Director of Public Prosecutions v Watts
[2015] VCC 676
•22 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00450
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PERI AINSLEY GIOVANNA WATTS |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2015 (plea hearing) | |
DATE OF SENTENCE: | 22 May 2015 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Watts | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 676 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – blackmail
Legislation Cited: Crimes Act 1958, s87; Sentencing Act 1991
Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; Boulton v R [2014] VSCA 342
Sentence: Convicted and sentenced to 18 month Community Correction Order;
6AAA declaration – 12 months immediate imprisonment with a non-parole period of six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L Exell | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms G Connelly | Matthew White & Associates |
HIS HONOUR:
1 Peri Ainsley Giovanna Watts, you have pleaded guilty to the offence that you, at Hoppers Crossing in Victoria on 25 November 2014, with a view to gain for yourself, made an unwarranted demand from Michelle Gaye Hussey with menaces.
2 Such crime is contrary to s87 of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
3 The Prosecution has prepared a written Summary of the circumstances surrounding the offending. Such Summary has been marked as an exhibit (exhibit “1”) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such Summary are:
(a)You were born on 13 September 1996 and were 18 years old at the time of the offending.
(b)At the time of the offending, you were with Trent Le-Gallienne (your co-accused) who was born on 24 March 1990, and was 24 years of age at the time of offending.
(c)The victim of your crime, Michelle Hussey, is your mother, who at all relevant times lived in Elizabeth, South Australia.
(d)On the day before the offending, you telephoned your mother from Victoria and told her that you had no money, after which your mother deposited $30 into your bank account. Your mother had provided small amounts of money to you in this manner every few weeks.
(e)At 9.58am (South Australian time) on 25 November 2014, your mother received a telephone call from you. At that time, you sounded “hysterical”, and said to your mother:
“I have a drug debt. They need $5,000. They want it by 11.30 or they are going to torture me.”
(f) At that time, you told your mother that you did not know where you were and you were advised by your mother to contact your grandfather, who would collect you.
(g) Your mother immediately contacted Victoria Police, who commenced an operation into your whereabouts, involving approximately 20 investigators and other specialist resources.
(h) At approximately 10.00am, your mother attempted to call Le-Gallienne’s mobile telephone, but her calls went unanswered. Your mother again telephoned Le-Gallienne’s mobile telephone at 10.24am and spoke with you for approximately one minute, during which time you were described as “hysterical”. You told your mother that you did not know where you were and that it was serious. Your mother told you that she had contacted the police and in turn you told your mother:
“They’ve taken [Le-Gallienne]. They are probably bashing the shit out of him.”
(i)All this information was conveyed to the police by your mother, who attempted to call Le-Gallienne’s mobile telephone again at 10.37am, but such call was not answered.
(j)At 10.43am, your mother received a text message from a Telstra payphone which read:
“FIVE THOUSAND BY 12 OR.”
(k) Your mother again telephoned Le-Gallienne’s mobile telephone at 10.54am and 12.20pm, but her calls went unanswered. Your mother was extremely worried about you, and provided a statement to police at about 2.30pm.
(l) At 6.16pm, your mother received a telephone call from you, at which time you told her that you were okay and not to worry and that you were in a room. In particular, you told your mother that you needed the money for a drug debt and for her to deposit $500 into your account by 7.30pm.
(m) At 7.13pm, you again telephoned your mother and asked whether or not she had deposited the money into your account. At that time, you were informed that she was organising the money and you sounded “desperate”, particularly when you told your mother there was only ten minutes remaining to make the deposit.
(n) Your mother paid $500 into your bank account, after which you agreed to attend a police station.
(o) At about 6.30pm, investigators obtained telecommunications data which suggested that you had been moving around rather than being held captive in a room.
4 On Wednesday, 26 November 2014, police executed a Search Warrant at Le-Gallienne’s home address, where you and Le-Gallienne were located, and you were both arrested. You were remanded in custody on that day and remained in custody until 1 December 2014 on which date you were bailed. Conditions of bail include that you live with your grandparents in Bendigo and you be subject of a curfew. Such bail conditions have continued to this date.
5 On Thursday, 27 November 2014, police conducted a record of interview, wherein you admitted, amongst other things, that it was your idea to create the story, although the “kidnapping scenario” was not planned, it “just happened”.
6 You pleaded guilty to the offence on 18 March 2015 which the prosecution concede was the earliest possible date to make such a plea.
Material tendered by your counsel
7 Your counsel, in support of your plea in mitigation, tendered the following documents:
· Exhibit A – outline of submissions on plea
· Exhibit B – letter from maternal grandparents dated 13 May 2015
· Exhibit C – letter from YSAS dated 5 May 2015
· Exhibit D – supervised bail progress report dated 7 May 2015
· Exhibit E – letter from you dated 7 May 2015
· Exhibit F – email from David and Deanne Fitzallen
· Exhibit G – letter from your mother, Michelle Hussey
· Exhibit H – chronology.
8 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.
9 When you were a few months old, your parents separated and initially you were cared for by your mother and over the years you were spending every second week with your father in Wallan.
10 A subsequent relationship between your mother and a new partner came to end when you were about ten years of age and when you were about fourteen, your mother formed a further relationship, causing her to move to Adelaide to be with her new partner. According to you, you resided with your father from that age as you did not want to move to Adelaide with your mother (although your mother believes you had moved in with your father prior to the move in Adelaide). In any event, you lived with your father, his partner and an older stepsister and you describe such a situation as not a “happy arrangement”.
11 On your sixteenth birthday in 2012, you flew to Adelaide and stayed with your mother for one week of work experience. When you were dropped off at the airport by your father, you were told that you were not welcome to return and should not do so.
12 Although your mother was open to you living with her in Adelaide, you did not want to do this and at the end of the week returned to Melbourne independently after which you lived on the streets for about two weeks, having just turned sixteen years of age. It should be noted that your maternal grandparents were waiting for you at the airport but you did not wait for them.
13 Subsequently contact was made and arrangements were made for you to live with your maternal aunt and after this arrangement concluded you moved in with a friend of yours whilst in Year 11.
14 The parents of your friend notified the Department of Human Services who arranged for you to be placed in foster care when still attending Hoppers Crossing Secondary College.
15 However, in July 2013, you moved out of the foster home and commenced living with a then boyfriend in Heidelberg West. At that point, you left school some time through Year 11 without completing that particular year. Although you had moved out and was living as an adult at the age of sixteen, you commenced a Diploma of Business Management in the city and although attended that course, did not complete it.
16 You believe that it was around July 2013 that you commenced using methamphetamine – that is ice – and in about November 2013 you moved to Altona with some friends.
17 In approximately February 2014 at the age of seventeen, you met and commenced a relationship with your co-accused. Both of you moved into the house of the mother of the co-accused in Hoppers Crossing. You have instructed your counsel that the relationship between you and the co-accused in hindsight was an extremely negative one and during the course of such relationship your use of ice escalated dramatically, causing you to become isolated from your family and friends and any other meaningful engagement with the community.
18 During this period of time, some offending does occur leading up to the subject offending.
19 I was informed by your counsel that the mother of your co-accused obtained an intervention order against you which was breached many times – in part because you were living there on and off with the co-accused. Because of your involvement in the ROPES program, which was completed successfully, which I am informed is similar to diversion program although run by the Children’s Court, charges against you in relation to such breaches were dismissed.
20 Furthermore, after you had turned eighteen, but before the present offending, there was a further breach of that intervention order and prosecution for possession of proceeds of crime and criminal damage. Such offences relate to the house of the mother of your co-accused. On 30 March 2015, you obtained a bond to be of good behaviour and to work with Juvenile Justice and treatment conditions. I was informed that you have complied with those orders.
21 Following your bail in early December 2014, you commenced to live with your maternal grandparents in Bendigo. In this respect, I note the letter from your grandparents describing you as only weighing approximately 46 kilograms when you commenced living with them. Since then, your general health has improved.
22 Your grandparents confirm that you have been engaged in a hospitality course which is run five days a week from 9.00am to 3.00pm and have only missed days when you were required at court. Your grandparents also confirmed that you have completed the ROPES course and have met all your bail requirements, including meeting the curfew. Your grandparents describe you as seemingly “drug-free” and in particular, state in their letter dated 13 May 2015, that:
“We don’t excuse what she has done but she has come a long way in life. We would ask your Honour if you could hand down a community-based order where she must reside with us as we will do our best to keep on the right path. We are extremely worried if she went back to Melbourne so that she might end up back in the violent relationship with the co-accused and back on drugs again. We are very happy with the progress she has made and want to continue guiding her as we love her dearly and want her now happy and drug-free life to continue.”
23 I also refer to the report from the Department of Health and Human Services commenting on your supervised bail progress since being bailed on 1 December 2014. It is noted that you attended all required supervision appointments with Youth Justice with the focus of these appointments has been to engage you in substance abuse counselling, employment and/or training and to monitor your behaviour in the community. It is also recorded that you have attended sessions with Mr Nathan McGovern of Youth Support and Advocacy Service (“YSAS”) In Bendigo and he has supported you with substance abuse and general counselling. That report also confirms that you commenced attending the hospitality course Certificate III in February 2015 and that course is a full time course running over the year and includes some on-the-job training in all aspects of the hospitality industry.
24 I was informed during the course of your plea that you may ultimately change to an automotive course which has some appeal for you. In general terms, you have reported that you have been enjoying the course and have developed some new positive peer relationships with fellow students. In particular, you have also been working at a café as part of the course and apparently enjoying such experience.
25 Importantly, you have reported that you have got “on ice” on a couple of occasions during the supervised bail period and it is noted that given your high use of ice prior to the offending, some relapses would be expected.
26 I also refer to the report from YSAS dated 5 May 2015, which confirms that you have attended on 10 occasions from 12 January 2015 to 5 May 2015. During various assessment and treatment discussions, you reported a number of experiences relating to your previous relationship with the co-accused wherein you described being the victim of violence and on several occasions where your life was threatened. In describing such experiences, reference was made to a number of psychological and physical injuries sustained from these encounters. In this sense, it was considered that you have ongoing symptoms which are consistent with a trauma or stress-related disorder (for example Post-Traumatic Stress Disorder). Furthermore, other testing supported the possible presence of a mood-based disorder or a trauma-related disorder. Further assessment would be needed to clarify the nature and severity of these reported mental health symptoms. In particular, it is stated:
“Peri would benefit from a full mental health assessment to evaluate her presenting issues and needs. They should ideally be performed by a forensic psychologist or clinical psychologist.”
27 At the time of such letter, it was noted that you were intending to continue with your current treatment at YSAS and it is noted by that organisation that further support will be required to assist you to maintain a focus of avoiding a relapse to your previous level of use of drugs.
28 In particular, I also note your letter to the Court dated 7 May 2015. In that letter you describe your life as having now “moved on” by which you mean that you now live with your grandparents in Bendigo, have formed a new relationship with a young man who is supportive and caring, and have reduced your use of ice and made a commitment to quit altogether. You note that you are well supported by your family, boyfriend, his family, new friends and work colleagues. In particular you state:
“I am sorry for what has happened and I believe I have learnt my lesson and am making positive steps towards getting my life back on track.”
29 I also refer to the letter from Mr David and Deanne Fitzallen, the parents of your present boyfriend. They write of your commitment to abide by the curfew imposed on you by your bail conditions, and also how they have grown to care for you as they find you are a well mannered young woman who gets on well with them and other members of their family.
30 Importantly, I also note the letter from your mother, the victim of your crime. In particular she notes that she and your sisters now have regular contact with you and life is getting back to “normal”. She confirms that you are enrolled in the TAFE course and have been regularly attending rehabilitation and counselling appointments. Your mother notes that you are turning your life around and maturing into a young lady. However, your mother is aware that in order to avoid a relapse into drug use, there should be some ongoing restrictions and requirements.
Matters in mitigation of your sentence
31 Your counsel submitted the following matters are important in mitigation of your sentence:
(a)a plea of guilty was entered at the earliest time;
(b)that you have shown contrition in relation to the offending as evidenced by your letter to the court dated 7 May 2015; and indeed, your commitment to the various rehabilitation aspects since being bailed in December 2014;
(c)that although there are what your counsel refers to as “statements of defiance” in the record of interview, you do you take responsibility for your offending at the outset and make full admissions as to your role in the offending in the record of interview.
(d) At the time of offending you were eighteen years and two months old and clearly must be viewed as a “youthful offender”. Reference was made to R v Mills [1998] 4 VR 235 and in particular page 241 and the proposition that rehabilitation of a youthful offender is usually far more important that general deterrence. Reference is also made to Azzopardi v R (2011) 35 VR 43 and in particular, I refer to paragraphs [34] – [35] where Redlich JA (with whom Coghlan AJA and Macaulay AJA agreed) stated:
“[34] There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, Judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:
In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.
[35] Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. …”
(e) That the offending was a “less grave” example of blackmail and in particular there was no formal planning of the offending and “relatively speaking”, the amount of money sought and obtained was not large. In the circumstances there was no actual risk of harm to anyone because you were the source and purported victim of the entirely fictitious situation. The effect on the victim – your mother – has not been severe or sustained although it was accepted that your mother was “extremely worried” and it is evident from the timing and circumstances of which the deposit was made that she submitted to the blackmail “to be certain”.
Your counsel submitted that a sentence involving incarceration is not justified in all the circumstances and that an appropriate sentencing disposition can be achieved by the imposition of a community correction order. In the alternative, if such submission was not accepted, a Youth Justice Centre order ought be considered and reference was made to s32 of the Sentencing Act 1991.
32 Counsel for the prosecution submitted that the offence of blackmail is an inherently serious offence, although it was accepted that your remorse was evident and that you have taken responsibility for your actions. Furthermore, your actions were not that sophisticated, although there was some attempt to disguise the source of your text message.
33 In particular, counsel for the prosecution joined with your counsel that an appropriate disposition would be the making of a community correction order and furthermore, considered that based on what you have achieved since being granted bail in December last year, rehabilitation prospects are “good”.
34 The Court arranged for you to be assessed to determine your suitability for a Community Correction Order. In a report dated 13 May 2015, an officer of Community Corrections advised that you were considered a suitable candidate for a Community Correction Order subject to various other conditions being made beyond those required by the legislation.
35 Community Services have assessed your risk of re-offending as being “medium” according to the level of service risk assessment tool.
36 I also note that your grandparents were in attendance when you were assessed and they have confirmed that you are welcome to continue living at their address.
Conclusion
37 The offence of blackmail is a serious offence, as clearly evidenced by the maximum penalty of 15 years' imprisonment. Although I accept that the circumstances of your offending was in the lower end of such offence, it must be borne in mind what your mother must have experienced over the period of time, seemingly believing you to be at one stage to be at the mercy of drug dealers with the prospect of being tortured.
38 Although I also accept that there was no particular sophisticated planning about such offence, the demands made by you on your mother extended over a period of time of the offending on that day with the clear intent of frightening your mother into the situation where she would hand over money for the use of yourself and your co-offender.
39 Even though I accept that you made full admissions in relation to your offending during the course of your record of interview, it is also to be noted that during the course of such interview, there were several answers from you which reflected, in the words of your counsel, “statements of defiance”.
40 I also note that the proceeds of the blackmail were not only to be used for the purchase of ice but also for other matters.
41 I do accept the submissions in relation to you being a youthful offender and indeed the offending does smack of a silly act reflecting perhaps your immaturity at that time, your disrupted lifestyle over your teenage years, your then relationship, and your ongoing need at that time for methamphetamine.
42 In mitigation, I do accept that your plea of guilty was at the earliest possible time and that you have shown contrition for your offending. In this sense, the relationship with your mother is being restored as with your sisters. To your credit, you appear to have essentially maintained your conditions of bail, sought out rehabilitation and indeed have commenced a course which hopefully will lead to employment which is fulfilling. You are also fortunate enough to have maternal grandparents who are prepared to accommodate you, support you and help you in your rehabilitation.
43 Given your youth, I am of the opinion that although there must be recognition of some punishment for your offending, specific and general deterrence are secondary to your rehabilitation. In this respect, I consider your chances of rehabilitation are “good”, given the family support which surrounds you and indeed your intention to pursue your various studies.
44 I also take into account that you have experienced six days in prison before being bailed and furthermore, have been the subject of a curfew since living at your grandparents’ property. Your counsel highlighted that a continuation of the curfew condition would inhibit your reintroduction to normal recreational and social activities and indeed it may well be counter-productive given your age of eighteen. I accept such submission.
45 I refer to the guideline judgment given by the Court of Appeal in Boulton v R [2014] VSCA 342 pertaining to the operation of community correction orders which have been available to Victorian courts since July 2012. As that Court stated, the community correction order is a radical new sentencing option with the potential to transform sentencing in this State. Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature and a sentencing court can attach to a community correction order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a community correction order is a “flexible sentencing option allowing punitive and rehabilitative purposes to be served simultaneously”.
46 As the Court of Appeal has stated, s5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a)the purpose of which sentence is to be imposed on the offender; and
(b)where that purpose can be achieved by community correction order to which one or more of the specified conditions is attached.
47 I also refer to Appendix 1 of the Court of Appeal judgment which is headed “Community Correction Orders: Guidelines of Sentencing Courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, I do consider the offence committed by you to be of a serious nature but indeed given you are a youthful offender, sentencing factors as denunciation, specific and general deterrence are diminished and rehabilitation assumes some importance.
48 After careful consideration, I consider that a community correction order would satisfy the requirements of just punishment in the circumstances of this matter. I propose to convict you of the offence and sentence you to a community correction order which will have attached the various legislative conditions. Furthermore, I also intend to order that consistent with the various materials before me, there be conditions relating to drug treatment and rehabilitation, mental health treatment and rehabilitation, a non-association condition in relation to your co-accused, and a residence restriction condition and supervision.
49 Accordingly, please be upstanding.
(1)In relation to the charge you are convicted and sentenced to a community correction order for a period of 18 months.
(2)Pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse and/or dependency;
(3)Pursuant to s48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
(4)Pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice;
(5)Pursuant to s48G of the Sentencing Act 1991, you are directed that you must reside with your maternal grandparents at 66 Taylor Street, Ascot during the currency of the order.
(6)Pursuant to s48F of the Sentencing Act 1991, you must not contact or associate with the co-offender, Trent Le-Gallienne.
50 Further, in relation to Charge 1, the Court orders that pursuant to s464ZF(2) Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from the mouth and/or blood sample for placement on the database. I must also inform you that if at the time you are requested, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Victoria Police, then the sample taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be undertaken.
51 Save for your plea of guilty, I would have order that in relation to Charge 1, you serve a period of imprisonment of 12 months with a non-parole period of six months.
52 Ms Watts, it's probably been a lot for you to take in and no doubt it will be explained to you by your counsel in due course. The upshot is that I am coating you as a sentence on a community-based order and there are a variety of conditions attached to that community-based order which will extend for 18 months. Most of those conditions relate to your rehabilitation. By that I mean, a condition that you live with your grandparents, a condition that you stay away from the co-accused, a condition that undergo and continue to undergo drug rehabilitation, a condition that you also be checked out as to your mental health status in view of the matters you have told others about the stress you incurred through your relationship and also with the umbrella of supervision by the Department over this period of time.
53 It is very extremely important, you understand that this is a sentence of the Court. If you breach any of the terms you will be brought back before me, and I can assure you, I will take a very dull view of any breach, and I have got the power to re-sentence effectively.
54 So what I am saying to you is: this is your chance. You have shown great progress since being bailed. You are very fortunate to have loving grandparents who are prepared to support you and look after you. You are very lucky that you are going to a TAFE course which will no doubt lead to some type of employment. You are away from your co-accused, but if you lapse back into drugs and get into that lifestyle again, I can assure you, it is just a downhill spiral.
55 You have all your life in front of you, you are only of 18 years of age now and this is your big chance to get your life back in order. But rest assured, if you do not and you are back before me, I will take a very, very dull view. Do you understand?
56 OFFENER: Yes, Your Honour.
57 MS CONNELLY: Your Honour, I beg your pardon, I wasn't quick enough to intervene before Your Honour pronounced the s.464ZF order. I had wished to be heard in relation to that.
58 HIS HONOUR: That was - well - - -
59 MS CONNELLY: I would have said, Your Honour - and it may make no difference.
60 HIS HONOUR: I've got a discretion, haven't I, at that age, but given the nature of the offence, I did.
61 MS CONNELLY: There was only one further point and that is in relation to the matters dealt with in the Magistrates' Court: my client instructs that she did provide a sample at that point, although my friend has taken the trouble to check whether there's anything recorded on the database and apparently there isn't but I wished to bring that matter to your attention.
62 HIS HONOUR: Is it your point that it has already been done or it's your point that it shouldn't be done at all?
63 MS CONNELLY: I was making both points but I hear that Your Honour is against me on the latter so it certainly has been done, whether or not it was retained I can't advise.
64 HIS HONOUR: I'd be surprised if it wasn't to be quite frank but in any event - - -
65 MS CONNELLY: Those are the only matters I would have put before Your Honour in relation to that.
66 HIS HONOUR I'll add to the order on that particular aspect of it.
67 MS CONNELLY: Your Honour, I don't urge you to make a conditional order. Those are the matters I sought to put before Your Honour. It wasn't by consent, that's all.
68 MS BARRY: Yes, Your Honour, I can confirm that I contacted the DNA Management Unit and was advised that Ms Watts is not currently profiled on the database and they don't have any records of orders. I am in the same position as my friend, I can't confirm whether an order was made in the Magistrates' Court or whether or not a sample was retained in that particular matter. But there is no sample in this matter so we would maintain the application on that basis, Your Honour.
69 HIS HONOUR: I have got a discretion but having said that it is on one level, significant offending and I think I have to take that into account.
70 MS BARRY: May it please, Your Honour.
71 MS CONNELLY: If the Court pleases.
72 HIS HONOUR: No doubt you'll explain to your client in perhaps more detail what I've said.
73 MS CONNELLY: Yes, I will, Your Honour.
74 HIS HONOUR: I'm going to adjourn briefly. The orders have to be signed and I have to counter-sign them, so if that can be done in the short adjournment. Thank you. Adjourn the court, please.
75 OFFENDER REMOVED
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