Director of Public Prosecutions v Todd William Head
[2021] VCC 291
•17 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01058
CR-20-01121
CR-20-01351
CR-20-01508
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TODD HEAD |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2, 3 February 2021 |
| DATE OF SENTENCE: | 17 March 2021 |
| CASE MAY BE CITED AS: | DPP v Todd William Head |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 291 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Breach Supervision Order
Legislation Cited: s.51G Crimes Act 1958 – s. 51H Crimes Act – s. 169 Serious Offenders Act 2018
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Kornhauser (Sentence) Ms. J. Kretzenbacher (Plea) | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne (Sentence) Ms A. Beech (Plea) | Victorian Aboriginal Legal Services |
HIS HONOUR:
1
Mr Head comes before the Court aged 34. He is an Indigenous person. Mr Head was aged 32 at the time of the 2019 offending and 33 at the time of the 2020 offending, having been born on 17 January 1987. In this matter
Ms Kretzenbacher appeared on behalf of the Director and Mr Kornhauser appears today, and Ms Beech appeared on behalf Mr Head and Mr Pyne appears today.
2I record that these proceedings have been partially conducted by way of WebEx. I thank everyone involved. Due to the crisis that this community has been enduring there has been no other way to finalise legal proceedings. With the aid of technology, in particular the WebEx system, we have been able to finalise this plea. It has, unfortunately, meant that people have not been present in Court, which is clearly the preferred manner in which a sentence of this importance should take place. However, we all have to cope with that.
3Mr Head pleaded guilty to eight charges in indictment numbers L12134926, L12043302 and L12134846, which relate to case numbers CR 20-01058, CR 20-01508 and CR 20-01121.
4Mr Head’s counsel on his behalf pleaded guilty to four summary charges referred to this Court pursuant to s.145 of the Criminal Procedure Act 2009. Summary Charges 2 and 4 were withdrawn by the prosecution following the plea.
5The plea took place on 2 and 3 February 2021.
6Exhibit A was accepted by Ms Beech on your behalf, Mr Head, as disclosing the facts upon which I am to sentence you, and your criminal history was acknowledged.
History of Mr Todd Head
7It is appropriate before I proceed to sentence to detail some of Mr Head’s history before this Court and other matters relevant to this sentence.
8
Convictions for index offences of sexual penetration and sexual assault involving children under the age of 16 were recorded in this Court on
6 November 2006. Subsequently, in 2008, Mr Head was placed on a an interim extended Supervision Order under the Serious Sex Offenders Monitoring Act2005 (‘SSOM Act’) (now repealed).
9Subsequently, on 2 July 2018, Judge Hannan renewed the Supervision Order for a period of three years pursuant to the Serious Sex Offenders (Detention and Supervision) Act2009.
10On 3 September 2018 the Serious Offenders Act2018 commenced operation.
11The transitional provisions of the Serious Offenders Act 2018 (see clause 4 of schedule 4, subsections 2 and 3), operate so that Charge 8 on the Indictment attracts the operation of s.10AB of the Sentencing Act 1991, whereby the commission of such offence attracts a minimum sentence of imprisonment of 12 months unless a special reason exists.
12Schedule 1 of the Serious Offenders Act 2018 designates offences against s.51G(1)[1], Charge 1, and s.51H(1)[2], Charge 2, as serious sexual offences.
[1]Crimes Act 1958.
[2]Crimes Act 1958.
13Section 169 of the Serious Offenders Act2018 applies to Charges 3 to 8 on the indictment and in regard to Charge 8, where the breach is intentional, which, in this instance, relates to Charge 1 and 2, s.10AB operates.
14In completing this plea on 2 February 2021 I renewed the Supervision Order relevant to Mr Head for three years.
Charges on Indictment
15Charge 1, possession of child abuse material, is a breach of s.51G(1) of the Crimes Act 1958, for which a maximum penalty of 10 years’ imprisonment is prescribed by Parliament.
16Charge 2, accessing child abuse material, is a breach of s.51H(1) of the Crimes Act 1958, for which a maximum penalty of 10 years’ imprisonment is prescribed by Parliament.
17Charges 3, 4, 5, 6 and 7 are all contraventions of the conditions of the Supervision Order, being breaches of s.169(1) of the Serious Offenders Act 2018, for which Parliament has prescribed a maximum sentence of five years’ imprisonment.
18Finally, Charge 8 is the contravention of a restrictive condition with the same maximum penalty, but subject to the operation of s.10AB of the Sentencing Act 1991.
19The four summary offences (CR-20-01351) are all offences against s.169 of the Serious Offenders Act 2018 and attract maximum sentences of two years’ imprisonment on each offence.
20The prosecution has tendered:
(a) Exhibit A the amended prosecution opening dated 2 February 2021 and the amended indictment;
(b) Exhibit B: Range of material read by Mr Head as to Charge 2, detailing the number of occasions Mr Head accessed the material and the type of material. This includes the subsequent two examples sent to me by the informant, which I have perused, being ‘The Erotic Babysitter’ and ‘Rachel’s Kidnapper’. Mr Prosecutor, as you were not here I propose to do what we did in getting hold of this material and my associate is going to make arrangements with the informant for him to come and pick up this material, which is in a prescribed envelope with 'warning' attached to it;
(c) Exhibit C: Affidavit of Joseph Mollica, psychologist, dated and sworn 21 January 2021;
(d)
Exhibit D: Treatment and supervision plan of Mr Head authored by
Mr Mollica, dated 8 December 2020, prepared as to placement at Rivergum Residential Centre;
(e) Exhibit E: Assessment progress report by Ms Bea Raymond, consultant forensic psychologist, dated 24 November 2020;
(f) Exhibit F: Submissions in relation to the Transitional Provision and Breach of Restrictive Condition dated 2 February 2021, and;
(g)
Exhibit G: Further prosecution submissions on sentence dated
4 February 2021.
Criminality
21I come then to the issue of criminality. Charge 1 and 2 are serious offences, but contained within their facts are the related breach offences of the Serious Offenders Act 2018.
22In Charge 1 there were 14 images found of child abuse material and in Charge 2 there are numerous publications detailed in Exhibit B, and both charges were facilitated by the breach of Condition 6.9.3 of the Supervision Order (which is Charge 3); owning, using and accessing internet capable devices, Condition 6.6.5 (Charge 4); possession of equipment capable of downloading photos and videos, Condition 6.9.6 (Charge 5); having a device capable of storing downloads from the internet, and Condition 6.9.2 (Charge 6); accessing the internet.
23Both Charges 1 and 2 represent a breach of a restrictive condition of the Supervision Order in that Mr Head was forbidden from engaging in conduct which constituted serious sexual offences, as described in s.31(2) of the Serious Offenders Act 2018 (Charge 8).
24Coming to Charge 1, the 14 images on the Australian National Victim Image Library (ANVIL) scale (see Appendix B of Exhibit A), are predominately Category 1, being eight images, Category 4, four images of penetration involving adults and children, and two images of Category 5. As agreed, all categories demean children and are objectively serious (see DPP (Cth)v Garside [2016] VSCA 74, [64] to [74]). Such actions also make up the breach of Condition 6.10 of the Supervision Order (Charge 7).
25As to Charge 2 the Court has not had the experience of this type of material before. Indeed I discussed this with counsel, and it was agreed that such should be seen at a lesser level of objective seriousness, as against the images in Charge 1.
26As a result of the additional material and submission I have not changed that opinion, however the words of Mazza J in Ponniah v The Queen [2011] WASCA 105, [38] are apposite:
'The criminality involved in the material that does not depict real children is of a different nature…This is not to say that material of this type is harmless; it has the tendency to ‘normalise’ exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children'.
27And further, in R v Edwards [2019] QCA 15, which said, at [61], such material 'serves to fuel the demand for such material'.
28Having read the two stories supplied I must say I was appalled at their content. One cannot underestimate the power of the written word. The writings of Henry Miller come to mind as to the ability of the written word to expose and describe sexual activity to a heightened degree. By such reference I have no wish to impugn the renowned author, but the examples I was provided with, are explicit descriptions of children being cruelly sexually exploited and ravished; in one instance by a baby sitter with an infant and in the other a father with a daughter.
29Such were put to the Court as being representative of the 63 stories detailed in Exhibit B.
30All of the offences in the Indictment occurred in 2020, when Mr Head was residing at Reservoir Lodge residential facility pursuant to the Supervision Order.
Summary Offences (CR 20-01351)
31These offences occurred in 2019, when Mr Head was residing at Emu Creek residential facility pursuant to the Supervision Order.
32Charge 1 was a breach of Condition 6.9.3 from 20 August 2019; the owning, possession and accessing of internet capable devices.
33Charge 3. On 6 October 2019 a breach of Condition 6.9.6 in that Mr Head was forbidden from owning or using a memory stick or other devices capable of storing data from the internet.
34Charge 5. Between 4 July 2019 and 6 October 2019, by way of phone calls and accessing data, a breach of Condition 6.9.2 of accessing the internet.
35And finally Charge 6. Between 6 August 2019 and 6 October 2019, a breach of Condition 6.10 of possessing images of children aged under 16; in this instance which involved four videos of female children and one of two teenage boys. Importantly, none of these were child abuse material.
Principles of Law
36As to the child abuse material Courts emphasise the need for substantial penalties with general deterrence and denunciation being paramount considerations (see R v Porte [2015] NSWCCA 174, [57]-[58]). It is appropriate to put into the calculus, as to Charge 1, the limited number of images displayed, albeit understanding each is individually serious.
37As to Charge 2 on the Indictment analysis shows over an eight day period child abuse stories were accessed on 82 occasions involving some 63 stories, some more than once (see Exhibit B.)
38In regard to Charge 6 on the Indictment from 6 April to 17 July 2020 data was downloaded daily, and in August 2020, over a period of 20 days, 15,001 websites were accessed and 1,280 Google searches effected.
Prior Criminal History
39Mr Head’s priors (Appendix A of Exhibit A) demonstrate Mr Head has four priors for possession of child pornography for which he was jailed. In Ararat Magistrates Court, for eight months in July 2009, with four months suspended. In December 2014 at Melbourne Magistrates Court, when sentenced to an aggregate period of 270 days imprisonment, partially suspended for 12 months, and in January 2015. Mr Head has five priors for breach of Supervision Orders, for all of which he was jailed; most recently in 2017, when he was sentenced to nine months' imprisonment on two charges.
40Clearly principles detailed by the High Court come into consideration, as set out in the case of Veen No.2.
Veen No.2 [1988] 164 CLR 465
41At page 477 of this case the following was said:
'The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'. Mr Head, I want to make it clear to you do not come up here to be sentenced again for prior matters.
The Court went on, on that page, to say that such priors are relevant to show:
'whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offences a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender, and other offenders, from committing further offences of a like kind'.
42The words in Berichon v R [2013] VSCA 319 are also relevant, albeit in relation to a different crime - or quite different crimes:
43At [44] the Court said:
'The applicant had a very serious and disturbing prior history with respect to the use of firearms. Although, of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process'.
Submission of Prosecution
44Coming then to the submissions of the prosecution. The first matter the prosecutor pointed out was that the indictable offences in 2020 were committed in the context of Mr Head having been detected for the 2019 offences and making admissions relevant thereto. Ms Kretzenbacher submitted the offending as to the breach of the Supervision Order was therefore persistent and flagrant.
45
I am concerned with the proposition that Charges 1 and 2 are aggravated by Mr Head being on a Supervision Order at the time. People such as
Mr Head are on such orders because of their predilections and risk to the public if not so restricted. In this instance Mr Head has been subject to a Supervision Order for 13 years. Mr Mollica explained in evidence how
Mr Head’s sexual deviation and paedophilic interest is deeply rooted in his childhood development and that all the therapy to date has been unsuccessful. Indeed a radical revolutionary and individual solution has been developed for such long term modalities where Mr Head will be 'released' once he has served the sentence, known as the Rivergum Residential Centre, where he will be a full time resident and subject to walled security. Such is confirmed by Bea Raymond in Exhibit E, [59] to [68].
46
I accept the need for punishment for each different and distinct crime being dealt with here; either the child abuse charges or the breach charges. Concurrency, given the facts of the offending and its relationship to the breaches, is obviously called for. I find in the particular circumstances of this case that Charges 1 and 2 are not aggravated by the breach charges, albeit the Veen principles that I have explained must be taken into account. I think the reference relied upon by the prosecution to the comments of the President in Lecornu v The Queen [2012] VSCA 137, [30], [31] & [76], should be confined to the facts of that case and, as the President said, such was 'common ground'. To so aggravate in this case, given the evidence of
Mr Mollica, would not be humane, nor is the analogy to a person on bail valid, in my view, if I may say so respectfully.
47The prosecutor stressed the need for general deterrence, where people breach Supervision Orders, and specific deterrence given Mr Head’s history.
48The prosecutor also recognised the role for concurrency in this sentence, but emphasised to the Court that the breaches were separate offences involving separate and distinct criminality (see Lecornu at [19]). It was further submitted in the circumstances that s.10AB was but a moot point, as the totality of offending called for a sentence well in excess of its operation. The prosecutor accepted that the sentence, given the multi-factorial issues, called for some subtly; especially as to totality.
49Pre-sentence detention is agreed at 202 days, not counting today.
Plea of Mr Todd Head
50Coming then to the plea of Ms Beech. Her written submissions, Exhibit 1, were tendered on the plea and she spoke to them.
51Also tendered was Exhibit 2, which is the report of Dr Calvin, psychiatrist, dated 15 May 2020. Somewhat remarkably such does not cover Mr Head’s sexual deviation, however I note Mr Head was not co-operative. In fairness, Dr Calvin drew the caveat that the report was provided only as to the treatment modality envisaged at Rivergum in regard to the renewal proceedings.
52
As to sentence counsel accepted that the only sentence appropriate was one of imprisonment but that by way of a special reason, being the ability to be admitted to Rivergum as soon as any imprisonment was served. Given the evidence as to the hopes as to such placement from Mr Mollica,
Ms Raymond and Dr Calvin, it was submitted that this Court could pass a straight sentence in order to have Mr Head go to Rivergum as soon as possible. Thereby rehabilitation and protection of the community could be best effected, and in such submission Ms Beech adopted the reasoning of the dispositions in the case of The Queen v CE [2019] VSC (unreported) and the case of DJCS v SS [2021] VSC 1, [41]-[42].
53As to the submission as to the Rivergum placement providing a special reason as envisaged in s.10AB I find the test involved in such legislation is not satisfied here (see DPP v Hudgson [2016] VSCA 254, [111] & [112]).
54I accept the five arguments set out in Ms Beech’s submission at paragraph 32 of Exhibit 1, however this Court also has to have regard to:
(a) The fact that the charges in this Indictment are far more serious than in either of the cases referred to;
(b) While I accept the evidence of Mr Mollica, the unfortunate factor as to Mr Head is that he is a repeat offender as to serious sexual offences which are explained by his sexual deviance of paedophilia;
(c) As Mr Mollica said in evidence, Mr Head is a high risk offender who has struggled with all modalities of treatment to date, as his record and the current offences attest;
(d) Albeit Mr Head being assessed as suitable for the placement, given the suitability requirements in paragraphs 77 and 85 of Exhibit C, I note the concerns expressed in Exhibit D, the Treatment and Supervision plan authored by Mr Mollica; in particular pages 7 through to 11, and the conclusion on p.10, which states as follows:
'Having regard to Mr Head’s ongoing issues with deviant sexual arousal, problems with boredom and entitlement and ongoing relevant sexual offending, Rivergum is considered the only option where Mr Head’s risk of further relevant offending can be managed and his risk ultimately reduced. Mr Head has been afforded a multitude of opportunities to make progress towards reducing the risk of sexual offending over the last 12 years, however to date his risk of sexual offending has not been reduced by less restrictive means of supervision. In fact, his risk of re-offending has increased, which is highly concerning given his past participation in treatment.
'Rivergum will offer Mr Head a stable and structured environment and is considered the only option available that can provide the necessary means to assist Mr Head to reduce his risk of re-offending and curtail the cycle of custody-release-re-offending'.
(e) As I said to Ms Beech, one hopes such a regime works for Mr Head and serves to protect the community. However I find the chance of such success must be seen as remote at best, despite the somewhat harsh regime to be imposed to ensure there are no opportunities for further criminality;
(f) I do not consider, in the circumstances which relate to Mr Head, this revolutionary opportunity, while I am hopeful that it can help in his rehabilitation, is such as to demonstrate more than an opportunity to take a step to effect rehabilitation, where all steps have failed to date, and therefore I conclude that such offers a mere possibility of success;
(g) I should say however, despite such finding, I was very impressed with Mr Mollica’s evidence and clearly the Rivergum concept is an exciting development. I would not like any finding that I make today to be seen as in any way a negative reaction to such developments.
55Given the above finding I do not accept the submissions of Ms Beech as to the relevance of the placement to the sentence as detailed in paragraph 31(a), (b) and (c) and find such submissions as to Mr Head are merely speculative. However, I agree that the sooner he can take the opportunity to go to Rivergum the better for all. I do take such into account in this sentence, especially as to the setting of the non-parole period, however firstly Mr Head must be held accountable for his crimes.
56Ms Beech accepted the gravity of the crimes but asked the Court to take into account his co-operation, especially in 2020. I also accept the comments as to the need to take into account the overlap of offending, albeit the breach offences comprise separate criminality (see Exhibit 1, [27]).
57Ms Beech also raised the issue of the plea. That it was an early plea in the circumstances, was utilitarian, effected remorse and acceptance of Mr Head’s wrongdoing. Ms Beech also referred to the fact that this plea is taking place during particularly difficult times for the Court, when listing pleas is very difficult and Court time is difficult to organise, and the impact of delaying trial dates caused by COVID-19 and the circumstances as reported and taking into account, in Re Bourke [2020] VSC 130, [32], were relied upon. For all those matters I provide an appropriate discount.
58I also accept that any period in gaol, not only on remand to date but in the short term, one would hope, is going to be impacted by the effects of COVID-19. There were lockdowns to cope with, restrictions of programs, total restriction of visitors and indeed ongoing risk of COVID being passed within the prison. I should say that that risk is obviously low, given the excellent way the Corrections department has tackled this problem, with no evidence to date emerging of any prisoner having been infected in prison.
59
As to Mr Head's personal background I note in Exhibit 1, [10] through to [16], and the histories contained in Exhibit 2, [4], and
Ms Raymond’s report; Exhibit E, [16] to [29]. I have no doubt that the principles set out in Bugmy v The Queen [2013] HCA 37, [41] apply here as an explanation for this criminality, and indeed his sexual deviation, and I take such into account by way of mitigation. The sorry highlights are these:
(a) Mr Head began his life as a young boy on a dairy farm in Gippsland;
(b) He was diagnosed with ADHD as a child;
(c) He was mistreated as a child and subjected to family violence and drug addiction;
(d) He moved to Frankston but was bullied at school;
(e) At approximately 15 years of age he exhibited behavioural issues and was still being violently treated by his mother;
(f) Also by the age of 15 he was using cannabis heavily and suffered a drug induced psychosis;
(g) Mr Head was homeless at the age of 17 years;
(h) At the age of 18 Mr Head committed the index offending;
(i) In 2008, when released, Mr Head started in transitional accommodation, but by 2010 was placed in Corella Place. Thereafter alternative public housing was tried until sentenced in this Court in September 2017, and thereafter he has resided at Corella Place and Emu Creek;
(j) In 2019 he was transferred to Reservoir Lodge, where the 2020 offending occurred, and there he was subject to COVID-19 conditions which included lockdowns, limited support and no access to the support of ACSO. Mr Head had met Ely, his partner, there, however she left in June 2020 and this added to the stress that he was suffering from reduced support;
(k) Ms Beech puts the above not as an excuse but an explanation - being the context in which the 2020 offending occurred;
(l) Thereafter, since being remanded at Ravenhall, Mr Head has been subject to restrictions, isolation from his friends Cody and Reece and limited professional visits. I understand such restrictions have recently been modified;
(m) On remand Mr Head was required to isolate for 11 days in the Magistrates' Court, and a further 17 days at Ravenhall, and I am advised he has experienced 29 days of solitary confinement;
(n) Mr Head now works in the bakery and has completed a number of courses, which is confirmed by Ms Raymond;
(o) Mr Head is medicated for his anxiety with Sertraline, which I understand also calms his libido. Dr Calvin notes Mr Head’s Aboriginal ancestry and that apart from the matters detailed above he now suffers from persistent anxiety and panic attacks. The doctor opines that Mr Head is genetically pre-disposed to mental illness (p.5) and requires ongoing support for his mental health. I conclude that principles 5 and 6 of R v Verdins (2007) 16 VR 269, [32] both apply in a sentence will weigh more heavily upon him than the normal person and given his crimes he faces risk of violence and associated risks to his mental health.
Sentence
60I then come to the sentence. Mr Head, in the circumstances, because of where you are and how we are doing these matters, you do not need to stand up. You sit exactly where you are.
61Mr Head, I have taken account of all the factors that I have detailed in regard to your sentence and you will be convicted on all charges.
62Mr Head, as you are a serious sexual offender pursuant to s.6D(a) of the Sentencing Act the protection of the community must be the principal purpose of this sentence. There is before me no submission from the Director that the sentence, in order to effect such purpose, should be disproportionate. I consider that is a professional submission given that the day before this plea I renewed the Supervision Order for a period of three years.
63Coming then to the charges on the Indictment (CR 20-01058, CR 20-01508, CR 20-01121).
64On Charge 1 I sentence you, Mr Head, to a period of imprisonment of 18 months.
65On Charge 2, imprisonment of 14 months.
66On Charge 3, imprisonment of 4 months.
67On Charge 4, imprisonment of 4 months.
68On Charge 5, imprisonment of 4 months.
69On Charge 6, imprisonment of 6 months.
70On Charge 7, imprisonment of 1 month.
71On Charge 8, imprisonment of 12 months.
72Section 6E of the Sentencing Act requires the sentences on Charges 1 and 2 to be fully cumulated. As Redlich J has said, there is a tension between that section and the principle of totality. In this regard I note the comments of the High Court in R H McL v The Queen (2000) 203 CLR 452, 476-7 [76]. In the sentence I am to pronounce I have tried my best to effect the will of Parliament and, at the same time, take into account the principles of totality.
73Insofar as the sentences on the Indictment the base sentence will be the 18 months, which was passed on Charge 1. Cumulated upon that, and upon each other, will be six months of the sentence imposed in Charge 2, one month of the sentence imposed in Charge 6 and two months of the sentence imposed in Charge 8, making a total effective sentence of 27 months.
74I order that the non-parole period that should be imposed in regard to this case, that is, the period that you must serve prior to being eligible for parole, is 12 months.
75Pursuant to s.6F of the Sentencing Act 1991 you have been sentenced in regard to Charge 1 and 2 as a serious sexual offender and I order that such is to be recorded in the records of this Court.
76I then come to the summary charges (CR 20-01351).
77I sentence you to three months jail on each of Charges 1, 3 and 5.
78On Charge 6 I sentence you to five months jail.
79For clarity, can I tell you that such sentences will be served concurrently with the sentences passed in the Indictment.
80In regard to s.6AAA of the Sentencing Act, Mr Head, can I tell you, having heard the sentence I have just passed upon you it is probably not something that you think is significant, but I am required to tell you what the benefit to you of your plea has been. Insofar as the sentence passed upon you, you know that I have given you a total of 27 months with a non-parole period of 12 months. Can I indicate, as required by Parliament, what you would have received had you not pleaded guilty. Can I also indicate how difficult this is, because your plea of guilty is only one of the multitude of factors I have had to take into account. However, doing as best I can to comply with Parliament's wishes, can I indicate to you that had you not pleaded guilty the sentence that would have been imposed upon you is not one of 27 months with a minimum of 12 months, but I would have imposed a sentence of three years with a minimum of two years.
81Insofar as s.18, as to the sentence imposed upon you, I declare that the 202 days you have served by way of pre-sentence detention be deemed as service of this sentence and a declaration to that effect be recorded in the records of this Court. You will know, therefore, that you approximately have to serve another third of the minimum sentence before you are eligible for parole. It is difficult to understand these days because I understand different views are taken about parole from what indications are given by a Judge, especially in sexual matters. However in this case, given the steps taken, the matters put to me by the Director and, in particular, the matters from Mr Mollica, one would have thought that the minimum period proposed by this Court would be effected and steps would be taken to ensure that that was the minimum period, and that removal to Rivergum can take place as soon as is possible, however of course I cannot control that.
82As to the custody management issues I want to refer particularly to the recommendations 122 to 187 ('Custodial Health and Safety' and 'The Prison Experience'), and recommendations 234 to 245 ('Breaking the Cycle: Aboriginal Youth') of The Royal Commission into Aboriginal Deaths in Custody and such have been specifically included in the Order of the Court.
83I have signed the two forfeiture orders.
84I want to thank counsel, particularly, because of the inherent difficulties involved in this sentence and the concepts and matters that had to be considered, for their assistance in what I found to be quite a difficult task. Does either counsel want to make any comments or seek any clarification?
85MR PYNE: No, Your Honour.
86HIS HONOUR: Sorry?
87MR PYNE: Sorry.
88HIS HONOUR: It was my intention, Mr Pyne, to give you the opportunity to talk to Mr Head through this technological facility and that would mean that everyone else would be put into the library and you'd be able to talk to him after I leave the Bench.
89MR PYNE: Thank you.
90HIS HONOUR: I can't guarantee that that's not recorded. I'm told it's not, given the sanctity of the lawyer/client relationship, but, as I say, I can't give you a guarantee of that, but I'm assured there is no recordings made.
91MR PYNE: Thank you, Your Honour. I am grateful for that opportunity.
92HIS HONOUR: Any other matters that I need to clarify?
93MR PYNE: No, Your Honour. Not from my perspective.
94HIS HONOUR: All right, Mr Head, good luck, and I hope your willingness to go to Rivergum works out for you and that you overcome your difficulties.
95OFFENDER: Thank you, Your Honour.
96HIS HONOUR: Thank you. Yes, Mr Tipstaff.
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