Director of Public Prosecutions v Walker
[2019] VCC 1670
•7 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01873
Indictment No: H10111412.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN WALKER |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 October 2019 | |
DATE OF SENTENCE: | 7 October 2019 | |
CASE MAY BE CITED AS: | DPP v Walker | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1670 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Sex Offender Registration Act 2004; Crimes Act 1958.
Cases Cited:R v SBL [1999] 1 VR 706; R v Wayland (unreported, Supreme Court Of Victoria Court Of Criminal Appeal, Crockett, Southwell and Hampel JJ, 11 and 14 September 1992); Director of Public Prosecutions v VH (2004) 10 VR 234, Clarkson v R 32 VR 361; DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360 and R v Kilic (2016) 91 ALJR 131; R v RLP [2009] VSCA 271; TRG v R [2011] VSCA 337; R v Whyte (2004) 7 VR 397; R v Cumberbatch (2004) 8 VR 9; RHMcL (2003) CLR 452; Director of Public Prosecutions (DPP) v Hopson [2016] VSCA 303; Matheas v The Queen [2017] VSCA 330; Gordon v R [2013] VSCA 343; and Director of Public Prosecutions (DPP) v Bales [2015] VSCA 261; Zhao v R [2018] VSCA 267; Director of Public Prosecutions v Toomey [2006] VSCA 90; Director of Public Prosecutions (DPP) v DJK [2003] VSCA 109; Director of Public Prosecutions v Dalgliesh (Pseudonym) [2017] HCA 41.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J. Dounias | Vassis & Co |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1
Alan Walker, following a sentence indication given by me on 3 October 2019, you have pleaded guilty to three charges of indecent assault upon a male.
The maximum penalty on each charge is five years’ imprisonment.
The complainant in relation to your offending in relation to Charges 1 and 2 is Conrad Vance[1], and in Charge 3, Nelson Hensley[2].
[1]A pseudonym.
[2]A pesuodnym.
2 Charge 1 is a representative charge of three occasions where you masturbated the penis of Mr Vance. As I discussed with counsel, the relevant sentencing principles are found in R v SBL[3] as being applicable, and the cases thereafter refer to that decision.
[3](1999) 1 VR 706.
3 Your crimes arise out of events which took place between 1975 and 1977.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened by the learned prosecutor, consistent with the Prosecution Opening before me (Exhibit A).
5 I turn to a summary of your offending.
6 Conrad Vance was, at the time of your offending, 11 to 14 years of age and is now 54. Nelson Hensley was born in 1964, and at the time of your offending was between 10 and 12 years of age. Mr Hensley is now 55 years of age.
7
You were born, as stated in the Prosecution Opening, on 20 September 1936. However, orphanage records before me place your date of birth as at
20 September 1935. I proceed on the basis of those records. You are therefore, at the time of sentence, 84 years of age.
8 Charge 1 is a representative charge of three occasions where you masturbated Mr Vance's penis. Charge 2 is an incident of indecent assault referable to you putting your penis into the mouth of Mr Vance. Charge 3 is an indecent assault involving touching the penis of Mr Hensley over his clothing.
9 In approximately 1976, you were the proprietor of a pet shop on the corner of Plenty Road and Wood Street, Preston. Next door was a fish-and-chip shop where local children would play pinball machines.
10 The complainant, Mr Vance, would often play pinball and also go to your pet shop to look at the birds and buy birdseed for his budgerigar.
11 I turn to your offending.
12 One afternoon in about 1976, Mr Vance saw his friend, Mr Hensley, working at your pet shop moving hessian sacks of animal food from the back of the shop inside. Mr Vance went in to chat to Mr Hensley. You approached Mr Vance and asked if he would like to earn $5. He said “yes”, and was directed to move the animal food inside.
13 You appeared a short time later with an open can of Coke and offered Mr Vance a drink. Mr Vance took a sip and got back to work, but did not see his friend, Mr Hensley, again. After he finished moving the food, Mr Vance sat on the hessian bags and drank the rest of the can of Coke, which made him feel funny. Mr Vance felt 'in and out of it' and could not move. I stress there is no evidence before me regarding what caused Mr Vance to feel that way, if in fact he did, and I specifically ignore that for the purposes of sentencing you.
14 Mr Vance found himself lying on his back on the ground as you said, “I’ll teach you how to skin a fox”. You grabbed Mr Vance’s ankle with one hand and said what you would do to skin a fox, demonstrating on Mr Vance's legs as you moved your hand onto Mr Vance's crotch over his clothing.
15 You then undid the zipper on Mr Vance's pants and began to fondle his penis and testicles. Mr Vance felt an unfamiliar pain in his penis as you masturbated him (Charge 1 – first incident). Mr Vance ejaculated, and you rubbed it over his stomach.
16 You said “You had a big load, Shags”, as you went to get something to clean the complainant.
17 As Mr Vance got up, you repeatedly said, “You’re going be right, Shags, you're going to be right, Shags” and gave Mr Vance $20, saying he had worked well and could go home.
18 The next day, Mr Vance was angry and overheard a customer negotiating the sale of a bird to you as he walked past your shop. Mr Vance offered the customer $5 more than what you were going to pay. You told Mr Vance to get out of the shop.
19 Mr Vance then went and played pinball at the fish-and-chip shop. Approximately 10 to 15 minutes later, you got some change, went into that shop, threw it at Mr Vance, and said, “Here, we’ll just forget about it.”
20 About a month later, Mr Vance was again going to play the pinball machines when he saw you out the front of your shop with your dog, Rags. You said you had something for Mr Vance, who went inside with you and to the back of the shop behind a curtain.
21 After closing the front door you grabbed Mr Vance from behind, pulled his pants down, reached around and tried to kiss him on the lips, succeeding only in kissing Mr Vance's cheek.
22 Your penis was out of your pants as Mr Vance fell to the floor. You grabbed Mr Vance by the back of the head and put your penis into Mr Vance's mouth for approximately twenty seconds. Mr Vance resisted, but still had his lips around your penis (Charge 2).
23 You next pulled Mr Vance up onto the hessian bags and bent over him. You put your arms around Mr Vance's chest and stomach and masturbated Mr Vance's penis (Charge 1 – second occasion).
24 You tried to kiss Mr Vance. Mr Vance ejaculated as he was being fondled and you rubbed the ejaculate over Mr Vance’s stomach, saying, “How did that feel, Shags?”
25 Approximately a month later, when Mr Vance was still 11 years of age, he was walking home from the Preston Baths when you approached him in your white utility vehicle.
26 You asked Mr Vance to get into the car and said you would give him a lift but, in fact, took him just around the corner. You pulled up just outside an empty house, and both of you went to a room at the back of the house.
27
You pushed Mr Vance up against a wall, pulled his shorts and underwear off,
and played with his penis and testicles, rubbing and pulling at them, saying “How’s that, Shags? How does it feel, Shags? Does it feel good?” (Charge 1 – third occasion). Again, Mr Vance ejaculated and you rubbed it over Mr Vance's stomach and chest.
28 On another occasion, when Mr Vance was twelve, he was at the fish-and-chip shop with two school friends when you came in. When the other boys were not watching, you grabbed Mr Vance’s penis over his clothing and squeezed it. This is relied upon by the prosecution as context evidence.
29 When Mr Vance was 13 or 14, he was at a café in High Street, playing pinball and billiards with friends. He and a couple of friends moved to a secluded section to smoke a bong when you arrived. As the others went back inside the café, you grabbed Mr Vance on his penis through his clothing. This is also relied upon by the prosecution as context evidence.
30 In about 2016, Mr Vance made contact with an old school friend, Mr Hensley, via Facebook Messenger exchange.
31 Mr Vance asked if Mr Hensley remembered working at the pet shop when they were kids, and Mr Hensley replied, “Yeah with the poof happy”, “I think that was his name.” Mr Vance responded “Thanku mate he abused me.” Mr Hensley replied, “Can I ask did he start off by saying, ‘let me show u how to skin a rabbit’?”
32 Mr Hensley contacted police and told them about the incident he had referred to in the text message. He said he had been working at the pet shop where you were known as 'Happy' and were the boss of the shop. One afternoon, as Mr Hensley was working, you said if he wanted to be shown how to skin a rabbit. You then bent down and ran your fingers from Mr Hensley’s foot to his testicles, touching him on his testicles over his clothing (Charge 3).
33 Mr Hensley pushed you away and left the shop, never returning to work there.
34 Turning to the police investigation, on 24 August 2016 you participated in a Record of Interview with police, during which you denied all the sexual allegations. You admitted running a pet shop with a lot of birds, admitted receiving animal feed in large bags and acknowledged being called ‘Happy’. You denied ever talking about skinning rabbits and foxes with anyone.
35 There are a number of aggravating features of your offending, which I discussed with both counsel. There are two complainants. There is an aspect of breach of trust, in particular in relation to Mr Hensley who had at the time of this offending worked with you for approximately six months after school. Mr Vance had worked with you just on this one night prior to your first offending involving him. There was also an element of some planning by you in relation to Mr Vance, when you took him to the house relevant to your offending there. The age disparity between yourself and your complainants also was significant. Your counsel, Mr Dounias, did not disagree with those as being aggravating features of your offending, and he is right.
36 I am aware you do not have any prior court appearances. Your subsequent offending, I note, or I was told, is dated and does not relate to sexual offending of any type.
37 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. By your pleas of guilty the community has been spared the time and cost of a trial, and the victims of your offending, Mr Vance and Mr Hensley, have not been required to give evidence upon your trial. I do note both were cross-examined at a one-day committal hearing. Other witnesses have been spared the need to give evidence upon your trial.
38 I take into account the timing of your pleas of guilty. It was not at the earliest opportunity but, nevertheless, has occurred, and your pleas of guilty have utilitarian value. You entered your pleas of guilty after a sentencing indication was given following the handing down of a number of rulings by me in this matter prior to your trial commencing. I also note that at the time of your interview with police, you denied your offending. You have, however, now pleaded guilty.
39 And I accept your pleas of guilty to these charges indicate some remorse by you.
40 I discussed the extent of your remorse with Mr Dounias, and note the decision Meissner v The Queen.[4]
[4](1995) 130 ALR 547 [19].
41 The prosecution in their Written Outline of Submissions for your plea hearing referred to an additional sentencing option available to the court, given the date of your offending, being a suspended sentence. The prosecution submitted, without specifically urging I adopt that course, should I determine it appropriate to sentence you to a term of imprisonment, such could be wholly or partially suspended, consistent with the then existing legislation. For offences committed prior to 1 September 2013, s.27(2) of the Sentencing Act 1991 (which is now repealed), the Court could only suspend a sentence of imprisonment, or the aggregate period of imprisonment imposed, where the offender is convicted of more than one offence in a proceeding, and if the period of imprisonment does not exceed three years. As I say, this is a further sentencing option available to this Court when determining the appropriate sentence in your case.
42 I turn to the Serious Sex Offender Provisions. Under s.6B of the Sentencing Act 1991, if you are convicted and sentenced to terms of imprisonment on two sexual offences before me, you then fall to be sentenced as a serious sexual offender on subsequent charges.
43 Pursuant to s.6D of the Sentencing Act 1991, when sentencing on such, I must regard the protection of the community as a principal sentencing purpose and may impose a disproportionate sentence. The prosecution were not seeking a disproportionate sentence and, in my opinion, I am able to appropriately sentence you without the need to impose a disproportionate sentence.
44 Under s.6E of the Sentencing Act 1991, unless otherwise directed, such a sentence must be served cumulatively.
45 Mr Dounias agreed, should I sentence you to a term of imprisonment in relation to two charges before me, i.e. Charges 1 and 2, you then fell to be sentenced as a serious sexual offender on Charge 3.
46
Turning to the Sex Offenders Registration Act 2004, the prosecution submitted the three charges before me were all Class 2 offences. If you are found guilty of three Class 2 offences, you are required to report, pursuant to that Act,
for life, such being mandatory (s.34(1)(c)). Your counsel, Mr Dounias, conceded such applied to you.
47
The victims of your offending have suffered considerably as a result of it,
and I shall return to this later in these sentencing remarks.
48 Your counsel, Mr Dounias, provided a brief Written Outline of Submissions for the purpose of the sentencing indication also relied upon at your plea hearing (see Exhibit 1). Mr Dounias set out a chronology relevant to your offending and then progress through the Courts since being charged for these offences.
49 Turning to your background and history, you were born in 1935, to Mary Walker, your father unknown. Nine days after your birth, you were abandoned by your mother to the St Joseph’s Babies Home in Broadmeadows.
50
On 16 March 1939, you were admitted to St Anthony’s Children's Home in
Kew, then on 23 January 1942, admitted to St Joseph’s Home, Surrey Hills. On 25 January 1945, you were sent to St Augustine’s orphanage in Highton, outside Geelong where you remained until 1950. Tendered before me were a number of documents referring to your admission and time at the various orphanages (Exhibit 2). I accept your start in life was difficult for you in many ways. At age 15, you were placed with a racehorse trainer in Mordialloc. Your daily routine involved getting up at 5.00am. You attended to feeding the horses, picking up dung, cleaning stalls, cleaning water buckets and refilling them, also tending to the horses. After dinner, you would again be required to tend the horses.
51 Following a beating you received, apparently in that employment, you were sent to Garfield to a stud farm. You were not suited to the tasks of that farm and moved to another horse trainer. You described, at Garfield, being sexually abused and whipped.
52 You went to Clyde with another trainer, who gave you your first ride as an apprentice jockey. You came to Melbourne to try your luck; however, found yourself, at age 18, living on the streets in Melbourne.
53 In 1956, you got a job in Kerang with another trainer. You looked after the livestock on the farm, as well as riding one of his horses. That, however, did not last long as your employer died and you lost that employment.
54
In 1956 you did three months’ National Service, before being discharged to serve the rest of your National Service with the Citizens Military Force on a
part-time basis for the following three years.
55 You continued to work with horses and managed to obtain an “A” Grade Jumpers' Licence, which enabled you to obtain employment doing track work, racing both ‘flats’ and ‘steeples’.
56 In the 1970s, you began your involvement in the bird trade, and in 1977, opened the pet shop in Preston.
57
You met your wife in 1976, and there are four daughters of your marriage.
Your wife passed away in 1999, following a two-year battle with cancer.
58 Mr Dounias referred to a number of relevant sentencing considerations in your case. Mr Dounias conceded your offending involved children and that there was the need for general deterrence and denunciation of your sexual offending against children.
59 Denunciation of such offending has been repeatedly stated by the courts in various pronouncements over many years, including R v Wayland[5]; Director of Public Prosecutions v VH[6] and Clarkson v R[7]; EJA v R[8], DPP v Dalgliesh (a Pseudonym)[9] and R v Kilic[10], to name just a few. I, of course, allow for the different types of offending in those cases to yours. However, there can be no doubt the courts regard sexual offending against children as very serious indeed. Mr Dounias did not seek to dissuade me from that conclusion.
[5]Unreported, Supreme Court Of Victoria Court Of Criminal Appeal, Crockett, Southwell and Hampel JJ, 11 and 14 September 1992.
[6][2004] 10 VR 234.
[7](2011) 32 VR 361.
[8][2011] VSCA 15.
[9][2017] VSCA 360.
[10](2016) 91 ALJR 131.
60 Mr Dounias referred to your background and upbringing as evidenced by the records, which as I have said I accept reflect that for the first few years of your life you lacked the stability you might have otherwise had in a more ‘stable’ upbringing.
61 Turning to your age and ill health. Before me was a medical certificate from Dr Satish Patel, dated 25 September 2019, which referred to your most recent emergency admission to hospital on 23 September 2019.
62 Dr Patel referred to you needing the support of a carer - that is, your daughter - at all times.
63 I accept you are a person of not good health, reinforced by my observations of you in Court.
64 There was also documentation I read referring to your difficulty hearing, which was likely to become worse as you progress in age. You required the assistance of headphones during pre-trial argument, and during the course of your plea hearing and sentence, which I observed.
65 In R v RLP[11] the Court, referred to age and ill health of an offender and, in particular see paragraphs 32 to 38 therein.
[11][2009] VSCA 271.
66 I also note the decision of TRG v R[12], in which Weinberg JA referred to RLP and a passage from the judgment of Neave and Redlich JJA and also Hollingworth AJA:
[12][2011] VSCA 337.
'We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1. The age and health of an offender are relevant to the exercise of the sentencing discretion.
2 Old age or ill health are not determinative of the quantum of sentence.
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.' [paragraph 39]
67 In R v Whyte[13], Winneke P at paragraph 29 noted a sentencing judge must be astute to pay due attention to the age of an accused and stated:
'…they must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished.'
[13](2004) 7 VR 397.
68 I also note the decision of R v Iles[14], in which the court in that decision, referred to R v Cumberbatch[15]:
'…an offender’s age does not militate against the imposition of a significant period of imprisonment in the appropriate case.'
[14][2009] VSCA 197.
[15](2004) 8 VR 9.
69
As previously stated, if you fall to be sentenced as a serious sexual offender in relation to Charge 3, relevant is s.6D and s.6E of the Sentencing Act 1991, and the decision of RHMcL[16] is relevant. That decision has been considered in a number of cases subsequently relevant to s.6E entering the statute books,
and totality, including DPP v Hopson[17] and Matheas v The Queen[18].
[16](2003) CLR 452 [76].
[17][2016] VSCA 303 [48-52].
[18][2017] VSCA 330 [46-50] (‘Matheas’).
70 In Matheas, Tate JA, referring to Gordon v R[19] and Director of Public Prosecutions (DPP) v Bales[20] stated:
'…when s 6E is enlivened … there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s 6E, that is, full effect is not to be given to the totality principle as though s 6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purpose … '
[19][2013] VSCA 343.
[20][2015] VSCA 261 [50].
71 Totality is still relevant when sentencing you, consistent with the authorities to which I have just referred, and I apply that when sentencing you.
72
Further, I note the recent decision of Zhao v R[21], which referred to the
‘one incident rule’ when applying the principle of totality to serious sexual offender provisions. Application of that ‘rule’ here is somewhat difficult, as one of the charges before me is a representative charge. While one of the occasions in Charge 1 occurred at the same time as the offending in Charge 2, this principle and related sentencing is not perhaps as clear cut as it would be in cases involving individual charges, that is, not representative charges.
I do however note Charge 2 and one of the incidents in relation to Charge 1 occurred on the same occasion.
[21][2018] VSCA 267.
73
Turning to delay, as I discussed with Mr Dounias, it is not unusual that there be a delay between offending and this matter coming to the attention of the police.
I do note, however, that in that period you have not re-offended in a sexual way.
74 Mr Dounias referred to your risk of re-offending and urged you were a low risk. You have not, however, been assessed specifically by an ‘expert’ for your risk of sexually re-offending. I do however note your age, that you are currently under the care of your daughter and/or other family members, and that there have been no reports of any inappropriate sexual behaviour by you involving your grandchildren. Also, of course, I note you have not committed any sexual offences since this offending occurred, and nor do you have any prior criminal history.
75 Turning to your prospects of rehabilitation, I accept that they are good, in particular, given your current age and likely inability to have access to children against whom you might offend.
76 The victims of your offending have suffered considerably in the manner described in the Victim Impact Statement by Mr Vance as a result of your offending.
77 I did not receive a Victim Impact Statement from Nelson Hensley, but I understood he had been given the opportunity to make such a statement. Ms Piggott advised at the sentencing indication hearing, as required for the purposes of that hearing, that she had spoken to Mr Hensley about the impact of your offending upon him. He said he found it very difficult to identify the impact of your offending on him as he has had a lot of bad things happen to him in his life. That a lot of the time he could cope, but was less able to cope in the relatively immediate aftermath of your offending.
78 He also found it hard trusting adults, especially those in authority, as you were his employer.
79 He said a lot of bad things happened to him at that time. He also gets angry at times with persons in authority.
80 The Victim Impact Statement of Conrad Vance was read to the Court by Ms Piggott.
81 Mr Vance described being taken advantage of by you and betrayed as a child.
82 Your offending has impacted adversely on his intimacy with partners. He would avoid physical touch of any kind.
83 At times he has been unable to work, other times working himself into the ground.
84 He felt restless most of the time, and it feels like he is trying to get away from social situations.
85 He was currently seeing a psychologist, and in the past, a psychiatrist.
86 He described difficulty at school concentrating, and attached to the Victim Impact Statement was a school report of Mr Vance.
87 Mr Vance had suffered physically, emotionally, psychologically and socially as a result of your offending.
88 Relevant, also, is the notion of social rehabilitation, and a number of authorities have referred to the effects upon a victim of sexual offending and this principle, including in DPP v Toomey[22], in which his Honour Vincent J referred to social rehabilitation, citing Director of Public Prosecutions (DPP) v DJK[23].
[22][2006] VSCA 90.
[23][2003] VSCA 109 [17-18]
89 The effects upon a victim are a relevant sentencing consideration (see s.5 of the Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
90 I turn then to current sentencing practices, a matter I also discussed with counsel during the course of this hearing - that is, the plea hearing. In Director of Public Prosecutions v Dalgliesh (Pseudonym)[24], the Court referred to current sentencing practices as not being a controlling factor when sentencing. Current sentencing practice could not justify a sentence which was manifestly inadequate. Current sentencing practices was only one factor to which a judge must have regard when fixing a just sentence in accordance with s.5(2) of the Sentencing Act 1991.
[24][2017] HCA 41.
91 The only expectation an offender could have at sentence is that a just sentence, in all the circumstances, would be imposed – that he or she would be sentenced according to law (see paragraphs 64 to 68, and 85 Dalgliesh).
92 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, as I find them to be, I must also take into account the need for general deterrence, which is of considerable importance in a case such as this.
93 There is also the need for specific deterrence when sentencing you, as your offending occurred over a number of separate occasions involving Mr Vance, and also your offending involved two complainants. However, I note your lack of prior, and in particular, any subsequent similar type offending. The need for specific deterrence, whilst of some relevance, need not need loom large in the sentencing process.
94 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re-offending. Again, I repeat, I do not have any expert report before me assessing your risk of future sexual offending. I do, however, as I have said, note your age, that you are currently being cared for by your daughter in a formal arrangement (i.e. I understand she is a paid carer), and the need to protect members of the community from you given your current circumstances also need not loom large in the sentencing process either.
95 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose just punishment.
96
I have considered the various sentencing dispositions available to the Court, including whether I should impose a term of imprisonment and suspend that pursuant to s.27, which permitted such in certain circumstances. In s.27(1A) (of the repealed legislation), the Court referred to matters to which the Court must have regard in determining whether or not to make an order suspending any term of imprisonment. I am mindful of s.27(3), that a court must not impose a suspended sentence of imprisonment unless a sentence of imprisonment,
if unsuspended, would be appropriate in the circumstances, having regard to the provisions of this Act.
97 I must have regard when considering whether or not a suspended sentence of imprisonment be imposed as to include the need to consider the nature of your offending, the impact on the victim of your offending, and any injury, loss or damage resulting directly from your offending. The sentence must also adequately manifest the denunciation by the Court, the type of conduct in which you have engaged, and must adequately deter you or other persons from committing offences of a similar or same character, and also must reflect the gravity of the offences.
98 In my opinion, whilst a sentence of imprisonment in relation to each of the three charges before me is appropriate, I have determined it is also appropriate to wholly suspend that term of imprisonment.
99 I sentence you as follows.
100 Are you with me? All right, you can stay seated.
101 On Charge 1, you are convicted and sentenced to 18 months’ imprisonment.
102 On Charge 2, convicted and sentenced to 12 months’ imprisonment.
103 On Charge 3, convicted and sentenced to 8 months’ imprisonment.
104 I direct that Charge 1 is the base sentence, and I direct the following in relation to cumulation and concurrency.
105 I direct that 5 months’ of Charge 2 be served cumulatively upon Charge 1.
106 Counsel, listen carefully to the next wording because of the serious sex offender provision.
107 I direct that 5 months of Charge 3 be served concurrently and 3 months cumulatively upon Charge 1.
108 That should result in a total effective sentence of 26 months, and I direct that be wholly suspended for a period of 26 months. What that means is, for the next 26 months, you must not offend or otherwise come back before the court before me. Because if you do, I have to re-sentence you on these three charges, and I can assure you, the options are running out, and it would be likely I would be sending you to gaol. But that just for the next 26 months, this sentence is hanging over your head. You have got to be extra careful so that you understand that. All right?
109 OFFENDER: Yes.
110 HER HONOUR: Because if you come back before me because you have breached it - and I do not expect you will, all right? I have just got to tell you these things. If you come back for breaching this suspended sentence, unless you can show exceptional circumstances or that sort of test, it is a very high test, then you will be required to spend the term in gaol. So 26 months, wholly suspended for 26 months. All right?
111 OFFENDER: Yes.
112 HER HONOUR: All right. I know that - I have just got to tell you these things. So you have got to be extra careful.
113 OFFENDER: Thank you.
114 HER HONOUR: Pursuant to s18(4) of the Sentencing Act 1991, I declare you have not spent any days in custody by way of pre-sentence detention, and for completeness, this be noted in these sentencing remarks, as I have just said, should I need to revisit this sentence, which I hope I do not.
115 For clarity, the orders for cumulation are upon each other and upon the base sentence.
116 Turning to s6AAA of the Sentencing Act, it is somewhat difficult to declare a sentence should you have pleaded not guilty to these charges as, no doubt, in relation to Charge 1, there would likely have been three separate charges on the Indictment. However, doing the best I can, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years and I would have set a non-parole period of 4 years; that is, there would have been no suspended sentence.
117 I declare that I have sentenced you as a serious sexual offender on Charge 3 on the Indictment before me.
118 The prosecution made application for a forensic sample pursuant to s.646ZF of the Crimes Act 1958. I make the Order in the terms sought. It will be for a saliva sample and I do so on the basis of the seriousness of your offending. This was consented to by your counsel, Mr Dounias, and I make the order in the terms sought. And I must tell you that the authorities may use reasonable force in order to obtain this sample.
119
I have also made an order, as I have said, pursuant to the Sex Offenders Registration Act, to which I have previously referred. My associate in just a moment, this lady in front of me, is going to approach you in a minute and ask you to sign the documents acknowledging receipt of the paperwork relevant to that Order. I am not asking you if you want to be on the Order, I have made that Order. All she has to do is ask if you will sign for the paperwork that tells you all about it. If you do not want to sign, we understand, but it is her job.
She has got to ask you to sign, so do not take it out on her. Now, are there no other orders?
120 MS PIGGOTT: No, Your Honour.
121 HER HONOUR: No? Now, how did we go? Maths all right? I am not asking if you like the figures, I am just asking, did you get them down correctly, particularly that - - -
122 MR DOUNIAS: Eighteen, five and three equals twenty-six.
123 HER HONOUR: Yes, good. Excellent. That is all I wanted to make sure of, because it is a bit confusing when they are reworded for the serious sex offender provision. So everyone has got that, and no PSD I am assuming was correct?
124 MS PIGGOTT: That's correct.
125 HER HONOUR: All right. Now, my associate is going to come back now. I sign it first. You know what these are, do you not, Mr Dounias?
126 MR DOUNIAS: These are the sex offender - - -
127 HER HONOUR: Register. It tells him a bit about it.
128 MR DOUNIAS: Yes, acknowledgment, yes.
129 HER HONOUR: That is all. He is not being asked if he wants to be on the order I have made that order.
130 MR DOUNIAS: No. Can my instructor approach?
131
HER HONOUR: Yes, of course he can. I do not mind who does.
While that is happening, counsel, it was 26 months for 26 months. Just making that abundantly clear. So it could have been up to three years, I know that, but I have made it 26 for 26. If that was unclear, I hope that is clear now.
132 MR DOUNIAS: Your Honour is required to fix a police station.
133 HER HONOUR: Am I? I do not usually. Mr Dounias, I am rarely ever out and about. Do I have to nominate one, do I? Heidelberg, it has got. Is that closer or not?
134 MR DOUNIAS: We would be looking at Preston, Your Honour.
135 HER HONOUR: Well, coming back - - -
136 MR DOUNIAS: If Preston could be entered instead of Heidelberg?
137 HER HONOUR: Have a seat, Mr Walker. All right, we will do that. Just have a seat for a minute.
138 MR DOUNIAS: Thank you, Your Honour.
139
HER HONOUR: While that is happening, I would like to thank all counsel and their instructors, I have no doubt, who have been very involved in this matter, and I thank you for your enormous assistance. I am just waiting for that document to be corrected. You can come out if you want to, Mr Walker.
So it now says Preston, all right?
140 MR DOUNIAS: If Your Honour pleases.
141 HER HONOUR: And you can just explain to him that if he does not consent to the mouth scraping, they can then go to the blood. Just so he knows that.
142 MR DOUNIAS: Yes, Your Honour.
143 HER HONOUR: Hold on a minute. That is it, signed. Thank you again.
144 COUNSEL: As Your Honour pleases.
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