Director of Public Prosecutions v Warnakulasuriye

[2019] VCC 2070

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02570

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMITH WARNAKULASURIYE

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2019
DATE OF SENTENCE:	10 December 2019
CASE MAY BE CITED AS:	DPP v Warnakulasuriye
MEDIUM NEUTRAL CITATION:	[2019] VCC 2070

REASONS FOR SENTENCE
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Catchwords:               
Legislation Cited:      

Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Solicitor for the Director of Public Prosecutions
For the Accused	Mr J. Desmond	White & Associates

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         Amith Warnakulasuriye, you have been found guilty by jury verdict on Indictment J11913244 of two charges of sexual assault, one charge of aggravated burglary, two charges of making a threat to kill, one charge of causing injury recklessly, three charges of rape and one charge of attempted rape.

2         The penalties applicable for the offences before me are:  sexual assault, 10 years’ imprisonment; aggravated burglary, 25 years’ imprisonment; make threat to kill, 10 years’ imprisonment; recklessly causing injury, 5 years’ imprisonment; rape 25 years’ imprisonment; and attempted rape, 20 years’ imprisonment.

3         The jury were not satisfied beyond reasonable doubt of a charge of theft and found you not guilty of it (Charge 10).

4         These crimes arise out of events which took place on 13 March 2017 and involved the complainant, Colette Hall[1].

[1]A pseudonym.

5         It is not necessary for me to recount in great detail the facts of this matter as they are on transcript the issues having been ventilated during the course of your trial.  I proceed to sentence you on the basis of the evidence and as discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.

6         At the time of your offending you were 30 years of age and you are 33 at sentence.  The complainant, Ms Hall, at the time was 46 years of age.  She lived in Doveton with her partner.

7         You were a former neighbour of Ms Hall and her partner.  You were living in the same street when Ms Hall and her partner moved in approximately two years prior to your offending.  You had moved out a number of months prior to this offending.

8         Ms Hall did not know you that well.  She would say hello to you when you saw each other in the street and sometimes gave you cigarettes or a bus fare.

9         You had visited the home of Ms Hall and her partner after you moved away from the street, the last time approximately two to three months prior to this offending.

10        Your offending took place at Ms Hall’s home on the evening of 13 March 2017 when her partner was away.  Ms Hall was watching television in the room when she heard a knock on the front door at approximately 9.00pm.

11        She answered the door and saw you wearing a white t-shirt and jeans.  You asked if her partner was home and when she said he was not, you said you did not believe her.  Ms Hall invited you inside to check for yourself.  Whilst in the house you grabbed Ms Hall around the hips, pulled her towards you and tried to kiss her, telling you that you had loved her for a long time (Charge 1, sexual assault).  Ms Hall told you to get out and she eventually managed to push you out of the house through the front door.  She then returned to the lounge.

12        Approximately half an hour later when she was still watching television, she heard a noise.  You had entered the house through the unlocked back door (Charge 2, aggravated burglary).  You went into the lounge and said to Ms Hall that you were back and that she should not have been like she was with you earlier on.  A struggle ensued between you and she and you told her, “This is gonna happen, but that if she was nice, you would not kill her and that she was within inches of her life” (Charge 3, make threat to kill).

13        During the struggle, when Ms Hall was trying to get away from you, she was pushed off the couch and hit her head, she thought, against the bricks near the heater or side of the couch.  The injuries sustained relevant to Charge 4 were described by her in her evidence.

“You can see a bruise there (identified it by pointing to it on the recording) but it’s like a lump I got there as well.  I've got a couple of marks and that as well.  It has been giving me a really bad headache.”

14        She said she hit her head when struggling.  She did not know precisely how she actually hit her head but she felt a scratch, like a scratch bump, and she indicated that in the VARE.

15        Evidence was given by Dr Mills relevant to Ms Hall’s head injuries.  She observed a linear bruise about 3 centimetres by 5 centimetres in the middle of Ms Hall’s forehead, a 1 centimetre faint red abrasion on the bridge of her nose and a 3 centimetre faint red abrasion under her chin.

16        You refused to let Ms Hall go and told her to take her top off.  Ms Hall complied to not aggravate you.  After Ms Hall’s bra had been removed, you sucked (bit) her on the left breast (Charge 5, sexual assault) which caused bruising (also described by Dr Mills).

17        You removed your own clothing and inserted your penis into her mouth (Charge 6, rape).  You pushed Ms Hall’s legs up towards her shoulders and for a short time attempted to insert your penis into her vagina (Charge 7, attempted rape).  Ms Hall saw that you were becoming angrier and told her, “I’m going straight up your arse now.”  Ms Hall said, “Please don’t” and continued to struggle.  You penetrated her anus with your penis (Charge 8, rape).  You then again inserted your penis into Ms Hall’s mouth and thrust your penis into it until you ejaculated inside her mouth (Charge 9, rape).

18        Before you left, you told Ms Hall if she said anything to anyone, you would kill her (Charge 11, make threat to kill).

19        Shortly after your offending, Ms Hall went to a neighbour’s house and told them she had been raped and described you as the offender.  That same evening, Ms Hall attended the police station and reported your offending, nominating you as the offender.

20        Ms Hall was forensically examined by Dr Mills at approximately 3.30am on 14 March 2017.  Samples were taken during that examination and forwarded for DNA testing.  DNA testing of the swabs taken from Ms Hall’s left breast established extremely strong support for your DNA (likelihood ratio of 100 billion) and a VARE was conducted on 16 March 2017.

21        When you were arrested and interviewed on 12 April 2017, you denied the alleged offending, and denied being present at Ms Hall’s home at the relevant time.

22        The prosecution case also involved call tower records which placed your mobile phone within the area of the complainant’s street at the time of the alleged offending.

23        Your defence during the trial was not that the offences did not occur in relation to Ms Hall, the issue in the trial was, whether the prosecution had proven beyond reasonable doubt that you were the offender.  You denied being the offender in your record of interview.  You did not give evidence at the trial, but of course that was your right.

24        By their verdicts of guilty, the jury were satisfied the prosecution had proven beyond reasonable doubt you were the offender in relation to the charges of which you were found guilty.

25        You pleaded not guilty to those charges, and maintained you were not responsible for the offending.  I therefore find you are not remorseful.

26        

You have admitted a number of prior court appearances and are currently undergoing a sentence for offences dealt with by her Honour Judge Gaynor of this Court on 7 December 2018.  At that time you pleaded guilty to attempted robbery, aggravated burglary, threat to kill, intentionally cause injury and a summary charge of unlawful assault.  You were sentenced by her Honour to a total effective sentence of 2 years and 10 months’ imprisonment with a

non-parole period of 18 months and I shall return to that sentence later in these sentencing remarks.

27        The offences before her Honour were committed in May 2017, your offending before me in March 2017.

28        I turn to the prior criminal matters that you have admitted.

29        You first appeared at Dandenong Magistrates’ Court on 13 March 2012 on a number of driving related offences, including exceeding the prescribed concentration of alcohol.  You were convicted and placed on a Community Corrections Order for 12 months with conditions attached.

30        You next appeared at Moorabbin Magistrates’ Court on 14 November 2013 for breach of that Community Corrections Order.  The Order was cancelled and no further Order was made.

31        On that same date you were also dealt with for further driving offences, unlawful assault, refuse breath test, threat to kill, criminal damage and discharging a missile to cause injury and were placed on another Community Corrections Order for 15 months with conditions.

32        You next appeared at Dandenong Magistrates’ Court on 30 September 2015 on driving charges and failing to answer bail, and were sentenced to an aggregate 3 months' imprisonment and your licence was cancelled for 5 years.

33        The breach of the Community Corrections order you were then on was proven and you were sentenced to 14 days' imprisonment.

34        So I return to the offences before me.

35        I discussed with counsel a number of aggravating features of your offending.  It had occurred without the use of a condom (R v Khem[2]), and while there is not an issue of potential pregnancy given your specific offending, there was however the potential for transmission of disease.

[2][2008] VSCA 136 (‘Khem’).

36        In addition, you returned on a second occasion, after being ‘rebuffed’ after your first attendance when you were ejected from the home by Ms Hall.

37        There was therefore a degree of premeditation relevant to your second return.

38        Whilst Mr Cordy submitted there was a breach of trust involved as the complainant, Ms Hall, was the partner of a friend of yours, I do not consider this amounts to a breach of trust in this case given the relationship between the parties and the evidence relevant to that in this case.

39        A further aggravating feature is the extent of the violence used in this offending which was ‘over and above’ that required to commit the rapes themselves.  In my opinion, there was additional violence in this case and, as I discussed with both counsel, whilst a term of imprisonment is imposed on Charge 4, that sentence will be concurrent with the other sentences imposed.

40        A further aggravating feature is the degrading nature of the oral rape (Charge 9) which followed the anal penetration of Ms Hall, as I discussed with counsel.

41        By virtue of you being found guilty and being sentenced to imprisonment on Charges 1 and 5, you fall to be sentenced as a serious sexual offender on Charges 6, 7, 8 and 9.  You also fall to be sentenced on Charges 3 and 11 as a serious violent offender.  Mr Desmond agreed such applied to you.

42        And I direct it be entered into the records of the court you have been sentenced as a serious violent offender on Charges 3 and 11 and as a serious sexual offender on Charges 6, 7, 8, and 9.

43 Section 6D and 6E Sentencing Act 1991 therefore has application.

44        R H McL v The Queen[3] considered the principle of totality when so sentencing, and this was more recently discussed in DPP v Hopson (a pseudonym)[4] and Matheas v The Queen[5].

[3](2003) 203 CLR 452 [76].

[4][2016] VSCA 303.

[5][2017] VSCA 330 (‘Matheas’).

45        In Matheas, Tate JA referring to Gordon v The Queen[6] and DPP v Bales[7] 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'.[8]

[6][2013] VSCA 343.

[7][2015] VSCA 261.

[8]Matheas [50].

46        Also relevant is Zhao v The Queen[9] which referred to the 'one incident rule’ and the application of the principle of totality.

[9][2018] VSCA 267 (‘Zhao’).

47        Totality is relevant when sentencing you as described in those authorities and in that regard I note you have spent approximately 2 years 7 months and I have not calculated the 7 months to the exact day so I repeat, you have spent approximately 2 years and 7 months as at date of sentence by me in custody undergoing the sentence imposed by her Honour Judge Gaynor in December 2018 (with a then declaration of 570 days of pre-sentence detention).  The head sentence then imposed is due to expire in March 2020 which I interpreted as in approximately, not calculated to the day, 3 months' time.

48        Totality has particular relevance given the sentence imposed by her Honour (of which you have already served 2 years and 7 months).  Application of totality has had the effect of orders made for cumulation relevant to the charges before me, having the appearance of being somewhat lenient.  I must and do, however, take into account your time in custody to date (which is approximately 2 years 7 months).

49        The prosecution were not seeking I impose a disproportionate sentence and I am of the opinion that I can appropriately sentence you without the need to impose a disproportionate sentence.

50        Mr Desmond, who appeared on your behalf at trial and plea, relied for your background and history, on reports, which I understood, were before her Honour Judge Gaynor in December 2018.

51        There was a Report by Daria Sizenko, provisional psychologist, Victorian Forensic and Clinical Consulting, dated 20 November 2018 prepared at the request of your solicitors.

52        You grew up in Sri Lanka with your family.  Your parents were killed when you were 10 years of age.  You and your brother fled your home and crossed an army checkpoint making it to Colombo.  You continued to experience flashbacks regarding your parents’ death and I can understand that.

53        A family was then found where you and your brother could reside, although you said if you or your brother made a mistake, you were physically harmed.  You and your brother eventually ran away from that accommodation and were sleeping on the street for some time.

54        You describe similar residential arrangements with other families (two or three occasions) and that most of them were abusive towards you and your brother.

55        You migrated to Australia in 2009, your brother, as I understand it, remains in Sri Lanka.

56        You came to Australia after a 32 day sea voyage and were then for three or four months in detention at Christmas Island before settling in Dandenong North, living with five other people on temporary visas.  You are now a permanent resident.

57        You reported completing Year 9 in education, and reported doing well.  You left school at the age of 17 to start working.

58        At school you also worked as a housekeeper, lending a helping hand to those you and your brother lived with and that continued from around the age of 11 to 12 through to 17 years.

59        After you left school, you started working for a Sri Lankan political party.

60        Upon arrival in Australia you worked at a printing factory for about three years.  You only had a little English prior to arriving in Australia, although now described yourself as a confident speaker having studied English extensively to gain fluency.  You had difficulties, however, with reading and writing.

61        You stopped work following an assault and were on unemployment benefits for approximately six to nine months.  You then worked in timber flooring, where you remained for approximately two years, later opening your own business.

62        In Australia you had not had any long term relationships, stating it was difficult to date as a result of the assault in 2013 which left your face disfigured.

63        You described first trying alcohol at around the age of 20 and increasing that use after the assault.  You reported drinking daily but at the same time making sure you did not miss your payments for both bills and for your brother.

64        You have never been involved with illicit drugs.

65        Turning to your health, you reported overall good health, however, were blind in your right eye and had multiple facial scars as a result of the injuries you sustained in the assault in 2013 when you were hit with a bottle to the head several times.  You said you reported the incident to police but nothing was done about it.

66        Regarding your mental health, you referred to being unable to let go of past memories including of your childhood and the assault.  You were concerned about your brother and that you had not been able to send money or contact him since your then incarceration.  At the time of this report, that is the one before her Honour, you were seeing a psychiatric nurse whilst incarcerated due to thoughts of suicide, although you had discontinued that describing it as not being helpful.

67        At the time of that report, you described being prescribed Avanza to help you sleep.  At some later stage that was ceased and you had not been able to access that medication, according to that report, for approximately three months prior to the interview with Daria Sizenko.

68        I note, as I discussed with Mr Desmond, there was no update regarding whether or not you were now taking any prescribed medication, although I understood from him such was now apparently not required. 

69        That Report is somewhat dated and it must be read with an awareness of that.

70        Whilst you were cooperative and polite in the interview with Daria Sizenko, you were teary when discussing your parents’ death and the offending then being dealt with and being away from your brother.

71        During the interview with Daria Sizenko, in 2018 you expressed feelings of desperation and of wanting to see your brother.  You were ‘compliant’ with the possibility of deportation.  At the time of that report, you had been in custody for approximately 15 months and described finding it difficult to cope with it.

72        During that 15 months, you had worked as a kitchen hand at Melbourne Assessment Prison (“MAP”), as a baker in Karreenga, and as a cleaner at Barwon Prison.  You reported being bullied by other prisoners and having been transferred from prison to prison as a result.  You said you had previously completed an emotion and thought managing course at MAP.  No certificates were before me although I accept that these were undertaken.

73        Turning to a risk assessment in 2018, that assessment was obviously made with the absence of knowledge of your offending before me and therefore the risk assessment made in 2018 and its translation to your current circumstances is problematic.  Mr Desmond conceded those limitations and the lack of a current risk assessment.

74        At the time in 2018 it was considered by the author of the report that your risk of reoffending in a similar violent manner was estimated to be low.  The factors contributing to that risk was your difficulty establishing and maintaining social support systems, the uncertainty of your work and living situation, your poor coping skills and response to psycho-social stress, poor compliancy with orders and psycho-pharmacology and mental health problems meeting the diagnostic criterion for Post-Traumatic Stress Disorder (“PTSD”).

75        I note her Honour Judge Gaynor referred to your PTSD (paragraph 43 of her reasons for sentence).  Presence of such was at the time conceded by the prosecution and whilst R v Verdins & Ors[10] do not apply in your case I accept, as her Honour did, you will experience greater difficulty in prison than more ‘able’ prisoners and have taken that into account when sentencing you.

[10](2007) 169 A Crim R 581 (‘Verdins’).

76        Your counsel, as I said, was not relying on the principles in Verdins and in my opinion that was an appropriate concession on all the material before me.

77        Her Honour Judge Gaynor requested a psychiatric court report and such was prepared on 13 November 2018 by Dr Ann Brennan, consultant psychiatrist, Victorian Institute of Forensic Mental Health (“Forensicare”).  At the time of that interview in 2018 (12 months ago), you were in the Metropolitan Remand Centre in 23 hour lock down and had been in custody since May 2017.  You described occasional contact with mental health services in prison and of having been prescribed medication to help you sleep and stay calm.  You described not having had any periods of hospitalisation or community mental health follow up for psychiatric illness.

78        Your most prominent mood appeared to be anxiety.  You said you were worried about your younger brother who lived in Sri Lanka.

79        Further details were provided of your arrival into Australia, although I will not repeat those here.

80        You said drinking (alcohol) helped your distress regarding your ex-girlfriend, the scars on your face, your isolation and concern for your brother.  A mental state examination was conducted on 22 October 2018, approximately 12 months or so ago.  There was no evidence of any psychotic symptoms or perceptual disturbances and no evidence of current suicidality or thoughts to harm others.

81        Information obtained from a psychiatric review in 2017 confirmed no evidence from assessments at that time that you had a psychotic illness.  Your traumatic history, however, had been noted in various reports/material.

82        You at that time used alcohol as a maladaptive strategy to cope with stress and difficulties in your life.  You at that time had difficulties coping in custody, characterised by distress, self-harm ideation and conflict leading to restrictive regimes likely to compound your psychological distress.

83        Dr Brennan concluded in 2018 your then episodes of distress and anxiety were probably best described as adjustment disorders with depressed mood, given your background and development.  It was difficult for her to conclude, based on one assessment only, that you suffered with a Post-Traumatic Stress Disorder, although stated your experience of significant developmental trauma had impacted on your psychological state and ability to cope in adverse circumstances.

84        Dr Brennan concluded you had an alcohol abuse disorder, noting its contribution as a significant factor to your then offending behaviour.  There was no evidence of mental health symptoms per se related to the offending at that time.  The restrictive regimes in prison would likely compound your distress and in her opinion a term of imprisonment would likely to weigh more heavily upon you.  I note as I previously stated those reports are somewhat dated.

85        The victim of your offending has suffered considerably in the manner described in the Victim Impact Statement.

86        Mr Cordy submitted that whilst at the time of the plea hearing there was not any Victim Impact Statement filed with the Court, the demeanour of the complainant, he said, as seen by others when she complained of the rapes, and in her VARE and special hearing, showed your offending had a significant adverse effect upon her and I have since that plea hearing received the Victim Impact Statement.

87        In it Ms Hall states her life has not been the same since you raped her.  Initially she had to stay at a neighbours for one week while her partner was interstate.

88        For months after the attack, she did not like leaving her house.  She still felt anxious around people she did not know.

89        She lost her relationship with her partner due to her difficulty having a physical relationship with him as described by her in her statement.

90        She moved away from Melbourne as she felt unsafe everywhere she walked.

91        She suffers with depression.  She blamed herself for being nice and for being trusting.  She suffers with high levels of anxiety around males she does not know.

92        She does not sleep soundly at night and has bad dreams and night terrors.

93        The court process over approximately three years re-opened old wounds.

94        She is no longer very social.  She used to be socially outgoing however was now too scared to say hello in case there were repercussions.  Ms Hall was no longer trusting.

95        Also relevant is the notion of social rehabilitation and a number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[11], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[12] (allowing of course for the differences in the factual circumstances in those cases to this present case).

[11][2006] VSCA 90.

[12][2003] VSCA 109.

96        

The effects upon a victim are a relevant sentencing consideration

(s 5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.

97        I discussed your possible deportation with Mr Desmond.  There is a lack of evidence of actual risk of deportation.  It is largely speculative and, of course, you could always appeal any such a decision.  There is also a lack of evidence as to the impact of the risk of deportation upon you.  As I understood it, you do not have any family in Australia, your family is still in Sri Lanka, in particular your brother.  You are currently a permanent resident, somewhat different to being on a visa.  See Guden v The Queen,[13] Schneider v The Queen,[14] and Konamala v The Queen[15] for discussion regarding deportation.

[13][2010] VSCA 196.

[14][2016] VSCA 76.

[15][2016] VSCA 48.

98        I return to the sentence you are currently undergoing.  You were sentenced by her Honour Judge Gaynor on 7 December 2018 to a total effective sentence of two years and ten months’ imprisonment, with a non-parole period of 18 months.  At the time of that sentence, a period of 570 days was declared as pre-sentence detention.  The end date of the head sentence is 15 March 2020.  Your non-parole period ended on 16 May 2019.

99        When sentencing you for these offences, these are the offences before me, I am not required to set a new, single non-parole period, however, when sentencing you I can and do take into account that you have been in prison, either on remand or undergoing sentence since May 2017 and her Honour at sentence, as I have said, declared 570 days as pre-sentence detention.  Totality is applicable (not as R v Renzella[16] time) as 570 days were then declared as pre-sentence detention.  As you are currently undergoing that sentence imposed by her Honour Judge Gaynor and have to date spent approximately 2 years 7 months in custody, I must take that into account.  I stress I have not calculated the 7 months to the exact day.

[16][1997] 2 VR 88 (‘Renzella’).

100      Mr Cordy submitted I should declare pre-sentence detention from the jury finding of guilty to sentence, however you are currently still undergoing the sentence of her Honour until 15 March 2020 and in my opinion it is not appropriate to declare pre-sentence detention.

101      Mr Cordy referred me to Cao v The Queen[17] which I have read.  I note some similarity in the charges then before the court and yours, also that the offending by Cao occurred on one occasion or incident.  Also that Serious Sex Offender provisions applied to two charges in that case, no condom was worn, and some degrading behaviour occurred but that list of similarities is not exhaustive.

[17][2018] VSCA 98 (‘Cao’).

102      There are also a number of differences in that case to yours, including some remorse in Cao, a plea of guilty in Cao, attempt to ‘cover up’ the offending, and a number of degrading behaviours towards that victim.  That list of differences is also not exhaustive.

103      Mr Desmond urged the offending in Cao was far more serious than yours.

104      It is always difficult comparing cases as facts vary enormously case to case as do all matters in mitigation of sentence and personal to an offender.

105      Mr Cordy also tendered sentencing snapshots for rape and aggravated burglary.  Whilst sentencing snapshots have their place, there are a number of details not apparent in the snapshots including whether parity might have been a consideration in any particular case, whether Verdins applied or otherwise, the prior history, if any, of any particular offender and such limitations were noted in Cao at [47].

106      When sentencing you, Mr Cordy referred to the importance of denunciation of your offending, also the need for specific deterrence.  I agree.  In my opinion there is also the need for general deterrence.

107      Mr Desmond also submitted regarding the physical assaults upon Ms Hall in furtherance of your offending it resulted in soft-tissue injury only, no weapon was used.  Whilst that is so, your offending in my opinion involved significant and sustained violence towards Ms Hall.

108      Mr Desmond submitted there was an absence of grossly degrading acts, such as cigarette burns or the complainant being urinated on.  While I accept that did not occur, I nevertheless regard your offending as degrading, particularly relevant to Charge 9.

109      Mr Desmond submitted your offending behaviour fell in the mid to upper end of the range of gravity of offending.  In my opinion your offending is closer to the high end of the spectrum (not the highest end) than mid.

110      Regarding the expert material placed before me, in particular, Mr Desmond relied upon paragraph 43, as I have said, of her Honour Judge Gaynor’s sentencing remarks where her Honour accepted you had a diagnosis of PTSD and that your time in custody would be more onerous than for a person who was not in custody.  The prosecution, at this hearing, confirmed they accepted her Honour’s conclusion, as I have said, in that regard, and did not seek to dissuade me from arriving at the same conclusion.  Custody would be more onerous for you than for other prisoners and I accept that is so.

111      Mr Desmond submitted you had done some courses in custody but no further details were provided such as what and when but I would think it unlikely given the offences for which you were sentenced by her Honour Judge Gaynor any of those could courses would be directed towards sexual offending.

112      I discussed with Mr Desmond my concerns regarding your rehabilitation prospects and the difficulty I had assessing that, given your denials of this offending.  I also discussed with Mr Desmond the earlier ‘expert’ assessments in the material before her Honour Judge Gaynor as your then risk of future offending not surprisingly did not take into account the offending that is before me.  There is nothing more recent before me where your current level of risk of committing further sexual offences has been addressed.  I am unable to draw any conclusion regarding your risk of future sexual offending, I remain concerned about it.  When sentencing you I must seek to maximise your chances of rehabilitation as they may be.

113      Mr Desmond submitted you did not have a history of sexual offending, and that is so as I discussed with him.  That in itself raises concerns as it is now part of your criminal history.

114      In reply, Mr Cordy submitted yours was a serious example of this type of offending.  That there was the need for denunciation and protection of the community when sentencing you.  While the prosecution did not “walk away” from the conclusion of her Honour Judge Gaynor in paragraph 43 of her Reasons for Decision, he submitted, nonetheless, that these were serious offences.  They are.

115      As well as matters personal to you to which I have referred, including your prospects of rehabilitation, which I find to be at best guarded, I also take into account matters such as deterrence, especially general deterrence which is of considerable importance.

116      There is also the need for specific deterrence when sentencing you.

117      I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending.  This concerns me.

118      I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

119      I sentence you as follows.

120      Can you stand up?  Thank you.

121      Now, counsel, I will take this a bit slowly because it will be a bit confusing, dare I say, because there are some where he is a serious sex offender, so the cumulation order changes but I will take it slowly and then we will go through it, all right?

122      On Charge 1, convicted and sentenced to 7 months’ imprisonment.

123      On Charge 2, convicted and sentenced to 3 years’ imprisonment.

124      On Charge 3, convicted and sentenced to 8 months’ imprisonment.

125      On Charge 4, convicted and sentenced to 6 months’ imprisonment.

126      On Charge 5, convicted and sentenced to 9 months’ imprisonment.

127      On Charge 6, convicted and sentenced to 7 years’ imprisonment.

128      On Charge 7, convicted and sentenced to 5 years’ imprisonment.

129      On Charge 8, convicted and sentenced to 8 years’ imprisonment.

130      On Charge 9, convicted and sentenced to 8 years’ imprisonment.

131      On Charge 11, convicted and sentenced to 7 months’ imprisonment.

132      Now, I direct that the sentence on Charge 8 be the base sentence and I direct the following in relation to cumulation and concurrency.

133      I direct that 3 months of Charge 1 be served cumulatively upon Charge 8.

134      I direct that 8 months of Charge 2 be served cumulatively upon Charge 8.

135      I direct that 6 months of Charge 3 be served concurrently and 2 months cumulatively upon Charge 8.

136      MR DESMOND:  Sorry, that was six months from Charge 3.

137      HER HONOUR:  Concurrently, and 2 months cumulatively.

138      I direct the sentence on Charge 4 be served concurrently with the sentence imposed on Charge 8.

139      Are you with me?

140      MR DESMOND:  Yes.

141      HER HONOUR:  I direct that 3 months of Charge 5 be served cumulatively upon Charge 8.

142      Listen carefully.

143      I direct that 6 years 6 months of Charge 6 be served concurrently and 6 months be served cumulatively upon Charge 8.  Yes?

144      MR DESMOND:  Yes.

145      HER HONOUR:  Are you with me?

146      MR DESMOND:  Yes.

147      MR CORDY:  Yes, Your Honour.

148      HER HONOUR:  I direct that 4 years 6 months of Charge 7 be served concurrently and 6 months cumulatively upon Charge 8.

149      I direct that 7 years 6 months of Charge 9 be served concurrently and 6 months cumulatively upon Charge 8.

150      I direct that 2 months of Charge 11 be served cumulatively upon Charge 8.

151      Now, that results in a total effective sentence of 11 years' imprisonment and I direct a period of 8 years be served before eligible for parole and I will come to explain that in a bit more detail.

152      By force of statute my sentence commences today and runs concurrently with the sentence you are currently undergoing until March 2020, that is from today's date till March 2020 is approximately three months, again I stress not calculated to the day.  Now, that should makes sense I hope.

153      MR CORDY:  Yes.

154      HER HONOUR:  For further clarification of this sentence I have not declared any pre-sentence detention for this offending since the jury verdict as you are currently undergoing the sentence imposed by her Honour.

155      But I do, as I have said, take the sentence imposed by her Honour into account in the application of totality, mindful of the total effective sentence and non-parole period imposed by her Honour.

156      And I have already referred to the charges for which you have been sentenced as a serious violent offender and a serious sex offender and have directed those charges be so identified and entered into the records of the court.

157      So by way of further explanation, and, again, I am not going to the exact day, he has got about three months to go of her Honour's sentence in round figures, all right?  From today till 15 March, round figures.  He has served 2 years and 7 months.  The 11 years is on top of, for want of a better term, the 2 years and 7 months.  So that is a total then of about 11 years without going to the exact - that is 13 years and 7 months approximately because of the 2 years and 7 months he has done with her Honour's sentence.  The same maths would apply to the non-parole period.  That is 8 years on top of 2 years, seven.  He has done 2 years and 7 months.  He has got 8 to go.  So that was a total of, just in round figures, 10 years and 7 months.

158      Now, does that make sense?

159      MR CORDY:  Yes.  Yes, Your Honour.

160      MR DESMOND:  So does Your Honour mean by, so I can understand it, that - - -

161      HER HONOUR:  I was just trying to make it - - -

162      MR DESMOND:  Yes, I understand.

163      HER HONOUR:  - - - not in exact date.  Do you follow?

164      MR DESMOND:  I understand but approximately his sentence - - -

165      HER HONOUR:  2 years, 7 months plus 11.

166      MR DESMOND:  Yes, so from March next year the head sentence should be approximately 10 years and 9 months.  He is not - - -

167      HER HONOUR:  Well, yes, but I have to sentence - and as of today's date - - -

168      MR DESMOND:  I understand that.

169      HER HONOUR:  Sure.  I follow.

170      MR DESMOND:  But it should reflect that when he has finished Judge Gaynor's sentence, he is not getting 11.  He has really got 10 years and 9 months as a head sentence.

171      HER HONOUR:  That is right.

172      MR DESMOND:  Yes.

173      HER HONOUR:  If you take it right from the first time his sentence was imposed by her Honour, he has done 2 years, 7 approximately.

174      MR DESMOND:  Yes.  Yes.

175      HER HONOUR:  Eleven on top will be the total amount.

176      MR DESMOND:  So what happens to his 570 days in Your Honour's - - -

177      HER HONOUR:  That has been declared by her Honour.

178      MR DESMOND:  Yes.  But it remains on foot as a declaration.

179      HER HONOUR:  Yes, it was declared.

180      MR DESMOND:  It does not fall by the wayside because of this sentence.

181      HER HONOUR:  No.

182      MR DESMOND:  So as at March when he has served - - -

183      HER HONOUR:  When he is out.

184      MR DESMOND:  - - - the head sentence - - -

185      HER HONOUR:  Yes.

186      MR DESMOND:  - - - he has served the head sentence because it takes into account 570 days.

187      HER HONOUR:  No, he has been in.  He has been in for the period of 2 years and 7 months.  He has been in undergoing the sentence - - -

188      MR DESMOND:  That is right.

189      HER HONOUR:  - - - which includes the PSD which was declared by her Honour.

190      MR DESMOND:  Well, her Honour's sentence, you Honour said, it was 2 years and 10 months, was it?

191      HER HONOUR:  Correct.  That was her sentence - - -

192      MR DESMOND:  Yes.

193      HER HONOUR:  - - - and he has done 2 years and seven of that and she declared 570 at the time.

194      MR DESMOND:  Well, yes, but with the declaration of 570 days pre-sentence detention, that should come off the head sentence ultimately if this current sentence was not there.

195      HER HONOUR:  It has already been - he has been in custody.  I am dealing with the fact that he is a totality principle, he has been in gaol - - -

196      MR DESMOND:  Yes.

197      HER HONOUR:  - - - for 2 years and 7 months.

198      MR DESMOND:  At some point, he has got to get the 570 days reflected.

199      HER HONOUR:  Well, at this stage, that is - - -

200      MR DESMOND:  Which should be, if Your Honour is not proposing to interfere with the PSD he is entitled to, if he is not paroled on this sentence, then come the 11 years from today - - -

201      HER HONOUR:  Yes.

202      MR DESMOND:  - - - it should be 11 years less the 570 days.

203      HER HONOUR:  Well, - - -

204      MR DESMOND:  Because he has otherwise not got the PSD credit.  There has just been a declaration.  He does not get the benefit of it.

205      HER HONOUR:  What do you say, Mr Cordy?

206      MR CORDY:  No, I understand Your Honour's sentence.  He has had his 570 days because - - -

207      HER HONOUR:  That is right.

208      MR DESMOND:  When did he get his 570 days?

209      MR CORDY:  Well, that was before.  So that when he was sentenced by her Honour Judge Gaynor, there was pre-sentence detention.  So his sentence started effectively 570 days before she actually sentenced him.

210      MR DESMOND:  I do not think it was - look, I do not understand it to be 2 years and 10 months on top of 570 days in custody.  It was a head sentence of 2 years and 10 months - - -

211      HER HONOUR:  Declared.

212      MR DESMOND:  - - - of which he was then entitled to a declaration - - -

213      HER HONOUR:  It was.

214      MR DESMOND:  - - - of 570 days going towards this sentence I now give you.

215      HER HONOUR:  Well, that is not as I understand it but the sentences as I have imposed, if you have say that creates an issue, well, another time, another place.

216      MR DESMOND:  Well, we will find out in 10 years.

217      HER HONOUR:  Yes.  Well, no.

218      MR DESMOND:  Well, that is the trouble.  When it comes to what the prisoner thinks, I am entitled to my credit for 570 days.

219      HER HONOUR:  Yes, but - - -

220      MR DESMOND:  Corrections will say, 'Well, you're not', and we come before retired Judge Pullen.

221      HER HONOUR:  No.  No, no.  It is not that.  No, he has done his 2 years and 7 months - - -

222      MR DESMOND:  That is right.

223      HER HONOUR:  - - - and that incorporated the 570 days.  I am simply looking at how long this man has spent in gaol - - -

224      MR DESMOND:  Yes, I - - -

225      HER HONOUR:  - - - and he has done 2 years and 7 months - - -

226      MR DESMOND:  Yes.  Yes.  I just - - -

227      HER HONOUR:  - - - and therefore I have taken that into account.

228      MR DESMOND:  If there is an argument to be had later on, - - -

229      HER HONOUR:  Yes.

230      MR DESMOND:  - - - it is clear Your Honour is not intending by this sentence to vacate the PSD declaration.

231      HER HONOUR:  Correct.  No, I am not but he - - -

232      MR DESMOND:  All right.

233      HER HONOUR:  - - - I am looking at he has been in gaol for 2 years, 7 months and that to me seemed a significant period of time - - -

234      MR DESMOND:  Well, it is.

235      HER HONOUR:  - - - and in my sentencing remarks, I have referred to what are the orders for cumulation which might otherwise appear extremely lenient.  It has all been based on the fact he has done 2 years and 7 months.

236      MR DESMOND:  Your Honour has clearly indicated - - -

237      HER HONOUR:  Yes.  But anyway.

238      All right.  Well, thank you very much.  Anything else from your end there, Mr Cordy?  There were no other orders I do not think.

239      MR CORDY:  No, there is not, Your Honour.  Thank you.

240      HER HONOUR:  No?  All right.  Thank you for that.

241      MR DESMOND:  No buccal swabs?

242      HER HONOUR:  Sorry?  No, all right.  All right.  Thank you, Mr Desmond.

243      All right.  You can pop out there now.  Thank you very much, Mr Warnakulasuriye.  All right?  Yes.  All right.  Thank you.

244      Thank you again both of you.  We will disconnect the link.  All right?

245      MR CORDY:  Thank you, Your Honour.

246      HER HONOUR:  Yes.  Thank you both.

247      MR DESMOND:  Thank you, Your Honour.

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