am told that the money has now been made available and it is actually in his account, and that subject to confirmation of a clean urine screen, you have satisfied all of Narconon's requirements and you can return there as of tomorrow morning to continue your treatment. 

34      In her report, Dr Wauchope also said this:

"Mr Rice presented with attitudes, views and behaviours that still seem similar to those a teenager might have.  Teenagers' actions tend to have an immature, self-gratifying, insightless, emotional and very self-involved bent to them.  They often have little consideration or empathy for how their actions and behaviours impact others.  They often have little understanding of the true consequences of some of their actions, both to themselves and to others."

35      She also said, and this is important in my view, that you have no prior history of any interest or offending involving minors.  You do not present with any of the dysfunctional beliefs, attitudes or views that are normally related to or tend to facilitate foster support or drive this type of sexual offending behaviour, nor do you appear to hold any deviant recurring sexual fantasies about minors that you might expect if you truly had an interest in minors.  She said it would appear that your actions and behaviours might be more situational and based on self-gratification and the self-focus that generally comes with emotional and general immaturity and that the lack of insight and dulling of normal inhibitions and the antisocial behaviour that can often be related to substance abuse.

36      I accept Dr Wauchope's opinion that you do not meet the criteria for a sexual disorder, and I accept her characterisation of the offending as being more a product of your immaturity, driven as much by your drug abuse as by your general failure to grow up at the same time that most people do and that we expect young adults to.

37      She said, in terms of your insight into the offending, that whilst it would appear that you still appear to be denying and minimising your offending in some ways and that you lack insight into why you offended in this way, as to how and why your actions and behaviours might have significantly impacted your victim, she said that the reality is that this is a common phenomenon in those who have been charged with sexual offences prior to treatment.  She pointed out that the vast majority of sex offenders start off with very little insight into why and how they offended and what their triggers were and that the reality is that treatment of sex offenders is aimed at addressing these very issues. 

38      She concludes that there is no doubt that you require treatment in order to address your offending and in order to minimise any risk of re-offending.  She points out that relates both to sex offender treatment and to addressing your drug abuse and your drinking as well.  Although that is not as major a problem as the drug abuse, it clearly is a problem.  She expresses the view that treatment in the community, if possible, is likely to ensure the best possible outcome with respect to rehabilitation and relapse prevention given the difference between what is available in the community to those who seek to access it and what is available to those in a custodial setting.  She draws favourable conclusions from your desire to complete the Narconon program and also points out the importance of addressing specialised treatment for sexual offending factors as being important.  In doing that she draws on the assessment tools, the well-regarded assessments tools for assessing risk of sexual re-offending that she drew on, and that indicated your risk factors being low to moderate and your amenability to treatment. 

39      She, therefore, concludes that your risk of re-offending in a similar or escalating manner is low to moderate and the risk would be significantly minimised if you were able to address the issues that she had flagged in relation to the specialised treatment, both in respect of drugs and alcohol and sexual offender treatment program.

40      When the matter first came on before me, although I was impressed with the material demonstrating your commitment to the drug and alcohol issues, I was concerned that you had not taken any steps in relation to a sex offender treatment program.  In the period that the matter has been adjourned you have continued to demonstrate your commitment to take steps on your own to address your offending behaviours and to agree to participate in counselling, a sex offender treatment program counselling as well as continuing to express and demonstrate your commitment to a preparedness to return to Narconon.  Thus, the need for deterrence, both specific and general, here must be seen in the context of what is properly characterised by Dr Wauchope as selfish and immature behaviour and the behaviour of those who resort to drugs for what they consider no doubt to be lifestyle or recreational purposes, people who are too self-absorbed to take responsibility for their own behaviour and who put pleasure and gratification ahead of discipline, personal responsibility, decency, morality and integrity.  The sentence therefore must reflect the need to deter you specifically and to deter others and to punish in a way that will best address those issues. 

41      

Unlike many people who come before this court for sentence, you have taken active and, I am satisfied, sustained steps to acknowledge your underlying problems and to address the underlying causes of your offending.  In my view, the program at Narconon that you have embarked upon is an onerous one and is something that is most likely to ensure that you will remain

offence-free.  Although it was your misconduct that led to your suspension from Narconon, it was the combination of circumstances, in particular the delay in your father being able to drawdown his superannuation that has meant you have not been able to return there.  However, you have demonstrated your commitment to remain drug-free without the assistance that Narconon has provided during the balance of your time on bail.  That bodes well, in my view, for your continued progress in a properly managed, supported and staged  program.

42      I do not consider in all of the circumstances that a term of imprisonment immediately served is the only sentencing option open to me.  In my view, this is an unusual case, because of the circumstances I have identified, but it is one where a Community Corrections Order on multiple and strict conditions is open.  It must be borne in mind that when Community Corrections Orders were substituted for community-based orders, the Attorney-General in his second reading speech made it clear that they were designed to cover offending that previously could only have been punished by a term of imprisonment.  Community Corrections Orders are now available for longer periods.  They can have more stringent and punitive as well as rehabilitative conditions attached to them, and they are clearly designed to move into that gap that have been previously been covered by suspended or partially suspended sentences.

43      The real benefit of a Community Corrections Order in this case is that it can work with the rehabilitation you are already undergoing, or prepared to undergo, and therefore assists you, but without putting any additional drain on resources.  Thus, deterrence and encouraging rehabilitation, I can see both being properly served by a sentence that requires you to address your drug abuse, requires you to do it in a way that does have a significant punitive as well as rehabilitative element in it and a significant loss of liberty element in it because of the residential requirements of the Narconon program.  It also enables you to engage in the sex offender treatment program, which will force you to confront the values that you allowed yourself to have, that allowed you to act as you did, and force you to understand that so you are in a better position to understand why you did what you did and not act that way again.  That, in my view, should be seen as significant punishment and therefore also to serve as a significant deterrent for those who are likeminded.  It also balances the need to deter you specifically with the need to encourage the rehabilitation that you have clearly set underway.

44      I have come to the view that if I were to sentence you to a term of imprisonment, even if it were a short term of imprisonment before making you eligible for release on parole, there is a real risk that the rehabilitation already underway would be significantly set back and that the progress that you have made could be interfered with.  Again, I thought if I were to place you on a Community Corrections Order and require you to serve a term of imprisonment as part of that, that that would risk setting back the progress that you, through your own hard work, have already done and shown that you are capable of doing and sustaining.  Maybe that 20 days in prison and the realisation of what you had done this time, how different it was from the offending on the previous occasions, really did have a salutary effect on you.  I am prepared to give you the benefit of the doubt of that at this stage, but I have come to the view, having taken all of that into account, that the needs of punishment, deterrence, denunciation, as well as encouraging rehabilitation, can properly be met by imposing a Community Corrections Order on those two indictable offences for a period of three years on strict conditions, which I will explain in a moment. 

45      So far as the other offending is concerned, the uplifted summary charges, I propose to impose fines on you in respect of all of those.  I do so despite your poor driving record.  I do not think it is necessary or appropriate in the circumstances to order another term of imprisonment for unlicensed driving.  I note you have no previous convictions for exceeding .05 or driving under the influence of alcohol or drugs, and so as a first offender on those types of charges I consider it inappropriate to impose imprisonment in respect of them.

46      One of the reasons I am imposing a fine in respect of the unlicensed driving is because it is clear that gaol, suspended or actually served, has not deterred you in the past.  You were on a CCO in respect to the more serious offending.  If you are going to go and drive unlicensed again or drive whilst disqualified again, you know very well that you are going to face coming back before this court before me for breach of the CCO and that you will have a very hard job, even with somebody who did as careful and comprehensive and excellent a plea as Ms Ruddle did, of persuading me that you deserve another chance.  So it is like having a suspended sentence hanging over your head but without it actually being one, as far as I am concerned.

47      The fines are substantial.  Given that you are not working at the moment, that you are going to be in residential rehabilitation for some time and that I am imposing a significant component of unpaid community work as part of the community-based order, you may decide to apply to convert the fines for the other matters to unpaid community work as well.  That will be a matter for you, but it is something you will have to, as a mature young person, confront.  You will either have to work, save the money and enter into a payment plan to pay the fines off, or you will have to give up more of your time in unpaid community work in order to pay the fines off in another way.  Both ways you are doing a punishment and you should see it as that.

48 I am also required under the Sex Offender Registration Act to place you on the register for 15 years. That is the mandatory requirement. There are very strict conditions that are attached to that, and when I have the Community Corrections Order taken down to you, I will have the conditions of the Sex Offender Registration Act provided to you as well. You will also be handed an acknowledgment of receipt and asked to sign that, acknowledging that you have received notice of the conditions. You do not have to sign the acknowledgment if you do not want to. I will be noting on the records of the court that you have received the conditions in any event, but you will be asked to do that.

49      I have also been asked to make disposal orders in respect of the crack pipe and a retention order in respect of the forensic sample you provided - I think, is that right?

50      MS RUDDLE:  They were both consented to, Your Honour.

51      HER HONOUR:  Yes, they were both consented to, and I will make those orders.

52      

Let me just tell you the conditions of the Community Corrections Order,

Mr Rice, because you must consent to it.  It is a three year order that runs until 17 July 2016.  It has mandatory conditions, which are these:

53      That you must not commit another offence for which you could be imprisoned during the time the order is in force, and that includes unlicensed driving.  You must not commit another offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  That means not being impaired by drugs or alcohol when you attend for any of your appointments under your Community Corrections Order.  You must report to and receive visits from the Secretary or delegate.  You must report to the Community Corrections Centre within two clear working days of the order starting.  You must let a Community Corrections Officer know within two clear working days of you changing your address or job.  You must not leave Victoria without first getting permission to do so from the Secretary or their delegate, and you must obey all lawful instructions from and directions of the Secretary or the delegate.

54      The additional conditions that I am imposing are these:  That you must perform 300 hours of unpaid community work over the period of three years as directed by the regional manager.  That unpaid community work will not commence until after the completion of your residential rehabilitation program at Narconon.  You must undergo assessment and treatment, including testing for drug or alcohol abuse or dependency as directed by the regional manager and undergo assessment and treatment, including testing, at a residential facility for withdrawal from or rehabilitation for alcohol abuse or dependency as directed by the regional manager.  You must undergo assessment and treatment, including testing, at a residential facility for withdrawal from or rehabilitation from drug abuse or dependency as directed by the regional manager.  You must participate in the Narconon residential program as directed, commencing on 19 July 2013.  You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, and that includes participation in the sex offender treatment program conducted by VICpsychplus or as directed. 

55      Do you understand the effect and conditions of those orders?

56      PRISONER:  Yes, Your Honour.

57      HER HONOUR:  And do you consent to them being made?

58      PRISONER:  Yes, Your Honour.

59      HER HONOUR:  All right then, can you please stand.

60      Jason Rice, on the charges to which you have pleaded guilty, both indictable and summary, you are convicted. 

61      On each of Charges 1 and 2, sexual penetration of a child under 16 and indecent act with a child under 16, you are sentenced to be placed on a Community Corrections Order for the period of three years commencing today and ending on 17 July 2016.

62      You must attend at the Lilydale Community Correctional Centre at 1/18 Clarke Street, Lilydale within two clear working days after the commencement of this order.  An appointment has already been made for you for 9 am tomorrow and for you to go there on your way, in effect, to Narconon.  You must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  You must report to and receive visits from the Secretary or delegate.  You must report to the Community Corrections Centre tomorrow morning.  You must let a Community Corrections Officer know within two clear working days of your changing your address or job.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  You must obey all lawful instructions from and directions of the Secretary or delegate.  You must perform 300 hours of unpaid community work over a period of three years as directed by the regional manager, to commence after the conclusion of your residential drug treatment program.  You must undergo assessment and treatment, including testing, for drug abuse and for alcohol abuse or dependency as directed by the regional manager.  You must undergo assessment and treatment, including testing, at a residential facility for withdrawal from or rehabilitation from alcohol abuse or dependency or drug abuse or dependency as directed by the regional manager.  You must participate in the Narconon residential program as directed, commencing tomorrow, 19 July.  You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, including participation in the sex offender treatment program conducted by VICpsychplus or as directed.

63 So far as the summary offences are concerned, on the charge of unlicensed driving, you are fined $1000; on the charges of driving under the influence of alcohol and driving under the influence of drugs, you are fined an aggregate of $1000; on the charge of supply liquor to a minor, you are fined $500; on the charge of use a drug of dependence, you are fined $100; and on the charge of transmission of objectionable material, you are fined $2000. That, on my counting, is for a total fine of $4600. All licences held by you are cancelled and you are disqualified from obtaining any further licence for a period of two years, and I direct, pursuant to the Sex Offender Registration Act, that the registration requirements for a period of 15 years apply.

64      Ms Ruddle, I will ask you to take the reporting conditions and the acknowledgment down.  I just realise there is one error in the CCO that needs to be corrected.

65      MS RUDDLE:  Thank you, Your Honour.

66      HER HONOUR:  I will have that done whilst you hand the sex offender reporting conditions to Mr Rice and see if he wants to sign the acknowledgment of that.

67      MS RUDDLE:  Yes, Your Honour.  May I approach the dock?

68      HER HONOUR:  Yes.  There wasn't an error in the CCO form after all, so that can go down now as well.

69      MS RUDDLE:  Thank you, Your Honour.  Mr Rice has acknowledged receipt of the sex offenders material, which I have just brought back with me to the Bar table, so if I could just return it and give it to you.

70      HER HONOUR:  Yes.

71      MS RUDDLE:  As well as signing in agreement to the conditions of the Community Corrections Order, I will hand both of those back to your tipstaff.

72      HER HONOUR:  Thank you.

73      MS RUDDLE:  Your Honour, I didn't get down all of the fines correctly.  Would Your Honour mind repeating them?

74      HER HONOUR:  Yes, I will go through them again in a moment.  I will just sign the CCO.

75      MS RUDDLE:  Thank you.

76      HER HONOUR:  All right, the fines.  Unlicensed driving, $1000. 

77      MS RUDDLE:  Yes, Your Honour.

78      HER HONOUR:  Driving under the influence of alcohol and driving under the influence of drugs, an aggregate fine on those two charges of $1000.

79      MS RUDDLE:  Thank you, Your Honour.

80      HER HONOUR:  Supply liquor to a minor, $500.

81      MS RUDDLE:  Thanks, Your Honour.

82      HER HONOUR:  Use of drug of dependence, $100, and transmission of objectionable material, $2000.

83      MS RUDDLE:  That's the one I got wrong.  Thank you, Your Honour.

84      HER HONOUR:  Do you want to apply for a stay of beyond that mandatory one month?

85      

MS RUDDLE:  Your Honour, may I apply for a stay of six months, because

Mr Rice is going to be in Narconon and there's really nothing he can do about any of this until at least that period of time.

86      HER HONOUR:  No objection that, Mr Roper?

87      MR ROPER:  No.

88      HER HONOUR:  Have I made all the orders I need to?

89      MR ROPER:  Strictly speaking, 6AAA doesn't apply to any of the sentences Your Honour imposed except arguably - - -

90      HER HONOUR:  The fines.

91      MR ROPER:  - - - the fine on - actually only the fine on the transmission charge.  6AAA(1)(b) says it applies where the sentence imposed is or includes a fine exceeding ten penalty units or an aggregate fine exceeding 20.  But I think $144 is the penalty, so technically speaking that may - - -

92 HER HONOUR: I declare, pursuant to s.6AAA of the Sentencing Act, that but for your plea of guilty in respect to the charge of transmission of objectionable material, I would have fined you an amount of $3000.

93      MS RUDDLE:  Thank you, Your Honour.

94      MR ROPER:  Thank you, Your Honour.

95      HER HONOUR:  Thanks, Mr Roper. 

96      MR ROPER:  It's not anomalous, is it.

97      HER HONOUR:  Mr Rice, when a copy of the Community Corrections Order has been made and provided to you or to Ms Ruddle, you will be free to leave the court.  I want to make it very clear that this is, as far as I am concerned, a most unusual sentence for offending of this nature, and it is only because of the steps that you have taken and that extraordinary family support and trust in you that that demonstrates that I have done this.

98      If you breach this order by non-compliance with any of its conditions or by commission of any further offences, you must understand that you will be brought back to this court for breach of the order and to be re-sentenced, and if you do breach the order, whether it is by non-compliance or by other offences, you will be re-sentenced for these offences and you must understand that the sentencing options that are open to me will be much more limited than they were today.  Do you understand that?

99      PRISONER:  Yes, Your Honour.

100     HER HONOUR:  So every day of the next three years consider that you are serving a sentence, that is what it is, and do not get to that very last day and get into a car and drive, because that will bring you back before me.  Do you understand that?

101     PRISONER:  Yes, Your Honour.

102     HER HONOUR:  You have been given a real chance by your family and by these orders.  Let us see if you can honour the trust that everybody has placed in you for this and make some reparation to that girl as a result.

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