Director of Public Prosecutions v Whittle

[2014] VCC 2142

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-01362

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY FRANCIS WHITTLE

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Bendigo
DATE OF HEARING:	Trial: 2-5 December, 2014 Plea: 9 December, 2014
DATE OF SENTENCE:	11 December 2014
CASE MAY BE CITED AS:	DPP v WHITTLE
MEDIUM NEUTRAL CITATION:	[2014] VCC 2142

REASONS FOR SENTENCE
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Subject:  Sentencing; Jury verdicts; Plea on one charge

Catchwords:  Indecent acts and sexual penetration of 16 year old employee under the care, supervision and authority; possess child pornography

Legislation Cited:  Sentencing Act 1999; Sex Offender Registration Act 2004
Cases Cited:  DPP v Guest  [2014] VSCA 29

Sentence:TES: 2 years and 6 months imprisonment; non-parole period: 20 months imprisonment; PSD: 2 days; forensic sample order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	OPP
For the Accused	Mr R. Williams (on trial and plea) Mr Dogherty (on sentence)	Struthridge Legal

HER HONOUR:

1Gregory Francis Whittle, you have been found guilty by a jury of four charges of committing an indecent act with a child of 16 under your care, supervision or authority, and one charge of sexual penetration of a child of 16 under your care, supervision or authority.  You have also pleaded guilty to one charge of possessing child pornography.

2The maximum penalty for each charge of indecent act, and also for possessing child pornography, is five years imprisonment, and for sexual penetration of a child of 16, the maximum penalty is ten years imprisonment. You will not be receiving a sentence as high as any one maximum that I have mentioned, but I must and do take into account that they reflect the relative seriousness with which Parliament, on behalf the community regards offences of this nature.

3All of these charges arise out of your interaction over approximately a five or six week period, with a 16 year old boy whose name I shall not mention in these reasons,  to facilitate publication of these reasons without revealing his identity, and solely to protect his privacy.

4You employed him in mid-December 2011, to work in your motorcycle shop and workshop.  From his resume, you knew from the outset that he was 16 years old at that time. 

5About a week after he commenced that employment, there was a Christmas “break up” held at your work premises, involving only about half a dozen people, including this new young employee. Because he lived with his family some 40 kilometres from Bendigo, it was pre-arranged that he would stay over at your house that night.

6You had provided all of the alcohol for the party, and he apparently consumed far too much, became very drunk and vomited. At the end of the function, you drove him to your home, first dropping off another man. 

7On arrival at your home, you showed him the bedroom where he was to sleep, and also took him to the bathroom and told him to have a shower.  He said you told him to do this in order to sober up.  Also, because he had vomited over his clothes, you told him to give you his clothes and you took them away to wash.

8It was far from unreasonable to tell him to have a shower or take his clothes to wash.  However, you returned to the bathroom while he was naked in the shower, and by its verdict on Charge 1, the jury must have accepted his evidence that you got into the shower with him, and touched his penis.   Whether you did this kneeling or standing does not matter, but the indecent act under Charge 1 was that you improperly touched his penis whilst in the shower.

9After that incident took place, he left the shower, took a towel and dried himself.  He then remained naked, telling the police that it was because he did not have any other cloths to wear.  Although it emerged he had a tracksuit, he then recalled had been left in your vehicle. His evidence here was that you had told him that it was your practice to be naked in your house, and you expected that of others when in your house.  You do not dispute that you were walking around naked after your shower, as you normally would do.

10From the jury's finding of guilt on Charge 2, they must have found that later that same night, while both of you were sitting naked in the lounge room, you approached him, and again touched or masturbated his penis.  This is the charge of indecent act under Charge 2.

11There was evidence in the trial of other conduct by you that night, which I regard as highly inappropriate with a 16 year old employee, but none of that was the subject of these charges, and it was admitted into evidence only to give context to the offences charged.

12Over the course of the following few weeks of his employment with you, there was considerable communication by text messages between the two of you.  This included him sending you, at your urging, two still photographs he had taken of his erect penis to send to you, and also a video he took of himself masturbating and emailed it to you. Those images were still on your mobile phone, and the video was on your computer, when the police seized those items a couple of months later.  These are the subject of Charge 3 of possession of child pornography.

13As the jury found you guilty of Charges 4, 5 and 6, as well as Charge 2, they must have been satisfied that on a separate occasion, after the night of the Christmas function, you committed two further indecent acts, and an act of oral penetration with the same complainant. As described by him during the trial, this occurred on the night of the Christmas function, but he maintained that there had been a separate date of you touching his penis in the lounge room at your home, and he started by saying that on the VARE recording with police, when he first reported your conduct.  It was open to the jury to find these charges proved in relation to a separate occasion, even if the dates or timing was different from that alleged in the charges in the indictment.

14Therefore, I take the verdicts on Charges 4, 5 and 6 to be findings that on a separate date, probably between 9 and 23 January 2012, you engaged in conduct with your young employee in the lounge room of your home, which included you masturbating his penis­ - that is the basis of Charge 4.  You sucked his penis (Charge 5) the act of sexual penetration.  Then you had him masturbate your penis - that is the basis of Charge 6.

15Except for Charge 3, an essential element of each of these offences was that you were the employer of the 16 year old, and therefore in a position of care, supervision or authority over him.  It does not matter that none of these incidents actually occurred at work, because while he remained your employee, you could exert your power over him, and at least influence his co-operation for that reason.  Whether or not he agreed to this conduct was irrelevant.

16I accept that the first occasion does appear to have been opportunistic in the sense that he was to stay overnight at your house, he had soiled his clothes and it was in fact sensible for you to direct him to have a shower, to sober up and give you his clothes for washing. However, you took advantage of his vulnerability as well as his youth at that point, by entering the shower with him, and acting in an indecent manner towards him.  That must have been for your own gratification.  You took advantage of the situation again the same night, in the lounge room.  That was a separate, and further indecent act by you on the same night, but of a similar nature and I regard it as a continuation of the same opportunistic offending.

17However, that opportunism must be seen, as the prosecution submits, in light of the reason for the existence of this offence;  that being the power you as his employer had over him. The second indecent act shows that you did not immediately regret what you had done in the shower, and were willing to seek further self-gratification from further indecent conduct with him.

18On a subsequent date, when he was again at your house and in the lounge room, the other indecent acts and the instance of oral sex occurred.

19In between these two occasions, you had been engaging in conversations with him of what again, I regard as of highly inappropriate nature with a young employee.  These conversations were both in person, including some while at work and through text messages. Those actions are not the subject of any charges, except the obtaining of the photographs of him, but they indicate that far from thinking better of your conduct with him on the night of the Christmas breakup, you continued to engage in sexually charged communication with him, and as the jury has found, engaged in a further occasion of conduct that included not only indecent acts, but also the even more serious act of sexual penetration.

20There was evidence in the trial which canvassed the allegation that you had required the latter acts from him, as payment for his new mobile phone for which you had paid.  That is what the complainant said he understood you to be asking for, and it is certainly possible to infer that meaning from the series of text messages, starting from 8 January 2012. I make no finding to that effect, as I would need to be satisfied that that was your intention when sending the texts, and satisfied of that beyond reasonable doubt, which I am not. It was submitted on your behalf that a number of the texts from you could well have been bravado rather than truthful statements at the time, and I do have some doubt that you had actually formed the intention to require repayment for the phone, by what were referred to as “hand or blow jobs”. However, I am satisfied that you were consciously testing the boundaries with him, and intentionally seeking ongoing sexually suggestive communication and interaction with him.

21At the core of these offences is the use of power of the person with authority to take sexual advantage of a 16 or 17 year old, in this case your young employee, aged 16. You were 54 years old at the time; he was barely 16 and clearly immature and vulnerable.  Even if he showed interest in exploring the sexually charged talk and behaviour of your own lifestyle, which you apparently shared with him from very early in the employment, you went beyond that, and engaged in the conduct the subject of these charges.

22He had applied to you for employment, reflecting a desire to engage in the workforce, obviously to earn money for it, but showing enterprise on the part of a 16 year old who had already left school.  You were in need of extra labour at the time, and whether or not it was again bravado when you told police that you regarded him as cheap labour, does not detract from the fact that you had the power over whether he kept his job.  By engaging in sexual conduct with him, you were manipulating that employment situation for your own gratification, and abusing that power.

23I have read a victim impact statement from the now 19 year old young man against whom these offences were committed.  He describes suffering anxiety and depression as a result of these incidents, and straining relationships within his family, and with friends, a girlfriend and at work.  He describes requiring hospitalisation on one occasion, due to depression and a suicide attempt. Without medical evidence, I make no finding as to the extent of a causal contribution of your offences to this period of hospitalisation, or indeed to any ongoing symptoms or need for treatment for his mental health issues.

24However, I am satisfied that your offending conduct did cause him distress from at least shortly after it had occurred, and that it is likely to have contributed to anxiety suffered by him.  I also consider the discovery of this conduct, and it has been reported to police, likely to have impacted on his family relationships and his ability to find and sustain a new job.

25He may well have already been vulnerable to suffering anxiety, but that is at the heart of these charges.  These charges are to protect young people approaching but not yet of adult age, from the misuse by a person in authority, of the power that comes with that authority. This is because 16 and 17 year olds enter activities of the adult world, but often without the maturity to make judgments as to sexual activities independently of those who have some care, supervision or authority over them.

26I regard the objective and subjective seriousness of these offences as at a medium level.  There was no suggestion of violence, and nothing to indicate that you intended him harm.  There was no suggestion of long and considered pre-planning.  There was no causing of physical discomfort or pain, but I am satisfied from his evidence during the trial, and subject to the qualifications I have already explained, from his victim impact statement that there was at the time some emotional and psychological harm, and that there has been ongoing impact on his overall psychological welfare, and ability to establish himself in his early adult life.

27In relation to Charge 3 of possessing child pornography, applying the applicable sentencing considerations and principles as confirmed and summarised in the case of the DPP v Guest, (March 2014; paragraph 25), I must assess the nature and seriousness of the images depicted, their number, and whether they were for sale or distribution or for your financial gain.

28There were two photographs and one video which I take to have been short, in that it was forwarded from a mobile phone.  I have not seen them, but as described the content would fall within the two lowest levels of seriousness for categorisation of child pornography, being of him alone, in a sexual pose or masturbating.  I am told that his face is not shown, so he could not be identified by others.

29The images were all of the one 16 year old who took them himself, albeit at your urging,  and although still a child, I do not regard this as serious as if he had been much younger.  Further, I accept that the photos and video were not held by you for any financial gain, and were not intended to be sold or otherwise shared or distributed by you.

30Taking into account all of these factors, I regard this instance as at a relatively low, although not wholly insignificant, level of seriousness for this offence.

31I also take into account that you admitted possession of those images, and that it was wrong from the time of your interview with police, and have pleaded guilty to this charge. That entitles you to some leniency on this charge, because although the utilitarian value of avoiding a trial was lost, as you disputed the other charges, you did spare the jury having to view these images, and you are entitled to some leniency for accepting responsibility for those acts, and acknowledging your own guilt.

32If this had been the only charge against you, and in particular in light of you having no pror convictions, and despite the authorities indicating that an immediate custodial sentence will ordinarily be warranted, I would not have imposed a term of imprisonment for this offence alone. However, as your counsel indicated, the issue of whether there would be a custodial sentence on this charge is somewhat moot, in light of the other charges on which you have been found guilty.  So I have decided to impose a modest custodial sentence on this charge, which will be served wholly concurrently with the sentences on the other charges.

33There can be no question that in respect of Charges 1, 2, 4, 5, and 6, general deterrence is of particular importance.  That is to send a message to others tempted to engage in this type of behaviour, that it will attract stern punishment.  The sentence must also convey the community's denunciation of this type of behaviour, which although he was aged 16, still constituted sexual offending against a child.

34Further, for those charges on which you fall to be sentenced as a serious sex offender, as defined under the Sentencing Act, if a sentence of imprisonment is justified, which in my view it is, then in determining the length of a term of imprisonment on the latter charges, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. This section has been held to require a wholly punitive consideration, without reference to rehabilitation being an aspect of protection of the community. I note that the prosecution did not seek to argue that a sentence longer than that which is proportionate to the gravity of the offences, need be considered in this case.

35Specific deterrence, that is to discourage you from further similar offending, is not in my view of particular significance in your case, because of your absence of prior or subsequent offences of this or indeed, any other type.  In any event, the other more prominent factors are in my view sufficient, to also deter you from future similar offending.

36Given the nature of these offences, I expect that you will be required to undergo a sex offender program while in prison, if you are to obtain parole.  The sentence I impose I expect will allow sufficient time for you to do that. 

37I have already mentioned that you pleaded guilty to charge 3, accepting responsibility for your fault in that regard when first interviewed by police.  As indicated, you are entitled to some leniency for that plea.  In contrast, you stood trial on the other five charges and were found guilty by the jury. You receive no extra penalty, and your sentence is not increased, for deciding to stand trial on these charges, as that was your legal right.  However, you do not receive the benefit of the leniency you would have received for a plea of guilty; for its utilitarian value, for acknowledging the offending, accepting responsibility for it, and through that, showing some remorse.  By maintaining the plea of not guilty, you have also offered no explanation for the offending.

38You also lost the advantage of a possibly more favourable summary of the facts being presented to me, than the more fully aired version I heard during the trial.  Again that does not attract a higher sentence, but possibly deprived you of the benefit of having your offending presented without some of the less favourable detail I heard of your attitude towards your young employee.

39I turn now to your personal circumstances.  You are now aged 57.  I am told that you were born in Bendigo into a happy and supportive, although financially straightened, family.  You were moved between schools when your father needed to relocate the family for his work, and you eventually left school at Form 5 or Year 11 level from Kangaroo Flat Technical College.

40Your first job from age 17 was as a storeman, and lasted for four years.  You then moved to other employment where you remained for 25 years with the one company.  This certainly reflects a stable and sustained working life.  I am told that for the last nine years, you have been self-employed at the motorcycle workshop business you were running at the time of this offending in Kangaroo Flat, which employs a small staff. I am told that you have made arrangements for other staff to keep running that business while you serve the sentence of imprisonment that you were told to expect, after the findings of guilt in this trial.

41You have apparently lived a relatively lonely and isolated life for many years.  Of your surviving adult siblings, you apparently have little contact with your sister in New South Wales, and no contact with your brothers in Bendigo.  Your youngest brother apparently died at the age of 23 in 1991, which caused you considerable grief due to your close relationship with him. Your parents have also passed away, your father a couple of years after your youngest brother, and your mother in 2003, after you had cared for her during the final months of her life.

42You have continued to live alone, and from photographs I saw of the bathroom and lounge of your home at the time, it would appear you have lived without any obvious level of luxury or wealth. Your lifestyle was the subject of more scrutiny and comment during the trial than it is for many accused.  Your lifestyle itself was not the subject of the charges against you, and is not the subject of this sentence.  It was your including a 16 year old employee in that lifestyle, or aspects of it, which has brought you before this court.

43You come before this court with no record of prior offending, and none in the three years since.  You are entitled to bring your previous good character into account as warranting some credit, and leniency in your sentence. Even though possession of child pornography has been noted to often be committed by people otherwise regarded as law abiding, and with no history of other offending, but keeping it in the privacy of their own homes, I note there is no indication of other young people or other employees having been treated inappropriately along the lines of the offences here.  The only child pornography found in your possession was of this young 16 year old employee.  There was of course a wealth of other pornographic material, but not involving children.

44For a man of 54, at the time of these offences, and now aged 57, the absence of any other offending in your background is consistent, in my view, with this offending being out of your usual pattern of conduct, and isolated to your interaction with this one youth.

45I also regard your prior and subsequent lack of convictions, as indicating that your prospects of rehabilitation are quite sound.  You have a business which hopefully will continue to trade until your release, and although you do not have support from family or a wide group of friends, you seem to have lived much that way without offending in the past.

46I am told that subsequent to these matters becoming known, you have received threatening telephone calls, and have been the subject of unpleasant warnings which have given you cause to fear for your own safety.  This is most regrettable.  It is relevant for me to take into account that in serving a term of imprisonment, it may be necessary for custodial authorities, at least from time to time, to keep you relatively isolated for your own safety.

47If that were to occur, it is likely to increase the burden on you of the servicing of a term of imprisonment, and although the extent is totally unknown, I have made a modest adjustment to your sentence for that reason.

48As was conceded on your behalf, for all of the offences except Charge 3, the sentencing factors to which I must give weight mean that no sentence other than one of imprisonment would be appropriate.

49I must apply the provisions of Part 2A of the Sentencing Act, which are specific to serious offenders, including serious sexual offenders. Under Schedule 1, Clause 1(a), the offences for which I sentence you on this indictment are all relevant sexual offences. Each of Charges 1, 2, 4 and 6 under sub-paragraph (viiib); Charge 5 under (viiia); and Charge 3 under (xvii).

50Under s.6B of the Sentencing Act, if you have been convicted and sentenced to a term of imprisonment for two or more such offences, you are defined as a “serious sexual offender”. That means, under s.6D that for subsequent relevant offences, in this case being Charges 3, 4, 5 and 6, if a sentence of imprisonment is justified for those, in determining the length of that sentence, the court must regard the protection of the community from you as the principal purpose for which the sentence is imposed. As I have said, the prosecution does not suggest that a disproportionate sentence to the gravity of the offences is required to achieve that.

51Further, pursuant to s.6E, the sentences imposed on those subsequent offences would be served cumulatively on any other sentences of imprisonment and on each other, unless I direct otherwise.  Allowing for these purposes, I consider that there should be considerable concurrency in the sentences I impose, and to achieve that, I shall be directing otherwise for portions of the latter sentences. However, in my view, the fact that the offending was committed on two separate occasions requires some cumulation to reflect that you did not think better of your actions after the first occasion.  Further, there should be some reflection of the conduct under Charge 4 escalating to an act of sexual penetration under Charge 5, over and above Charge 5 carrying a higher sentence.  So there will be some cumulation in addition to there being a higher sentence for that more serious offence.

Sentence

52Gregory Francis Whittle, on each of Charges 1 to 6, you are convicted and sentenced as follows.  On Charge 1, a term of imprisonment of 15 months.  On Charge 2, a term of imprisonment of 12 months.  On Charge 3, a term of imprisonment of one month.  On Charge 4, a term of imprisonment of 15 months.  On Charge 5, a term of imprisonment of two years.  On Charge 6, a term of imprisonment of 12 months.

53Because my directions about concurrency are going to be complicated, I state at this stage, that it is my intention to create a total effective sentence of two years and six months imprisonment, and to order that 20 months imprisonment be served as a minimum term before you become eligible for parole.

54The orders I make to achieve that are as follows.  I direct that the whole of the sentences imposed on Charges 3 and 6, 12 months of the sentence on Charge 4 and 12 months of the sentence on Charge 5, be served concurrently with each other and with the sentence imposed on Charge 1.

55I note that by operation of law, the sentence on Charge 2 will also be served concurrently with Charge 1 and with all the other sentences. By operation of law, that is under s.6E, 12 months of the sentence on Charge 5 and three months of the sentence on Charge 4 will be served cumulatively on each other and on Charges 1, 2, 3, and 6.

56As I have said, these orders are intended to create a total effective sentence of two years, six months imprisonment, with a non-parole period of 20 months imprisonment. 

57I declare two days in custody since your remand this week to be reckoned as time served towards this sentence- that means, it will count towards the head sentence and the non-parole period.  I direct that that be recorded in the records of the court. The time will be deducted administratively.

58I also declare, pursuant to s.6F of the Sentencing Act that on Charges 3, 4, 5 and 6, you are sentenced as a serious offender.

59Although it is highly artificial in this case, for the purposes of s.6AAA, solely in relation to Charge 3, I state that had you not pleaded guilty, but been found guilty by a jury on that charge, the sentence on that charge alone would have been two months imprisonment.

60Now by operation of law under the Sex Offender Registration Act, you are a registrable offender and will be required to report for life. After I have finished announcing this order, my associate will bring you some paperwork and you will be asked to sign an acknowledgement that you have received it. That paperwork gives you notice of the obligations under the Sex Offender Registration Act.

61I also make an order for a forensic sample to be taken from you, for the purposes of your DNA being placed on the state's database.  I do that due to the circumstances and nature of the offending, and the application for that order was not opposed. I limit the order to a scraping from the inside of the mouth, and warn you as I must, that if you resist the taking of that sample, an authorised officer can use reasonable force to take it. However, as I limit it to a buccal swab which is rubbed against the inside of your mouth, it is not an intrusive process unless you do resist.

62Now finally, application has also been made for forfeiture and disposal of the iPhone and laptop computer on which the images, the subject of Charge 3, were found.  Your counsel made no submissions on that application, but on looking at it, as presently drafted I am not satisfied that the proposed order should be made.  I do not want to prolong the debate at this stage, but if the order were made in respect of Charge 3 rather than Charge 5, the act of sexual penetration which is what has been nominated, then I would be satisfied that the items were used in connection with the commission of the offence .  And it seems to me under Schedule 1, Charge 3 as an indictable offence is a Schedule 1 offence.

63However, under s.77(1), I still need to be satisfied that the items are of negligible value and whilst they have obviously been held for some time by police, and it is notorious that electronic items decrease in value, I am not sure that I have been directed to the right considerations yet on this.

64MR HUTTON:  If I start with making an ‑ ‑ ‑

65HER HONOUR:  Mr Whittle, you can take a seat at the moment.  I think the major parts of the sentence you have heard, and that is being prepared in the computer while this last matter can be debated.

66MR HUTTON:  If Your Honour would permit me to amend the application to reflect Charge 3 rather than Charge 5?

67HER HONOUR:  Yes.

68MR HUTTON:  And then turn to the negligible value portion.  The difficulty with those items is that the images in respect of Charge 3 are contained on those items, and if you will accept it from the Bar table, they cannot be cleaned by a forensic expert.

69HER HONOUR:  Can't they?

70MR HUTTON:  No, forensic experts will not guarantee that they are not hidden somewhere on the machine, because whilst they - whilst you can delete the hard drives or delete the memory, it doesn't actually delete the contents.  All it does is delete the pointers that the computer uses to find that file.  And if you're a forensic person, you can recover images off so called deleted computer equipment.

71HER HONOUR:  I understand the dilemma then.

72MR HUTTON:  Yes.

73HER HONOUR:  And I wasn't trying to make this the main focus of attention, but when I looked at the - first of all, what caught my eye was that - it was framed - it's framed in respect of Charge 5 for which those items weren't used, or intended to be used as I understand it.  So Charge 3,  I'll give you leave to substitute there.

74MR HUTTON:  Yes.

75HER HONOUR:  The other matter that did strike me is whether there needs to be some accommodation if there's still non-offensive material that is on those that Mr Whittle seeks to retrieve, whether that can be copied for him and retrieved.  I recall that the laptop was used in relation to his business.

76MR HUTTON:  Yes.

77HER HONOUR:  Now I'm also - I'm assuming it's been held by police as an exhibit.

78MR HUTTON:  Yes.

79HER HONOUR:  For the last three years, so its usefulness to his business may now well and truly have passed, or it may be that he was given some access to copy that material earlier I don't know.  But if there is anything on those items which is needed still, I think it fair to put a condition that they be allowed to be copied and provided to him, but clearly not the offending material.

80MR HUTTON:  Again if Your Honour accepts it from the Ba table, I've run several of these trials.

81HER HONOUR:  Yes.

82MR HUTTON:  Called the computer experts from Victoria Police.  They are not the - the forensic experts are not prepared to copy any material once the machine contains child exploitation material. They're not prepared to take any file off it because things can be so well hidden, material can be so well hidden on the computer that to remove any files is risky.  So they're not prepared to release certain portions of it, for instance a document.  They're just not prepared to do that.  So it's a matter for Your Honour.

83HER HONOUR:  So are you relying on - I'm just looking at section - I can give both counsel - who's here for Mr Whittle?  Mr Dogherty.  Have you considered this matter or - - -

84MR DOGHERTY:  No, no.  It's caught me somewhat by surprise, Your Honour.

85HER HONOUR:  Surprise, all right.  Here's a copy for each of you of s.77 of the Confiscations Act.  As I look at it now, s.77(e) is what - looking at here.

86MR HUTTON:  Yes.

87HER HONOUR:  Property that - I suppose under (ii) it could be put on the basis of what you've just outlined to me, that it's not fit for the use for which it's intended and cannot be readily made fit for that.

88MR HUTTON:  That's right.

89HER HONOUR:  So I'm not looking at the negligible value issue, I'm looking at whether it can be made fit by being freed from the offending material.  I can see that point if I accept, as you say, it's things from the Bar table.

90I know, certainly routinely, where the cases where there's a large body of pornographic material, these items are routinely forfeited and then ordered for disposal.  It came to my attention because it was the wrong charge that was mentioned, and then I went to the section and it's amazing what you find when you read the actual sections relied upon and I should know better because I'm one of the Judges sitting in the Confiscations List.

91With the amendment to reference Charge 3, I can see that there are grounds under (e)(ii) to find that those items are not fit for the use for which they were intended, and cannot readily be made fit.

92MR HUTTON:  As Your Honour pleases.

93HER HONOUR:  Mr Dogherty, have you any instructions on whether there was material there that you ‑ ‑ ‑

94MR DOGHERTY:  I can seek some, Your Honour, but it would seem a pretty compelling argument.  But if I may, I'll just seek some brief instructions.

95HER HONOUR:  Yes.  I'll let you seek those instructions.  I've also got in mind, they've been held for three years.

96MR DOGHERTY:  Yes.

97HER HONOUR:  And if anything was really essential, this might've been agitated before now I would've thought, but ‑ ‑ ‑

98MR DOGHERTY:  If I may very quickly, Your Honour?

99HER HONOUR:  Yes, if you'd like to approach the dock.  

100MR DOGHERTY:  Your Honour, his instructions are there was a contact list relating to his business, spare parts and things which he hasn't had and he hasn't been able to get, but that's the only thing I can raise.

101HER HONOUR:  I've heard what Mr Hutton said that the forensic people say things can be buried in all of - in any other document, but I'm of course - as far as I'm aware, this was a work - it was a laptop kept at his business, on which there was found one video which is the subject of Charge 2 which I've taken to be relatively short and sent from the mobile phone.

102I obviously don't have the technical knowledge, the IT knowledge to know whether there's any possibility that buried in a work list - what did you call it?  A customer list or a ‑ ‑ ‑

103MR DOGHERTY:  It's a contact list.

104HER HONOUR:  Contact list.

105MR DOGHERTY:  Spare parts, provide a contact list.

106HER HONOUR:  Whether that - if there's any possibility that that's been - whether if that were copied it could be infected with the offending material, but I - sorry, can I see the draft order, how it's worded - disposal.  Is there anything to stop this material being - Mr Whittle being given access to that list by way of - not of copying of the IT file, but by way of printing off the list so that the information is in a form that couldn't hold the offending material and yet is not lost to him?

107MR HUTTON:  Probably, I don't know.

108HER HONOUR:  All right.  In that case, I'm going to draft a form of order that makes the forfeiture and disposal order - makes the findings I need to make and with the amendment, subject to - by arrangement the file containing the customer list ‑ ‑ ‑

109MR DOGHERTY:  Your Honour, it may ‑ ‑ ‑

110HER HONOUR:  If you get a precise description of what it is, and where it's kept in the - what it's saved as, it seems to me through solicitors acting for Mr Whittle, there can be communication with the police whereby that document is printed off in a - and the old fashioned, putting ink on paper can't have, as far as I'm aware, any hidden files behind it.

111MR DOGHERTY:  The other option, with respect, is to adjourn the actual forfeiture application to next week and allow those enquiries to be made, and then if the material can be obtained or not ‑ ‑ ‑

112HER HONOUR:  I don't mind doing that, I'm more than ‑ ‑ ‑

113MR DOGHERTY:  It would just, again with respect, maybe avoid a cumbersome forfeiture order.

114HER HONOUR:  Cumbersome wording.

115MR DOGHERTY:  Yes.

116HER HONOUR:  Yes, a very cumbersome order.

117MR DOGHERTY:  Make it easier for everyone.

118HER HONOUR:  That seems a sensible suggestion.  You're based in Bendigo?

119MR DOGHERTY:  Yes, yes.

120HER HONOUR:  So if this can be brought on just for mention next week, it won't require - provided you've got Mr Whittle's agreement, his attendance won't be required.

121MR DOGHERTY:  No.

122HER HONOUR:  It can be - actually forfeiture and disposal orders are civil matters.

123MR DOGHERTY:  Yes.

124HER HONOUR:  And his attendance won't be required.  If he really wants to hear it, there could be a video link, but the reality is that it would normally be handled by lawyers for him.

125MR DOGHERTY:  Yes.

126HER HONOUR:  And it seems a sensible suggestion that this be adjourned for mention - that could be next Wednesday morning.

127MR DOGHERTY:  Yes.

128HER HONOUR:  At 10 am?

129MR DOGHERTY:  Yes.

130HER HONOUR:  All right.

131MR DOGHERTY:  Thank you, Your Honour.

132HER HONOUR:  Good.  Thank you for that suggestion.  All right, so at the moment the disposal order is not on the order.

133MR HUTTON:  Yes, Your Honour.

134HER HONOUR:  The computer.  And that means that I think, by a lot of pre-planning, this order that's been created - I will indicate that - I'll hear from you if my expressed intended purpose isn't achieved by those concurrency orders I made.

135MR HUTTON:  No, I've done the maths, Your Honour. 

136HER HONOUR:  Yes.

137MR HUTTON:  I agree with Your Honour's maths.

138HER HONOUR: Thank you.  It's effectively - because Charge 5 is the longest - the most serious charge and the longer sentence, it is the base sentence, and it's effectively three months cumulation from Charges 1 and 4.

139MR HUTTON:  Yes, Your Honour.

140HER HONOUR:  On it.  But it has to be expressed differently.  Now I - as long as you agree that I've expressed that in those directions, those are the directions I make.  The way it will be recorded in the CLMS system just - it requires that it state what actually happens by operation of law in relation to Charge 2 as well.

141MR HUTTON:  Yes, Your Honour.

142HER HONOUR:  The concurrency I wouldn't normally direct of Charge 2 because ‑ ‑ ‑

143MR HUTTON:  By force of law that's ‑ ‑ ‑

144HER HONOUR:  By force of law ‑ ‑ ‑

145MR HUTTON:  Unless you direct otherwise ‑ ‑ ‑

146HER HONOUR:  That should happen.

147MR HUTTON:  That's right.

148HER HONOUR:  But the order to achieve within the CLMS system, I'm prepared to compromise by letting it state the obvious so to speak.  It's not really the obvious, it's saying I'm directing something I don't need to direct about Charge 2, but I think it achieves that total and that's the purpose.

149MR HUTTON:  It does, Your Honour.

150HER HONOUR:  All right, thank you.  In that case, we'll have the order printed off without a - actually it should say - Robyn application for disposal, order adjourned.  An application for forfeiture and disposal.  Adjourned to 10 am, Wednesday 17 December 2014, then everything else should print off.

151All right, I have signed the notification of reporting obligations form under - to Mr Whittle under the Sex Offender Registration Regulations and I will ask my associate to - Mr Dogherty, you should first see this documentation and your client will be asked to sign a form to acknowledge receipt of it.

152Mr Whittle, Mr Rhys is bringing you the documentation and you are asked to acknowledge receipt by signing.  Can you see which page that is on?  It is not the first page.  The point of this is Mr Whittle has to be given those documents and keep them.  I have signed the order for the forensic sample, and explained about that.  There will be a copy for you Mr Dogherty.

153MR DOGHERTY:  Yes.

154HER HONOUR:  If you want it given to your client, it can be.

155MR DOGHERTY:  No, perhaps give them to me Your Honour, and I can then pass it onto him.

156HER HONOUR:  Mr Rhys, I signed that.  All right, I'll ask that Mr Whittle be removed from the courtroom please.  If you want access to explain the sentence Mr Dogherty, I'll give you that. 

157MR DOGHERTY:  Thank you.

158HER HONOUR:  All right, stand the court down for a few minutes.

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