Director of Public Prosecutions v Willats

[2018] VCC 1030

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01219
CR 18-00190

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY WILLATS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2018
CASE MAY BE CITED AS:	DPP v Willats
MEDIUM NEUTRAL CITATION:	[2018] VCC 1030

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Livitsanos
For the Accused	Mr A. Purcell

HIS HONOUR:

1Ashley Willats, you have pleaded guilty to two indictments, the detail of which I will summarise in a moment.  Your plea began at the beginning of February 2017 on two occasions.  The February date was fixed after the matter came before me in late November 2016. At that time I was informed you had intentionally overdosed in an attempt to suicide, and you were unable to proceed, as your condition was being assessed.

2You had been admitted to the Werribee Mercy Hospital and discharged in December.  Dr Barth, a psychologist, had made an assessment of you previously, and was then invited to make a further assessment in late January.

3Your plea began in early February 2017, and continued on 22 February 2017.  On neither of those dates was the plea able to be completed, due to there being outstanding relevant matters, which could have impacted upon this disposition, not only by their nature and content, but also due to material documentation which pertained to those other outstanding matters.

4In early March 2017, a further hearing was held.  Victim impact statements were tendered and read out.  The matter was again adjourned for consolidation.  It is unfortunate that the matters which are before me for sentence did not come to light contemporaneously, and the plea and sentencing process has been delayed.

5On the first indictment, number F12755251, you pleaded guilty to State and Commonwealth offences committed between January 2014 and March 2015.  There were three charges of using a carriage service to transmit indecent communications to a person under 16 years of age, one charge of producing child pornography, two charges of using a carriage service to procure a minor for sexual activity, two charges of knowingly transmit child pornography, and one charge of using a carriage service to menace or harass. 

6The facts which found these charges are summarised in a document which contains the prosecution opening, and which was tendered on the plea.  Briefly stated, the background is this.  I will refer to the complainants by letters for reasons of privacy and anonymity.

7J made a complaint to the police that she had received threatening messages on Facebook from you.  You had used another name rather than yours, and had been chatting to J's friend, M.  M had blocked you once after you sent naked images of yourself to her.  You had threatened to post naked images of M on Facebook if she did not contact you within 24 hours.  J was 15 to 16 years old at the time.  M was 15 years old, and in Year 11 at the relevant time.

8Another complainant, K, was under the care of Department of Health and Human Services and lived with a carer.  She was 15 years old at the relevant time.  You met her and had sexual activity with her. 

9Another complainant, D, was 12 years old at the relevant time.  S, another complainant, was 14 years old, at school, and lived with her mother and siblings. 

10Complainant E was 14, and also under the care of the Department of Health and Human Services. 

11Complainants H and L, both 14 years old, also were identified by way of social media sites.

12You were born in September 1990 in the U.K. and moved to Australia in 2011.  At the time of the offending, you lived alone in a rental property in Wyndham Vale, and were a wall and floor tiler by occupation.  You used the name Ashley Percy on Facebook. 

13Charge 1 concerned S, whom you befriended on Facebook in January 2014.  There was general online talk, and then you arranged to meet her at St Kilda beach.  Soon after this, you started to send nude images of yourself, as well as a video of yourself masturbating.  S blocked your communications, but you also sent nude images of yourself to her friends. This constitutes Charge 1.

14In August 2014, M befriended you on Facebook with your Ashley Percy identity.  You messaged each other, and you sent her some photos of your cat and car, with a naked image of you in the background of one photograph.  You made repeated requests for her to send you sexually explicit photos, which M initially refused.

15She reduced her level of contact with you, but was experiencing some problems with her boyfriend and posted comments to this effect.  You again requested from her nude images, cultivating and complimenting her with romantic entreaties.  M relented and sent you a number of ‘selfies’ depicting her semi-naked breasts.  Between August 14 and February 15, you sent M sexually explicit images of yourself, including a video of yourself while you were masturbating.

16On 22 January 2015, you sent an image of your erect penis to M.  She deleted the image and blocked you from her Facebook account. This constitutes Charge 2.

17Charge 3 involved the use of a carriage service to procure a minor for sexual activity.  Between 11 September and 19 September, you had an online conversation with E via iMessage social media application.  You had explicit online sexual conversations, in which you speak of sexual matters and ask her to meet with you.  These conversations were ongoing, and you sent her nude images of yourself.

18Charges 4 and 8 concern the production and transmission of child pornography.  On 1 March 2015 while M was giving police a statement outlining your offending, you sent her images and a video depicting yourself engaged in sexual intercourse with K, together with K's naked breasts and vagina.  Police saw these images.

19On 9 March 2015, police searched your premises pursuant to a warrant.  A phone and your computer was seized.  You were interviewed, and you made certain admissions.  You were released pending summons. 

20Still images from your phone depicted sexual activity with K, including penile-vaginal, penile-anal, penile-mouth and digital-anal penetration on six occasions. 

21On 14 April 2015, K made a statement to police.  She first met you via Facebook in October 2014.  Conversation proceeded for some weeks, with K ultimately giving you her address.  In December you picked her up from that address in Frankston and you took her to your home, where you engaged in sexual intercourse.  She told you she was 15 or 16.  She said you took photos of her body and video of you engaging in sexual intercourse, which you sent to other girls. This constitutes Charge 5, use a carriage service to procure a minor for sexual activity.

22On January 2015 you had an online discussion with D, who told you she was 12 years old.  You had a number of conversations.  On 30 January, you made sexually suggestive comments to her to engage in sexual contact with you, and sent images of your penis to her.  Conversations continued until 6 February when D blocked your contact. 

23On 1 February 2015, you had contacted J via Facebook to ask if she knew where M was, as she had not communicated with you.  You threatened that if M did not contact you by the following night, you would post nude images of her on Facebook.  Charge 13 is a summary related offence of making a threat to distribute intimate image or images.  You sent D pictures of M's breasts. This constitutes Charge 6, knowingly transmit child pornography.

24Subsequently, M unblocked you, and on 25 February 2015, you sent her a video of yourself masturbating in front of a mirror.  She was shocked and immediately deleted the video, which is the subject of Charge 8.

25Between 28 February 2015 and 7 March 2015 you used Facebook messaging and ‘Snapchat’ to harass other social media users.  You had an online conversation with L.  She said she was 14 years old.  You sent her pictures of your naked body on 28 February.  On the 7th, L told you to stop sending pictures of your body to underage girls. This constitutes Charge 7. 

26Between 2 March 2015 and 7 March 2015, you engaged in conversation with a person H.  She told you that asking young girls for sex is illegal, as well as sending photos of your genitals.  You replied "Cuz, you're the mature one, LOL, I like to put my tongue in assholes". This constitutes Charge 9.

27On 9 March 2015, you were interviewed by police.  You stated you had the Facebook account in the name of Ashley Percy.  Among other things, you admitted contacting J to find out where M was, because you were upset that M was talking to other guys.  You refer to yourself as a "keyboard warrior".

28In July 2015, a record of interview was conducted, where you admitted the matters concerning K, S, D and E.  You agreed that conversations you had were "pretty bad", but you categorised these complainants as bad people, some of whom took drugs and hated police.

29You told police the victims "have already forgotten about it and have started feuds with other guys.  They don't care."  You said you "hadn't hurt anyone", and that "these people don't have any emotions".  "I think they're bad people", you continued, "they're a different class of person".

30The maximum penalties for these offences are ten years' imprisonment for producing child pornography, ten years for knowingly transmit child pornography, fifteen years for using a carriage service to procure a child, seven years for using a carriage service to transmit indecent communication to a person under 16, three years for using a carriage service to menace or harass, and one year for making a threat to distribute intimate images.  A related summary charge under the Summary Offences Act also has significant penalties.

31Some victim impact statements were received by the court.  J provided one and M provided one.  J wrote that she was starting her VCE year when you began to abuse and harass her.  She was frightened and fearful.  Her school progress was affected by the stress she experienced.  She feels she has lost trust in those around her, particularly men.  She felt embarrassed and trapped by recurring hypervigilant thoughts.  Her relationship with friends and family have been damaged, she feels weak and helpless in the face of your offending.

32M wrote that she was duped, in effect, by your words and actions, and then betrayed by your possessiveness and aggression.  She started cutting her wrists and legs, one such cut resulting in eight sutures near an artery.  She says her personality has changed and she had to move schools.  Her sleep and eating has been affected.  She had to see a counsellor, and was placed on antidepressants.

33She has experienced behavioural issues, which have alienated her from her parents, causing DHHS involvement.  These impacts are the normal impacts that courts unfortunately see upon victims of sexual offending every day.  They are profound, long-lasting, and I take them into consideration.

34The second indictment, number C1811740, to which you pleaded guilty, covers a period of March 2016 to January 2017, and contains eight charges.  Two charges of making a threat to kill, one charge each of stalking, burglary, theft, using a carriage service in a menacing or harassing way, false imprisonment, and possession of an unregistered category handgun.

35You also pleaded guilty to related Summary Charges 2 to 6.  Two of possession of a prohibited weapon without exemption or approval, that being an imitation firearm and a folding knife, and three offences under the Bail Provisions (Contravening Conduct) conditions.

36A lengthy summary of this offending was tendered and exhibited.  In brief, it can be stated for these purposes as this.

37You were 26 at the time.  The first complainant, N, was also 26.  The second complainant, C, was 31 years of age.  N and C had commenced a same-sex relationship in February 2016.  N had met you four years earlier through a website which facilitated contact through its platform.  This friendship deteriorated between December 2015 and February 2016, culminating at the time with the formation of the relationship between N and C.  You did not approve of N's relationship with C, and strongly expressed your disapproval.  You wrote letters expressing hatred for C.  You were angry and frustrated that N spent more and more time with C and less with you.

38N clearly did not reciprocate your professed love for her.  You began to stalk N, and attempted to locate C.  As well as letters, you wrote a story entitled "Disturbed Love Story".  In March 2016 while she was visiting you, N received a message from C, which enraged you, and you made threats to kill C. This constitutes Charge 1.

39N immediately left, describing you as furious and psychotic.  After profuse apologies from you, N met you about a month later.  She was accompanied by her young nine-year-old nephew, A, for whom she is a primary carer.  A, the child, told you he had gone to C's house, and you became enraged and made further threats to kill.  N left with A.

40In August 2016, further threats to kill (encompassed by Charge 1), were made by you to N about C.  You articulated your plans in detail to N to kill C, N and yourself, how you would enjoy killing her, cut up her body and dispose of it.  N asked you to leave.  She was in fear for her own life and that of C. 

41Also in August 2016, without her knowledge, you went to her address.  You stole C's underwear, which were hanging on N's washing line.  You later returned these. This constitutes Charge 2 of stalking.

42On 24 August 2016, you sent N a message and attended at her address.  You handed to her some $8,000 in cash, which she refused, because she believed on the basis of previous conversation you were intending to suicide.  However, during the following conversation, you produced a black handgun, which you said was an imitation, a spanner and a knife. 

43You showed her these and explained a plan to bludgeon her with the spanner in her bedroom, sexually penetrate her dead corpse after locking A, who was in fact asleep in his bed at the time, out of N's room.  This constitutes Charge 3 of making a threat to kill.

44These threats were made in a calm and clear matter, noting that your attack on her would be quite messy.  N was in shock and felt ill.  When N asked you to leave, you told her you still intended to kill yourself and left.

45The next day you rang N and asked for the cash back, which you picked up from N's home.  Between August and October, you sent many texts and made calls to N.  While professing love, many of these were angry, abusive and threatening.  She was fearful and anxious. 

46On 25 October, you sent several messages to N, stating you planned to suicide, and you sent images of N from C's Facebook post showing N and C together.  That conduct constitutes part of the stalking charge.

47You told N that you were driving around, looking for C and that when you found her you were going to kill her.  You expressed this in an angry manner, and N was very anxious.

48N ended the call in which these threats were made, when you continued ranting about your intention to find and kill C.  You then texted her "This won't end until she's gone".  N was very fearful for her own safety and that of C.  She called Crimestoppers and reported the threats, the stalking, the possession of weapons, and that you were in breach of a number of bail conditions by accessing the internet, and that you "seemed to be getting crazier".

49Throughout that night and following days, you continued to send text messages.  On 26 November 2016, you sent N a series of abusive texts which amounted to stalking and threats.  The investigation showed that you were in proximity to N's home for many hours that day. 

50N was overwhelmed with fear and anxiety.  You made 111 telephone calls, all unanswered, and sent 73 text messages.  On 30 November, you told N you had taken a large quantity of tablets.  You were admitted to the mental health ward at Werribee Hospital.  When you were transferred to Footscray Hospital, you requested her to visit until she did. 

51In December, you continued texting and calling, which N ignored.  In breach of bail, you attempted to get a response online by way of Facebook messages.  On 18 December, you told N you sent her a text in which you proposed sexual activity to solve the issues, and blamed her for refusing this solution.

52In the days after Christmas 2016, N and C together left Victoria on a road trip.  They had not informed you or posted anything about it on social media.  On
28 December, you gained access to N's home and stole a number of items. This constitutes the burglary, theft and stalking charges.

53You then contacted C on her phone number, which you discovered at N's home.  You called a number of times and sent texts of a menacing nature. This constitutes Charge 6.  You sent her photos of two letters that C had written to N, which you stole from N's home, with the name of C's family members written by you upon the image. 

54You called her 41 times over some five hours and sent 35 texts over a similar timeframe. This constitutes Charge 6 and Charge 2.  C naturally felt fear and anxiety.  Also on this date, you rang N ten times and sent 18 texts of a menacing nature.

55On the following day you called C a further 37 times and sent two texts to her.  You called N four times and sent 21 texts.  On 30 December you called C six times as well as calling N.  On the 31st, you sent N nine texts.  On 2 January, you sent two messages to C, depicting two letters written by her. 

56You called N six times, and sent 22 texts.  On that day, you sent N a text admitting to her that you were in possession of her letters, and you had returned them to her by way of a letterbox.  She went to retrieve them, and you appeared at her front door.  She asked you to leave, you refused and told her she would have to call the police for you to leave.  You locked the door from the inside and prevented her from leaving.

57N told you that she had already called the police, but you refused to leave.  When N attempted to call 000, you chased her around the house.  You admitted breaking into her house on 28 December.  You then left after keeping her inside for some one and a half hours.  This constitutes Charge 7 of false imprisonment.

58N went to complain to the police, where she received unfortunately a totally inappropriate response to her complaint.  Having sought the assistance of neighbours before her seemingly futile report to police as to your conduct, N was contacted that night by her neighbour that you had been seen loitering at the rear of her address before you left in your car.

59On 3 January, C applied for an intervention order, but could not obtain one that day, and again N reported the matter of your conduct to the police.  On
7 January, finally a police officer began to investigate the matter.  The following day, you went to the Altona North police station, where you were arrested and your car was searched.  Some material from the car had been stolen from N's address.

60Your home was also searched, and a black pellet handgun was found with a tin of pellets in your bedroom.  An imitation firearm was found in your cupboard, a folding knife and a photograph of N, which you had taken of her, and other photos which she had not given you.  In a series of letters dated the 16 May 2016 and 23 May 2016 which were found, you wrote about N and your frustrations.  There were also letters of June and September.  You told her that "women would kill for a guy like me".  You expressed your hate for same-sex relationships in offensive language.  You also apologised for the hurt caused for stalking, and promising not to hurt N.

61A fictional account of your relationship was also found, dated 26 May 2016.  This is sexually-explicit and concludes with a reference to a hammer being your weapon.  You detail your attack on N's girlfriend C, involving rape, torture and dismemberment. 

62On 8 January you were interviewed by police and gave them an account of what you said was your relationship with N.  You asserted that you had a sexual relationship with her, though that assertion is doubtful in the context of the material found in your premises and written by you.  You denied committing burglary on her home and you denied any threat to kill.

63After you were charged, you were bailed with conditions strictly prohibiting you from contacting N, attending within 200 metres of her place of work, where she lived, or attend or do anything to cause her fear or apprehension.

64Between the 13 January and 17 January, in response to those conditions, you made 118 calls to N and sent her 26 texts in contravention of bail conditions.  This constitutes Summary Offences 4, 5 and 6.  Another two texts were sent to her by you on the 13th. 

65On the 16th you were loitering at the front of her house.  This was also clearly in breach of bail.  You also then made 114 calls to N that day, and sent 18 texts threatening suicide, threatening also to contact DHHS to take her nephew away from her.  N went to provide a statement to police about her fear of you.  While she was in the police station, you rang her, causing a noticeable and considerable change in her demeanour, which was observed by investigating police.

66N answered the call so that the informant could hear you.  You pleaded with her to meet you and that you had reported her to DHHS. You told her "you don't know what I'm capable of doing". 

67When the informant told you the call was being heard by police, you proceeded to articulate your hatred of lesbians, in particular C, and later that evening you attended at the Altona North police station, and you were again arrested and interviewed.  You made full admissions, except being present at N's address on 8 January 2017. 

68A search conducted of your car located a phone used by you to contact N and C.  You had searched the internet on this phone about disposal of bodies, stalking, breaches of intervention order, how to commit murder, murder/suicide, weapons and lock picks.

69The maximum sentences for making a threat to kill is ten years.  The maximum sentences is also ten years also for burglary, theft, stalking and false imprisonment.  Using a carriage to menace and harass carries a three years maximum. Possessing an unregistered general category handgun carries a seven year maximum.  The possession of a prohibited weapon (Summary Charge 1) carries a maximum of one year, and the bail contravention charges carries a maximum of three months or 30 penalty units.

70A victim impact statement was tendered and exhibited from N, dated 9 April 2018.  Your course of conduct has had a profound effect on her socially, financially, psychologically and emotionally.  She is distrustful in new friendships and has isolated herself in self-protection.  She has become depressed and despondent.  She fears for her safety and for that of her nephew. 

71She has recurring thoughts and nightmares which interrupt her sleep, she feels insecure in her own home and in public.  She has been diagnosed with post-traumatic stress disorder and has had to resort to psychological therapy.  Panic attacks and paranoia have influenced her ability to work and control her own life. 

72She worries that her life will not return to how it once was.  I take this victim impact into account, and the impact on C, which despite the lack of a victim impact statement I infer would have been similar.

73This impact from the point of view of the person victimised by your offending is profound and hurtful.  It would perturb and cause consternation to right-thinking members of the community and is rightly considered intolerable by this court.  Community protection and denunciation accompany general deterrence and specific deterrence as the principles to be given importance in this sentence.

74Offences of this type and over this period of offending, spanning January 2014 to March 2015, and March 2016 to January 2017, must be justly punished, in part in recognition of the impact that they have on the various victims, in part in acknowledgement of your own moral culpability for the insistent and contumacious nature of your behaviour. 

75In my view, these are offences which are properly characterised as serious instances, well within the midrange of offending.  I should say something about the material which was presented.  The letters and the short story that you produced, which I have read.

76This can be seen from the plea hearings.  I adopted a cautious approach to this material, careful to not extrapolate too much from it or draw inferences which were unsafe to draw about your real level of risk or threat from them.  They appear to me to have little or no literary merit per se, but not for that reason therefore are they less fantasies or the delusional descriptions narrated from your point of view of what you thought this relationship was, if it can be defined as such.

77Certainly the story is one which, because of its contents, gives rise to concerns about future risks and your prospects of rehabilitation.  I am sentencing you not for evil or repulsive thoughts, or for the converse, the protestations about what a good person you are and how loving you think you are.

78I will sentence you on the basis of the criminal offences you have committed.  As to the first indictment, you seem to have little or no regard for the young women involved in your internet social media conduct, involving highly sexualised exploitation for your own gratification.  In fact, if anything can be said with any certainty, it's that the offences in both indictments show a person so taken in his own personal gratification and self-absorption and satisfaction, oblivious to correct conduct, blind and insensitive to the feelings of others, intent on self-delusional behaviour, often humiliating and fear-inducing for your victims.

79I take your plea into account.  In each instance, it was entered into in a timely fashion, and will by law attract a discount upon your sentence. 

80The delay which I have noted was in large part generated by your continuing to offend and breach conditions of court orders.  The delay however has been quite significant and I take that into consideration.

81One of the factors in taking delay into consideration is what happens in that period of time, and whether you have achieved any measure of progress or rehabilitation.  I am uncertain as to this particular aspect, in the sense that I do not see that much progress has been made, except that you've been in reclusion and that may have had an impact upon your state of mind.

82I accept however that your pleas of guilty to each indictment carry a utilitarian value, given the number of charges and complainants, which would have meant a long, complex and traumatic criminal trial, or trials, have been avoided.

83As to your remorse, that is a more difficult matter.  Such an emotion is often more difficult to assess, and in your case the allegations at the foundation of each indictment would have been amply able to prove by the evidence gathered.

84Despite this, when a plea is accompanied by remorse, that is an important matter to take into account as going to your future prospects, the rehabilitative path to follow and encourage, and the presence of insight into wrongfulness, indicating some change in the state of mind of the accused.

85Your demeanour in court and the answers in the record of interview, as well as the assessments of those who made a psychological assessment, do not persuade me that you are remorseful, or that at least your regret is qualified.

86I take your background into account.  You were born in England in 1990, and migrated to Australia in October 2006.  You have no prior convictions or appearances in England or in Australia.  You are a permanent resident and do not hold citizenship.  The Migration Act would appear to render non-citizens liable to deportation under certain conditions.  The prospect of deportation upon expiration of a sentence is a factor which I take into account in the sense that it is a prospect which would render your imprisonment more burdensome.

87Your family all live in Australia, and you have lived here since age 16.  Although I am not in a position to assume or infer that any such deportation order will be made, I can, apart from the burden of the expectation I have mentioned, also consider that such a result would mean the loss of an opportunity to settle permanently in this country, a serious extra curial punishment.

88Two psychological assessments were received from Dr Mathew Barth, a psychologist with Central Melbourne Psychology.  The first in time was dated 25 November 2016

89It is noteworthy of course that this was an assessment which was made before Charges 4 to 8 were committed in December 2016 to January 2017.  Those of burglary, theft, using a carriage to harass and false imprisonment, and the possession of a handgun on the second indictment, as well as the summary offences and breach of bail.

90Dr Barth also gave evidence.  In his first report, he deals with the first indictment and the offences therein.  He was provided with relevant material, including a letter from Ben Jackson, a clinical psychologist, who in November 2016 had written a letter in reference to a number of sessions he had conducted with you.  You had been referred to him to address anxiety and depression.

91During that therapeutic process, Mr Jackson writes that you had made gains in expanding your social networks of friends to your benefit.  You had asserted confidence that you could make responsible choices in the future, and that you demonstrated remorse.

92This letter also predates the matters aforementioned, contained in the sexual indictment, and cast a particular light on how successful Dr Jackson was with you in this therapy. 

93Dr Barth administered psychological testing and assessment.  You impressed him as a very immature young man, with poor awareness of your subjective emotional experiences, indicating noteworthy interpersonal and behavioural issues.  He took a background history. 

94You are the younger of two children born to your parents.  You described your childhood in positive terms, devoid of violence or abuse.  You migrated to Australia in 2006.  You felt socially isolated and lonely, then only a year later your parents separated, which caused you some distress.

95You returned to England in the periods between 2007 and 2011 on a number of occasions, but you returned permanently for the past five years here in Australia.  You did express concern over the issue of deportation.  Your parents have both re-partnered.  You left your secondary schooling midway through Year 11.  You then completed an apprenticeship in flooring and wall tiling.  You have maintained employment with the same firm for five years.

96In this context, a 2015 letter was tendered from your employer, who speaks well of your work with that company in that time.  That is a matter that goes to your credit. 

97You discussed past relationships with Dr Barth.  Your relationship with a girl in 2012 interestingly was ended by her having a restraining order placed on you after your frequent calls and texts, as well as uninvited attendances at her residence.

98You report having many sexual encounters thereafter, through internet sites.  You told Dr Barth you were currently in a relationship with N, the victim in the second indictment.  You told Dr Barth you had reunited with her from the beginning of 2016, and had been in a relationship since that time.  You told him that your access to pornography was a daily habit from age 17, which then extended to using web-cams and engaging in sex chats.

99You commenced drinking at age 17, and started using cannabis as well.  You experienced mood disturbances, and were prescribed medication to improve them.  When you discussed the first load of charges, you focused on the effects on yourself and your family.  You expressed a strong desire to avoid reoffending.  This did not apparently pan out as you had intended, or at least as you had expressed.

100At the time of assessment you displayed moderate anxiety, but rather than a disorder as a result of your legal predicament, and your interpersonal and behavioural problems were still apparent.  Your capacity for healthy adult intimacy was described as not highly developed, vulnerable to rejection, prone to impulsive and reckless behaviour when your needs are not met.

101Pervasive feelings of emptiness and resentfulness culminated in acting out with regards to your sexual behaviour.  Dr Barth stated then that those interpersonal and behavioural adjustments are deeply problematic, failing narrowly to warrant a diagnosis of a personality disorder.  Your use of the internet was in order to secure grossly immature sexual intimacy, based on self-gratification.  Your failure to appreciate and understand normative emotional and sexual development of young girls enabled you to justify your offending behaviour.  This is said to be "offence-supporting cognition".

102Special sex offender treatment is unequivocally required to address these features of your sexual adjustment.  Dr Barth conducted a risk assessment of your sexual offending and concluded that you were a moderate to high risk of recidivism at that time.  Your insight into the offending was very limited, and you remained prone, he said, to minimising the impact of your behaviour on the complainants.

103You do not have a psychological disorder, though dysfunctional personality traits indicate prominent features of borderline and narcissistic personality disorder as defined by DSM-V criteria.  He opined your immaturity and interpersonal dependency will make you a relatively vulnerable prisoner.

104In February 2017, Dr Barth gave evidence on oath before me.  This was at the request of the prosecution, and to an extent centred on the written material, which was attributed to you.  It would not be drawn, reasonably enough, on the matters which at that time were unresolved, and which ended up being the subject of the second indictment to a large extent. 

105Dr Barth said that if you had written the story in question, then that would be very concerning, because it entwines sexuality and sexually-aggressive violent behaviour.  He said he would need to conduct a proper clinical assessment.

106He then provided a second report dated 28 March.  This was in fact his third report.  Dr Barth had provided a review of assessment in February 2017 after you had made an attempt to self-harm and had been remanded in custody for breaching your bail conditions.

107As to the matters on the first indictment, you told Dr Barth that you now understood that the complainants were underage, and they were not old enough to be involved with sexual matters.  You asserted that you were embarrassed and ashamed.  You also expressed regret and embarrassment as to your treatment of N and C.

108He said you were anxious within normal limits given your predicament, but had adjusted to the custodial environment reasonably well.

109This offending was consistent with the sexual maladjustment referred to in the first report.  Though you explained your disturbed story written by you as being fictional, fantasising writing, you conceded these violent fantasies became more intense during the period of offending.

110Dr Barth wrote that the nature and duration of these fantasies were clearly indicative of the presence of deviant sexual cognition regarding sexual violence.  The entrenched nature of these fantasies during the period of your offending is very concerning, and should be the focus of specialist offence-specific treatment.

111The duration, severity and escalation of your behaviour necessitates that specialist intervention for stalking-related problems is unequivocally warranted if your risk of recidivism is to be contained.  He has summarised his risk assessment as moderate-high and high.  He recommends a problem behaviour program to address a range of violent and unhealthy sexual behaviour - the sex offender treatment, including victim empathy, relapse prevention, fantasy management and pro-social sexual behaviour for narcissistic personality traits.  You face an extensive period of rehabilitation if your issues are to be addressed. 

112As to the Commonwealth offences, section 16A(2) of the Crimes Act 1914 sets out a non-exhaustive list of matters to which the court must have regard when imposing a sentence. I have considered each of these matters. Consideration of the nature and circumstances of the offending were outlined in paragraph 3.1 of the Defence Submissions.

113In my view, though limited in scope, this type of offending was sustained and objectively serious.  I have considered the effect on the victims, and accept that before these matters, you appear to be a person of good character.  I have spoken of and mentioned your remorse before.

114I accept that you made some admissions and facilitated access to your computer.  I have mentioned your plea of guilty, which will attract a discount on your sentence by operation of law.

115General deterrence and denunciation are of significant importance, as well as community protection, as I have already stated.  I have noted the issue of deportation.  I accept that you may need to serve your time as a protection prisoner given the charges, and take into account this more burdensome type of reclusion.

116Your prospects of rehabilitation are good if the programs mentioned above are undertaken.  You have family support, a good work history, which is to your credit, and some growing insight.

117Counsel on your behalf after the first plea on the first indictment submitted I should consider an immediate release on recognisance release order on the Commonwealth offences and a lengthy community corrections order.  That submission was made before the second indictment came before the court.

118The second submission thereafter conceded that the offending was such in total that a custodial disposition is the appropriate one.  I agree with that concession, which was properly made.  I also agree that totality must be considered, and I have.

119Charges 1to 8 on the first indictment are all Class 2 Schedule 2 offences pursuant to the Sex Offenders Registration Act 2004, and therefore registration of you as a sex offender will be mandatory for a period of life.

120The imposition of those obligation arise as a result of the imposition of the sentence, and do not form formally a part of my sentence. They simply arise as a result of the sentence.  That registration for a mandatory period will impose upon you significant obligations.  It is policed strictly, and any breaches of those obligations will see you charged with breaches and returned to the court.  You would be well-advised to read, understand and consider very seriously the obligations under that particular period of registration.

121Having received terms of imprisonment on Charges 4 and 6, you fall to be sentenced as a serious sexual offender pursuant to section 6B of the Sentencing Act.  I will explain the impact of that in a moment.

122I will clearly set out how it is that I have arrived at the ultimate sentence in this case.  The courts over many years, particularly recently in DPP and DPP (Cth) vSwingler [2017] VSCA 305, have described extraordinary difficulties associated with sentencing for multiple offences on joint Commonwealth and State indictments.

123Having spent a long time in the jungle of legislative provisions, see R v Carroll (1991) 2 VR 509, I will adopt the approach which the Court of Appeal in Swingler appeared to find preferable and simplest (refer to paragraph 88 and following) namely dealing with State offences first, and then the Commonwealth offences across both indictments.

124It is not possible to fix a single non-parole period, but by grouping all State offences together and first sentencing upon them individually, I will then direct that the sentence of the Commonwealth offence commence at a particular date, being the expiration date of the State non-parole period, avoiding any gap in the custodial term.

125That seems the most sensible approach to me when dealing with two indictments, which both contain a mixture of Commonwealth and State offences, but which like in this case follow one upon the other in terms of relative chronology, and is an appropriate method in my view to deal with the totality of the offending pleaded to over that period of time, encompassed by both indictments.

126I should say that I intend that the period of detention, which I will note, that is by way of presentence detention, is probably properly taken into account when you begin your Commonwealth sentence.  That is, at the commencement time of the Commonwealth sentence, which would enable the correctional authorities to view what is in effect the non-parole period for the Commonwealth offences, and at that time discount that period by your period already served.  I will explain this further in a moment.

127I will deal first with the State offences chronologically.  Please stand. 

128On the first indictment, number F12755251, on Charge 4 of producing child pornography, the base sentence, you are convicted and sentenced to two years' imprisonment.

129On Charge 6, knowingly transmit child pornography, you are convicted and sentenced to two years' imprisonment.

130On Charge 8, knowingly transmit child pornography, you are sentenced to two years' imprisonment.

131On the summary offence of making a threat to distribute intimate images, Summary Offence Charge 13, you are convicted and sentenced to three months' imprisonment.

132On those State offences, having declared sentences of imprisonment for Charges 4 and 6, there are two charges that are found in Clause 1 of Schedule 1, sub-paragraphs DAM and DAQ of the Sentencing Act, s.6B of that Act as well as s.6E direct me to sentence you as a serious sexual offender, and every term of imprisonment imposed by the court as a serious sexual offender must, unless otherwise directed by the court, be served cumulative on any sentence imposed.

133Pursuant to s.6D of the Act, I have regard to the protection of the community from you as the principal purpose of sentencing you, but I will not impose a disproportionate sentence.  I have therefore "otherwise directed" for the purposes of s.6E of the Act.  That is, I have not directed the entirety of that sentence be served cumulatively.  This applies to Charge 8 on Indictment 1, and to Charges 1 and 3 on the second indictment, by virtue of the definition of relevant offence, as seen in s.6E, which covers those offences.

134On the second indictment, number C1811740, on the State offences, for the make a threat to kill, Charge 1, you are convicted and sentenced to one year imprisonment. 

135On Charge 2 of stalking, you are convicted and sentenced to one year imprisonment.

136On Charge 3, making a threat to kill, one year imprisonment.

137On Charge 4, burglary, one year imprisonment.

138On Charge 5, theft, one year imprisonment.

139On Charge 7, false imprisonment, one and a half years' imprisonment.

140On Charge 8, possess unregistered general category handgun, nine months' imprisonment.

141On Summary Offences 2 and 3 of possession of prohibited weapon (imitation firearm and knife), two months on each

142On Summary Offences 4, 5 and 6, the contraventions of bail conditions, one month on each.

143The counts which become relevant in relation to the serious offender legislation are Charge 8, knowingly transmit child pornography, and the make threat to kill, which is included in the definition of violent offence under Schedule 1 Clause 2C sub-section 4.

144In relation to the State offences on the first indictment I order that three months on Count 6, three months on Count 8, one month on Charge 13 (the summary offence), to be cumulative on Charge 4 and on each other.

145In relation to the State offences on the second indictment, I order that one month on each of Charges 1, 2, 3 and 4 be cumulative on Charge 4 and upon each other.

146I further order that six months on Count 7 and one month of Count 8 be cumulative on Count 4 and on each other.

147And I order that the sentences in relation to all the summary charges be served concurrently. 

148That makes a total effective sentence, for the state offences across both indictments of three years and six months.  I fix a non-parole period of two years.

149I now turn to the Federal offences. I will start with the Federal offences on the first indictment, number F12755251.

150You are convicted and sentenced on Charges 1, 2 and 7 of using a carriage to transmit indecent communication, to nine months' imprisonment. 

151On Charge 3, using a carriage to procure a minor for sexual activity, you are convicted and sentenced to two years' imprisonment, being the base sentence.

152On Count 5, the same charge, two years' imprisonment.

153On Count 9, using a carriage to menace and harass, six months' imprisonment.

154I now turn to the second indictment. On Charge 6, again using a service to menace and harass, six months' imprisonment. 

155I order that one month on Charge 1, 2, 7, 6 and 9, and three months on Charge 5, be served cumulatively on the base sentence of two years for Charge 3, making a total of two years and eight months.

156I order that the State sentence commence today, 23 May 2018. As stated that is a total effective sentence of three years and six months with a non-parole period of two years.

157I order that the Federal sentences commence on 23 May 2020, being a total effective sentence of two years and eight months.

158I further direct that after serving 18 months of this Federal sentence, the accused is to be released by way of $1,000.00 recognisance bond, to be of good behaviour for a period of 3 years thereafter.

159That means that if during that period of time of three years, you do not commit any indictable offences or serious criminal offences, you will not be required to return to court. Do you understand?

160The effective global sentence is four years and eight months with a non-parole period of three years and six months.

161I declare that you have served 496 days by way of presentence detention, excluding today, and I will have that number noted in the record of the court.  My intention in order to facilitate the understanding of how the sentence is to work, I reiterate that those days, that is the 496 days, be deducted from the non-parole period which comes into operation, commencing 23 May 2020.

162Pursuant to s.6AAA of the Sentencing Act, the declaration will be made that but for your plea, I would have sentenced you to a total effective sentence of six years with a non-parole period of four and a half years.  I note for the record that on the charges I have indicated above, you were sentenced as a serious sexual offender.

163I have been told that there are draft orders for forfeiture and disposal of some items.  I will sign them when I receive them.  I will also make an order under s.464ZF in order for a biological sample to be provided and placed on a DNA database.

164Mr Willats, an authorised officer will approach you in order to take from you a mouth scraping for the collection of a biological sample for placing on a database.  It is not a painful procedure.  If on that occasion you do not consent to that operation or procedure, then the authorised police officer can use reasonable force to obtain a blood sample, do you understand?  Are there any other ancillary orders, Mr Livitsanos?

165MR LIVITSANOS:  No Your Honour.

166HIS HONOUR:  I am confident as far as confidence can be stated that by stating the commencement of the Federal sentence at the period in which I have indicated, there is no - there is a proper overlap of sentences, and that the proper deduction for the presentence detention will be taken into account.  In my view, it needs to be taken into account at that time, because if it is taken into account any earlier, it will cause a gap between the State and Commonwealth sentences.

167MR LIVITSANOS:  Your Honour, certainly that's my understanding.

168HIS HONOUR:  Yes.

169MR LIVITSANOS:  That is my submission, and it certainly falls in line with my understanding of Swingler also, Your Honour.

170HIS HONOUR:  Well I repeat what I said at the beginning.  You take away the sentence of this morning.  If in reviewing it you feel that I have not achieved the intention that I have stated precisely, then you can certainly come back.  Contact my associate and we will deal with it again.

171MR LIVITSANOS:  As Your Honour pleases.

172HIS HONOUR:  And the same applies to you, Mr Purcell, obviously.

173MR PURCELL:  Yes Your Honour.

174HIS HONOUR:  I understand that Mr Willats has some family members in court.  They can approach him before he is taken away.

175MR PURCELL:  Thank you Your Honour.

176HIS HONOUR:  They will not be able to be physically in contact with him, but they can speak to him briefly before he is taken.

177MR PURCELL:  Thank you Your Honour.

178HIS HONOUR:  I will remain on the Bench while that takes place.

179HIS HONOUR:  Thank you both your assistance, you are both excused. 

180COUNSEL:  Thank you Your Honour.

181HIS HONOUR:  I should say before everyone leaves that I appreciate the complainants in the first indictment being present in court.  I know it is not an easy situation, that it is difficult, and it has been going on for too long.  A sentence like this - sometimes you get told might bring some resolution or some conclusion to what is happening in your lives.  I do not think that is actually the case, because no sentence can ever really bring you back to where you were at the beginning, but I hope that it can bring some measure of comfort that this matter is behind you, and you can get on with your lives, thank you for attending. 

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