Director of Public Prosecutions v Rohan
[2020] VCC 814
•9 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01803,
CR-20-00219
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW ROHAN |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 May, 12 May, 25 May 2020 |
| DATE OF SENTENCE: | 9 June 2020 |
| CASE MAY BE CITED AS: | DPP v Rohan |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 814 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence, guilty plea, sexual penetration of a child under 16 years, producing child abuse material, handling stolen goods, trafficking a drug of dependence, possessing methylamphetamine, going equipped to steal, possess controlled weapon, dealing with property suspected to be the proceeds of crime, fraudulently altering a number plate, presumption of harm, breach of trust, reasonably good prospects of rehabilitation, denunciation, just punishment, general and specific deterrence.
Legislation Cited: S18(4) Sentencing Act 1991; s6AAA Sentencing Act 1991; s.6E Sentencing Act 1991; Sex Offenders Registration Act
Cases Cited:DPP v Drake [2019] VSCA 293; Brown v The Queen [2019] VSCA 286; and Lugo v The Queen [2020] VSCA 75; R H McL v The Queen [2000] HCA 46 and 203 CLR 452
Sentence: 5 years imprisonment with a minimum non-parole period of 3 years
S6AAA declaration: 7 years and 10 months imprisonment with a minimum non-parole period of 5 years and 2 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms C. Hollingworth | Stary Norton Halphen Lawyers |
HIS HONOUR:
1Andrew Rohan, you have pleaded guilty to the following charges on Indictment K1146925: 3 charges of sexual penetration of a child under 16 years for which the maximum penalty is 15 years' imprisonment. Further, pursuant to s.49B(3) of the Crimes Act, this offence has a standard sentence of 6 years. You have also pleaded guilty to 1 charge of producing child abuse material for which the maximum penalty is 10 years' imprisonment. Related to this indictment, there is a summary offence of committing an indictable offence on bail where the maximum penalty is 30 penalty units or 3 months' imprisonment.
2On Indictment C1912693, you have pleaded guilty to the following charges: 2 charges of handling stolen goods where the maximum penalty is 15 years' imprisonment; 1 charge of trafficking in a drug of dependence relating to cannabis, 15 years' imprisonment; a charge of trafficking a drug of dependence, MDMA, 15 years' imprisonment; and a charge of possessing methylamphetamine, 1 year imprisonment. You have also pleaded guilty to the following related summary offences; going equipped to steal, maximum penalty 2 years' imprisonment; possess controlled weapon, 1 year imprisonment or 120 penalty units; dealing with property suspected to be the proceeds of crime, 2 years' imprisonment; and fraudulently altering a number plate, 2 months' imprisonment or 10 penalty units.
3Separate plea hearings were held in respect of the two indictments in this matter. The plea hearing for the charges on Indictment K1146925 was heard on 25 May 2020. The prosecution opening was read in open court and tendered and marked as Exhibit P1.
Circumstances of offending: Indictment K1146925
4In relation to this matter, I will refer only to the victim by her first name which is Stacey[1]. She had turned 15 days before the offending in this case. At the time of the offences, you were living with her and her mother on and off. You met her mother through a mutual friend who was staying at her house. Her mother told police she was having trouble with the friend, so you went to stay with them around November 2018 to, 'Look after Stacey and me'. You stayed at the house off and on, as I said. You slept in the lounge room.
[1] “Stacey” is a pseudonym
5On 4 June 2019, you were arrested by police for the offences covered by Indictment C1912693. The victim was with you and she was also arrested. Police searched your belongings. They found a 2-gigabyte storage device in the coin holder area of your wallet. On examination of the device, they located an AVI file dated 25 January 2019. The audio-visual recording depicted you and the victim engaged in sexual activity. The duration of the recording was nine minutes and 26 seconds.
6In the video, the victim is shown lying naked on a bed. You say to her, 'You're just perfection'. You are then shown walking towards the victim sitting on top of her and inserting your penis into her mouth. You then say, 'You are daddy's little girl'. This is the basis of charge 1 which is a representative charge. It is this conduct that is the substance of the charge.
7You then directed the camera towards the victim's vagina and inserted your penis into her vagina saying, 'Good girl, isn't that just the best sight in the world?'. This is the basis of charge 2.
8You are shown putting your head between the victim's legs and penetrating her vagina with your tongue for a period of three minutes. This is the basis for charge 3.
9You then changed your position. The victim kissed your erect penis, stomach and thighs. She can then be seen performing oral sex on you. This is the represented instance of charge 1.
10You turned the camera towards the victim, and she can then be heard to say, 'Hello, my name is Stacey'. The date of the recording was 25 January 2019. It is clear from the recording that you are directing and producing the video. The production of this video is the substance of charge 4 in this matter. The video is classified as Category 4. It also had three images described as Category 1. Category 4 is child-adult penetration; Category 1 relates to images where there is no sexual activity.
11You were on bail at the time of the offending so that is the substance of the summary charge in relation to this indictment.
12You were interviewed at the Dandenong police station about this recording and your relationship with the victim. You said you had known her and her mother for a period of a couple of years and you began living with them because the victim's mother wanted you to live there to get the victim away from an older man. You said you saw yourself as an uncle-best friend figure. You were aware that the victim was 15 years old.
13When questioned about the storage device and the recording, you told the police your relationship with the victim had 'blurred lines'. You said you had a moment of weakness and you did the very thing you were trying to protect her from. You crossed the line and the recording was your 'moment of weakness'.
14Police spoke to the victim. She made no disclosures.
Circumstances of offending: Indictment C1912693
15I turn to the facts of the charges on Indictment C1912693. The plea hearing in this matter took place on 6 May and 12 May this year. The prosecution opening was read in open court and tendered and marked as Exhibit P1 on the plea hearing.
16In February 2019, police commenced Operation Thrives, directed at offending in the south eastern suburbs of Melbourne. You were involved in this offending. The other people involved were Iqan Mehrdadian who was 18 years old at the time and Jayden Schmidt who was 21 years old. There is a fourth alleged co-offender, Malaki Salesui. His charges are listed for trial.
17The facts of this matter are set out in the prosecution opening which forms part of my reasons for sentence in this matter. That opening deals not only with your offending but with all of Mr Schmidt's offences and Mr Mehrdadian's offences as well. I will not repeat the details that relate to those offences which are not covered by the charges on the indictment relating to you.
18In this investigation, police used covert operatives and physical surveillance. Mr Schmidt's offending covered a period of four months. Before you first appeared as a participant in the offending, Mr Schmidt had earlier discussed with covert operatives the sale of drugs, stolen cars and firearms. He, in fact, had already sold drugs to the covert operatives.
19On 4 April 2019, Mr Schmidt offered to sell a 2006 Audi A4 registered ALA537 to Covert Operative 298 for $5,000. He arranged to meet the covert operative in Worrell Street, Dandenong. You drove the car into Worrell Street, and you handed the covert operative the keys in return for $5,000. This is part of charge 6, handling stolen goods.
20You said there was, 'A little present in the car', being three ounces of cannabis. The covert operative paid you a further $750 for the cannabis. These drugs were subsequently analysed by police and the substance was found to be cannabis weighing 83.7 grams. This is the basis of charge 7, trafficking cannabis. The Audi had been stolen in an aggravated burglary in Camberwell on 28 March 2019 and had a value of $40,000.
21On 30 May 2019, surveillance of you and your co-offenders, Mr Schmidt and Mr Salesui showed you travelling in a convoy. Mr Schmidt and Mr Salesui were in a stolen and marked Mercedes registered AIC288. This is part of charge 6 against you. You were driving a stolen Toyota Kluger registered AHZ522. This is also part of charge 6.
22The following day, Mr Schmidt offered to sell the Covert Operative 298 the Mercedes and a sawn-off shotgun. You are not charged in relation to the shotgun. They agreed on the price of $8,000 for the car and a further $4,000 for the firearm. Mr Salesui arranged for a tow truck driver to deliver the Mercedes to Worrell Street, Dandenong for that sale. Mr Schmidt was collected by you in the stolen Kluger bearing the false number plates AHZ522. This is the basis of related summary offence 20. You drove to Worrell Street to wait for the tow truck driver. When the tow truck driver arrived, you and Mr Schmidt were arrested by police from the Special Operations Group.
23Police confirmed the stolen Mercedes registered TTA228 was stolen in an aggravated burglary in Glen Waverley on 3 May 2019. It was valued at $180,000. The Kluger was a 2017 model stolen from an aggravated burglary at Sandhurst on 14 May 2019 and was valued at $70,000. On a further search of the Kluger, police found ecstasy tablets weighing 19.9 grams, this is the basis of charge 8, trafficking MDMA; 2.3 grams of methylamphetamine, the basis of charge 9; and scales. Police located a tomahawk; that is the weapon offence, related summary offence 12; bolt cutters, disposable gloves and a satchel containing spanners; this is related summary offence 11, going equipped to steal.
24In a bag in the Kluger, stolen items and items suspected to be the proceeds of theft from motor vehicles were located. This is the basis of charge 10, handling stolen goods, which relates to bank cards, identification and cheques in the name of various individuals that were able to be sourced as the owners of the property.
25In relation to the deal with property suspected to be the proceeds of crime, that involved the balance of the property which includes all of the items set out in related summary offence 19.
26You were interviewed at Dandenong Police Station on 4 June 2019. You made admissions to involvement in the handling of stolen vehicles and the possession of drugs, but you denied trafficking in drugs.
Gravity of offending: Indictment K11446925
27I turn to the gravity of the sexual offending on Indictment K11446925. Mr Rohan, a child under 16 cannot consent to sexual penetration. This prohibition exists to protect children from the harm that can come from premature sexual activity and to deter adults who would contemplate having sex with someone under the age. This prohibition is based on the presumption that premature sexual activity will cause physical and psychological harm unaffected by the presence of apparent consent. This includes future harm.
28There is no victim impact statement from the victim in this matter, but there is no evidence before me, and it is not being argued, that there is anything to rebut the presumption of harm in this case.
29Sexual offending of this type is unquestionably serious offending as reflected in the maximum penalty of 15 years and, indeed, the standard sentence of six years.
30The prosecution opening reveals that the victim in this case was a vulnerable child living in difficult circumstances with her mother who needed help because she was concerned about the victim's relationship with an older male. You said as much and more when speaking to the psychologist who assessed you, Ms Alison Mynard.
31You moved into the victim and her mother's house, and you were there on and off, to provide a protective presence. There is nothing that I can see in the evidence that suggests you acted in any way protectively towards the victim. Indeed, in June, she was arrested with you when you were involved in the serious offending covered by Indictment C1912693.
32You understood the potential harm to this child from the sexual activity with older men. You were aware of her vulnerability. The breach of trust is substantial.
33It is clear from the description in the prosecution summary of your actions and your words and by the very fact that you video recorded the activity, that you had no compunction about crossing the line with the victim. In my view, if you had felt regret afterwards, you would not have retained possession of the video for nearly six months.
34Serious features of this offending include:
a)the breach of trust and responsibility involved;
b)the substantial age gap and resultant imbalance in power between you and the victim;
c)that there were multiple acts of penetration of different types;
d)the sexualised comments you made accompanying your offences, and;
e)that no condom was used in the offending.
35However, as submitted by Ms Hollingworth, the offending was confined to one day and one incident over a short period of time. Aggravating features such as abuse, or violent conduct and a resultant pregnancy are absent. I would add that offending such as yours is regarded as increasingly serious the younger the age of the victim. The age of the victim in this case is towards the higher end of the age range for charges under s.49B.
36Charge 1, relating to oral penetration is a representative charge. This means that I can have regard to the represented instance of the charge in assessing the wider context of the conduct and the defence is precluded from asserting that the charged act was isolated.
37In this case, in my view, the represented instance adds little to my understanding of the wider context, and has no real significance in forestalling an argument that the act was isolated, because the events that make up the charged conduct, and the represented instance, happened minutes apart in the same incident. In my view, the representative nature of the charge is of limited importance in sentencing on the facts of this case.
38The charge of producing child abuse material is also serious offending. As with sexual activity, a child does not have the emotional or the psychological maturity to decide to participate in such a recording; and the production and existence of such an audio visual recording adds to the harm suffered by the victim from the sexual offences, should she reflect on that aspect of this offending as time goes by. What is shown on the video is graphic.
39There is no suggestion you intended to disseminate the video, and if you had that intention it would have been a serious feature of the offending; but your retention of the video kept that possibility alive. It also suggests that you intended to derive ongoing sexual gratification by watching the video.
40I do not accept your explanation on the balance of probabilities that you became aware that the victim had kept the video and that you retained it in order to destroy it. The problem with this explanation is that, rather than destroy it, you continued to have it in your possession; indeed, it was in your wallet at the time of your arrest.
41Having regard to the serious features of the offending and the substantial breach of trust and responsibility, I assess your moral culpability across the offences on the Indictment as high.
42A further aggravating feature of this offending is that you were on bail and on a community correction order at the time of the offences.
Gravity of offending: Indictment C1912693
43I turn to the gravity of the offending on Indictment C1912693.
44The range of offences covered by this Indictment and the relevant summary offences suggest that you were well-entrenched in criminal behaviour and antisocial circles at the time of the offending. The offence of handling stolen goods relating to the motor vehicles was a serious offence. These vehicles were of high value and had been stolen recently in aggravated burglaries.
45Your involvement in the disposal of the cars promoted the market that drives such serious underlying offences. As I said to Mr Schmidt when I sentenced him, the brief period between the theft of the vehicles and your handling offence suggest you were not far from the hub of the system in place to dispose of the stolen property.
46The charge to which you pleaded guilty relates to only three motor vehicles whereas Mr Schmidt's charge related to five. He was also clearly more central to the transactions than you were.
47The trafficking charges and charge 10, another instance of handling stolen goods; and the deal with the suspected property offence; and the other summary offences, are offending at a lower level but they are not insignificant offences, particularly the two ounces of cannabis you sold to the covert operative. These offences merit custodial penalties.
48As I mentioned in relation to the other indictment, you were on a community correction order when these offences took place.
Guilty plea
49You pleaded guilty to the offences on Indictment K11446925 on 6 September 2018 at a committal mention. I regard this as a plea of the earliest opportunity. You pleaded guilty to the offences on Indictment C1912693 in February 2020 after a submissions-only committal. Whilst this was not a plea at the earliest opportunity, no witnesses were ever cross-examined in this matter.
50You have saved the community the time and cost of a trial and you have spared the witnesses the experience of having to give evidence. I give you credit for the utilitarian value of your plea and I accept it is indicative of a willingness to facilitate the course of justice. I accept your pleas of guilty reflect some remorse for your offending.
Remorse
51On the issue of remorse in respect of the sexual offences, you did express remorse for your offending to Ms Mynard. In my view, you were also quite frank about the breach of trust and responsibility involved in the offending. I accept that you have reflected on your behaviour whilst in custody and that you now feel remorseful. However, as I said earlier, your continued possession of the video for nearly six months after the offending, in my view, is inconsistent with any immediate feelings of remorse after the sexual offences.
Personal circumstances
52I turn to your personal circumstances.
53Tendered during the plea on your behalf were two psychological reports of Ms Alison Mynard; one which related to the dishonesty and drug offending and the other to the sexual offending, but both reports covered substantially the same content.
54Also tendered were references from Ina Knot, your grandmother, Kerry Hudson Clarke, your maternal aunt and godmother, Crystal Hodges, your partner, Michael McMann, your stepfather, and Wendy McMann, your mother.
55Your personal circumstances are set out extensively in Ms Hollingworth's written submissions and in the psychological reports of Ms Mynard. I will summarise them briefly, but I indicate I have had regard to all of the personal details set out in the submissions and in the psychological reports.
56You are now 40 years old. Your childhood and adolescence were not easy. Your father, Darryl, abandoned your mother when she was pregnant with you and provided no support. Your mother was aged just 17. Later your mother re-partnered with a man named Julio. You thought he was your biological father for some time. Your mother and this man separated when you were aged around eight. He told you at that time he was not your real father. This was a devastating event for you at that age. You had a younger stepbrother who would spend weekends with this man, but you were left behind.
57Your mother then had a relationship with a man named Peter. She had a child to Peter. That child was adopted out of birth. When you were aged 13, your mother commenced a relationship with a man named Jason Champion. He had two sons. This relationship was marred by domestic violence and drug use. You have memories of the violence.
58When you were 17, your mother met Michael McMahon who had four children from a previous relationship. The families merged. Your mother and Mr McMahon remain together. You are close with Mr McMann and he has remained supportive.
59Around this time, you became aware that your biological father was still alive. When you were 23, you met him, but he showed no interest in you. Your mother, in her reference, says you tried to make contact with him again after this, but he was not interested. This was a difficult thing for you to experience. Your mother says your feelings of abandonment by him have been 'a constant in your life'.
60You attended Hallam High School for secondary schooling. You finished Year 11 and then went onto an apprenticeship as a chef.
61In summary, your childhood and adolescence were difficult and involved exposure to drug use, domestic violence and confusion regarding your father figures. There was also a tragedy when your stepbrother died after crushing his leg. At one point, you also became a witness in a homicide case.
62You lived with your mother until you started a relationship with a woman named Wendy when you were aged approximately 21. You had two daughters with Wendy and this relationship lasted for a decade. During this period, you were working, and you were able to buy a house in Hampton Park. You had worked as a chef until you were 20; but thereafter you moved into a successful career in pallet making and installation. You apparently had positions in management of the company you worked for and you stayed there for 12 years. You have not really worked much since you left that employment.
63You were a keen footballer from a young age, and you continued to play in your 30’s. You were instrumental in establishing the Endeavour Hills Football Club and served as a president for a while. Your drug use has meant that you are no longer welcome in the football community.
64You have been a long-term user of illicit drugs. You were exposed to cannabis when you were young, and you started using cannabis at a young age. In your 20’s, you used speed and ecstasy. You stopped using drugs when your first daughter was born. You and your partner, Wendy, separated when you were in your early 30s. You describe the breakup as amicable. You were still working; you saw your daughters regularly and you made child support payments.
65in your early 30’s you formed a relationship with a woman named Kirsty. She was a methamphetamine user and you say she introduced you to the drug. You became addicted, you stopped working and stopped seeing your children. Apparently, Kirsty was jealous of your children and your ex-partner.
66At the age of about 34, you formed a relationship with a woman named Catherine. Both of you abused methamphetamine and the relationship was marred by your domestic violence. It was around this time that your criminal history commences. You have prior convictions for breaching intervention orders and, as I understand it, assaulting your partner, Catherine.
67You now have a relationship with a woman named Krystal Hodges. Your mother describes this relationship as on and off but says that Krystal intends to stand by you. Ms Hodges has provided a reference. You have a child named Jacob born in June 2018.
Psychological issues
68I turn to the psychological issues. Ms Mynard describes you as developing addictive behaviour from a young age. In her view, your difficult childhood and adolescence, including the absence of a stable father figure and your confusion about your biological father, likely contributed to your tendency towards addictive behaviour. Ms Mynard believes you were suffering from underlying depressive and anxiety symptoms at the time of the offending which led to your increased drug use which was an attempt to self-medicate and avoid your symptoms.
69She describes you as a person with unacknowledged insecurities, low self-esteem and difficulty acknowledging vulnerabilities. It is her view that in the time you have been in custody, you have become more focused on your rehabilitation rather than being distracted by others.
Criminal history
70Turning to your criminal history. The unusual feature of your criminal record is that you were in your mid-30’s when it commenced with the domestic violence offending. You have a prior court appearance involving car theft, obtaining property by deception, handling stolen goods, dealing with property suspected to be the proceeds of crime and possess/use methylamphetamine in August 2019. These are the offences for which you were on a community correction order at the time of the current offending.
71That offending, that is the offending for which you were dealt with in August 2018, breached an earlier community correction order from 2016. You were given another chance in 2018 but you failed to take advantage of it.
72Significantly, you have no prior convictions for sexual offending.
73Your history is relevant to my overall assessment of your prospects of rehabilitation and also to the importance of specific deterrence as a sentencing objective in your case.
Prospects of rehabilitation
74I turn to your prospects of rehabilitation in relation to the sexual offending. I note, that you have no prior convictions for similar offences and the view of Ms Mynard is that your risk of reoffending for sexual offences is low to moderate but with treatment for mental health and drug use, this can be reduced significantly.
75She says your primary risk factor relates to impaired judgment due to illicit drug use. She is of the view that you would benefit from participating in the Sex Offenders Behaviour Program in order to build insight, self-awareness and gain a better understanding of your motives for this offending. She says you would benefit from seeing a psychologist regularly to challenge you about your own narcissistic tendencies and underlying insecurities.
76Ms Mynard points out in her report that you did engage to some extent in blaming the victim in relation to these offences. It is not entirely clear what she means exactly by this but it is certainly a matter of concern, Mr Rohan, as far as your rehabilitation is concerned.
77Your overall prospects of rehabilitation will hinge on your ability to avoid falling back into substance abuse and also your ability to sever your connections to people such as the criminal associates you were clearly involved with at the time of this offending.
78The period of time that you have spent on remand and the further period of imprisonment that I will impose today is the first lengthy period you will spend in gaol. You managed to stay out of the criminal justice system until your mid-30’s.
79In my opinion, when this period of imprisonment finishes, if you can stabilise your life and stop using methylamphetamine and other drugs, you have reasonably good prospects of rehabilitation. In assessing your prospects of rehabilitation, I have had regard to the references tendered on your behalf from people who have been close to you over the years.
COVID-19
80It is not suggested that you are in the vulnerable class in relation to the COVID-19 virus, but I have taken into account the current restrictive conditions within the prison system as increasing your burden of imprisonment.
Standard sentence
81I turn now to the issue of the standard sentence in relation to the sexual offences and the significance of the serious sexual offender provisions.
82There are several specific legislative provisions which I must apply in relation to the charges on Indictment K11446925. First there is the standard sentence for charges 1, 2 and 3 of six years' imprisonment. This operates as a yardstick only and is applicable to an offence in the mid-range of seriousness having regard only to its objective features. A standard sentence is not the same thing as a mandatory sentence nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is just one of the many matters the court must consider in performing the instinctive synthesis of all matters relevant to sentencing.
83The non-parole period I fix must be at least 60 per cent of the relevant term imposed unless it is in the interests of justice not to do so. In the case of the standard sentence offence, the court may only have regard to sentences imposed for other standard sentence offences. So far, there are a few offences of this type which have fallen under the Standard Sentencing Regime and I have not been referred to any by either of the parties.
84I have taken into account these legislative provisions and the operation of these provisions as clarified by the Court of Appeal in the case of DPP v Drake [2019] VSCA 293; Brown v The Queen [2019] VSCA 286; and Lugo v The Queen [2020] VSCA 75.
85The applicable law does not require me to attribute particular mathematical values to matters regarded by me as significant to the formation of the sentence that differs from the sentence. It does, however, require me to identify fully the facts, matters and circumstances which bear upon the judgment I have reached as to the appropriate sentence. I have endeavoured to do that in some detail during these reasons for sentence.
86The sentence which I will impose is less than the standard sentence for the offences in question and I have taken into account all matters I am required to consider under the Sentencing Act including the standard sentence. I consider the mitigating factors which apply to your crime and by process of the instinctive synthesis, I have arrived at the sentence which I will turn to shortly.
Serious sexual offender provisions
87I am of the view having regard to the seriousness of charges 1 and 2 no other sentence other than immediate imprisonment is appropriate. Therefore, for charges 3 and 4, you will be sentenced as a serious sexual offender. This will be noted in the records of the court.
88The legislation provides that for charges 3 and 4, I must regard the protection of the community from you as the principal purpose for which sentence is imposed. The prosecution has not submitted that a sentence longer than that which is proportionate to the gravity of the offence is required and I agree. The sentences imposed on charges 3 and 4 are required to be served cumulatively on other sentences imposed unless I direct otherwise.
89As stated in the joint judgment in the decision of R H McL v The Queen [2000] HCA 46 and 203 CLR 452, it is important that sentencing judges do not undermine the policy expressed in the serious sexual offender provisions by compressing sentences. The objective of legislation requiring sentences imposed on serious sexual offences to be served cumulatively rather than concurrently would be compromised and probably defeated in most cases if the ordinary application of the totality principle permitted departure from the presumption of cumulation.
90Thus, the serious sexual offender provisions qualify the totality principle in the sense that the sentencing judge cannot rely on totality in a way which undermines the legislative policy in s.6E of the Sentencing Act 1991.
91In your case, however, I have made orders for partial concurrency in relation to these charges to reflect the total duration of the offending in this case; and that there is no need in this case to impose a disproportionate sentence; as well as the mitigating factors that apply. The orders for concurrency also reflect to some degree the close connection in time and circumstance between the offences.
Sentencing Principles
92Across both indictments, these charges require general deterrence to be given emphasis. General deterrence is the need to deter others who might offend in a similar fashion to you, Mr Rohan. Denunciation is also an important sentencing objective that must be emphasised. It is of particular importance in relation to the sexual offences. The community rightly regards sexual offending against children with abhorrence and the courts must, by the sentences they impose, denounce conduct such as yours.
93Just punishment is also relevant.
94Specific deterrence which is the need to deter you from further offending in the future is also a relevant consideration.
95In formulating the sentence in the case, I have had regard to the totality principle, subject to the qualification that I earlier mentioned in relation to the serious sexual offender provisions.
96The totality principle requires me to ensure that your overall sentence remains just and appropriate for the whole of your offending.
Sentences
97Mr Rohan, I have balanced the serious aspects of your offending against the mitigating matters including your personal history and circumstances and the need to promote your rehabilitation and reintegration into the community.
98I sentence you as follows.
99In relation to Indictment K11446925, in respect of charge 1, sexual penetration of a child under the age of 16, you are sentenced to be imprisoned for a period of two years. In relation to charge 2 of sexual penetration of a child under the age of 16, you are sentenced to be imprisoned for a period of two years and three months. In relation to charge 3, sexual penetration of a child under the age of 16, you are sentenced to be imprisoned for a period of two years. In relation to charge 4, produce child abuse material, you are sentenced to be imprisoned for a period of nine months.
100In respect of the summary offence of committing an indictable offence whilst on bail, you are convicted and discharged because I have had regard to this offence as an aggravating feature of the other offences on the indictment.
101I order that five months of the sentence on charge 1 is cumulative on the base sentence, which is on charge 2 of two years and three months.
102In relation to charges 3 and 4 where you are a serious sexual offender, I order that 12 months of the sentence on charge 3 be made concurrent with the base sentence and five months of the sentence on charge 4 is concurrent with the base sentence.
103Now, this makes a total effective sentence on this indictment of four years. I have expressed charges 3 and 4 in terms of concurrency because of the serious sexual offender provisions. So, it is a total effective sentence of four years on that indictment.
104On Indictment C1912692, on charge 6 of handling stolen goods, you are sentenced to 15 months; on charge 7, trafficking cannabis, five months; charge 8, trafficking MDMA, two months; charge 9, possess drug of dependence, seven days; charge 10, handling stolen goods, five months; Summary Offence 20, fraudulently alter number plates, seven days; Summary Offence 12, possess controlled weapon, one months; Summary Offence 11, going equipped to steal, two months; and Summary Offence 19, dealing with suspected proceeds of crime, four months.
105I make the following orders for cumulation which are on the base sentence which is on charge 6 of 15 months; three months of charge 7, one month of charge 8, two months on charge 10, one month on charge 11 and two months on summary offence 19 are cumulative on each other and on the base sentence which makes a total effective sentence on that indictment of 24 months.
106Do the parties agree with my maths in relation to the two indictments?
107MS HOLLINGWORTH: Your Honour, I have to confess, with the second indictment, if you could just go through what the sentences and the cumulation were.
108HIS HONOUR: Sure. Yes. Yes.
109The base is charge 6.
110MS HOLLINGWORTH: Yes.
111HIS HONOUR: Fifteen.
112MS HOLLINGWORTH: Yes.
113HIS HONOUR: Three months cumulative on charge 7, one month on charge 8, two months on charge 10, one month on charge 11 and two months on charge 19. Have I added that up right? Yes. So that should be 24 months.
114MR PICKERING: Well, I get 24 months on that, Your Honour, although I have to submit, I lost the figure of the first indictment.
115HIS HONOUR: All right. I will go back. We have got five minutes to go.
116I will indicate that I am ordering 12 months of the sentence on C1912692 is cumulative on the sentence of four years on Indictment K11446925. This makes a total effective sentence of five years and I fix a non-parole period of three years.
117Pursuant to s.18(4) of the Sentencing Act, I declare that you have served 371 days of pre-sentence detention to be deducted from the sentence I have imposed. This will be entered into the records of the court.
118The s.6AAA is seven years and 10 months with five years and two months. So, Mr Rohan, but for your plea of guilty, pursuant to s.6AAA of the Sentencing Act, I would have imposed a sentence of seven years and 10 months with five years and two months.
119Now, by virtue of the orders that I have made today, Mr Rohan, you will become a registrable offender under the Sex Offenders Registration Act and having regard to the particular charges, the reporting period is for life. You should have been provided documentation which notifies you of the reporting obligations and you will be required to sign that document.
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