Director of Public Prosecutions v Ryan
[2019] VCC 749
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN RYAN |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 & 15 May 2019 |
| DATE OF SENTENCE: | 23 May 2019 |
| CASE MAY BE CITED AS: | DPP v Ryan |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 749 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Plea of guilty – access child pornography using a carriage service (1 charge) – using a carriage service to transmit indecent communication to person under 16 (1 charge) – possession of child abuse material (1 charge) |
| Legislation Cited: | Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic) |
| Cases Cited: | R v Porte [2015] NSWCCA 174; DPP (Cth) & DPP v Garside [2016] VSCA 74; DPP (Cth) v Zarb [2014] VSCA 347; DPP (Cth) v D’Alessando (2010) 26 VR 477; DPP (Cth) & DPP v Watson [2016] VSCA 73; SD v The Queen [2013] 39 VR 487; DPP vTokava [2006] VSCA 156; R vMerrett, Piggott & Ferrari [2007] VSCA 1; R v Booth [2009] NSWCCA 89; Boulton v The Queen [2014] VSCA 342; Hutchinson v The Queen [2015] VSCA 115; Atanackovic v R [2015] VSCA 136; Hasan v The Queen [2010] VSCA 352; DPP vDalgliesh (a pseudonym) (2017) ALJR 91, 1063. |
| Sentence: | Convicted and sentenced to 3 years’ imprisonment, to be released immediately by way of $10,000 recognisance release bond to be of good behaviour. Convicted and fined $7,000 (Charge 1), and fined $3,000 (Charge 2). |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms O. Go | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr R. Keating | Slink & Keating |
HIS HONOUR:
1There are a number of matters that I need to go to in regard to your sentence. As you will have heard in the plea, there was a number of issues raised which I have been required to consider. So I will go through those matters and when I come to the end, and am about to sentence you, I will ask you to stand. All right?
2Madam Associate, the first thing to do is serve the notice as to the life reporting period. Insofar as the sexual reporting obligations, Mr Keating, can you arrange for your client to sign this document? It is the requirement of Parliament.
3MR KEATING: Yes, sir, yes.
4HIS HONOUR: Not mine.
5MR KEATING: All right. Thank you. Excuse me, Your Honour.
6That has been signed by my client, Your Honour.
7HIS HONOUR: Thank you, Mr Keating.
8Mr Brendan Ryan is aged 59, soon to turn 60. He has pleaded to three charges in the Commonwealth indictment filed on behalf of the Director of Public Prosecutions, on 5 March 2019, Court No. CR-18-02465. The plea was heard in this Court on the 2nd and 15th of May.
9Exhibit A tendered by the learned prosecutor as her opening was accepted by Mr Keating as the facts upon which I am to sentence Mr Ryan.
10In the indictment, there were three charges. The first charge is a charge under s.474.19(1) of the Criminal CodeAct (Cth) which is a crime of accessing child pornography over a carriage service. The seriousness of this charge is demonstrated by the fact that Parliament prescribes a maximum penalty of 15 years in gaol.
11The period over which such material was downloaded was 17/11/14 to 15/04/18, three years and five months, during that time Mr Ryan was aged 55 through to 58.
12Given the matters concerning Charge 2, a warrant had been issued on 24 July 2018 when the premises that Mr Ryan then lived in at Rowville were subject to a warrant. This was of course Mr Ryan's former family home and he was indeed arrested there.
13Subsequently, the material taken from his computer was analysed and classified on the Child Exploitation Model (CETS). Located on his HP laptop was material which was also linked to a Skype account. Such material had been created or downloaded in the period that I have detailed and the precise details are set out at paragraph 22 of the prosecutor's opening.
14Clearly, the majority of the material involved Level 1, according to the CETS scale, and insofar as an analysis of that material within that level, Mr Keating accepted for the purposes of the plea that the majority of such was at a level whereby children's genitalia were exposed. Given such acceptance, I declined the invitation of the learned prosecutor to view the material.
15While each of the images downloaded is serious in itself, for the purposes of comparison, it is important that Category 1 made up 304 of the 364 images, with four images at Level 2, 12 at Level 3 and 34 at Level 4, there being no images at Level 5 or 6 on the rating.
16Insofar as the 304 images in Category 1, each possesses significant gravity, as referred to in R v Porte [2015] NSWCCA 174, [77] and in the Victorian case of Garside, by the Court of Appeal [2016] VSCA 74, [68].
17Taking the case of Garside, for example, by way of comparison, the materials downloaded in the Garside case ran into some thousands, in fact some 6,018 items of which some 5,749 were in Category 1, albeit downloaded in a much shorter period.
18I was in fact the sentencing judge in that matter and had the unenviable task of pouring over the material, which took a period of some two hours.
19While noting the references that I have just made to Porte and Garside insofar as Category 1 crimes, the clear difference to Garside, was the outrageous material in Category 4 and 5 which involved gross depravity in regard to young children and animals. There was a marked comparison in regard not only to the amount of material, but to the type of material in that case.
20Again, in Zarb [2014] VSCA 347, which the learned prosecutor suggested was similar and of some assistance to the Court in its synthesis, the material there was downloaded over a period of 15 months. There were a total amount of 415 items, 310 Level 1 items of the 415, but such material did also include Level 5 and 6. An important difference, was Mr Zarb also faced two charges of transporting child pornography under s.474.19(1). On the comparison charge, the majority in the appeal substituted for the community correction order that had been passed, a three months period of immediate gaol, albeit the circumstances including a substance abuse issue and a paraphyletic disorder which affected the prisoner in that matter.
21Priest JA, who was in the minority, took the view that the sentence passed by the majority was, to use his words, 'mere tinkering', and that the original sentence was appropriate, in the particular circumstances, especially given the evidence of the appellant's rehabilitation.
22Coming then to Charge 2, again, these matters were precisely detailed by the learned prosecutor in Exhibit A and in particular from paragraph 4 to 17.
23This charge involves a breach of s.474.27(A)(1) of the Code for which the maximum penalty prescribed is one of seven years. The charge is one of use carriage service to transmit indecent communications to a person under the age of 16. The period which this charge covers is from July 2016 to January 2017, a period of six months. It is clear that Mr Ryan initiated such communications and used a false profile in doing so.
24The determination of the word 'indecent' in the charge is as prescribed by the Act, which is the standard set by an ordinary person.
25This matter was a ‘sting’ operation, with the alleged female under 16 being communicated with being a police officer.
26Initial contact was made with Mr Ryan with the sting operation in 2014. However, no communication took place, despite some attempts, till 15 July 2016, when an image was sent of a female child and advise was given that that child was 14, turning 15. In fact, there was no conversation thereafter between the parties from the 16th of July till the 20th of December of that year.
27Communication began on 1 January when a further photo was sent. The conversation that occurred that day involved talk of sexual activities which can be classified as indecent, given the reported age of the victim. Such can essentially be described as initially general discussion as to sexual activity, and then moves to particular requests set out in paragraph 13 and ultimately, as set out in paragraph 15, to discussions about the alleged child's “pjs”, as detailed in the photo that had been conveyed.
28Essentially the analysis of this material demonstrates communication during this period of six months, over three to four days, albeit being somewhat intense on those days.
29The prosecutor submitted that such material was of high-level culpability. I find that the proper classification was that the level of indecency was mid-level and for, as I have indicated, limited periods. I classify the culpability as somewhere between low and mid given the totality of the material and the times of discussion, as I indicated during the plea.
30In regard to Charge 3, such is a State offence, a charge of knowingly possess child abuse material, this is an offence under s.51G(1) of the Crimes Act for which the maximum penalty is 10 years gaol, the definition of child abuse material is contained s.51A(1) of the Act.
31The material here was obviously of the same type of the material downloaded. Apparently, Mr Ryan had saved 72 items into his 'B. Ryan docs' folder and again, of those 72, 65 were in Category 1, one was in Category 2, four in Category 3 and two in Category 4, and, again, no level five or six. Again, it was accepted by Mr Keating that such material was of the type which exposed the genitalia of young children.
32Clearly, this charge overlaps with Charge 1.
33I should have said, when speaking about the definition, if you look at s.51A(1), the relevant definition of child abuse, it is where the children are engaged in a sexual pose. Such would seem to fit the category predominant here.
34I was talking about the overlapping. In R v Porte, [157], the court noted that such charges were not identical, and that the criminality as to the two offences and their respective vices, require some measure of accumulation.
35It is, however, noted that Priest JA in Garside, [96], while noting such comments in Porte, stated that, he sees these distinct aspects as a continuum. These statements are matters for this Court to take on board.
36Insofar as these crimes are concerned, Mr Ryan has no relevant priors. He did have in 1985 a prior matter, which seems to be of no consequence here.
37He has served no pre-sentence detention. There is no request for forfeiture or disposal.
38Insofar as the prosecution was concerned, the Crown submission on sentence was tendered as Exhibit B, and at [32], the Crown put that a period of immediate imprisonment is the only appropriate sentence in the circumstances.
39The learned prosecutor submitted that such a term could be less than three years given the maximum penalty, the requirement for general deterrence and the objective gravity of the crimes, in particular taking into account the persistence insofar as the access material and the length of time over which same took place.
40Insofar as the effecting of principles of rehabilitation, the prosecution submitted that such could be effected by the imposition of a recognisance release order with appropriate conditions.
41The prosecution also tendered a table of comparative cases, Exhibit C.
42Exhibit D was tendered, the community correction assessment, called for in this matter consistent with the submission made by Mr Keating. Such report was tendered on the last hearing. Such was positive insofar as Mr Ryan is concerned and noted the genuine expressions of remorse. The determination made in that report was that Mr Ryan presented a low risk of general offending and noted, given the circumstances of the offending, if a CCO was granted, the need for SOATS program and various other conditions.
43In the plea, Mr Keating tendered firstly written submissions dated 29 April 2019 and spoke to those submissions. The primary submission of Mr Keating was that the sentence should be one of no immediate gaol, but a community correction order with appropriate conditions. Alternatively, should the Court not accept such submission, a period of immediate gaol combined with a community correction order was put.
44Mr Keating did not deign to deal with the complications of those various suggestions between Commonwealth and State jurisdiction, but we will not persist in that regard.
45Mr Keating also tendered a psychological risk assessment carried out by Rachel Campbell dated 4 April 2019, Exhibit 2; Exhibit 3, a psychological report of Rachel Mackenzie; Exhibit 4, a clinical history from the Toorak Clinic; Exhibit 5, a bundle of character references; Exhibit 6, a number of course certifications as undertaken by Mr Ryan; and Exhibit 7, a further letter from Mr Ryan’s employer dated 10 May 2019.
46Insofar as Mr Ryan's personal background is concerned, it is unremarkable in the sense that there is nothing that stands out about it except that he was a hardworking person. He had raised a family of three. He had been particularly appreciated by his employers for his hard work, and had built up a particular expertise in plumbing merchandising.
47His marriage of many years, unfortunately as a result of these crimes and his arrest, has failed.
48Mr Keating accepted, as put by the learned prosecutor, that the paramount consideration was general deterrence, given the type of crimes, and in particular the principles set out in Garside, D'Alessando (2010) 26 VR 477, [21] to [24], the need as detailed in those cases for appropriate punishment and denunciation and further the general principles set out by the Court of Appeal in this State in DPP (Cth) v Watson [2016] VSCA 73.
49Given those considerations, and the paramountcy of general deterrence, Mr Keating initially relied on the concept of exceptional circumstances in his submissions, but accepted the Court's view that the relevant authority in this regard, as detailed by Priest JA in Garside [86] and in Zarb [68] to [72], that there is no requirement of exceptional circumstances to be proved to warrant a sentence which did not involve immediate imprisonment.
50Given the acceptance of that view, Mr Keating proceeded to the relevant circumstances which were the basis of his submission that a non-immediate period of imprisonment should be imposed.
51Firstly, the plea of guilty and such being made at the first opportunity. He submitted that such was of utilitarian benefit, served the administration of justice and of course indicates remorse. I accept all of those propositions.
52Secondly, that by his plea and his actions since, Mr Ryan has shown genuine remorse.
53Thirdly, that Mr Ryan’s remorse and contrition have been further demonstrated by the steps taken by him by way of rehabilitation. In this regard, it is noted that Mr Ryan's fall from grace, within his home, the estrangement and ultimate separation from the family home and the estrangement from three of his children and at least one of his sisters, is as a result of these crimes.
54As part of his rehabilitation, Mr Ryan started treatment with Dr Mackenzie on 11 August 2018, three weeks after being charged. Exhibit 3 is the report of Dr Mackenzie, who notes as follows:
'Mr Ryan reported this offending occurred in the context of his marriage breaking down and he's feeling ostracised from his family. He stated he had turned to the internet as a means of companionship and sexual gratification.'
55Mr Ryan was asked during the record of interview why these items had not been deleted by him, as he ultimately accepted and stated in the discussions with Dr Mackenzie, they were not deleted for the obvious reason that he was using them for sexual excitement.
56At paragraph 11, an analysis by Dr MacKenzie of Mr Ryan’s presentation showed that he had discussed his sense of failure, his guilt over the harm he had caused, particularly in regard to his family and his shame at accessing such child abuse material. There was no evidence of any psychotic phenomenon which may have had some role, nor was there any evidence of any mental illness.
57Importantly, as Dr Mackenzie noted, Mr Ryan was and had impressed as being committed to the therapy and had attended all scheduled appointments.
58At [17], Dr Mackenzie said this,
'Although finding it extremely confronting, Mr Ryan was being receptive to psychoeducation regarding his form of offending. The victim empathy component of treatment has been particularly distressing for him as he has come to the realisation of how harmful this type of behaviour can be to child victims physically, emotionally, psychologically and socially.
'We have also discussed how his assessing child abuse material and interacting with others engaged in such behaviours serves to reinforce a deviant community.'
59She went on at [18] to say,
'He started to experience considerable shame over his behaviour and he has had immense guilt over the damaging ripple effects of his actions on the family.'
60Finally, at [22], the conclusion was that he had made positive progress in treatment and work done which offers a strong foundation for future therapy.
61The report of Dr Campbell, Exhibit 2, was obtained for an assessment insofar as his risk of sexual offending is concerned.
62At [20] of Dr Campbell's report, the following was stated,
'On reflection, Mr Ryan said he was disgusted with "myself", expressed remorse and shame and described being horrified that his actions had contributed to the perpetration and production of child abuse material.
'He said the implications of his actions had been wide-ranging. He said that he sought to understand his actions and was undertaking psychological assistance in order to help him achieve some clarity which he believed had been helpful.'
63At [43] and [44], the determination was made that insofar as future sexual offending, Mr Ryan's risk was assessed as being low. The statement at [43] was that,
'It would seem that in his offending coming to light, the current charges, legal ramifications and his behaviour being confronted through treatment have provided a clear indication to Mr Ryan that his actions were inappropriate and have served as a significant deterrent to him engaging in similar behaviour in the future.'
64It is and must be accepted that Dr Campbell, as pointed out by the learned prosecutor, used a tool, which according to Dr Campbell, insofar as online soliciting is not a proper validated tool. Indeed he said there is no such tool. Using this RSVP program, it was acknowledged that that is not a validated tool for this particular offending.
65The genuineness of Mr Ryan’s remorse seems to me to be very much confirmed by the character statements, Exhibit 5. I take just one of them, it is the statement of his brother.
66Mr Ryan’s brother is a person who has a number of academic qualifications and notes in his reference that,
'Brendan has expressed deep remorse for his behaviour and has already suffered significant consequences including the breakdown of his marriage and a very difficult relationship that he now has with his children and it is not unreasonable to say he is also estranged from many of his siblings and his open invitation to attend their homes is no longer available. He has undertaken counselling and will continue to do so for the foreseeable future.'
67His brother noted the charges, and their impact on his voluntary community roles and stated,
'I believe that Brendan's behaviour is part of a fantasy world that he created for himself to escape an unhappy marriage. This is not an excuse for his behaviour but rather a context of a series of poor decisions. I do not believe Brendan's behaviour would have ever extended beyond the confines, however, I am glad it was discovered so that he could address its causes and refrain from such behaviour and move forward.
'I believe that the behaviour associated with those charges will never happen again.'
68Mr Keating also relied on the prior good character of Mr Ryan. The learned prosecutor submitted that more limited weight should be given to such, given the nature of these offences, as set out in [39] of her sentencing submissions.
69With respect, I consider the correct view in this regard is that as expressed by Priest JA in Garside at [94], in particular where at [93], he referred to SD v The Queen [2013] 39 VR 487 and 494, [30].
70In that regard, the prior good conduct of Mr Ryan is amply demonstrated by the materials set out in Exhibit 5 and the strong references therein. I have already referred to the statement from his brother.
71I also note the statement from his sister, and also the somewhat, if I might say, poignant letter from his own son. It is appropriate that I read from that letter.
72His son said this,
'I understand the crimes my dad has committed and pleaded guilty to. He is filled with remorse for his action and is distraught at the thought of the potential for harm his actions may have caused.'
73He notes that he has been seeing a psychologist:
'My dad has done some bad things for which he has taken full ownership but he is still a good person overall in spite of this. He has always sought to help others whether it'd be through his voluntary work on countless committees or lending a hand to new migrants to help them find their feet in a new country.
'He's also been a great father and although learning of his actions has caused me and the entire family an amount of pain, for me this doesn't change who he is. I believe he's fully cognisant of the ramifications of his actions through a combination of deep and ongoing reflection and therapy and that given his good nature, the crimes he has committed are an aberration from the wonderful person he has been and will continue to be.'
74In addition is the strong support of the family medical practitioner, Dr Sawyers, in particular the reference therein to the community activities participated in by Mr Ryan.
75In addition is the strong support from his employer from the Leap Civil Group, again with confirmation of Mr Ryan’s community work.
76The next aspect that Mr Keating relied on comes from those references. One is the impact of being subject to sexual reporting obligations, the reality will be that he will no longer be able to participate in activities involving youths, or the community or sporting clubs that he had been previously involved in, such as AusKick, Little Athletics or the Dandenong Hockey General Organisation.
77The next matter raised by Mr Keating was the issue of future rehabilitation. I think this aspect has particular relevance. When a person of 59 years of age, with essentially no priors, comes before this Court, it has always been this Court's view that such a person is entitled to seek mercy.
78The effecting of a sentence which promotes rehabilitation is obviously a mandatory factor as set out in s.16A(2)(n) of the Commonwealth Crimes Act, along with many other factors in that section, to which I have been referred to by the learned prosecutor, and a further governing principle as set out in the Victorian Sentencing Act, s.5(1)(c).
79In this regard, this Court has always been assisted by the words of the current President, firstly in Tokava [2006] VSCA 156 where, [21], Maxwell P said this,
A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community's interest will be best served by that course.'
80The President further said in The Crown v Haydn Frank Merrett, Piggott and Ferrari [2007] VSCA 1 as follows, [49],
'The sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what a sentencing court does.'
81Of course, as the learned prosecutor in discussing s.16A(2)(n) pointed out, such cannot be the sole focus at the expense of the other important sentencing considerations which she put to the Court, and, in this regard, she referred the Court to R v Booth [2009] NSWCCA 89, [47] where such statements are made.
82I am indeed, taking into account all those factors and authorities, impressed with the steps that Mr Ryan has taken, and as his son has said in regard to his counselling with Dr Mackenzie, and further the discussions he has had with his father, that Mr Ryan is fully cognisant of the ramifications of his actions through a combination of deep and ongoing reflection and therapy.
83Similar sentiments were of course expressed by the Court of Appeal made up of the President and four other justices of appeal in Boulton [2014] VSCA 342, [131] and [104], albeit confined to the imposition of community correction orders in Victoria only, such being a guideline judgment.
84Of course, in regard to that, I also bear in mind the comments of Priest JA in the case of Hutchinson [2015] VSCA 115, [53] where he said,
'There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.'
85In talking about those two matters generally, I note in particular that such principles and the particular sections do not apply to federal sentencing, as was made clear in Atanackovic v R [2015] VSCA 136.
86As to the matters of comparative sentencing, I refer to the table, Exhibit C, and the cases tendered for the Court's consideration. I also thank Ms Go for her detailed submissions, which I have taken into account and, indeed, the discussions with counsel which took place in Court as to those particular cases.
87As to comparative cases, as detailed in Hasan [2010] VSCA 352, [42] to [54] and the reference to Hudson, such comparative cases play a part in the instinctive synthesis by placing the sentence within the correct range and advance the underlying value of equality under the law, but the limitations of such process of course must be born in mind.
88Ultimately, in this sentence, and indeed all sentences in this Court, as pointed by the High Court in DPP v Dalgliesh (a pseudonym) (2017) ALJR 91, 1063, 1072 [42]:-
'The administration of criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion designed to do justice in that case. Comparable cases serve as a yardstick in the advancement of the above goal which one hopes therefore produces reasonable consistency.'
89Mr Ryan, I ask you therefore to stand up so that I can pronounce what I have determined to be a just sentence.
90Insofar as Charge 1 is concerned, you will be sentenced to a period of imprisonment for three years, and fined the sum of $7,000.
91In regard to Charge 2, you will be sentenced to a period of imprisonment for one year and fined the sum of $3,000.
92Both sentences are to start as of today.
93Pursuant to s.19AC of the Commonwealth Crimes Act, I fix in regard to both sentences a single recognisance release order of three years upon your own recognisance of $10,000 effective immediately.
94The most important condition in regard to that is that you be of good behaviour. In addition that you complete the psychological counselling as determined by Dr Rachel Mackenzie and undertake the SOATS assessment and program as determined by the Community Correction Services Victoria.
95Insofar as Charge 3 is concerned, you will be fined $5,000 and be placed on a community correction order pursuant to s.37 of the Victorian Crimes Act for a period of four years.
96The conditions appropriate to that will be as recommended, that there firstly be an intensive correction order of two years, and it is hoped that in that period you will undertake the SOATS program as recommended by the report. A condition under s.48C that you undertake community correction work in the sum of 200 hours, a condition under s.48D(3)(e) that you undertake treatment and rehabilitation by way of mental health, a condition under s.48D(3)(f) that you undertake reoffending program and under s.48E that you be supervised.
97Mr Keating, I understand the combination of those matters may be a bit confusing for your client and obviously he has to consent.
98Mr Ryan, Mr Keating will come and explain to you in a minute, but what essentially this is, is in regard to the two Commonwealth charges, albeit being sentenced to periods of gaol, you have been granted by this Court what is called a recognisance release order. That matter will take effect today. That means that you enter your own recognisance of $10,000 to be of good behaviour and to comply with the conditions that I have imposed for a period of three years.
99In addition, in regard to each of the Commonwealth matters, you will be fined respectively a sum of $7,000 and $3,000 making a total of $10,000.
100In regard to the State offence, you will be placed on a community correction order for a period of four years with the conditions that I have read out.
101It is necessary for you to obviously consent to those matters and, Mr Keating, I will give you the opportunity to talk to your client and seek that consent.
102MR KEATING: Thank you, sir. And State offence was also fined $5,000?
103HIS HONOUR: Yes.
104MR KEATING: Thank you. Thank you. Can I just approach the prosecutor? I am sorry, Your Honour.
105HIS HONOUR: That is all right.
106MR KEATING: Just to be clear, Your Honour, and I am sorry for asking this. I understand that he is not being sentenced to immediate imprisonment, is that ‑ ‑ ‑
107HIS HONOUR: That is what I have said that the ‑ ‑ ‑
108MR KEATING: Yes. Thank you. Yes.
109HIS HONOUR: ‑ ‑ ‑ the recognisance release order is to be effective immediately.
110MR KEATING: Thank you very much. Just excuse me a moment.
111Yes, my client is agreeable to the (indistinct) Your Honour has outlined.
112HIS HONOUR: Yes. I understand the fines are considerable so I will grant a stay of six months and I am prepared in six months to hear an application for further extension but that would obviously require a clear indication of a considerable amount paid, Mr Keating.
113MR KEATING: Yes, I anticipate so. In terms of fines, are they now - is there a direction now that they will be collected by Fines Victoria and there is no State ‑ ‑ ‑
114HIS HONOUR: I would not have a clue.
115MR KEATING: That is how I think it is done now.
116HIS HONOUR: I do not think I have to. I do not normally refer to anyone and no one has told me I have to.
117MR KEATING: Yes. The language that I often here is that fines are referred to Fines Victoria that ‑ ‑ ‑
118HIS HONOUR: I have never done it so ‑ ‑ ‑
119MR KEATING: All right. Yes, Your Honour.
120HIS HONOUR: And I should announce that in regard to s.6AAA on the assumption that it applies to the Commonwealth matters, but it clearly applies to the State matters, to the best that I can comply with the requirements of Parliament and only assess one factor, in regard to all the factors referred, all I can indicate is that clearly, had you not pleaded guilty, Mr Ryan, there would have been no recognisance release or CCO for you.
121Yes.
122MS GO: Your Honour, if we could seek the indulgence of the Court to perhaps stand the matter down. I am unsure as to whether Charges 1 and 2 actually allow for a combination sentence.
123HIS HONOUR: Yes, they do. Recognisance release can be granted to both according to s.19AC.
124MS GO: Yes, Your Honour. I mean a combination sentence of imprisonment and a fine.
125HIS HONOUR: Yes, of course it can.
126MS GO: So, other offence provisions in the Criminal Code specifically outline that it could be imprisonment and/or a fine. Charges 1 and 2 do not actually have that in the Code. It actually just ‑ ‑ ‑
127HIS HONOUR: I am giving a recognisance release and a fine.
128MS GO: Yes, Your Honour. So in effect, it is a term of imprisonment and a fine ‑ ‑ ‑
129HIS HONOUR: Yes.
130MS GO: ‑ ‑ ‑ for Charge 1 and Charge 2. I am unsure whether that is permissible given that the offence provisions in the Code do not specify that the fine ‑ ‑ ‑
131HIS HONOUR: There is always an alternate for a fine.
132MS GO: It is just, Your Honour, I know that, for example, ‑ ‑ ‑
133HIS HONOUR: No, I have not got time to stand it down. I intend to make those orders. You come back to me if there is any issue with them.
134MS GO: All right.
135HIS HONOUR: Yes.
136MS GO: It essentially constitutes, I guess, double punishment for the one offence.
137HIS HONOUR: Well, yes, it does, but it is a combination of - and in the circumstances, given the immediate recognisance ‑ ‑ ‑
138MS GO: Yes. I just note, Your Honour, that those offences in the Criminal Code do not have fine as an alternative, whereas, for example, some of the drug offences ‑ ‑ ‑
139HIS HONOUR: There is a fine always available as an alternative, is there not?
140MS GO: It could be just a fine or just imprisonment but, for example, drug offences specifically state life imprisonment.
141HIS HONOUR: Well, the alternative is I just do a fine on the State matter of 15,000 if you say I cannot do it.
142MS GO: Yes, Your Honour. And I was also hoping for some time to write out Your Honour's orders.
143HIS HONOUR: Well, you will not write them out. We will do them here. All right.
144MS GO: I can also forward a Word version to Your Honour's associate if that would assist.
145HIS HONOUR: That would assist. All right. Well, we might have to stand down much in (indistinct words). Well, you can do that and I can proceed, can I not?
146MR KEATING: I am happy if the matter is stood down.
147HIS HONOUR: Yes.
148MR KEATING: Anything that needs to be attended to ‑ ‑ ‑
149HIS HONOUR: All right. We will stand the matter down. I am sorry, Mr Ryan, you will just have to hang around while we get the technicalities done, all right?
150MR KEATING: Thank you.
151HIS HONOUR: You better have a look into that as well, Mr Keating. See what the alternatives are.
152MR KEATING: Thank you.
153HIS HONOUR: Yes. We can indicate the next matter will start as soon as we can. We will just have to have a break if necessary.
154(Short adjournment.)
155HIS HONOUR: Yes, Ms Go. What is the issue with the fine?
156MS GO: I am grateful for the time, Your Honour.
157HIS HONOUR: Thank you.
158MS GO: So, Your Honour is correct. There is a general - there is a power ‑ ‑ ‑
159HIS HONOUR: Power.
160MS GO: ‑ ‑ ‑ in s.4B of the Crimes Act ‑ ‑ ‑
161HIS HONOUR: Good.
162MS GO: ‑ ‑ ‑ that allows that discretion.
163HIS HONOUR: Thank you. All right. Well, so I can have my original orders ‑ ‑ ‑
164MS GO: Yes, Your Honour.
165HIS HONOUR: ‑ ‑ ‑ and we can do the recognisance in the terms that you have indicated.
166MS GO: Yes, Your Honour. And I understand that my learned friend has used the time as well to explain the purpose and consequence of ‑ ‑ ‑
167HIS HONOUR: Good.
168MS GO: ‑ ‑ ‑ there is in that recognisance release order to his client.
169HIS HONOUR: Mr Keating, your client consented to both orders, is that right?
170MR KEATING: That is right, Your Honour, yes.
171HIS HONOUR: And I have indicated I will grant a formal stay of six months in regard to the fines.
172MR KEATING: Right.
173HIS HONOUR: So the orders will be made in the terms that I have indicated and in the recognisance which you have seen and discussed with counsel.
174MR KEATING: Yes. Your Honour, would you - I am sorry.
175HIS HONOUR: Yes.
176MR KEATING: Is it possible to make it maybe a little bit longer than the six months because it is a ‑ ‑ ‑
177HIS HONOUR: Yes. We will say 12 months.
178MR KEATING: Thank you very much.
179HIS HONOUR: Yes.
180MR KEATING: Thank you, Your Honour.
181HIS HONOUR: We will get you to sign both the recognisance release order and the CCO.
182MR KEATING: Thank you very much, sir.
183HIS HONOUR: Your client, I mean.
184MR KEATING: Yes, I understand. Yes. Thank you. Could you just excuse me for a moment, Your Honour?
185VOICE (from body of the court): He just did.
186MR KEATING: He just did.
187HIS HONOUR: What was the section just so I look it up to make sure ‑ ‑ ‑
188MS GO: Section 4B, Your Honour, of the Crimes Act just states that when a sentence provision only specifies a period of imprisonment as a penalty that Your Honour has the discretion to impose a fine in addition to that period of imprisonment.
189HIS HONOUR: I know it is in the State and I have probably read it, 4B, but I will have a look at it.
190MS GO: Yes, and it also outlies the formula to be applied.
191HIS HONOUR: Anyway, I think it was quite appropriate, Ms Go, for you to have raised that issue. Thank you.
192MS GO: Thank you, Your Honour.
193MR KEATING: I think all has been done, Your Honour.
194HIS HONOUR: Thank you.
195MR KEATING: Thank you very much.
196HIS HONOUR: Yes. Mr Ryan, I am sure you will not be bothering the court again. Yes.
197OFFENDER: Not again, Your Honour.
198HIS HONOUR: Yes. Thank you to both counsel for all their assistance. Not an easy matter, these matters. Thank you.
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