Director of Public Prosecutions v Tyler (a pseudonym)
[2024] VCC 61
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Alfred Tyler (a pseudonym) |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2024 | |
DATE OF SENTENCE: | 23 February 2024 | |
CASE MAY BE CITED AS: | DPP v Tyler (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 61 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Grooming for sexual conduct with a child under the age of 16 years (Charge 1) - Possession of child pornography (Charge 2) - Sexual penetration of a child under the age of 16 years (rolled up)(Charge 3) - Sexual penetration of a child under the age of 16 years (Charge 4) - Sexual penetration of a child under the age of 16 years (Charge 5) - Indecent act with a 16 or 17 year old child (Charge 6) - Sexual penetration of a 16 or 17 year old child (rolled up) (Charge 7).
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Reid (a pseudonym) v The Queen [2014] VSCA 145, R v Howard [2009] VSCA 281, R v Cumberbatch [2004] VSCA 37, Markovic v The Queen [2010] VSCA 105, Pantelic v The Queen [2010] VSCA 105, R v Khem [2008] VSCA 136, R v Cleary [2004] VSCA 14, DPP v Dalgliesh (a pseudonym) [2017] HCA 41
Sentence: Total effective sentence of 9 years imprisonment with a non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Fiona Martin | Office of Public Prosecutions |
| For the Accused | Alexander Patton | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Alfred Tyler,[1] you have pleaded guilty to two charges of sexual penetration of a child under 16 (charge 3 and charge 4), and one charge of sexual penetration of a 16 or 17 year old child (charge 7). Each of these offences carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to one charge of sexual penetration of a child under 16 whilst that child was under your care, supervision and authority (charge 5), which carries a maximum penalty of 15 years’ imprisonment.[2]
[1] A pseudonym
[2]Crimes Act1958 (Vic) s45(2)(b).
2In addition, you have pleaded guilty to one charge of grooming for sexual conduct with a child under 16 (charge 1); and one charge of possession of child pornography (charge 2), which each carries a maximum penalty of 10 years’ imprisonment.
3Finally, you have pleaded guilty to an indecent act with a 16 or 17 year old child (charge 6), which carries a maximum sentence of 5 years’ imprisonment.
4The offending occurred over a three-month period between 15 October 2016 and 19 January 2017. At the time of offending, you were 35 years old. The complainant was 15 years old at the time of the offending that is the subject of charges 1 to 5, and 16 years old at the time of the offending that is the subject of charges 6 and 7. You were in a relationship with the complainant’s aunt from 2005, and married her in 2010. You have three teenage children. The complainant was close to her aunt and the two families regularly spent time together. At the time of your offending, the complainant’s parents were separated and the complainant and her brother lived with their mother.
5Prior to the offending, there was contact between yourself and the complainant which was relied upon as context evidence. When the complainant was aged 13, you communicated regularly with her on Facebook and Snapchat. On one occasion, when she visited your home, you sent her a message that included an emoji of the “rude” finger with the caption: “Sit on this and rotate”. In 2015 when the complainant was 14 years old, you were sending her messages every night saying that you “loved” her and “goodnight”, and would send her love heart emoji’s and kissing emoji’s.
Circumstances of Offending
6The details of your offending were set out in the Amended Summary of Prosecution Opening for Plea which was accepted by your counsel as accurate, and I sentence you on the basis of the facts contained in that document. I summarise the offending briefly.
Incident 1: Charges 1 and 2
7During October 2016, the complainant and her family stayed at a holiday house. The complainant’s step-father was working in the area at the time.
8On 15 October 2016, you messaged the complainant on Snapchat, telling her you were going to have a shower. You then sent to the complainant four naked images of yourself. One photo depicted you holding your erect penis. This is the subject of charge 1.
9After sending these four images, you asked the complainant to send a photo of herself to you. You told her she didn’t need to be shy, and that she was beautiful. The complainant sent two images to you which depicted her breast and vagina. You then screenshotted these images. This is the subject of charge 2.
Incident 2: Charge 3
10On another occasion in late 2016, you played golf with the complainant’s step-father. You returned to the complainant’s family home at around 4:00pm, and went into the shed with the complainant’s step-father to drink alcohol.
11In the evening, the complainant was in the shed with you and her step-father and you were all sitting around a fire and talking. When the complainant’s step-father went inside the house, you tried to kiss the complainant, but she said “No” as she was unsure when her step-father would return.
12When the complainant’s step-father did return, the complainant did not tell him what had occurred because she was scared and unsure what to do. The complainant and her step-father then said they were going to bed.
13Around 10 minutes after the complainant went to bed, you entered her bedroom through the open door. The complainant was still awake. You then got into bed with her and got underneath the blankets. The complainant was wearing jeans and a black singlet top, and you were wearing a t-shirt and shorts. You undid your pants and exposed your penis.
14You then put your arm around the complainant and put your hand down the front of her jeans and into her underwear. You then fingered the complainant and inserted one or two fingers into her vagina. At this time, your penis was erect and was pushing into the complainant’s lower back and buttocks. This conduct is the subject of charge 3, which is a rolled up charge.
15You then rolled the complainant onto her back, removed her pants and underwear, leaving her singlet top on. You got on top of her and inserted your penis into her vagina without using a condom. You then ejaculated into her vagina. After you ejaculated, you left the room. This further conduct is part of the rolled up charge 3.
Incident 3: Charge 4
16In around September or October 2016 (on a different occasion to that the subject of charge 3), you, the complainant and two of your children went to a football oval together.
17You asked the complainant to go on a walk with you. Initially she said she did not want to, but you continued to ask until she agreed. You walked around the football ground to the netball courts and sat down in a rotunda.
18You told the complainant to pull down her pants, which she did. You pulled down your own pants and exposed your erect penis. You told the complainant to sit on you. The complainant was worried about your children coming over, but you told her not to worry and that they were playing football on the oval.
19The complainant sat on your lap, and you put both your hands on her hips. You inserted your penis into her vagina, without wearing a condom. You ejaculated inside her vagina. This is the subject of charge 4.
20The complainant later contacted you via Snapchat and told you she was worried she had fallen pregnant because her period was late. You informed her that you had a vasectomy and that she did not need to worry.
Incident 4: Charge 5
21Sometime between October and November 2016, you took the complainant to your father’s house to collect firewood. Your father was not home at the time, and you took the complainant inside the house for lunch. You went into the loungeroom where you had penetrative sex with the complainant. You ejaculated inside her vagina. This is the subject of charge 5.
22At the time of this incident, the complainant was in your care and under your authority.
Incident 5: Charges 6 and 7
23On 19 January 2017 the complainant visited your house during school holidays. She was under your care, supervision and authority.
24That night, the complainant and your children were playing video games in the bedroom. You entered the room and put the movie ‘Flubber’ on the television. The complainant was sitting on the bottom bunk with one of your children. That child fell asleep, and you moved them on the bed so that you could lie behind the complainant on the bed.
25You and the complainant were both laying on your sides and you put one arm over the complainant so that you were cuddling her. You told her that she was beautiful and that you were so lucky, and you told her to be quiet.
26You exposed your penis through your pants and underwear and put the complainant’s hand on it. Your penis became erect and the complainant masturbated you. This is the subject of charge 6.
27While the complainant masturbated you, you put your hand down her pants and inserted 2 or 3 fingers inside her vagina for around five minutes. This conduct is part of the rolled-up charge 7.
28You then rolled the complainant over, positioned yourself behind her and inserted your penis into her vagina. You told her that “it felt really good” and that she was “beautiful”. She was shocked and said nothing. This further conduct is part of the rolled-up charge 7. Not long after you started having sex with the complainant, your now ex-wife (the complainant’s aunt) came into the room and stood at the doorway. She looked at you and the complainant and you stopped moving and put a blanket over yourself and the complainant. Your ex-wife then left the room without saying anything. You did not know if she knew what you were doing with the complainant. You did not ejaculate on this occasion, and you left the room after you stopped penetrating the complainant.
Complaint
29In 2018, the complainant told her then boyfriend about the offending, but she did not go into any detail.
30In July 2020, the complainant told her mother that you had sexually abused her when she was younger.
31In the middle of 2020, the complainant reported the matter to the police. She provided a statement to the police on 4 September 2020.
Arrest and Record of Interview
32On 22 April 2021, a search warrant was executed on your property and your mobile phone was seized. You were arrested and taken to a police station where you participated in a recorded interview.
33In relation to charges 1 and 2, you agreed to having exchanged naked pictures with the complainant via Snapchat, but stated that you believed she was around 16 years of age when that occurred. You stated you recalled that the complainant was the first one to send a photo. You recalled receiving a picture of the complainant’s breast, but denied screenshotting any photos that she sent to you. You further stated that at the time of exchanging photographs with the complainant, you did not see her as a child, and you were lonely.[3]
[3] Police Interview with Alfred Tyler (a pseudonym), (Senior Constable Grech, Narre Warren Polie Station, 22 April 2021) Q&A 211-216, 227-230, 236-237, 341-349, 355-357, 362-366, 426-431, 434-440, 449-456, 600-606 and 624- 628.
34In relation to charge 3, you denied playing golf with the complainant’s step-father on that day, and additionally denied the incident occurred.[4]
[4] Ibid Q&A 268-287.
35In relation to charge 4, you agreed you had gone to a football oval with one of your children and the complainant, but you denied anything sexual occurred. You stated that the reason the complainant knew you had a vasectomy was because it had been discussed within the family.[5]
[5] Ibid Q&A 249-251, 255-264, 289-294, 331-338 and 480-496.
36In relation to charge 5, you stated that you had never taken the complainant to your father’s house and you denied that the incident occurred.[6]
[6] Ibid Q&A 253-254, 295-298, 306-307, 522-525 and 529.
37In relation to charges 6 and 7, you agreed that the complainant had stayed at your home on those occasions, but you denied the allegations.[7]
[7] Ibid Q&A 309-330 and 535-541.
Resolution
38This matter resolved two weeks before the Committal Mention.
Pre-sentence detention
39You were remanded in custody at the conclusion of the plea hearing and have spent 25 days, not including today, in pre-sentence detention.
Victim Impact Statement
40There was a Victim Impact Statement provided by the complainant which was tendered and read out in court by counsel for the prosecution.
41The complainant stated that as a result of the offending, she has suffered from Post-Traumatic Stress Disorder, poor sleep, and low self-esteem. She has irrational fears, trust issues and experiences panic attacks and compulsive behaviour. She further stated she has suicidal thoughts and has made attempts at suicide.
42The complainant stated that she feels she has been robbed of her childhood as a result of your offending. She stated she became pregnant at 17 years of age, and gave birth to her daughter when she was 18 years of age, and she feels as though she has lost the opportunity to have many young life experiences. She also stated that she only allows her mother to care for her daughter, as she has trust issues when it comes to her daughter’s care.
43The complainant stated that she had been engaging in ongoing counselling, but can no longer afford it. She has lost her connection with her aunt and cousins and feels disconnected. She struggles to socialise, finds it difficult to meet new people and feels safer in the company of close friends and family.
44The ongoing justice process and police involvement has affected her concentration and made it difficult for her to complete her courses. As a result, she is only able to work in low income roles, which has forced her and her daughter to live with her mother and siblings.
Personal Circumstances
45Your personal circumstances were outlined by your counsel and I summarise them as follows. You are an only child. Your parents separated when you were young and you went to live with your father. You have a good relationship with him and he remains supportive of you. Since your parents separated, you have had a strained relationship with your mother and have had no contact with her for the past four or five years.
46You enjoyed an “unremarkable childhood”,[8] and left school during year 12 without completing your VCE. You have not pursued any other formal education.
[8] Alfred Tyler (a pseudonym) ‘Defence Plea Submissions’ Submission in DPP v Alfred Tyler (a pseudonym), CR-23-01558, 24 January 2024, 1 [4] (‘Defence Plea Submissions’).
47After leaving school, you commenced a retail traineeship, and subsequently worked in retail and forestry work until 2012 when you began working in the timber industry. You resigned from this job in late 2023 in anticipation that you would serve a term of imprisonment for this offending.
48You commenced your relationship with your now ex-wife (who is the complainant’s aunt) in 2005 and you have three teenage children together. Your ex-wife suffered from depression which contributed to difficulties in the marriage, leading to periods of separation. During those periods, you continued to live in the same house to be able to continue co-parenting, and to also avoid the need to tell their family about the relationship breakdown.
49You instructed your counsel that in late 2016, around the time of the offending, you were significantly distressed about your relationship with your ex-wife, and you were drinking heavily. In the year prior to and during the period of the offending, you were often binge drinking for 24 hours.
50According to the instructions you provided to your counsel, since your offending you have made significant changes to your life to address your mental health issues, including stopping consumption of alcohol, purchasing a dog, changing your behaviours and ending poor relationships. Your counsel submitted that as you have addressed your emotional difficulties, you do not need any mental health treatment.
Submissions
Defence
51Your counsel accepted the summary of offending, and the prosecution submissions concerning the gravity of your offending, and the inevitability that your offending will attract the imposition of a term of imprisonment.
52Your counsel accepted that your conduct in relation to charge 3 was aggravated by the failure to wear a condom in that it exposed the complainant to the risk of sexually transmitted diseases.
53In mitigation, your counsel raised a number of matters. Firstly, you are a middle-aged offender with no prior convictions. You have not offended in the six years since being charged. For this reason, you are to be regarded as having good prospects for rehabilitation and being unlikely to reoffend, particularly as you say you have abstained from alcohol and addressed your mental health issues. As a result, while specific deterrence and protection of the community remain relevant considerations, they need not weigh heavily in the sentencing process.
54Secondly, your plea of guilty should be seen as having been made very shortly after the earliest reasonable opportunity, as being an indication of remorse, and as having substantial utilitarian value in that it avoided the need for the complainant to go through the “trauma of being cross-examined at committal and trial”.[9] For this reason, your plea warrants ‘substantial’ moderation of the sentence.[10]
[9]Reid (a pseudonym) v The Queen [2014] VSCA 145, [114].
[10]R v Howard [2009] VSCA 281, [16].
55Thirdly, there has been a considerable delay in this matter. There was a delay of 18 months between your being made aware of the allegations and being charged, and you were charged some six years after the offending.
56Whilst conceding the seriousness of your offending and the relevance of the serious sex offender provisions of Part 2A of the Sentencing Act 1991 (‘the Act’) to charges 3-7 on the indictment, it was submitted that full cumulation would offend the principle of totality.
57It was submitted that the offending in relation to charges 1 and 2 should be treated as one episode, and that the offending the subject of charges 6 and 7 should also be treated as being one episode. For this reason, there should be only modest cumulation in respect of the sentences imposed on the more serious of the charges in each of those episodes.
58It was submitted that the sentence imposed should not cause you to feel helpless about your future nor prevent you from having a “useful and productive life” upon your release from custody.[11]
[11] Defence Plea Submissions, above n 8, 4 [27]; R v Cumberbatch [2004] VSCA 37 [12].
59It was submitted that this is your first time in custody, and that a portion of your sentence will be served in protection, which will be more onerous for you than being placed in a mainstream unit. In addition, your incarceration will be more onerous because you will be distressed by the impact of your incarceration on your ex-wife and children.[12] It was submitted that this hardship warrants a moderation in your sentence.
Prosecution
[12]Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105 [20].
60The prosecution submitted that the offences fall within the mid-range of seriousness, given the presence of a number of aggravating features.
61One significant aggravating feature in the offending was the absence of a condom in the incidents relating to charge 3 and the fact that you ejaculated in the complainant’s vagina in charges 3, 4 and 5.
62Although in relation to charge 4 you said you told the complainant that you had a vasectomy, the prosecution noted that no evidence to this effect was provided to the court. For the purposes of this sentence, in the absence of evidence to the contrary, I have acted on the basis that you have indeed had a vasectomy.
63A second aggravating feature, in relation to charges 6 and 7, was that the offending occurred in the same room as your children, and in the same bed where your young son was sleeping. In addition, your offending in charge 4 also occurred in close proximity to your children.
64A third aggravating feature was the breach of trust involved in the conduct the subject of charges 1 through 4.[13]
[13] The prosecution conceded that in relation to charges 5 through 7, the breach of trust was an element of the offence and could not be treated as an aggravating feature.
65Whilst the prosecution accepted that there were no threats or violence used to attempt to silence the complainant, it emphasised that the 20-year disparity in age between you and the complainant was enough to deter her from complaining about your conduct.
66The prosecution accepted that the offending took place over a relatively confined, three-month period and that the conduct the subject of charges 1 and 2 was part of one incident, and that the conduct the subject of charges 6 and 7 was also part of one incident.
67The prosecution relied on the Victim Impact Statement as demonstrating the devastating impact that your offending has had on the complainant.
68The prosecution accepted that you have no prior convictions and that your plea of guilty was made early, carries utilitarian benefit as well as demonstrating your acceptance of responsibility for your conduct. It was submitted that, apart from the remorse which inheres in your plea, there is no other evidence of remorse on your part for your offending. The prosecution noted your denial in your record of interview of the conduct the subject of charges 3 through 7 and the absence of any indication to the court of your understanding of the wrongfulness of your conduct nor of the impact of your offending on the complainant. In addition, the prosecution submitted that no evidence had been provided to support your contention that you have remained abstinent from alcohol and have resolved your mental health issues.
69For this reason, it was submitted that specific deterrence plays more of a role in the sentencing process than it might otherwise have done and that it was difficult to assess your prospects of rehabilitation.
70The prosecution accepted that there has been a substantial delay in this case which has not been caused by the parties.
71In relation to the hardship associated with your imprisonment, the prosecution submitted that there was no evidence before the court of any increased hardship aside from the obvious burden experienced by families when a member is incarcerated.
Relevance of Worboyes v The Queen [2021] VSCA 169
72As neither party addressed this matter during the course of the plea hearing, they were invited after the plea hearing to confer and provide their positions to the Court in writing. The parties indicated by consent that the principles enunciated in Worboyes v The Queen should be applied to the sentence to be imposed upon you, but that, in the circumstances of this case – where the matter resolved at a time when the Covid-19 backlog was easing – the amelioration of sentence ought to be less than that which applies to a plea of guilty entered during the first three years of the pandemic.
73I have adopted this approach below.
Sentencing Considerations
74The complainant is your niece by marriage, twenty years younger than you. She was close to her aunt and cousins. The context of your offending was that you began communicating with her on social media when she was only 13 and 14 years old. Your offending took place over a three-month period from October 2016 to 19 January 2017, when the complainant was 15 and 16 years old. Your offending in relation to charges 1 to 4 constitutes a gross breach of trust and is an aggravating feature of that offending. However, as breach of trust is an element of charges 5 to 7, it cannot be treated as an aggravating feature of that offending.
75On the first occasion, you groomed her by sending her naked images of yourself (charge 1), and got her to send you images of her breast and vagina (charge 2).
76On the second occasion, when you were sleeping overnight in the complainant’s lounge room, you went into her bedroom, penetrated her vagina with your fingers (rolled up charge 3) and then penetrated her vagina with your penis, ejaculating into her vagina (part of rolled up charge 3). You were not wearing a condom at the time. Your conduct in relation to the second part of charge 3 is aggravated by the fact that you were not wearing a condom and thereby exposed the complainant to the risk of sexually transmitted diseases.[14]
[14] See R v Khem [2008] VSCA 136 and R v Cleary [2004] VSCA 14.
77On the third occasion, when you were at the park with your sons and the complainant, and they were playing together, you got the complainant to go for a walk with you away from the boys, made her sit on you, and penetrated her vagina with your penis, ejaculating into her vagina (charge 4).
78On the fourth occasion, when you took the complainant to your father’s house to collect firewood, and she was therefore under your care, supervision or authority, you penetrated the complainant’s vagina with your penis, ejaculating inside her vagina (charge 5).
79On the fifth occasion, 19 January 2017, the complainant was at your house, under your care, supervision and authority. She was sharing the bottom bunk with one of her younger male cousins, who fell asleep. You lay on his bed next to the complainant and had her masturbate your penis (charge 6). You then penetrated her vagina with your fingers (rolled up charge 7) and then penetrated her vagina with your penis (rolled up charge 7). The complainant’s aunt came upon you with the complainant at that time, but you stopped moving and put a blanket over yourself and the complainant. Her aunt left the room. You did not ejaculate on that occasion and left the room.
80Your conduct was predatory, abhorrent and disgraceful. Although it took place over a relatively confined period of time – 3 months – it robbed a young adolescent of her innocence and sense of safety in her own home and within her extended family and left her with permanent psychological sequelae which I have referred to above. Your conduct in the offending comprising charge 1 to 4 was aggravated by the fact that it involved a breach of trust. The most serious of your offending is the conduct the subject of charges 3, 4, 5 and 7. I take into account that charges 3 and 7 are rolled up counts each involving two incidents. I also note that in relation to charges 5 and 7, the complainant was under your care, supervision and authoirty. Although your offending which is the subject of charges 3, 4, 5 and 7 is not the worse example of these offences, I consider that your conduct falls at the mid-level of seriousness of offending of this type.
81You had an unremarkable upbringing and education, and have had a solid work history. You have had a wife and family. They are aware of your offending. There is no evidence that during the period of offending you suffered any diagnosed mental illness or disorder, although I accept that you were having marital issues and abusing alcohol. I consider that your moral culpability for your offending is very high.
82On the authorities, your offending requires the principles of denunciation, just punishment, general and specific deterrence, and protection of young persons to be at the forefront of the sentencing process. The long-term harm done to your victim must be given appropriate weight.[15] In addition, I must have regard to the maximum penalties imposed by Parliament for the offences you have committed and to current sentencing practice.
[15]DPP v Dalgliesh (a pseudonym) [2017] HCA 41 [47].
83I turn to the factors raised in mitigation. I acknowledge that you have no prior convictions and that your plea of guilty has utilitarian value in sparing the inconvenience and expense of a trial as well as the distress of the complainant from giving evidence and being cross-examined. Your plea of guilty warrants a substantial discount in the sentence to be imposed, along with a further perceptible amelioration for having made the plea prior to the resolution of the COVID-19 related backlog, albeit a lesser amelioration than one which would have been available if the plea had been entered during the first three years of the pandemic.
84However, apart from the remorse which inheres in your plea of guilty, I consider that you have shown no remorse for your offending, nor given any indication of understanding the serious negative impact the offending has had on the complainant. For this reason, I consider that specific deterrence remains a relevant consideration. On the other hand, I acknowledge that as you have not offended further, your prospects of rehabilitation are to be regarded as reasonable. There was no evidence before me of any increased hardship that you will suffer in prison apart from the obvious burden that is experienced by those who have family members in prison and who have offended in a similar way that you have.
85I have taken into account that there has been delay in this matter of some years, and during that time you have not reoffended.
86Your offending predates the commencement of the operation of both the Mandatory Sentencing regime and the Standard Sentence regime, and therefore neither of these regimes applies to this proceeding.
87However, Part 2A of the Act applies to charges 3-7. As you are to be sentenced to a term of imprisonment on charges 1 and 2, you fall to be sentenced as a serious sexual offender on charges 3-7. This means that, in determining the length of your sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.[16] In doing so, I may impose a disproportionate sentence.[17] It was not submitted by the prosecution that I should do so, and I therefore decline to do so. Additionally, unless I direct otherwise, the sentences of imprisonment imposed on charges 3-7 must be served cumulatively on any uncompleted sentences of imprisonment, unless otherwise directed.[18] In order to satisfy the principle of totality and avoid a crushing sentence upon you, I direct otherwise and have moderated the orders for cumulation as outlined below.
[16]Sentencing Act 1991 (Vic) s 6D(a).
[17] Ibid s 6D(b).
[18] Ibid s 6E.
88Further, pursuant to section 6F(1) of the Act, it must be entered in the records of the court that you have been sentenced as a serious sexual offender in respect of charges 3-7.
89Finally, I note that the provisions of the Sex Offenders Registration Act 2004 (‘the SORA’) do apply to this proceeding. Your conviction on charges 1-7 mean that you are to be declared a registrable offender and must comply with the reporting obligations of the SORA.
90Charges 3, 4, 5 and 7 on the Indictment constitute Class 1 offences pursuant to Schedule 1 to the SORA. Charges 1, 2 and 6 on the Indictment constitute Class 2 offences pursuant to Schedule 2 to the SORA. However, as charges 1 and 2 occurred within the same 24 hour period, they are deemed to be a single Class 2 offence pursuant to s34(3)(a) of the SORA. This also applies to charges 6 and 7, which occurred within the same 24 hour period.
91As you have pleaded guilty to three Class 1 offences and two Class 2 offences, pursuant to s34(1)(c)(i) and (c)(ii) of the SORA, you must now comply with the reporting obligations of the SORA for life.
92Would you please stand.
93I sentence you as follows.
94On Charge 1, grooming for sexual conduct of a child under 16, you are sentenced to 12 months’ imprisonment.
95On Charge 2, possession of child pornography, you are sentenced to 12 months’ imprisonment.
96On Charge 3, a rolled-up charge of sexual penetration of a child under 16, during which you ejaculated into the complainant’s vagina while not wearing a condom, you are sentenced to 4 years and 6 months’ imprisonment.
97On Charge 4, sexual penetration of a child under 16, you are sentenced to 3 years and 6 months’ imprisonment.
98On Charge 5, sexual penetration of a child under 16 while the child was under your care, supervision or authority, you are sentenced to 5 years’ imprisonment. This is the base sentence.
99On charge 6, indecent act with a 16 or 17 year-old child, you are sentenced to 6 months’ imprisonment.
100On Charge 7, a rolled-up charge of sexual penetration of a 16 or 17 year old child while that child was under your care, supervision or authority, you are sentenced to 4 years’ imprisonment.
101For the purposes of cumulation, I have treated Charges 1 and 2 as part of one incident; and Charges 6 and 7 as part of one incident.
102I make the following orders as to cumulation:
(a) Six (6) months of the sentence imposed on Charge 1 is to be served cumulatively upon the base sentence;
(b) Fifteen (15) months of the sentence imposed on Charge 3 is to be served cumulatively upon the base sentence;
(c) Twelve (12) months of the sentence imposed on Charge 4 is to be served cumulatively upon the base sentence;
(d) Fifteen (15) months of the sentence imposed on Charge 7 is to be served cumulatively upon the base sentence.
103The total effective sentence is 9 years’ imprisonment with a non-parole period of 6 years.
104I declare that there are 25 days of pre-sentence detention, not including today, which are to be deducted administratively from this sentence.
105I indicate pursuant to s6AAA of the Act that, but for your plea of guilty in relation to all of the above offences, I would have imposed a total effective sentence of 13 years with a non-parole period of 10 years’ imprisonment.
106As indicated above, you are a registrable offender as defined in the SORA and must comply with the reporting obligations in that Act for life. I order that the declaration that you are a registrable offender as defined in the SORA be entered into the Court’s records.
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