Director of Public Prosecutions v Sullivan
[2023] VCC 1506
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-02690
CR-21-02723
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYLER SULLIVAN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February, 10 March, 12 April, 2 & 26 May 2023 |
DATE OF SENTENCE: | 24 August 2023 |
CASE MAY BE CITED AS: | DPP v SULLIVAN |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1506 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Sexual penetration of child under 16 - possess child abuse material - use carriage service for child abuse material (C’th)
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1914 (Cth)
Cases Cited:Cooke v The Queen [2021] VSCA 70,
Jenkins v The Queen [2021] VSCA 65,
Director of Public Prosecutions v Smith [2022] VSCA 4Sentence:State: 12 months' imprisonment + 3-year CCO,
C’th: Release without passing sentence on recognizance
of $3,000 to be of good behaviour for 4 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Office of Public Prosecutions |
For the Accused | Mr P. Kounnas | Leanne Warren & Associates |
HIS HONOUR:
1Tyler Sullivan, I now proceed to my sentencing remarks.
2You have pleaded guilty to three offences on two indictments. The first offence in time, charged on indictment M11125672, is an offence under the law of the State of Victoria of taking part in an act of sexual penetration of a child under the age of 16 years. The maximum penalty for that offence is imprisonment for 15 years. The charge is particularised as a rolled-up charge incorporating three separate acts of sexual penetration.
3The offending occurred at the victim's home in the early hours of 11 May 2021. Your victim was then aged 12 years. She had turned 12 years of age about seven weeks earlier. The standard sentence for that offence is imprisonment for six years.
4The second indictment, M11125672A, contains an offence contrary to Victorian law which is Charge 1, and an offence contrary to Commonwealth law which is Charge 2. The first of those charges in date order, Charge 2, was committed between 20 May and 1 June 2021. It involves using a carriage service to cause child abuse material to be transmitted to you, for which the maximum penalty is imprisonment for 15 years. The second offence on that indictment in date order, which was committed on 1 June 2021, is Charge 1. It involves knowing possession of child abuse material, the maximum penalty for which is imprisonment for 10 years.
5In relation to both charges on that indictment, the term 'child' is defined as a person under the age of 18 years.
6You have no prior or subsequent criminal history.
7The prosecution tendered and relied upon a written prosecution opening dated 22 February 2023. It is marked Exhibit A for the plea hearing. I summarise it as follows. You were born in October 2000 and were therefore 20 years of age at the time of the offending charged on both indictments. You were then residing at an address in Melbourne. I deal first with the indictment involving the offence of sexual penetration of a child, to whom I shall refer as your first victim.
8At the time of the offending your first victim lived with her mother and sister at an address in Point Cook. On Sunday 9 May 2021, your first victim used her mother's laptop computer to access social media platforms and started an online chat with you. Whilst on video chats with you, your first victim told you that she was 12 years old. You told her, falsely and clearly with the intent to deceive her, that you were 15 years old.
9You and your first victim exchanged Instagram usernames. You then started using Instagram to communicate with each other. In your Instagram you told your first victim she was 'cute' and suggested you 'come over' to her home as you wanted to 'fuck her'. On Monday 10 May 2021, at approximately 11 pm, you Facetimed your first victim for about 20 minutes while you were lying on your bed. During that time you masturbated in a manner that was visible to your victim over the screen, causing your victim to end the call. You then Facetimed your victim back, telling her that you 'wouldn't do that', apparently referring to your masturbation, and the two of you talked for a further about 10 minutes.
10You then sent messages to your first victim asking if you could come to her home. She initially told you that she did not want you to do so, but after some cajoling from you she agreed. The two of you then arranged for you to catch a train and an Uber to her home where the back gate would be open.
11On Tuesday 11 May 2021 at about 12.40 am your first victim received a text from you telling her that you had arrived. She let you into her home through the back gate and back door. You entered covertly and without alerting your victim's mother. Once inside the two of you went to your victim's bedroom. You then hugged and kissed your victim, saying, 'Do you see how hard I'm getting?' You then pulled your penis from your pants and told your victim to 'suck it'. Your victim said, 'Okay' and you then pushed your victim's head down to your penis where she performed fellatio. That penetration of your victim's mouth with your penis is the first act of sexual penetration particularised in the rolled-up charge.
12You then told your first victim to 'take off her shirt'. She removed her bra and shirt and lay on her back on the bed. While your victim was lying on her back you started pulling her shorts down. As you did so, your victim hesitated. You asked her, 'Can I?' Your victim said, 'Okay' and you then performed cunnilingus on her. That penetration of the victim's vagina with your tongue is the second act of sexual penetration particularised in the rolled-up charge.
13You then rubbed your penis on the outside of her vagina, telling her, 'I'm just going to slide it on there, I'm not actually gonna go in'. You then asked your victim, 'Can I put it in?' After some hesitation your victim said, 'All right, fine' or 'Yes, okay'. You then penetrated your victim's vagina with your penis. That penetration of the victim's vagina with your penis was the third act of sexual penetration particularised in the rolled-up charge. You continued to penetrate your victim's vagina until you removed your penis and ejaculated into tissues.
14At about 2.40 am you left your victim's home and returned to your own home in an Uber. At 3.03 am you messaged your victim to make sure she had flushed the tissues that you had used to clean up your ejaculate. You and your first victim remained in contact for the next two days. Your victim noticed her vagina had bled and told you words to the effect, 'I'm not pregnant thank the lord I got my period'.
15By 13 May 2021, after you told your victim that you 'probably would not come back to her address as it cost too much in an Uber', she messaged you saying, 'So when I told you I got my period I thought I did but I didn't and I'm late. I feel sick' and 'Well if I'm pregnant I sure as hell am not keeping it'. You responded, saying, 'Just stop thinking about it it's been two days'. By the following day you had deleted reference to your first victim from all your social media accounts.
16The same day your victim told a school friend that she had 'lost her virginity to a 15-year-old boy'. She also told her psychologist that she had 'lost her virginity on 11th of May 2021'. Her psychologist reported this disclosure to the Department of Health and Human Services. By 17 May 2021, your first victim was messaging you on social media, asking you to accept her 'friend request'. She did not hear from you again.
17On 15 May 2021, your first victim's mother first became aware of your crime. She contacted police, expressing concerns that her daughter had 'lost her virginity' to a man that was 'over age'. On 16 May 2021, your first victim and her mother attended the Werribee Police Multidisciplinary Centre where a disclosure statement was obtained. On 17 May 2021, your first victim and her mother again attended the same Werribee Police Centre and a videorecorded interview was conducted. At this time your first victim provided police with the login details for her Instagram account and police identified the conversations she had engaged in with you.
18On 20 May 2021, you began your offending conduct the subject of the second indictment to which you have pleaded guilty. In relation to the two charges on that indictment, your victim was a female who was 16 years of age at the time of the offending. I think it is actually 17 years of age, is it not, Ms Duckett? Is that right?
19MS DUCKETT: Yes, Your Honour.
20HIS HONOUR: Seventeen. Yes, I am mistaken there. So 17 years of age at the time of the offending. She was then residing with her father at an address in Tasmania. I shall refer to her as your second victim.
21Between 20 May and 31 May 2021, your second victim received and accepted a social media friend request from you. You then sent through a photograph of yourself and told her, again falsely and with intent to deceive, that you were 17 years old. Your second victim told you that she was 16 years of age. Now I think we got that wrong, I think she was in fact 16 years of age.
22MS DUCKETT: No, I am just double-checking that, Your Honour.
23HIS HONOUR: Could you do that?
24MS DUCKETT: I'm doing it right now.
25HIS HONOUR: Thank you very much. All right. Over the following week you asked your second victim for her mobile number. She gave it to you, enabling you to contact her through Snapchat and Facetime. You then started 'nagging' your second victim during live chats to show her breasts. Your second victim initially resisted but eventually gave in and sent you a picture of herself in her bedroom, topless. On receipt, you responded with the expression 'Wow' and sent your second victim a picture of your penis, asking her whether she 'liked it'.
26A couple of days later you started 'nagging' your second victim for more naked pictures, saying, 'Show me your body'. This made her uncomfortable but after some days she 'gave in to shut you up' and sent you pictures and videos of her breasts and vagina. That is the basis for Charge 2 on that indictment of using a carriage service to cause child abuse material to be transmitted to yourself.
27You and your second victim Facetimed nearly every second night. She described the relationship as an 'online friendship'. When you started telling her that you would come to Tasmania and stay in a hotel she queried how you would be able to do this as you were only 17 years of age.
28On 1 June 2021 at 6.40 am, police executed a search warrant at your home address and arrested you. When they arrived, police observed that you appeared to be 'in the middle of a Facetime' call to your second victim but that she was apparently asleep at the time. Your iPhone and iPad were then seized by police. You were taken to the Melbourne West police station where a recorded interview was conducted. During that interview you exercised your rights by making a 'no comment' response to the allegations put to you. You were charged and remanded in custody.
29Your iPhone was analysed, revealing contents as follows:
(1)conversations with two separate unknown females between 12 February 2021 and 22 March 2021 where you claimed respectively to be a 15 and a 16-year-old boy;
(2)one partial chat between you and your first victim;
(3)four photographs and one video of your first victim dated 11 May 2021 with a GPS location showing they were taken at her home address.
30Your iPad was also analysed, revealing, firstly, five emails about the Uber rides to and from your first victim's house late on 10 May and in the early hours of 11 May 2021. Your second victim's name was listed as one of your 'followers'. Further analysis revealed the relevant conversation history between you and your second victim. Attached to the Snapchat application and the conversation history and in the photo application an album was located containing a total of 58 photographs and videos of your second victim, of both an intimate and a non-intimate nature, that you had saved. There were also photographs sent to you by your second victim of her wearing underwear.
31Your iPhone analysis also revealed in relation to your second victim various items of child abuse material relevant to Charge 1 on the second indictment, namely:
(1)eight videos and eight photographs sent to you by your second victim of her exposed breasts;
(2)two images sent to you by her of her buttocks;
(3)a photograph and a video sent to you by her of her full body with her breasts and vagina exposed;
(4)an image also sent to you by her of a vagina and fingers, it not being possible to identify who those items belonged to; and
(5)a photograph sent to you by her on 20 May 2021 showing her breast and partial face.
32In a recently deleted file on your phone were images of a shirtless male pulling down his shorts with an erect penis that you had sent to your second victim. In one of those images the penis was covered by an emoji, but in three others it was not covered.
33Your offending and the fact that you will be sentenced for your offending is subject to the provisions of the Sex Offenders Registration Act 2004. Your plea of guilty to the offence of sexual penetration of a child under 16 years is a plea to a Class 1 offence, which alone requires upon sentence your mandatory registration for a period of 15 years.
34The two offences on the second indictment involving your second victim are both Class 2 offences, and as you were an adult at the time of this offending, registration as a sex offender is mandatory. Further, as you have pleaded guilty to and will be sentenced for both a Class 1 offence and one or more Class 2 offences, your mandatory registration under the Act is for life.
35Victim impact statements authored respectively by your first victim and her mother, marked Exhibits B and C on the plea hearing, are also relied upon by the prosecution. They illustrate the substantial harm the offending towards your first victim has caused. Also, why the law seeks to protect young people who are potential victims of such offending by prescribing substantial maximum sentences and why section 5A of the Victorian Sentencing Act now specifies a standard sentence of imprisonment of six years for that offence.
36Having regard only to the objective factors affecting the relative seriousness of that offending, particularly the very young age of your first victim, the gap of more than eight years between her age and yours, and your deliberate deception of her as to your true age, I regard the offences as falling into the middle of the range of seriousness for that offence within the meaning of
sub-ss.5A(1) and (3) Sentencing Act 1991 (Vic). I note that had your first victim been under the age of 12 years, the maximum penalty for your offending would have been imprisonment for 25 years and the standard sentence would have been imprisonment for 10 years.37At the hearing of the plea your counsel provided me with a helpful outline of plea submissions which is marked Exhibit 1, along with a number of other documents including a report dated 10 September 2021 from
Dr Loretta Evans, clinical neuropsychologist; a report dated 21 February 2023 from Peter Hanley, psychologist; a report dated 8 March 2023 from
Dr Michael Davis, consultant forensic clinical psychologist; a letter dated 25 February 2023 from your mother; family violence protection orders dated 17 February 2014 and 6 January 2021 respectively against your stepfather for the protection of you and your mother and in the later order for your protection from domestic violence of your stepfather; a document in the nature of a curriculum vitae in your name headed 'Career Summary'; a residential tenancy agreement in relation to your home address in Melbourne; and two Centrelink medical certificates evidencing your impaired capacity for work between 17 August 2022 and 17 February 2023 as a result of symptoms of anxiety and depression. There was also a job plan issued by Centrelink Disability Employment Services dated 16 February 2023.38I take the contents of all those documents into account and have noted your family background and educational history to which they speak.
39In addition, your mother and your aunt testified during the plea hearing, principally concerning the poor and latterly violent relationship between your stepfather and yourself leading up to you leaving your family home in Queensland and moving to Melbourne in April 2021. Dr Davis also testified during the plea hearing. I found both his report and his viva voce evidence particularly measured, informative and persuasive.
40Following adjournments of further plea and sentencing hearings to today's date, I received further written submissions from your counsel and from the prosecution on 21 August of 2021. I take those further submissions into account. I briefly heard further submissions viva voce from Mr Kounnas on your behalf today. Yesterday afternoon I received two further documents from your legal representatives, the further report from Peter Hanley dated 23 August 2023 and the note of an appointment made for 18 September 2023 for you to attend a Dr Michael Maloney, who I understand is a psychiatrist. No other information about the purpose of the appointment was provided until today and it has been explained to me that the basis upon which you were seeking to have the appointment with the psychiatrist is in essence to further your rehabilitation. That is relied upon as part of the material indicating that you are a willing participant in recommended rehabilitative measures, including seeking help for your mental impairments.
41Mr Hanley opined in his report that if you are imprisoned your 'social anxiety, depression, maladaptive coping, and underdeveloped social skills will make it difficult to cope with daily life in the prison environment' and 'the anxious attachment and dependence associated with [your] mental health problems would make [you] vulnerable to exploitation'.
42I take into account that you are 22 years of age. You were aged 20 at the time of the offending. You have no prior criminal record. I am satisfied on the whole of the evidence, including the report and testimony of Dr Davis and the reports of Dr Evans and Mr Hanley, that against a background of domestic conflict and abuse giving rise to the likelihood of impaired brain development, impaired psychosocial, emotional and academic development and immaturity, you continue to suffer from a number of mental and personality impairments. They currently include an episodic gambling disorder of mild severity, persistent depressive disorder with intermittent major depressive episodes and with anxious distress, the probability of post-traumatic stress disorder, avoidant personality disorder and some dependent personality features which, considered together with your other symptoms - including social anxiety, underdeveloped social skills and maladaptive coping - support the opinion that your personality function is between a moderate and severe level of impairment.
43It is not suggested that Verdins sentencing principles 1 to 4 are enlivened, but the evidence provides strong support for the application of Verdins principles 5 and 6. I also note concerns expressed strongly by Dr Davis as to the serious risk of you being victimised in the prison environment, particularly because you undoubtedly look considerably younger than your chronological age and, according to Dr Davis, are not equipped on an interpersonal level to act assertively if challenged or victimised by other inmates. Dr Davis opined that you do not have a paedophilic disorder and that you present a low-moderate risk of sexual recidivism.
44I accept your counsel's submission that you are an emotionally and developmentally immature person and were so at the time of the offending. It is my own observation from seeing you in court that you not only appear to be considerably younger than your chronological age but that your relatively slight and child-like appearance is likely to be seen as attractive to sexual predators that you may encounter in a prison environment. I would, of course, expect appropriate precautions to be taken by Corrections staff to protect you, but it seems inevitable that you will serve your time in custody in significant fear of unwelcome attention from other prisoners, whether they be older or younger than you, and that, consistent with the opinions of Dr Davis and
Mr Hanley, you are ill-equipped to act assertively if 'challenged or victimised'.45During his testimony Dr Davis described you in cross-examination as a 'timid, depressed, avoidant young man with a classic inadequate personality'. You found your experience of being remanded in custody for about a month following your arrest frightening, to a point where it induced suicidal ideation. I accept that you are terrified of being returned to custody. Your appearance, your immaturity, your mental and personality impairments support the conclusion that you will find serving a sentence of imprisonment considerably harder than someone without those characteristics. Accordingly, a substantial reduction in the length of any prison sentence that you may be required to serve is justified.
46Such a conclusion does not exhaust the court's options in the sentencing process to impose appropriate further forms of punishment to reflect the serious nature of your offending against your first victim. It is to your credit that you sought and obtained treatment from Mr Hanley following your release on bail between 16 August and at least March of this year and it seems that you are continuing to seek such treatment.
47You are to be treated as a youthful first-time offender. Despite the seriousness of the offence of sexual penetration of a 12-year-old child, rehabilitation must be regarded as a significant sentencing principle. I note in that regard that you have recently been working, that you have the continuing family support of your mother, that you excel at tennis and that your participation in that sport is prosocial. I regard your prospects of rehabilitation as good. Indeed, public protection can be served by promoting your rehabilitation to the extent other sentencing considerations permit. I think it unlikely you will offend again.
48I have been assisted by counsel as to current sentencing practice and to that end have been referred to decisions of the Court of Appeal, including Cooke v The Queen [2021] VSCA 70, Jenkins v The Queen [2021] VSCA 65, and Director of Public Prosecutions v Smith [2022] VSCA 4, all of which are of considerable assistance. I note, however, that no two cases are identical and each sentencing judgment must depend on the synthesis of a combination of its own relevant facts and circumstances.
49I accept that the offending the subject of the two charges on the second indictment, involving as they did only private communications between you and your second victim, is much less serious that the offence of sexual penetration of a child. I note that your second victim expressed continuing support for you in a social media communication sent to you after your offending conduct. I also accept that the offending of sexual penetration was not attended by some of the aggravating features sometimes present in such offending which were identified in your counsel's submissions.
50You are to be given full credit for the utilitarian value of your pleas of guilty and your early indication of such pleas. They were made whilst the effects of the COVID pandemic still linger and it is to be expected that time in custody will be more restrictive as a result. I also take into account the fact that the real prospect of you being sentenced to a term of imprisonment has been hanging over your head since 1 June of 2021.
51Despite the fact it has apparently taken you some time to appreciate the nature and extent of the harm your conduct has inflicted upon your first victim, I accept that there are signs you are remorseful for your offending beyond the mere fact of your pleas of guilty. However, the seriousness of the offence of engaging in sexual penetration with a child under the age of 16 years is such that I must give proper weight to the need for this court to denounce your conduct in strong terms, to punish you adequately, to deter others from engaging in similar offending, to deter you from similar offending, and to balance those factors against the need to promote your rehabilitation and to give proper effect to the principle of parsimony.
52You undoubtedly knew that what you were doing was unlawful and morally wrong. You knew your first victim was 12 years old from your first online contact with her. You set out to deceive her as to your age deliberately to enhance your prospects of success in seducing her. You engaged in penile-vaginal penetration without a condom. Although it is true that you withdrew your penis before ejaculating, you not only risked causing your victim an unwanted pregnancy, you left her with a real fear that she might actually have become pregnant.
53Upon your return home after your offending, you contacted your victim to check that she had destroyed the evidence of your presence in her home by flushing away the tissues used to clean up your ejaculate. A few days later, despite your victim telling you that she feared she might be pregnant, you brushed off her concern and deleted all reference to her from your social media accounts. I take into account the victim impact statements relating to that offending and I must also pay proper regard to the standard sentence for that offence.
54I have endeavoured to do so in the sentence I have selected, having regard to the matters relied upon by your counsel in mitigation, particularly your immaturity, both now and at the time of your offending, your mental and personality impairments, the risks arising from your personal appearance, your immaturity and vulnerability in the prison system, together with your extreme fear of those risks which have previously induced suicidal ideation. I regard those factors in combination as requiring a degree of leniency and mercy in sentencing that the consideration of your offending conduct in isolation could not justify.
55As for the second indictment, having regard to the respective ages of you and your second victim – is it 16? Did you check on that?
56MS DUCKETT: Sorry, it is 16, Your Honour.
57HIS HONOUR: Sixteen, is it?
58MS DUCKETT: Yes.
59HIS HONOUR: Your second victim being aged 16 at the time and you being 20 at the time, the nature of your relationship with her and the absence of any suggestion that you intended to share the child abuse material with others, I do not regard those offences, either alone or in combination, as sufficiently serious to require a sentence of imprisonment. In relation to Charge 2 on that indictment contrary to Commonwealth law I have had regard to s16A(1) and the relevant parts of s16A(2), s17A and s20(1)(a) of the Crimes Act 1914 (Cth) in selecting an appropriate sentence.
60In paragraphs 7 and 9 of its written sentencing submissions dated 21 August 2023, the prosecution submits that the offending on each charge on the second indictment 'falls into the low range for that offence'. I agree. I was persuaded by your counsel to consider sentencing you to a community correction order or at worst to a combination of a moderate term of imprisonment followed by a community correction order. You have been assessed as suitable for a community correction order in both a Community Corrections assessment report and by Forensicare. I note that in paragraph 19 of its sentencing submissions the prosecution has indicated that it 'does not take issue' with paragraph 48 of the defence written submissions that a 'significant CCO is not out of range due to the particulars of this case and [your] vulnerabilities'.
61Nevertheless, I agree with the prosecution written submission in paragraph 5 that the 'offending falls somewhere at the mid-range for this offence'. Ultimately, the prosecution submits in paragraph 31 of its sentencing submissions that the offending ‘warrants the imposition of a term of imprisonment with the fixing of an appropriate non-parole period'.
62In my judgment, despite the persuasive nature of your counsel's submissions as to the imposition of a community correction order alone, the seriousness of the offending against your first victim demands a term of imprisonment for that offence, but subject to your consent I intend to impose a sentence that combines a term of imprisonment with a community correction order containing further substantial punitive conditions as well as rehabilitative conditions.
63The community correction order would commence at the conclusion of the sentence of imprisonment. I cannot do that without your consent. I note that the community correction order that I have in mind would also effectively act as a suspended sentence hanging over your head for the period of the order, which will provide added disincentive against breaching the order by further offending.
64In order to proceed to sentence I need to explain the terms of the proposed community correction order. The order that I would propose is that at the conclusion of your sentence of imprisonment you would be required to attend the Melbourne Community Correctional Services at 50 Franklin Street, Melbourne Vic 3000 within two clear working days after your release from detention.
65The mandatory terms of the order in addition to that term are that:
- 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, which requires you to ensure that you turn up for appointments and for any unpaid community work without being drug-affected or alcohol-affected;
- you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;
- you must let a community correction 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 of the Department of Justice or his or her delegate; and
- you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.
66Those are the mandatory conditions. In addition I would impose the following further conditions. Firstly, that you must perform 350 hours of unpaid community work over the period of three years as directed by the regional manager. I would order that 150 hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with that order the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
67There would also be a condition that you must be under the supervision of a community corrections officer for the period of three years during which the order is in force. Further, that you must undergo mental health assessment and treatment that may include psychological and neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager, and that you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
68Mr Kounnas, I daresay you have discussed, at least in prospect, the question of a community correction order. Would you like a moment with your client to discuss the terms that I have outlined?
69MR KOUNNAS: We have discussed it, Your Honour, but yes, if I could take that moment.
70HIS HONOUR: Yes.
71MR KOUNNAS: Thank you, Your Honour.
72HIS HONOUR: Do you want to borrow the copy that I have just been reading from? It is a draft.
73MR KOUNNAS: I think it is quite clear, Your Honour, thank you.
74HIS HONOUR: All right.
75MR KOUNNAS: Thank you, Your Honour. Mr Sullivan is a little bit emotional but he does understand the matters.
76HIS HONOUR: Yes, and is he willing to comply with the terms of that order?
77MR KOUNNAS: He is, Your Honour, yes.
78HIS HONOUR: Thank you. I now proceed to pass sentence. Tyler Sullivan, for the offence of sexual penetration of a child under 16 years you are convicted and sentenced to imprisonment for 12 months. The total effective sentence is imprisonment for 12 months. There is pre-sentence detention?
79MS DUCKETT: Thirty days, Your Honour.
80HIS HONOUR: I declare 30 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from that sentence.
81I also order that for that offence you be the subject of a community correction order for a period of three years in the terms that I have outlined to you. I need to warn you that if you were to commit an offence punishable by imprisonment during the period during which the order is in force you would be potentially up for a term of imprisonment of three months for merely breaching the order, but you would also be likely to be brought back before this court, probably before me, and you could be resentenced for the offence to which the order relates. That might mean an order for a further term of imprisonment.
82If it happens that during the term of the order you are unable to comply with any of the conditions of the order, including the unpaid work component of the order, then you may apply for variation of the order or even a discharge of the order. I think that if such a circumstance were to arise you would be wise to seek legal assistance in making an application to the court for such a variation.
83For the offence of possessing child abuse material, which is Charge 1 on the second indictment, you are convicted and sentenced to a separate community correction order but in identical terms to the community correction order that I impose for the offence of sexual penetration of a child under the age of 16 years. Effectively, the two orders would run in parallel and concurrently and that second order would commence upon your release from custody from the sentence of imprisonment that I have imposed.
84For the offence of using a carriage service to cause child abuse material to be transmitted to yourself you are convicted, and pursuant to s20(1)(a) of the Crimes Act 1914 (Cth) I order your release without passing sentence on you upon you giving security by way of recognisance in the sum of $3000 to be of good behaviour for a period of four years from today. Effectively, that would therefore run in parallel with the community correction order in maintaining the capacity of this court to deal further with you for that offence if you were to breach the terms of your recognisance.
85Those orders will have to be compiled and you will have to sign them in due course.
86I declare that but for your pleas of guilty I would have sentenced you to imprisonment for a period of four years with a non-parole period of two years and eight months.
87I should add that there are custody management issues which I think need to be noted on the record.
88MR KOUNNAS: Yes.
89HIS HONOUR: My associate has drafted something which I think probably covers the issues. Custody management issues that are proposed are protection from other prisoners, risk of self-harm, suicide risk, vulnerable due to age and/or appearance. Does that satisfactorily cover them?
90MR KOUNNAS: It does, Your Honour, but there's one more that I'd ask to be added to that and that is that he be seen by the nurse on his immediate attendance.
91HIS HONOUR: Seen by a nurse?
92MR KOUNNAS: By the nurse. It's my understanding that will expedite the effect of the other conditions that Your Honour listed.
93HIS HONOUR: Yes, all right. Unless there's any objection?
94MS DUCKETT: No, of course not, Your Honour.
95HIS HONOUR: I will add that, I think. That he be seen by a nurse - - -
96MR KOUNNAS: In the custody centre. It might be that it's at MAP, it might be that it's here. It's a matter internally dealt with.
97HIS HONOUR: At the earliest reasonable opportunity.
98MR KOUNNAS: Thank you, Your Honour
99HIS HONOUR: After going into custody.
100MR KOUNNAS: Thank you.
101HIS HONOUR: Those additional words will be added to the order. Now I am going to give you an opportunity of discussing the terms of the recognisance order I have made in respect of Charge 2 on the second indictment.
102MR KOUNNAS: Yes.
103HIS HONOUR: That will have to be drafted up. You have got the capacity to do that or your instructor has, I have no doubt, Ms Duckett?
104MS DUCKETT: Mr Donaghy will look into it, Your Honour. My actual instructor is not here today, but of course someone - - -
105HIS HONOUR: Yes, the Commonwealth of course use the pro formas that are easily filled in.
106MS DUCKETT: Yes.
107HIS HONOUR: It needs to be prepared and he will have to sign it. So your client will have to sign such an order and that will be prepared. I am going to stand down now for such time as is necessary for those documents to be prepared, the community correction orders and the recognisance order. There is also the notification of reporting documents that need to be compiled and signed.
108MR KOUNNAS: Yes, I'll run Mr Sullivan through those.
109HIS HONOUR: I will leave the Bench for a few minutes whilst those documents are prepared.
110(Short adjournment.)
111HIS HONOUR: Tyler Sullivan, just dealing with the recognisance order that I outlined in respect of Charge 2 on the second indictment, I have to explain to you the purposes and effect of the order. The purpose of the order is to ensure that you are not punished for the offence provided you be of good behaviour, that is, not commit another offence punishable by imprisonment during the term of the order which commences today and will be in place for a period of four years.
112If you do breach the recognisance by committing another offence punishable by imprisonment then you may be brought back before this court and I may then pass sentence upon the offence in light of the fact that you have failed to comply with the terms of the order. The order may be discharged or varied under s20AA of the Crimes Act 1914 (Cth) and it is necessary for you to agree to be bound in accordance with the order. If you do not agree then I cannot impose the order and I would have to proceed to pass sentence upon you. You will be required to sign this document which not only acknowledges what I have just told you but also acknowledges that you have agreed that you have been given a copy of the order.
113Do you follow all that?
114OFFENDER: Yes, I do, Your Honour.
115HIS HONOUR: I am going to ask your counsel to supervise you signing the declaration that I have just read and the community correction orders and then I will countersign the documents.
116MR KOUNNAS: Thank you, Your Honour. Can I just be excused from the Bar table for that purpose?
117HIS HONOUR: Yes, certainly. Also there is the signature I think on the reporting conditions.
118MR KOUNNAS: Yes, I have explained all that to Mr Sullivan.
119HIS HONOUR: If you could do all those as a bulk job if you wouldn't mind please.
120MR KOUNNAS: Of course, yes.
121HIS HONOUR: Thank you. My associate will bring all the documents up to you.
122MR KOUNNAS: Thank you, Your Honour.
123HIS HONOUR: For the sake of clarity if it was not clear, the recognisance order commences today.
124MR KOUNNAS: As the court pleases.
125HIS HONOUR: Thank you.
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