Director of Public Prosecutions v Theophanous
[2017] VCC 1635
•9 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01125
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARIOS THEOPHANOUS |
---
| JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 9 November 2017 |
| CASE MAY BE CITED AS: | DPP v Theophanous |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1635 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | |
| For the Accused | Mr C. Wareham |
Pages 1 - 22
HIS HONOUR:
1Marios Theophanous, you are to sentenced for one charge of using a carriage service groom a person you believed to be under 16 and one charge of using such a service to solicit child pornography. These are offences under s.474.27(1) and s.474.19 of the Commonwealth Criminal Code. The respective maximum sentences are 12 years and 15 years' imprisonment. Respective alternative maximum fines are $10,800 and $13,500.
2You pleaded guilty before me on 19 October 2017. When interviewed on the police 21 November 2016, fundamentally you confessed the offending. At points, you minimised its seriousness by claiming that you knew the subject of your messaging was not a real person. You were charged with the grooming offence then. The additional charge of soliciting child pornography was laid in March 2017. On 2 June, the committal went by hand-up brief and you entered pleas of guilty. The matter was then listed for plea hearing in this court. I accept that prior to committal there was potential contest as to whether the grooming charge carried the intention of actual sexual activity or what is called "virtual or cybersex". It resolved in the Crown's concession of the lesser intention. In this regard, I have been directed to the provisions of s.474.27 and of the statutory definition of the terms "sexual activity" and "engage in sexual activity".
3You will receive the benefit of your plea of guilty and the cooperation that history of the proceeding shows. You have facilitated the interests of justice and I have been persuaded that you are genuinely remorseful.
4At your plea hearing, also on 19 October, Mr Crouch for the Crown tendered a written Crown opening and filed written submissions on sentence. He provided a short schedule of so-called comparative cases.. Mr Kassimatis QC who appeared for you with Mr Wareham tendered the psychological report of Patrick Newton dated 12 October 2017 and letters of character reference by your wife and members of her family. He called Mr Newton to give evidence on your behalf. Mr Kassimatis provided a written outline of submissions on sentence and also the Court of Appeal judgment of Meadows v The Queen [2017] VSCA 290. This is included Mr Crouch's schedule of cases. I was also provided with a folder containing transcript of comparative cases.
5The circumstances of your offending are comprehensively set out in the tendered Crown opening which is tendered as Exhibit A. My own summary may therefore be shorter.
6You committed this offending between 22 October and
9 December 2015. The Crown opening states that on the first date you met a covert police officer on an internet chatroom. The covert was posing as a 14-year-old girl.7On my reckoning, you were 37. You did not disguise your age, stating that you were 38. You quickly raised sexual matters and what you termed "webcam sex". You added each other to Skype but the visual aspect did not materialise. Between 22 October and 4 December, there were several, albeit brief conversations. You raised masturbation and orgasm, both by her; essentially that you would teach her. You spoke of future sexual relations when she was 18 and 16. You pressed her for webcam exchange and, in quite graphic way, requested explicit images of her. In that context, you spoke of oral sex with her. You sent an image of your erect penis. These requests for her images, made in one conversation on 4 December, make out the charge of soliciting child pornography.
8There was talk of meeting in Queensland where she said she lived. I bear in mind that this is to be seen as part of the charge or grooming toward "virtual sex". You did not intend an actual meeting or actual sexual activity.
9The apparently longer 4 December conversation was the last of relevance. I find, as Mr Kassimatis set out, that your last engagement was on 29 December which lies outside the period of offending. You did not respond to a number of further attempts by the covert to initiate conversation. I accept that you stopped contact and did not respond of your own accord. This was 11 months prior to your arrest.
10Police raided your home on 21 November 2016. As pointed out by
Mr Kassimatis, an extensive, expert search of your computer revealed no child pornography, no evidence of past or other offending and no evidence of offending in the 11 months since you stopped the communication.11You are now a 39-year-old man with no criminal record. You are married with a daughter aged five. Your wife, although distressed with what you have done, remains supportive of you.
12You are an only child born in London, to Greek Cypriot parents. Your upbringing was difficult and it seems without strong nurturing support. Your father drank and gambled, causing conflict. He died in 1997. Your mother has remarried and lives in Cyprus. She is aged and in poor health. You have a good relationship with her and her husband.
13You were educated in England and then in Cyprus, when the family moved there. After school, you did compulsory military service in Cyprus. Then you worked in hotels, studied hospitality management, and, since, have worked mainly in sales. You are presently employed as a sales executive. Employment over time has been consistent.
14You had a relatively long term relationship in your mid-20s. There were no children. You met and then married your wife in your late 20s. You seemed to have lived in Cyprus for a time and came here some years ago. It is not clear. You are a permanent resident of Australia.
15Psychologist Patrick Newton describes a strong bond to your wife and child but also that problems developed in your sexual relationship, perhaps or in part related to difficulties conceiving a second child. Mr Newton diagnoses adjustment disorder with depressed mood, I would think largely in response to your present predicament. He also describes a personality "characterised by introversion, shyness and awkwardness". These factors and your sexual relationship difficulties are put as context for your movement toward masturbation, online pornography, sexualised and cybersex online engagement (both of adult kind; but then such internet involvement with younger sites). It became, Mr Newton says, compulsive behaviour.
16In my experience, these matters or explanation are not unusual in respect of offending such as this. Ordinarily, they are outweighed by adverse sentencing considerations such as general deterrence.
17Mr Newton states concerns related to sexual arousal and your interest in younger women and under-aged girls. He also states good progress in treatment with another psychologist in his practice. Ultimately, he assesses low to moderate risk of reoffending.
18As my earlier description seeks to show, this was serious offending directed toward what you believed to be a 14-year-old girl. Your communications were at times very expressely sexual and exploitative. Your aim was not actual or physical activity, but you sought her involvement in your sexual gratification. On 4 December 2016, you sent a highly sexualised image to her and sought images of her. Grooming and sexual exploitation of children within electronic systems is seen to be a community problem. Covert operations such as here seek to address it. In such circumstances, the sentencing considerations and purposes of deterrence, moral culpability, the need to condemn such conduct and to proportionately punish it are all relevant. General deterrence, aimed at protection of the community's young, is particularly important.
19Properly, Mr Crouch for the Crown submits that the serious nature of the offending and these sentencing considerations, particularly general deterrence, make necessary a term of actually served imprisonment.
20The cases provided make clear that offending such as this usually requires such a sentence. However, ultimately, I have come to the view that there are a number of matters which go in combination to make this a case out of the ordinary realm and in which actual imprisonment is not necessary to meet the relevant sentencing purposes. These matter include the following.
21(1). You have pleaded guilty and I find you to be genuinely remorseful.
22(2). You have no criminal history and are otherwise a person of good character. I recognise that, in cases such as this good character, may have lesser importance. However, in my view here, it remains as a part of the sentencing equation.
23(3). You have addressed your problem, that is by counselling; and I see you as having good prospects for rehabilitation.
24(4). I accept the proposition of Mr Kassimatis that the circumstances of your offending do not feature some common adverse factors. For example, your purpose was not to meet or have actual sexual activity. There was not coercion or inducement. You stopped; and that remained so for almost a year before arrest. There is no basis upon which to find the offending may have resumed.
25(5). The offending began in the progressive way described by Mr Newton and in the context of your personal and psychological vulnerabilities.
26(6). There has been delay overall of about two years since offending but particularly a period of almost 12 months between then and arrest. You have moved significantly toward rehabilitation over that time.
27The matters identified thus far would not have themselves justify a sentence without actual custody. However, I see that there are important additional factors.
28(7). I am persuaded by the evidence of Mr Newton that you ended the offending in at least significant part because you recognised its wrongness and were motivated by what I would find to be an ethical desire to end it. Mr Newton described this as unusual in such cases. He used the phrase "almost unique" in his experience.
29(8). Your behaviour since, particularly that there was no resumption over almost a year, is consistent with this. I accept that you are a man who wishes to reform because such offending conflicts with your values and otherwise pro-social character.
30(9). You have voluntarily sought treatment since your arrest. I accept the proposition that you are not motivated only by your forensic predicament. On the evidence of Mr Newton, you have made progress and developed improved insight. Such treatment is to continue. It is the combination of all these matters that persuades me.
31I also bear in mind the principle stated in s.17A(1) of the Crimes Act (Cth),
"A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."
32I take this principle also to refer more broadly to the question of whether to impose actual imprisonment or not. Such an interpretation is consistent with long term sentencing considerations.
33The appropriate sentence must be a term of imprisonment; however, I shall sentence to allow your release to serve that on recognizance today. I shall also impose a substantial fine. There should be an appropriate and apparent element of punishment for offending such as this.
34I have considered the comparative cases provided. There is a range of sentences and different offences and circumstances of this type; that is, under s.474.26 and 27. I also bear in mind the principles stated in the recent High Court case of Dalgliesh.
35I apply the principle of totality. Charge 2 is very closely aligned with Charge 1. It can be seen as a part of the offending under Charge 1.
36Now, what I propose, Mr Crouch and Mr Wareham, is a total sentence of 12 months with a recognizance release today; $5000; recognizance period, two years; and I propose imposing a condition that he continue and comply with his present treatment with psychologist, Peter Hanley, or his nominee. I propose in addition to fine him $4000 on Charge 1 and $1000 on Charge 2. It is a question of how that gets structured.
37Mr Crouch, I do not remember if there was or was not some discussion whether an aggregate term was available under Commonwealth law.
38MR CROUCH: It is available, Your Honour.
39HIS HONOUR: It would be the appropriate sentence, would it not?
40MR CROUCH: Yes.
41HIS HONOUR: Otherwise - just to make it clear, I would impose a sentence under Charge 1 of 12 months and a sentence under Charge 2 of three months and I would make no order, thereby they would run concurrently. So having said that, I will impose an aggregate term of 12 months with that recognizance release and then I think you have indicated to me that I can then on Charge 1 impose additionally the fine of $4000 and on Charge 2, $1000. I do not think it matters that I - bearing in mind your advice to me about the ability or the power to impose imprisonment and fine, I do not think it matters that impose an aggregate term incorporating both charges and then two separate fines, or does it?
42MR CROUCH: No, in my submission, it does not, Your Honour.
43HIS HONOUR: Yes. I think I have made clear what ‑ ‑ ‑
44MR CROUCH: Because the fines are just separate orders.
45HIS HONOUR: Yes, yes. All right.
46MR CROUCH: Yes.
47HIS HONOUR: Do you want to say anything about that?
48MR WAREHAM: No, Your Honour.
49HIS HONOUR: All right. So I think I need to resolve the matter of the sentencing registration period, do I not?
50COUNSEL: Yes, Your Honour.
51HIS HONOUR: All right. Now, what are the competing arguments here? Bearing in mind that I am going to release him, should he come out of the dock now or should he remain there until the recognizance is prepared? I think he probably should remain where he is. Yes, all right.
52MR CROUCH: As Your Honour pleases.
53HIS HONOUR: Right. Now, where do I go?
54MR CROUCH: Well, Your Honour, it is dealt with in the Sex Offenders Registration Act. I do have a copy of the relevant provisions but I think I only have one with me today.
55HIS HONOUR: I have got a copy here. All right. Now, what section do I go to?
56MR CROUCH: Yes, Your Honour. So the key section really is s.5(1), but I will - that is the section where there is some dispute.
57HIS HONOUR: Should I read that now or do you want to take me to something else first?
58MR CROUCH: Yes, I will take Your Honour through the sections if that is helpful.
59HIS HONOUR: Yes.
60MR CROUCH: So s.34(1) paragraph B ‑ ‑ ‑
61HIS HONOUR: Just let me get there. There have been a lot of amendments to this Act.
62MR CROUCH: Yes, Your Honour.
63HIS HONOUR: Section 34. Did you say 34(1B)?
64MR CROUCH: Yes, Your Honour.
65HIS HONOUR: Yes, that has got an amendment plastered over it. Is that headed "reduced period apply, no juvenile" - no, that would not apply.
66MR CROUCH: No, Your Honour. If it is of assistance perhaps I should just hand up my copy.
67HIS HONOUR: Yes. This hard copy has been butchered by the pasting into it of amendments. There needs to be another version. Good. Thank you. Thirty-four, 1B. And that is 34, sub-s.1, part B? Yes?
68MR CROUCH: Yes, Your Honour. Now, my submission is that that is the provision that applies to this situation. There is no dispute that these two offences fall within that.
69HIS HONOUR: So it is a single Class 1 offence?
70MR CROUCH: Yes, Your Honour.
71HIS HONOUR: All right.
72MR CROUCH: Now, there is a provision which my friend, Mr Kassimatis, took Your Honour to which basically says that if there are two offences arising out of the same - I think the phrase is - if there are two offences ‑ ‑ ‑
73HIS HONOUR: I did not receive any written submission about this that I remember. Did I?
74MR WAREHAM: Yes, submissions were made on the day, Your Honour.
75HIS HONOUR: Yes. Orally?
76MR WAREHAM: Orally, yes, Your Honour.
77HIS HONOUR: Do you want to - --
78MR WAREHAM: I do not have a copy of that.
79HIS HONOUR: Who wants to sit down and who wants to stand up?
80MR WAREHAM: I will make the submissions that were made by Mr Kassimatis on the last occasion.
81HIS HONOUR: You can have a rest, Mr Crouch. You have already been of considerable assistance.
82MR WAREHAM: If it is of assistance, it is in the written submissions. It is on the last page ‑ ‑ ‑
83HIS HONOUR: Are they?
84MR CROUCH: ‑ ‑ ‑ as an appendix.
85MR WAREHAM: Yes, Your Honour. Mr Kassimatis' and my submissions are a postscript that was to our written submissions.
86HIS HONOUR: I see. Yes. All right.
87MR WAREHAM: But there was an alternate submission that was made on the previous occasion was that on a between-dates charge which is what this was ‑ ‑ ‑
88HIS HONOUR: Yes.
89MR WAREHAM: ‑ ‑ ‑ that it would then never be possible to rely on the balling up, I suppose, or the binding up of the two offences with the actus reus of the offending occurred within two days.
90HIS HONOUR: Do I need to go to s.5(1) to understand this bit? Is that the section ‑ ‑ ‑
91MR WAREHAM: Section 5(1) is the definition of between - within 24 hours, I think, is the ‑ ‑ ‑
92HIS HONOUR: Yes.
93MR WAREHAM: The submission that was made was that the offending that occurs here is between dates.
94HIS HONOUR: Yes.
95MR TERRY: That ultimately the submission was made that because of that, because of the way the Crown put their case, that he should be entitled to the benefit of the s.36(1B) or whatever - 34 ‑ ‑ ‑
96HIS HONOUR: It is 36(1B), is it?
97MR WAREHAM: Thirty - sorry, 34(3). Just give me one second, Your Honour.
98HIS HONOUR: All right. I will read it now.
99MR WAREHAM: Thirty-four 1B.
100HIS HONOUR: I will read it out.
"And for the purpose of this section, two or more offences arising from the same incident are to be treated as a single offence."
101Then B,
"Two or more offences arising from the same incident are to be treated as a single Class 1 offence."
102All right. Well, they both apply. And now ‑ ‑ ‑
103MR WAREHAM: It is the incident as a whole that ‑ ‑ ‑
104HIS HONOUR: It is the incident and the incident is defined, is that the right term, in s.5?
105MR WAREHAM: I do not believe that - I do not think the incident is defined.
106HIS HONOUR: Well, some assistance is given by s.5.
107MR WAREHAM: Yes, Your Honour.
108HIS HONOUR: Well, the fact the limb poses a temporal limit in s.5 gives some flavour or meaning to what is meant by "same incident", does it not? That it encourages the view that "same incident" should be interpreted as the language suggests. An incident is an isolated event, is it not?
109MR WAREHAM: Well, the submission would be if Parliament had intended for the incident to be an act, a charged act, then it would have been - the word "charged" would relate to the incident. They are using "incident" as a - the submission would be that the term "incident" is not charged itself but rather looking at how the offending occurred, rather than a specific charge in the legal sense.
110HIS HONOUR: Now, s.34 - so you are talking about a single Class 1 offence. He has been found guilty of a single Class 1 offence but then - and so the circumstances meet that test, so but then I go to 34(3) and that gives some further meaning ‑ ‑ ‑
111MR WAREHAM: Yes. I think Mr Kassimatis' submissions state at postscript point 2, the operation of s.34(3A), Mr Theophanous would be required to comply with reporting obligations for only eight years. I have a copy of ‑ ‑ ‑
112HIS HONOUR: Sub-section 3 is a section that gives relief to an offender who has been - on the face of it has been found guilty of a single Class 1 offence, does it not? Because does it not say - no. No, it does not give relief. Well, let me think on that.
113MR WAREHAM: The purpose of this section - two or more offences relating to the same incident are to be treated as a single offence. Now, it says "incident" and then refers to ‑ ‑ ‑
114HIS HONOUR: I just want to reflect on what you have said for the moment. Just give me a moment. Now, it is a reporting period of life if you are found guilty of two or more Class 1 offences.
115MR WAREHAM: Yes, Your Honour.
116HIS HONOUR: It is hardly 15 years if you are found guilty of one.
117MR CROUCH: Your Honour, if I can be of assistance, there are Class 2 offences.
118MR WAREHAM: Yes, yes.
119HIS HONOUR: I am sorry. Are they?
120MR WAREHAM: Yes, Your Honour.
121HIS HONOUR: That is what I was grappling with. I see. I see. So two. So the issue is not what I was moving towards. It is whether or not I should act under Part B(ii) of 34(1). Now, he has been found guilty of two Class 2 offences. That is right.
122MR WAREHAM: That is right. And they arise out of the same incident. Now, the section refers to "incidences" and "offences". "Incident", in my submission, would be the terms and circumstances of the offending, not the charged act.
123HIS HONOUR: You look at the notion of incident in order to make good sub-s.3.
124MR WAREHAM: As Your Honour indicated the way the Crown case was put was that in some ways Charge 2 was a way to get to the grooming.
125HIS HONOUR: Well, that is right. That justifies concurrency.
126MR WAREHAM: That is the incident, in my submission.
127HIS HONOUR: Well, the incident is more likely to be the conversation on
4 December, is it not?128MR WAREHAM: Well, it is the circumstances of the offending that are the incident. And as Your Honour has found in sentencing that it is the Charge 2 - forms part of Charge 1 or vice versa.
129HIS HONOUR: Wait, Charge 2 - I mean I said it could be seen as forming a part of it. I mean we could have a long discussion about whether or not that is right.
130MR WAREHAM: I accept that, Your Honour.
131HIS HONOUR: It justifies the comment I made in my sentencing reasons. It was an attempt to justify or to explain concurrency.
132MR WAREHAM: I highly accept that, Your Honour.
133HIS HONOUR: Yes.
134MR WAREHAM: But when you look at incident charged, I say that incident is synonym for circumstances of offending for want of a ‑ ‑ ‑
135HIS HONOUR: You say not only is Charge 1 the activity over the period?
136MR WAREHAM: Yes.
137HIS HONOUR: But it is the incident.
138MR WAREHAM: Yes.
139HIS HONOUR: Well, it seems to me that it is likely the legislature or the word "incident" has been included in the Act because its common meaning is suggestive of an isolated event. An incident, if you looked at a dictionary, I thought it would have that connotation, would it not?
140MR WAREHAM: Well, if that was the interpretation, it would mean that in terms of rolled up - how would a person then be sentenced on a rolled up charge if there was a period of one charge of - one charge of two offence, say, that contained effectively allegations of other Charge 2 offending within one span of time. He would then be ‑ ‑ ‑
141HIS HONOUR: Well, that is ‑ ‑ ‑
142MR WAREHAM: He would then be liable for, say, 15 years and my submission is that the Act does not - that is not the intention of the Act. The Act makes clear distinctions between incidences of offending. This is offending that occurs within a charged period of, I think it is - insofar as the submissions on the last occasion were in respect of when the actus reus falls and how that will affect an inability of a person on a between-dates charge to avail themselves of 34(2B) ever.
143HIS HONOUR: But that might - we may need to examine that. We may not. But that may be the intention of the Act because you could look at in the this way, that they are a series of incidents making out the Charge 1 and they would be the conversations.
144MR WAREHAM: But it was never - it was not put like that by the Crown on the plea, Your Honour.
145HIS HONOUR: Well, in a sense it was. There is only one charge because the forensic reality is that consistent with the nature of the offence that is set out in the section. It would be very difficult to - it would be more difficult to make out the offence of grooming with one conversation. You look at a period of activity or conduct and then make an assessment whether it meets the section. But then it not mean that there are not several incidents contained within them.
146MR WAREHAM: Indeed, Your Honour. And it would be - I agree that it would be very difficult to out a charge of grooming on one ‑ ‑ ‑
147HIS HONOUR: Yes, I mean that might not be the end of this question. But I think your difficulty is that incident - I am obliged to interpret this in accordance with what the plain language of the sections mean unless there is something in the purpose of the Act or in some way extraneous but directly interpretation that tells me to do it otherwise. So I suppose it boils down to this. Let us just deal with what the word "incident" means. Can you tell me that it means anything more prolonged or extended than an isolated event? Such as a phone conversation.
148MR WAREHAM: Not as I stand, Your Honour, I cannot point to an indication that that ‑ ‑ ‑
149HIS HONOUR: I think that is the problem you have got. And it might end up with a harsh result for you but I think that to the extent that I look - although I do not think I need to - the extent to which I look at the broad purpose of the Act, I think the Act intends to bring within its province certain offenders and impose obligations on them in order to protect the community and when you have got a situation in which the plain meaning of the word "incident" is consistent with 15 years' period of reporting, I see nothing in the Act or the purpose of it or anything else that should persuade me otherwise.
150MR WAREHAM: As I say, I rely on the submission made by Mr Kassimatis on the last occasion and I do finally make the submission then might - that "incident" should be read as "circumstances of offending" for the purposes of this.
151HIS HONOUR: In a ‑ ‑ ‑
152MR WAREHAM: In a holistic look at how the offending occurs, how the charges are put, when the actus reus of the second element or the second charge falls within a charged period - a between-dates charged period, and that the Act specifically provides that where people are charged with two charge - two offences that occur under the same incident that the period of reporting is reduced from 15 years to that of eight. But the submission I make, Your Honour, is that is completely consistent with the purpose and intention of what is onerous reporting conditions. If Parliament had intended for egregiously harsh situations like in this - would fall in this situation, where this man would be required to report for 15 years effectively for two charges ‑ ‑ ‑
153HIS HONOUR: As opposed to eight?
154MR WAREHAM: As opposed to eight. That would need to be ‑ ‑ ‑
155HIS HONOUR: Which is a pretty tough regime anyway, is it not?
156MR WAREHAM: I am sorry. Eight years?
157HIS HONOUR: Yes. It is a tough regime anyway.
158MR WAREHAM: I accept that, Your Honour. But it is almost twice as tough if he ends up with 15.
159HIS HONOUR: Yes. But I think this Act, I mean it is always difficult and probably dangerous to engage in lengthy discussion about what the whole purpose or all of the purpose of a piece of legislation are but I think you can pretty safely say that this is an Act that is directed at the need, the perceived need for community protection and that is its main aim and what impact harsh or otherwise it might have on those who have been convicted of such offending is a secondary matter.
160MR WAREHAM: I do not disagree with that, Your Honour.
161HIS HONOUR: Yes.
162MR WAREHAM: And I certainly do not disagree with Your Honour's characterisation of the purpose of the Act. What I - the submission though is the Act provides for a reduced period of reporting or - sorry, or registration and concomitant obligations under that reporting and registration, a regime where offending is bound up in that incident.
163HIS HONOUR: Yes.
164MR WAREHAM: Now, "incident" is as Your Honour and I have been discussing ‑ ‑ ‑
165HIS HONOUR: I think our exchange about that means I think ‑ ‑ ‑
166MR WAREHAM: Is clear and I do not propose to traverse it.
167HIS HONOUR: ‑ ‑ ‑ that can come to an end. Look, this may or may not help you. My view is that the plain meaning of "incident" is an isolated confined one. What do you say about sub-s.5(1)? Because it enables if you like or extends, if you like - no, that is probably not fair. It says it can arise from the same incident if they were committed within a single period of 24 hours. So you might argue that speaks against how confined a meaning "incident" has or you could argue that that is the end of it.
168MR WAREHAM: Just bear with me one second.
169HIS HONOUR: You can extend it to 24 hours but there it ends - sub-s.5(1). I tend to think it is the second. Have you got the ‑ ‑ ‑
170MR WAREHAM: I have got the section here, Your Honour. I am just trying to ‑ ‑ ‑
171HIS HONOUR: In fact it uses the word "only" but it is pretty confined itself, is it not?
"It arises from the same incident only if they are committed within a single period of 24 hours."
172I think it ends up being - probably being against you. While this is happening, Mr Crouch ‑ ‑ ‑
173MR WAREHAM: Yes.
174HIS HONOUR: ‑ ‑ ‑ do you prepare the recognizance document or does my staff?
175MR CROUCH: It can be either way, Your Honour. I have got a pro forma here that just needs to be filled in. Perhaps if I hand them up and Your Honour's associate can do it.
176HIS HONOUR: All right.
177MR CROUCH: I could do it, I am being told but ‑ ‑ ‑
178HIS HONOUR: That is what I think usually happens.
179MR CROUCH: Yes.
180HIS HONOUR: We will get to that.
181MR WAREHAM: Your Honour, I rely on submissions I have made. In terms of this, my recollection of how the charges are actually put in respect of that 24-hour issue, it is not sufficiently clear. To enable me to engage in that kind of level of detail.
182HIS HONOUR: Yes. Look, I have heard what you meant to say and I have heard what Mr Kassimatis had to say and has put. I think the proper interpretation is consistent with a 15-year period and that is what I will do .
183MR WAREHAM: As Your Honour pleases.
184HIS HONOUR: All right. Now, stand up. I am going to formally state my sentence of you and then you can come out of the dock to fill out the paperwork.
185On Charge 1 and Charge 2, you are sentenced to an aggregate term of imprisonment of 12 months. However, under - what is the section, Mr Crouch?
186MR CROUCH: Twenty-one B.
187HIS HONOUR: Under s.21B of the Crimes Act (Commonwealth), you are released on a recognizance in the sum of $5000, of duration two years with a condition that you continue and comply with your present treatment under psychologist, Peter Hanley, or his nominee; and that you be so released on that recognizance today.
188I also on Charge 1 convict and fine you $4000 and on Charge 2, I convict and fine you $1000. That is a total fine of $5000. Mr Wareham, does your client seek a stay in relation to those fines?
189MR WAREHAM: Can I just get some instructions, Your Honour?
190HIS HONOUR: You can come out of the dock now and speak to Mr Wareham.
191MR WAREHAM: Three months, Your Honour, if that is ‑ ‑ ‑
192HIS HONOUR: Yes. You do not have anything to say about that, I take it,
Mr Crouch?193MR CROUCH: No, Your Honour.
194HIS HONOUR: Yes. All right. So all I need to do now, having announced that is explain the recognizance more particularly to him and ask if he consents.
195MR WAREHAM: Your Honour, you will have to make a formal order under the Sex Offenders Registration Act.
196HIS HONOUR: Yes. And I order that you be registered under the legislation called the Sex Offenders Registration Act. That entails amongst other things that you report to the relevant authorities over the period of 15 years and that documentation will be prepared now.
197MR CROUCH: Sorry, Your Honour. Peter Hanley, H-a-n-l-y.
198HIS HONOUR: H-a-n-l-e-y according to Mr Newton and I guess he would know. H-a-n-l-e-y. He is described as a provisional psychologist of this practice but he can be described as psychologist. Are there any incidental or extra orders, Mr Crouch, forensic sample orders or the like?
199MR CROUCH: No, Your Honour. Your Honour, I will hand this up.
200HIS HONOUR: Yes, thank you. Mr Stewart. Stand up please, Mr Theophanous, and come forward.
201Now, what I have done is that I have sentenced you to imprisonment of 12 months but I have allowed your release today under what is called a recognizance or bond. The recognizance is in the sum of $5000. You do not have to pay that now but you would lose it if you breached the bond. The conditions are that you be of good behaviour for that period of two years and that you comply with the following further condition that you continue treatment by Peter Hanley, psychologist, or his nominee.
202All right. Now, the effect of it is this that if you breach the order in that you are not of good behaviour and/or commit another offence during the period of this order, you will be brought back before me and I would be obliged to resentence you on this order. That is the effect of it, is it not?
203MR CROUCH: Yes, Your Honour.
204HIS HONOUR: Yes. All right, now do you understand that?
205OFFENDER: Yes, Your Honour.
206HIS HONOUR: And do you agree to that bond?
207OFFENDER: Yes, Your Honour.
208HIS HONOUR: All right. Do I sign it first? I will get you to sign it. He gets a copy of it and you get a copy of it and there is a copy for the file. All right?
209MR CROUCH: Yes, Your Honour. Sorry, Your Honour's associate has reminded me. There is a 6AAA requirement for this proceeding.
210HIS HONOUR: Of course. Yes, we need to do that. All right.
211MR CROUCH: Notwithstanding it is a Commonwealth matter.
212HIS HONOUR: Thank you. All right. I will announce that but we will do the sex offenders registration now. I am going to have served on you a document that sets out your obligations under the Sex Offenders RegistrationAct. It sets it out in some detail. It will entail reporting and providing other information to the relevant people. And also a document asking you to sign an acknowledgement that you have received the first document, the one you now have. And you can sign that or not sign it as you choose.
213Whilst that is happening - take a seat please. What that is happening, under S.6AAA, I would have imposed a sentence of imprisonment of two years and recognizance release after nine months of serving that sentence. At two years, Mr Crouch, I do not set a minimum term, do I?
214MR CROUCH: No, Your Honour.
215HIS HONOUR: Yes, all right. So that is what I would have done. All right. I am going to give you a copy of that bond that you signed before and then you may go. Good. Have we got one for the file? Good. You are free to leave. Thank you, Mr Wareham. Thank you, Mr Crouch. You are free to go now,
Mr Theophanous.216MR TERRY: As Your Honour pleases.
‑ ‑ ‑