Director of Public Prosecutions v Tobin (a pseudonym)

[2019] VCC 1709

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

WYATT TOBIN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 October 2019
CASE MAY BE CITED AS:	DPP v Tobin (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1709

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Dunn
For the Accused	Mr J. O'Toole

HIS HONOUR:

1Wyatt Tobin[1], you have pleaded guilty to two charges, the first being a charge of sexual assault of a child under the age of 16.  This was a rolled up charge made up of conduct involving the rubbing on the outside of the victim's vagina with your finger and the licking of her anus with your tongue.  The second charge is sexual penetration of a child under the age of 12, being a digital penetration of the victim's vagina.

[1]A pseudonym.

2The offences occurred on the afternoon of 20 August 2018.  The victim was born in September 2014.  Thus, at the time of your dreadful crimes, she was just three years and 11 months old.  You were 20.  You were the victim's step-uncle.  You were living in the victim's family home.  Her mother and her stepfather, your brother, left you with the victim and her 16 month old brother while they attended appointments at Centrelink.

3The victim was in the lounge watching television, when you removed her pants and underpants.  You then lay on the floor and lifted the child onto your chest with her legs over your shoulders.  This gave you access to her genital area and you then performed the abhorrent touching, licking and penetration of her.  You were more or less in the midst of this when her parents came home. 
They confronted you in utter shock.  You were told to leave the house in no uncertain terms.

4You left and while on the streets, you were assaulted and put in a car by a number of men who were aware of what you had done to the victim.  You were taken to a remote place and assaulted until you lost consciousness.  You then sought help and an ambulance took you to hospital.  The police came to investigate the assault on you.  When speaking to the police in the hospital, you made partial admissions to them.  Later, the stepfather of the victim spoke to you while you were still in hospital and you said to him that you made admissions to the police.

5The stepfather then contacted the police himself and an investigation into your conduct commenced.  In your subsequent record of interview, and in what you had said to the police earlier at the hospital, you showed a troubling lack of insight.  You claimed that the young child had taken to putting her hand on your penis and in the previous weeks shown sexualised conduct with you.  How this could be said to have been part of any justification for what you did is hard to imagine.  It reveals, as I said, a lack of real appreciation of the vile and abhorrent conduct that you and you alone were responsible for.  You were remanded in custody thereafter and remained there to this point.

6As the matter proceeded through to a contested committal, which occurred on 13 March 2019, I say a contested committal, contested committal was set up, if that is the right term, but on the day, you negotiated and pleaded with no witnesses in fact cross-examined.  Thus your plea of guilty was not at the earliest time but it was before you were committed or any witness was cross-examined.  This relieved them of the added stress of being cross-examined in a court.

7During the course of the plea, there were discussions with your counsel of the importance to everyone, being the community, the accused, that is you in this case, the victims and to the court of proper adherence by lawyers to the practice directions of the court with respect to pleas, keeping in mind that there are added burdens of circuit hearings.

8I emphasise here that you, Mr Tobin, are not punished or does anything adverse arise to you because of the way your case was managed and proceeded.

9Adherence to those practice directions and general assistance from counsel is all the more important now that the Sentencing Act has been amended in significant ways to insert new regimes such as the Standard Sentencing Regime. These are complex matters and the courts require and deserve considered assistance from the parties. This case does involve the Standard Sentencing Regime. Both offences are Standard Sentencing offences and necessarily, I must comply with the provisions of ss.5A and 5B and also 11A of the Sentencing Act.  Also, the second charge of penetration of a child under the age of 12, is a Category 1 offence and therefore the only available sentence is one of imprisonment, notwithstanding your counsel's primary submission that a combination of imprisonment and community corrections order was the proper sentence.

10The Standard Sentencing Regime is new in its operation.  Indeed, I was told that this sentence that I am imposing is the first Standard Sentencing in relation to penetration of a child under the age of 12.  But the jurisprudence in respect to Standard Sentencing is developing, guided mainly by the decisions of Champion J in the matter of The Queen v Brown [2018] VSC 742 and The Queen v Robertson [2019] VSC 145 in the Supreme Court. There have been other decisions in respect of Standard Sentencing imposed by judges of this court. I will refer to a decision shortly, as it assists, I think, in respect of a general analysis of the provisions.

11Before moving to the Standard Sentencing Regime, I note the maximum term for the penetration offence, penetration of a child under the age of 12 is
25 years.  This is the second highest maximum term available only exceeded by the sentence of imprisonment for life.

12The maximum term of sexual assault of a child under the age of 16 is 10 years.  As required, I have taken into account the maximum terms for these offences.  These maximum terms indicate just how seriously our Parliament on behalf of our community views these types of sexual crimes involving children.

13Pursuant to ss.5A and 5B of the Sentencing Act, a court must have regard to the Standard Sentence for a relevant offence.  In respect of the first charge of an indecent assault on a child under the age of 16, the Standard Sentence is four years.  In respect of Charge 2, the sexual penetration of a child under the age of 12, the Standard Sentence is 10 years.

14As to the general principles, I am in my view, especially assisted by the sentencing remarks and analysis of the statutory provisions that was conducted by His Honour Judge D. Sexton in the case of DPP v Moulden (a pseudonym) [2019] VCC 386, a sentence imposed by him with reasons published on
28 March 2019.  As I have said, I am guided as was His Honour by the analysis of the statute conducted by Champion J of the Supreme Court in the decisions of Brown and Robertson. 

15As His Honour Judge D. Sexton said in his analysis, at paragraph 57 of Moulden:

'According to the explanatory memorandum to the Amendment Act, it is clear that the standard sentence for an offence should be viewed as a "legislative guidepost" as to the middle range of the objective seriousness of that offence.  As the explanatory memorandum to the Amendment Act states:  "The standard sentence is not the starting point for sentencing, nor does it require two stage sentencing.  Rather, the standard sentence is intended to provide the Courts with a legislative guidepost for objective offence seriousness but is compatible with instinctive synthesis approach to sentencing with has been affirmed as part of the common law in Victoria."'

16His Honour Judge D. Sexton went on:

'Section 5A(3)(b) and 5A(3) of the Act can be seen to be directed at giving meaningful content [to this concept of a] legislative guidepost.

'As stated in s.5A(1)(b) the standard sentence is the sentence for an offence in the "middle of the range of seriousness", taking into account 'only the objective factors affecting the relative seriousness of that offence. Section 5A(3) of the Act provides further, "For the purposes of subsection(1)(b), objective factors affecting the relative seriousness of an offence are to be determined - (a) without reference to matters personal to a particular offender or class of offenders; and (b) wholly by reference to the nature of the offending."'

17His Honour went on:

'As stated by Champion J in the recent decision Robertson in the Supreme Court: "In light of the clearly established [legal] language of s.5A(3) of the Act, when assessing the objective factors affecting the relative seriousness of the offence, a sentencing court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending."'

18However, the often referred to and well-understood concept of instinctive synthesis has been preserved, meaning the overall sentence that I impose does not engage in a two-tier or staged approached.  So what is also clear that in sentencing you, Mr Tobin, for the Standard Sentencing charges, the Standard Sentence must be taken into account as one of the factors relevant to sentencing.  The cases make it clear that it is one factor that is to be considered as it is not to be seen as the dominant factor.

19Also, when imposing a sentence for a Standard Sentence offence, I must give reasons that refer to the Standard Sentence and explain how the sentence that I impose relates to the Standard Sentence. I must also state reasons so if I am imposing a shorter non-parole period than the percentage fixed or set out in s.11A of the Act.

20In this instance, the figure or percentage is 60 per cent, that is the non-parole period must be 60 per cent of the total effective sentence unless I, in the interests of justice and by good reason, set it lower.  I will refer to this matter when dealing with the non-parole period in due course.

21Also, as was Champion J, I am guided by the High Court decision in Muldrock as to what was applicable to the New South Wales Standard Non-Parole Period Regime.  The point of principle for Muldrock which applies here is the preservation of instinctive synthesis and a Standard Sentence is a legislative guidepost as one of the factors to take into account.

22In compliance with the provisions of the Sentencing Act, in assessing the objective seriousness of the first charge, that is sexual assault of a child under the age of 16, by reference only to the nature of the offence, the first thing that has to be noted are the nature of the particular acts that were perpetrated by you on the child.

23The offence of sexual assault can be committed by any form of touching that has a sexual connection or connotation.  Obviously, the more explicitly sexual the touching, the more likely that there will be an increased seriousness in the offending.  Here, the touching was firstly on the child's vagina.  It was not penetrative, as that would be a different, more serious crime, as revealed by Charge 2, but it is your touching of her vagina in a way that is as close to that offence as it could be.  This was not a pinch or a rub on a buttock or upon the upper part of a leg or on the chest.  This was the touching, the rubbing and the genitalia, the child's vagina.

24The other act that was part of Charge 1 was licking the child's anus.  Again, this is conduct that is very explicitly and unequivocally sexual touching.  It was, in addition, degrading and depraved.  It is not penetrative but it is close and as such, it is a particularly serious sexual assault.  By mentioning penetration here, I make clear I am not punishing you for crimes you did not commit, but I am using the concepts to assist in this task of analysing your conduct relative to where it sits on the spectrum of that offence of sexual assault or sexual touching.

25Adding to the nature of the acts in respect of Charge 1 is the fact of the very, very young age of the victim.  Without more, this establishes the significant seriousness of this crime.

26The way you achieved the crime by removing the child's lower clothing and placing her on your chest with her legs over your shoulder reveals that you used the child as a crude base object for your perverse behaviours.

27This aspect also is part of the significant seriousness of Charge 2, the sexual penetration of the child under 12.

28So too is the fact that you were in a position of trust.  Your brother and his partner trusted you to look after the child and her younger brother for a brief time, while they were away dealing with Centrelink.  Your abuse of that trust adds to the objective seriousness of your offending.  I note that you said to
Dr Gee, the psychologist who was engaged to assess you, that you were asked by your brother to come from where you had been with him in Kalgoorlie, to join up with him and his partner to give a hand with the children.  They were your words as to your understanding of what was one of the reasons, if not a significant reason as to why you moved from Western Australia to live with your brother.

29The physical act involved in the sexual penetration, Charge 2, the digital penetration of a young child, three years and 11 months old, by an adult man only has to be said for its seriousness to be appreciated.  This was truly abhorrent conduct.  It carried some small risk of injury and more risk of pain. 
It would have been confusing to the child.

30It was suggested by your counsel that the fact that the penetration was with your finger meant it was inherently less serious than other forms of penetration.  In my view, modern authorities from the Court of Appeal make it clear that his approach is not how the seriousness is to be assessed.  Indeed the authority he referred to makes this plain.

31So rather, it is the circumstances of the particular case that is determinative of the seriousness, here digital penetration of such a young child is a very serious form of penetration and not to be seen as otherwise because it was digital penetration and not some other form of penetration.  It is the violation of the child and the depravity of the conduct to penetrate a young child's vagina that exposes the seriousness of the crime.  That said, it was not penetration more than the outer lips and around the area of the clitoris of the child but again, her young age and early development means that this last description of it, the penetration to the outer lips is only a slight matter in reducing the seriousness of your crime.

32The requirement is that I consider the objective seriousness and determine where the offence sits relative to the middle of the range.  The prosecution submitted that it was above the middle range and gave a basis for that.  I will not refer to every single point.  Most of them are thus far covered.

33It was submitted by your counsel that it was at the middle of the range.  In my view, for the reasons set out above, both charges, that is the charge of sexual assault of a child under the age of 16 and in particular the sexual penetration of a child under the age of 12 is above the middle of the range.  I agree with the prosecution's analysis and the basis for that.

34Looking at the overall gravity of your offending by reference to the general requirements of the Sentencing Act, nothing of moment can add or subtract from what I have discussed in respect of the objective seriousness of this offending.  This was, on any measure, truly grave criminality.  Yours was a very serious example of these dreadful crimes.

35In my view, nothing was put or raised in the expert report of Dr Gee that would operate to lower your moral culpability.  While there was debate, perhaps lengthy debate at the plea, my conclusions are what are authorised and in compliance with the DPP v O'Neill, that is, the finding that you have a personality disorder does not enliven the principles as set out in R v Verdins.  In that regard, I reject the submission of your counsel that the DPP v O'Neill changed nothing.

36In any event, as to the matter of your moral culpability, your personality disorder was not causally connected to your conduct.  Dr Gee was clear on this and, in my view, validly so.

37As to your personal circumstances, you are now 21.  You were born in Western Australia.  You have a sister and an older brother, the stepfather of the victim who I have referred to already.

38Your parents were troubled by drug addiction.  They were unable to care for you from about the age of six or so.  You and your brother were in State care for the remainder of your childhood and adolescence.  You moved through many foster care placements.  You reached Year 10 at school but struggled with education.  You did not gain the benefits that others do from education. 

39You described to Dr Gee as being involved with other young trouble makers in your adolescence.  You have had a significant number of prior criminal matters heard in the Children's Court in Western Australia.  Those include serious crimes of aggravated burglary and robbery in company.  There are no prior sexual offences.

40For the crimes that you committed, you were placed on youth community based orders as best as could be ascertained from the documents provided in your prior LEAP history, your prior criminal history.  You were also placed on intensive youth supervision orders.

41There may have been times when you were in hostels and the like however, the number of crimes were many but the penalties were in accordance with your young age at the time.

42After school, you moved to Kalgoorlie from Perth with your brother.  Your brother met the mother of the victim, it seems, in Kalgoorlie.  You also met your partner at that time, now your previous partner, in Kalgoorlie.  They moved to Victoria and you later joined them and as you said to Dr Gee, you were asked to give a hand with the children.  I note that in addition to the victim and her young brother I had spoken about, your brother and his partner also had a very young infant child that they took with them at the time they went to Centrelink.

43Your previous partner left you as a result of these crimes.  Understandably, you are estranged from your brother as well.  There can be no doubt, as sad as it is, that you are isolated now in Victoria, having no family here and indeed, really no family in Western Australia.

44You gained a certificate of motor mechanics, but you have never had paid employment.  During your time in State care in Western Australia, you were seen by mental health clinicians to assist you with the grief following the premature death of both your parents.  You were given treatment, which included medication for ADHD.

45You gave up all medication at the age of 17, relying instead on your use of cannabis as you described it.  In any event, you came to use cannabis from the age of 17.  With your daily use of that drug, other drugs and alcohol have not really or at all been problems for you.

46By simple analysis of your upbringing and your regular appearances in the Children's Court, your longstanding abuse of cannabis and your lack of employments or much by way of vocational training, taken with your isolation, a conclusion that I unfortunately draw is that your prospects of rehabilitation are guarded at best.

47However, what needs to be added is your own poor insight into this offending and your lack of understanding of the impact on the child and your minimalizing of your wrongfulness as you cast some responsibility onto the child. 
Your counsel's submission on this topic that victim blaming in sex offending is commonplace was unhelpful, especially in light of the report relied on by your counsel from Dr Gee, who appropriately saw these aspects of what you said to the police as adding to other matters that on the whole, in my view, make your prospects, as I have said, guarded if not worse.

48Dr Gee undertook or subjected you to various testing regimes.  The results were summarised as follows, at paragraph 33 of his report, 'Mr Tobin was asked to complete a battery of psychometric assessments to further elaborate on his psychopathology and personality functioning.  Generally, his response style on psychometric assessment as measured by PDS revealed, "slightly above average score on the impression management scale and very much above average on the score on self-deception enhancement scale with his overall responding being in the very much above average range."  Mr Tobin's responding was indicative of an individual demonstrating narcissistic tendencies who is lacking in self-insight and demonstrates a capacity for anger when confronted.  His overly positive response stems from a trait like tendency towards self-favourable presentations.'

49He went on, 'In light of the foregoing, the below findings only partially account for Mr Tobin's psychopathology as his current efforts in self-reflection and lack of psychological mindedness seemingly impede his capacity to effectively communicate cognitive, emotional and behavioural processes.  Overall,
Mr Tobin's response profile and psychometric assessment was suggestive of an individual demonstrating a general naivety about psychological matters and efforts in self-knowledge with his current psychopathology prompting a degree of positivistic responding.  Generally, both Mr Tobin's responding on psychometric assessment and his clinical presentation at interview suggested the need for some degree of caution when extrapolating beyond the below mentioned findings.'

50Dr Gee said that your character pathology suggested of an antisocial personality disorder with paranoid avoidant and dependent features, habitual patterns underpinning his maladaptive ways of thinking, feeling, behaving and relating that interferes with your ability to function productively.

51He elaborated on the various psychological concepts and diagnosis but it, in my view, does not require elaboration here.  I have taken into account all that Dr Gee has said in respect of your psychological profile.  In my view, he does not have a positive, optimistic view of your prospects but he did undertake the various testing of you.

52In response, Dr Gee notes that specific tests directed towards your regard for children were concerning, if not disturbing.  He set these out at paragraph 41.  In summary, he said that there were things that you said in response to a particular test known as Hanson SAQ and BCS-M.  You were seen it disagree strongly with various concepts, disagree somewhat to others and give some sense about other matters that gave rise to concern.

53You somewhat agreed with two statements, i.e. some young children are much more adultlike than other children, and children can give adults more acceptance and love than other adults.  You strongly agreed with the remaining two offence supportive cognitions, that being a lot of times, sexual assaults on children are not planned, they just happen and sometimes people turn to children for sex because they were deprived of sex from adult women. 
These were, as I have said, concerning to Dr Gee as they are to me. 

54As to the testing that was directed at predicting risk for future general offending, Dr Gee concludes from your past criminal history and other matters that you are a very high risk of reoffending in a general sense.  More specifically with respect to risk of future sexual offending, Dr Gee administered a suite of tests and actuarial instruments.  I will refer to the overall findings.  In relation to STATIC-99, your risk was at the highest end of average but not above or well above average.  Using the risk or assessment protocol RSVP, you were categorised as a moderate risk.  As to the risk of psychopathy, you were seen as a moderate to high with numerous features consistent with psychopathy but it was not quite clear cut.

55As to protective factors, Dr Gee reported that there were or are few consequentially, the rating was low.  In other words, there is not a lot that will operate to diminish the risks that you present.  Of course, the assessment of risk is not a matter entirely determined by psychological testing.  I must bring to bear circumstances unique to you and unique to your offending.  Many of those matters have been referred to already, in particular your difficult upbringing, which has seen few appropriate adult models, your response to this offending and the sheer seriousness of your first sexual offending at such a young age, all these things considered, the conclusion that I have is that Dr Gee, in describing you as a moderate risk of like reoffending is justified.  That is that you are a moderate risk of like reoffending in the scale of low, moderate and high.

56In my view though, taking into account all the factors, principally the determination and the opinion of Dr Gee, but other factors, the risks are in the moderate range but tending towards the upper portion of that range.  These are not precise matters and these are attempting to predictive, but as best I can see, the risks are real and your overall prospects for future reoffending or future reform are guarded at best.

57What remains is an ever present sentencing consideration though is your youth.  Ordinarily, this would be a very prominent sentencing consideration if not the most important.  The authorities such as The Queen v Mills and
Azzopardi v The Queen make it clear that it is not just in your interest but it is in the interests of the community that you as a young man are rehabilitated. 
To that end, incarceration in adult gaol is to be avoided wherever possible.  However, as the authorities, including Azzopardi make clear, that there can be circumstances of the offence and of you as the young offender, that mean that youth and rehabilitation must yield to other sentencing purposes, in particular, denunciation, general deterrence and protection of the community.

58This is such a case.  The gravity of the crimes and in particularly but not exclusively the community's utter abhorrence of the offending such as this means that denunciation, general deterrence and protection of the community must be properly recognised and expressed.  The only way that can be done is by the imposition of a lengthy term of imprisonment, grave as that is given your age.  The sentence that necessarily has to be imposed will take from you many of the years that I consider the best of a person's life, between the ages of
20 and 30.

59You counsel's primary submission was, as I have said, that you be punished by the time that you have served already on remand, that you be released combined with a community corrections order or released within the periods permitted by a combined community corrections order.  The submission is misconceived in a number of ways.  As mentioned, the Sentencing Act expressly disallows such a sentence.  In any event, a combined gaol and community corrections penalty would be woefully or egregiously inadequate in this case.

60The prosecution's submission was that only a term of imprisonment with a
non-parole period fixed in accordance with s.11A of the Act would meet all the sentencing purposes.  I made it plain at the plea that such a sentence, that is a head sentence and a minimum term was the only one I was contemplating.  Your counsel's secondary submission was that the structure of any term of imprisonment should allow for a longer than usual non-parole period. 
Putting aside whether those terms are permitted or appropriate, what remains is that Parliament has made clear in respect of fixing a non-parole period, its intention is set out by what has been inserted at s.11A of the Sentencing Act. 
I will not read every part of that section, the point that is derived from it is that unless it is in the interests of justice, I must fix a minimum non-parole period of 60 per cent for this crime.

61The fixing of a non-parole period must be, according to the common law, the minimum time of incarceration that justice requires.  Further, in my sentencing, I must operate on the basis that you may have to do each day of the head sentence that I impose.  That is because whether and when you are released on parole is for others, not me.  I simply allow a time when potential release on parole is possible in the time when the sentence ends.  In common law, there were no fixed formulas.  The Act makes it clear that in respect of Standard Sentence, as a minimum, the ratio between the non-parole period and the head sentence in respect of these matters must be 60 per cent unless I give good reasons to establish that it's in the interests of justice.

62In this case, your youth is a good reason to keep the non-parole period as low as justice will allow and to have a potential for a lengthy supervision in the community on release.  You are especially isolated as I have described and will need help in re-establishing.  In my view, there are good reasons which amount to it being in the interests of justice with a non-parole period to fall below the statutory requirement, but just below it.

63I have given weight to your plea of guilty as will be revealed by the declaration pursuant to s.6AAA of the Sentencing Act.  It is an acceptance by you of the responsibility of these grave crimes.  It assisted in a sense that the young age of the victim would have made prosecution a problematic, if not difficult, task.  Thus, you have facilitated the course of justice and have come to recognise what you have done.  It is not put that there was any particular expressions of remorse but it seems to me from what I can see of you and that you have a degree of sadness for your brother and family and for the child.

64Doing the best I can, Mr Tobin, in this difficult sentencing task, I impose the following sentences.  In respect of Charge 1, the sexual assault of a child under the age of 16, you are sentenced to three years' imprisonment.  In respect of Charge 2, sexual penetration of a child under the age of 12, you are sentenced to eight years' imprisonment.  I order that one year of Charge 1 be cumulative upon the base sentence of Charge 2.  This gives a total effective sentence of nine years and I fix a minimum non-parole period of six years.  This is 66 per cent as it is in the interests of justice that it be below, but just below, 60 per cent.

65In respect of s.6AAA, had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 12 years with a minimum of nine. You have already served 424 days in custody on remand. This figure having been reckoned, I now declare that it is part of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court. Thus, the authorities will be left in no doubt that you have already served 424 days of the sentence I have just imposed.

66There are other orders required.  Principally it is a Sex Offenders Registration Order?

67MS DUNN:  Yes, Your Honour.

68HIS HONOUR:  Mr Tobin, by reason of the offences that you committed, you must be registered on the Sex Offenders Register.  The fact that you have to be registered is mandatory and the period of time is mandatory, I am just going to check to see if I am right about this, is this life or not?

69MS DUNN:  No, Your Honour.

70HIS HONOUR:  What is it?

71MS DUNN:  Fifteen years.

72HIS HONOUR:  It is a period of 15 years.  I have no choice as to the length of time.  What occurs now in respect of that is this, that I sign a document saying that I have given you a bundle of documents.  You then sign a document saying you have received the bundle of documents.  But it is the bundle of documents that really matters.  They set out your responsibilities in respect of registering once you are released.  I also set out the consequences for you if you do not comply with the Sex Offenders Register.  They are very significant consequences.  They are very expansive, wide-ranging responsibilities.  Read them carefully.  Your lawyers will assist you.  I will just have that document signed and passed to you.

73Is there any other orders?  You do not need 464 anymore, do you?

74MS DUNN:  No, Your Honour.

75HIS HONOUR:  I have sentenced you and I add this to the reasons, to a long period of incarceration.  As is obvious, I have taken into account your youth.  There was nothing in any of the material that made clear to me that gaol would be any more onerous on you than any other young person your age.  I did note that there was some complaint of things occurring in the prison but in my view, they do not amount to as much as to enliven any principle that gaol would be more onerous upon you and nor did Dr Gee say as much.

76I have signed that document.  Mr O'Toole, can you take this document, the final page of it is obviously.  Leave him with the bulk of it and sign the one that comes back to my associate.

77MR O'TOOLE:  Yes, Your Honour.  That document has been signed, Your Honour.

78HIS HONOUR:  Thank you very much, Mr O'Toole.

79So the document that you have signed is acknowledgement that you have received the fact of going on the Register and the length of time, it is acknowledging those two things.  That document will be signed by my associate and forwarded to the Chief Commissioner of Police.

80Is there anything else required, Ms Dunn?

81MS DUNN:  No, Your Honour, that is all.

82HIS HONOUR:  Thank you.  Mr O'Toole, do you know of anything else?

83MR O'TOOLE:  I'm sorry, Your Honour?

84HIS HONOUR:   Do you know of anything else?

85MR O'TOOLE:  No, Your Honour.

86HIS HONOUR:  Mr Tobin can be removed, thank you.

(Prisoner removed.)

(Short adjournment.)

87HIS HONOUR:  I am recalling the matter of Director of Public Prosecutions and Wyatt Tobin.  Mr Tobin is in the back of the court, Mr O'Toole.

88MR O'TOOLE:  Yes, Your Honour.

89HIS HONOUR:  Thank you very kindly for reattending at short notice to you as well, Ms Dunn.  Probably not for the last time I have made some mistakes with respects to the Standard Sentencing and they need to be corrected.

90I have not signed any order in respect of this matter as I raised one of those mistakes that I think I have made or omissions that had occurred and then the prosecution very quickly emailed to say that I had made a mistake and I just need to correct that about s.11A.

91MR O'TOOLE:  Yes.

92HIS HONOUR:  I will explain that mistake if I can.

93MR O'TOOLE:  Certainly, Your Honour.

94HIS HONOUR:  Help me again, Ms Dunn, you say 'I thought I heard His Honour say the minimum non-parole period with reference to Standard Sentencing was 60 per cent.'  Of course you did.  That is exactly what I said.

95MS DUNN:  Yes.

96HIS HONOUR:  But I must say, I read that having in my draft documents had 60 per cent throughout until I reread - I thought I reread the legislation accurately this morning.  You go on, 'My understanding of the legislation of
60 per cent refers to sentences which are over 20 years.  If the sentence is less than 20 years, then the figure is 60 per cent.'

97All right, it was set out in the opening and there it was, paragraph 35.

98My reading, mistaken, of s.11A(4) I think it is.

99MR O'TOOLE:  That's right.

100HIS HONOUR:  Was that the percentages related to crimes where the maximum term was 20 years, 10 years, 25 years, that sort of concept.  So where it says unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least 30 years if the relevant term is the term of the offender's natural life, 60 per cent if the term is of more than 20 years and 60 per cent if it is less.

101I read relevant term which is defined, and I should not have read it this way, that the 60 per cent applied to crimes where the maximum term was greater than 20 years, such as this one.  That is why I altered my expression of it and my sentence itself.  That needs correction, which will be to the accused's advantage in the sentence that I will shortly announce.  Is that understood,
Ms Dunn?

102MS DUNN:  Yes, Your Honour, the legislation is not hugely clear on initial reading.

103HIS HONOUR: No. I must say some of my other colleagues, when discussing this issue in the brief time that I have had said it comes into enormous difficulties when you get cumulation beyond what really we have here. Anyway. The next step is s.5B, I will just bring that up, bear with me. So 5B(5), as part of its reasons under sub-s.4, the court must refer to the Standard Sentence for the offence, that has been done, and explain how the sentence imposed by it relates to that Standard Sentence.

104It is clear enough I think by inference and implication but I want to be express about it with some further reasons which I will move to.

105MR O'TOOLE:  If Your Honour please.

106HIS HONOUR:  So the orders that I made announcing in oral form that I have not authenticated them or signed any court order or the like are set aside.

107What I need to say first in respect to s.5B(4) is that in respect of my reasons regarding Charges 1 and 2, for the reasons I set out, I concluded that they were both above the middle range, in particular Charge 2. So to make it clear, I understand for a Standard Sentence for Charge 2 at the middle range, the Standard Sentence is 10 years. With respect to Charge 1, four years.

108So I can make it clear in this way I hope that when considering all the factors including the factors personal to you, Mr Tobin, in particular your youth, your difficult upbringing, your lack of appropriate adult males as you grew up, your isolation, in particular now, and your experience or likely experience in an adult sex offenders prison and your rehabilitation, albeit that that is guarded, my instinctive synthesis of all these matters means that a sentence less than the Standard Sentence of 10 years for Charge 2 and four years for Charge 1, ought to be imposed as the just and appropriate sentence.

109In respect of Charge 1, it was three years, that was not the base sentence and there was cumulation ordered of one year.  That is a sentence below the Standard Sentence and for the reasons that I have articulated, taking into account in the complete instinctive synthesis.

110For Charge 2, the Standard Sentence or legislative guidepost in respect of that is a sentence of 10 years.  I have imposed a sentence of eight years having found that it was above the middle range.  Again, that is below the Standard Sentence and that is because of in my instinctive synthesis of all matters, a sentence of eight years was the just and appropriate sentence, in particular because of your youth.

111Now, I have articulated that I have made an error in respect to s.11A in discussions. The mistake I made was to declare the non-parole period must be 60 per cent unless I otherwise order in the interests of justice. I was mistaken about the percentage ratio, a mistake that was only made, I must say, on a rereading this morning. The mistake was that I considered that the figure referred to or the relevant sentence or term referred to the maximum sentence of the crime. It does not, it relates to the sentence imposed, which in this case is plainly below 20 years. The percentage ratio that I must consider is 60 per cent.

112I consider for all the reasons that I sent out that a sentence at or about 60 per cent is an appropriate sentence.  It was higher when I had a figure of 60 per cent as the ratio.  It was 66 per cent.  I reduced that in an appropriate way.  These things are not mathematical to the day or the hour.  These are instinctive synthesis of what justice requires as the minimum you serve in prison.  The term that will be imposed is less than announced.  The sentence that I impose is the same, Charge 1, three years, Charge 2, eight years.  The cumulation of one year of Charge 1 on Charge 2 giving a total effective sentence of nine years and a fix as a minimum non-parole period of five years and six months.

113In respect of that sentence, had you pleaded not guilty, the same sentence would have applied, 12 years with a minimum of nine.

114You have served 424 days in custody and I declare that 424 is part of the sentence I have just imposed and that declaration be entered into the records of the court.

115MR O'TOOLE:  If the court pleases.

116HIS HONOUR:  Anything else, required, Ms Dunn?

117MS DUNN:  No, Your Honour.

118HIS HONOUR:  I know you were probably uncertain but do not hesitate to fix up mistake I make immediately, that is why I often ask is there anything else that needs sorting out.  You are right, I am wrong and I am glad you pointed it out as quickly as you did so we could sort things out and it did not have to go to other places to sort out.  They will sort out other problems.

119MS DUNN:  Apologies, Your Honour, it was a moment of self-doubt.

120HIS HONOUR:  No, no, my apologies.  I just want to give all practitioners the encouragement to stand up and tell me that I have made mistakes.  I think other judges would be of the same view, in particular these more complex areas of Standard Sentencing.  Mr O'Toole, again, thank you for coming back.  Can you explain all that to Mr Tobin in your time?

121MR O'TOOLE:  Certainly, Your Honour.  Yes.

122HIS HONOUR:  Mr Tobin can be removed.

(Prisoner removed.)

123MS DUNN:  As the court pleases.

124HIS HONOUR:  Thank you.

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