Director of Public Prosecutions v Williams
[2018] VCC 488
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02430
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN WILLIAMS |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2018 | |
DATE OF SENTENCE: | 17 April 2018 | |
CASE MAY BE CITED AS: | DPP v Williams | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 488 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr W. Stougiannos | Office of Public Prosecutions |
| For the Accused | Mr G. Casement | Doogue George |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Jayden Williams, you have pleaded guilty to one charge of indecent act with a child under 16. The maximum penalty applicable to that offence is 10 years’ imprisonment. You have also pleaded guilty to one charge of supplying a drug of dependence to a child, pursuant to the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty applicable to that offence is 1,000 penalty units and/or 15 years’ imprisonment. You have also pleaded guilty to one charge of knowingly possessing child pornography. The maximum penalty applicable to that offence is 5 years’ imprisonment. The victim of your offending was Benjamin Peters[1].
[1] Benjamin Peters is a pseudonym
2 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
3 I turn to a brief summary of your offending.
4 You were 18 years of age when you met the complainant, Benjamin, who was 13. Both of you had extensive involvement with the Department of Health and Human Services (DHHS). As at the date of your offending, you and Benjamin had only known each other for a few weeks.
5 Your offending occurred at your home in Brunswick. At that time, you shared a unit with your then girlfriend Jada Duncan[2].
[2] Jada Duncan is a pseudonym
6 After meeting in approximately October 2015, you and Benjamin went to see a movie. At the movie theatre you experienced a seizure (epilepsy) and were taken to hospital, returning home at approximately 4.00 or 5.00am.
7 Benjamin stayed the night at your home and slept on a mattress in the lounge room.
8 At the time, your girlfriend was in the bedroom she shared with you across from the lounge room. Later, you and Benjamin went out for the day and he went home.
9 About a week later, Benjamin saw you again at Princes Park. You brought drugs (cannabis) to the park, which was smoked in a bong (Charge 1).
10 You, Benjamin and Jada walked back to your unit.
11 Back at the unit, you and Benjamin watched a movie. He was still drug-affected. You lay down next to him on the mattress on the floor in the lounge and started "feeling him up", touching his penis and rubbing your hands everywhere under his clothing (Charge 2).
12 After this you told Benjamin not to tell the police or anything because you would get locked up for it. I note at that time, as did you in your record of interview, you were then on parole.
13 Within the depositions there is a statement from Timothy Stone[3] who made a statement to police of his observations of interactions between you and Benjamin.
[3] Timothy Stone is a pseudonym
14 As at 2015, Timothy had known you for about 10 years and had lived at a “resi” unit with you for two years when he was 7 years of age. He had known Benjamin for approximately four years and had grown up with different members of the same foster family. It was Timothy and his partner at the time who introduced Benjamin to you.
15 He had seen Benjamin sleep over at your unit on three or four occasions when he also stayed there. He recalled you showing him some text messages received from Benjamin.
16 Police later found a message sent to you by Benjamin on 30 November 2015 saying “can we fuck i like dick up the ass”. You replied with “ummmm No why the fuck would you say that”.
17 You spoke to Timothy about the messages and said words to the effect you were scared police were going to get involved.
18 On 7 December 2015, Benjamin attended Fawkner Police Station and made a VARE. Police took photographs of the text messages between you and Benjamin that were on his phone involving drug dealing and sexual matters.
19 On 15 December 2015 and 4 October 2016, you were interviewed by police and admitted to supplying Benjamin with cannabis on several occasions. You also told police there was a photograph of Benjamin naked on a doona (relevant to Charge 3).
20 You told police he had sent that photograph with a text message and that you had saved the photograph to your phone.
21 You said you were aware Benjamin looked 10 or 11 years of age and you knew he was 13 years of age.
22 On 21 November 2016, Benjamin made a second VARE and at that time was asked about that photograph to which I have just referred relevant to Charge 3.
23 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour in sentencing, and I do so. By way of chronology, you were initially charged with a number of offences involving sexual penetration and related matters against Benjamin, and also charged with offences involving Jada (not sexual). You however absconded.
24 You were extradited from Adelaide on 15 February 2017 and remanded in custody on 16 February 2017.
25 There was a contested committal on 30 November 2017 with a trial listed to commence on 19 February 2018, at that time involving seven charges, four of sexual penetration, two of supplying a drug of dependence and one of possessing child pornography. That hearing was adjourned to enable subpoenas to be served on DHHS.
26 The matter resolved to the three charge indictment before me on 13 April 2018.
27 By the fact of your pleas of guilty and the timing of it is relevant in mitigation of sentence. I accept you have now pleaded guilty to very different offences from those that existed at the time of the committal.
28 I am prepared to accept in the circumstances, your pleas of guilty indicate some remorse by you, however, have concerns about the extent of your remorse given your reasons for this offending, as referred to by Mr Casement, and your extensive criminal history of repeat offending (again however, I note not of the type before me now).
29 At the time of your plea hearing you had been in custody since 16 February 2017. Pre‑sentence detention pursuant to s18(4) Sentencing Act 1991, was 436 days from 16 February 2017 up to and including 15 April 2018.
30 You have admitted a prior criminal history which, for someone who is just 20 years of age turning 21 on 1 May 2018, is extremely troubling although again I note no prior sexual offending.
31 You first appeared at the Children’s Court in Heidelberg on 16 May 2012 on possession of a weapon, possessing cannabis, multiple offences of assault, and dishonesty offences and for that you were without conviction released on a good behaviour bond.
32 You next appeared at Heidelberg Children’s Court on 6 February 2014 on charges of threatening to inflict serious injury, multiple charges of unlawful assault (12), criminal damage, threats to kill, criminal damage by fire (arson) and possessing cannabis. You were released without conviction on an accountable undertaking for a period of 12 months from 6 February 2014 to 5 February 2015 and a number of conditions were attached to that order.
33 At the Melbourne Children’s Court on 10 November 2014, you were before the court on possessing cannabis, fail to answer bail, and were without conviction, released on a good behaviour bond.
34 You then appeared at the Melbourne Children’s Court on 18 December 2014 on a charge of attempted armed robbery, two charges of assault with a weapon, carrying prohibited weapons, possess cannabis, fail to answer bail and for those offences, were without conviction, placed on probation for a period of 6 months to 17 June 2015.
35 You next appeared at the Melbourne Children’s Court on 4 June 2015 for breaching the probation order to which I just referred and were convicted and ordered to be detained in a Youth Justice Centre for a total of 3 months.
36 You were also dealt with on that date for offences of aggravated burglary, intentionally cause injury, theft, false imprisonment, make threat to kill and intentionally causing injury (two charges), and detained on those charges to a Youth Justice Centre for a total effective term of 9 months.
37 It is not clear when you were released on parole. However, your offending breached that youth parole period. I discussed this with your counsel, Mr Casement. It was acknowledged by you in your interview with police you had been on parole at the time of this offending.
38 Your plea of guilty to indecent act and possessing child pornography are Class 2 offences pursuant to the Sex Offenders Registration Act 2004 and you are therefore subject to registration for a period of 15 years s34(1)(b)(ii). Counsel who appeared on your behalf, Mr Casement, conceded such classification and duration applied to you.
39 There was no victim impact statement before me. I was advised Benjamin had been asked if he wished to provide same, however none was forthcoming.
40 Mr Casement, during the course of your plea hearing, provided a written outline of sentencing submissions.
41 In addition, he relied on a number of reports also provided to me to which I shall shortly refer.
42 Mr Casement submitted that ultimately the disposition being sought was that you be sentenced to the time you had served as at the date of your plea hearing, approximately 14 months. Mr Casement submitted his understanding was that the prosecution, whilst not giving a sentencing range, conceded that owing to factors such as your age, intellectual disability and the time already served on remand, and that such a sentence as urged by Mr Casement would fall within the range of appropriate sentences.
43 Turning to your pleas of guilty to these charges, it was submitted by Mr Casement, you had saved a further trial being listed, and of course, that is true. Further, that Benjamin had been spared the need to give evidence when issues of his credibility, he urged, was apparent from the depositions. Further, he submitted, the timing of your plea of guilty should be considered as early being the first opportunity you had to plead to an indictment such as that before me, this present indictment being a significant reduction in the number of charges and type of offences you were previously facing. I have already referred to my acceptance of these matters relevant to your plea of guilty.
44 Mr Casement submitted you had expressed contrition and remorse in a record of interview regarding the drug charge and child pornography charge.
45 Specifically you admitted giving drugs to Benjamin and others, also you made admissions to smoking marijuana in a mix with him and others. Further, it was you who provided the photograph relevant to the charge of child pornography to police, showing it to them in your interview also acknowledging you had saved it to your ‘pictures’ gallery. It was submitted that volunteering that information attracted a discount consistent with authorities referred to by Mr Casement in his written submissions. I agree.
46
Your counsel also relied upon you being 18 years of age at the time of the offending, and that you fell to be sentenced as a young offender, being 20 years of age at the time of your plea hearing. In that regard Mr Casement referred to the decisions of R v Azzopardi, Baltatzis and Gabriel[4]. I am also aware of
R v Mills[5].
[5] [1998] 4 VR 235
[4] [2011] VSCA 372
47 The principles stated in Mills are general propositions and are not of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as the offender (see DPP v Lawrence[6].
[6] (2004) 10 VR 125
48 In Connolly[7], Coldrey J referred to the principles in Mills and stated that:
"No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offences committed (and just punishment therefore); the need for deterrence (specific and general); the offender's prospects of 'rehabilitation'; and the need to protect the community may need to be reflected in the sentence imposed."
[7] [2004] VSCA 24
49 One can never give up on hope of your eventual rehabilitation, however the success of that in the future will depend ultimately on you accepting any services offered and you seeking out services that will assist you in relation to the many issues you need to address, as are apparent from all the material before me.
50 In R v Tran[8], Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail, it is true in the case of a youthful offender that rehabilitation is usually far more important than general deterrence. But the word I have italicised is there to remind us that there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.”
[8] (2002) 4 VR 457 at 462
51 Your extensive prior criminal history (albeit not for similar offending) and my concerns regarding your rehabilitation prospects are relevant when factoring into sentencing your young age.
52 Your rehabilitation is a consideration. I have, at best, guarded optimism regarding your rehabilitation prospects. When sentencing, however, I must seek to maximise your prospects of rehabilitation. Those prospects will only improve with you taking on board any assistance offered to you to address your many issues, otherwise it is highly likely you will be back to Court.
53 Mr Casement referred to you currently spending 437 days in custody as at the date of your plea hearing spent at the Metropolitan Assessment Prison. He submitted that the time in custody to date had been particularly burdensome, given your young age, psychological issues to which I shall shortly refer, your sexuality and intellectual capacities. You are apparently "isolated" from other prisoners.
54 In custody you had received support from Pride Vic and the Jesuit Social Services regarding accommodation. You need help to find suitable accommodation. It seems you may have accommodation with your mother in Ballarat. It concerns me greatly you may leave Court without anywhere appropriate to live.
55 Turning to your background and history, Mr Casement submitted you had a background of disadvantage, and I note such is also a sentencing consideration, i.e. background of disadvantage. You currently have no desire to see your father and have not seen your mother or siblings for at least two years.
56 During your infancy you suffered a number of seizures and ear infections. The seizures continue in adulthood and are part of the background of your offending, referrable to the incident at the movies when you were taken to hospital.
57 In addition, you have a medical condition, aortic stenosis (a narrowed artery) which you have had since childhood which makes you susceptible to a heart attack.
58 You were in the care of DHHS from approximately 2 years of age, following significant trauma and neglect involving your exposure to domestic violence, chronic neglect, inadequate food and environmental neglect. You were placed in DHHS care more specifically when you were approximately 15 months of age.
59 You experienced a number of different placements in foster care until you were 7 years of age, and thereafter were in residential care where you were subjected to physical and sexual abuse. You referred to your own sexual abuse in the interview with police and I have read that interview.
60 You were diagnosed with ADHD and were on medication until 2012.
61 You attended two primary schools and two high schools, dropping out at Year 9. You said you learned little at school as you were constantly ‘wagging’.
62 After school you completed a six week hospitality course which led to a short term of employment.
63 By 14 years of age, in 2011 you were involved in sex work to raise money to run away to escape DHHS care and your treatment by the other boys in their care.
64 In 2012 you were placed by DHHS into the care of a same sex couple, however that did not last due to you witnessing one of the males being severely assaulted at a shopping centre.
65
By age 16 you were identified as transgender and struggling with
self-identification, changing between dressing as a male or female. You had been cross dressing from age 4.
66 In 2013 you were diagnosed with an intellectual disability.
67 Prior to your recent incarceration, you had been living independently, although Mr Casement suggests “just barely”. As I have said your potential lack of suitable accommodation is concerning.
68 You identify as both Aboriginal and Muslim and sexually describe yourself as bi-sexual, as described in your record of interview with police. You identify yourself as ‘pan-sexual’.
69
You also describe being a frequent user of cannabis from a young age, using
3 grams daily at 18.
70 Turning to your intellectual and psychiatric state, Mr Casement submitted you had a number of challenging conditions. You have had three different psychiatric admissions and CATT involvement when in the community. You had a history of suicide attempts and ideation, also hallucinations. You had been previously diagnosed with reactive attachment disorder, ADHD and emerging borderline personality disorder.
71 Turning to your intellect, you had recently been assessed with a full scale IQ of 70. You read at Grade 2 level and have a highly unsophisticated level of comprehension for literacy.
72 Your executive function revealed a simplistic understanding of societal expectations and your reasoning skills were in the impaired range, indicating high rigid and perseverative thinking.
73 You met the criteria for intellectual disability, with your cognitive deficits being exacerbated by psychiatric influences and your chronic substance abuse.
74 A recent neuropsychiatric opinion was that you suffered from an acquired brain injury. Mr Casement submitted those difficulties had been permanent and present during your offending.
75 Mr Casement submitted that the principles in R v Verdins & Ors[9] were applicable in your case. I accept that submission.
[9] (2007) VSCA 102
76 Ultimately his submission was that the time already served would be sufficient for this offending. His secondary position without abandoning his primary submission was that if I was of the opinion further supervision was warranted, that could be appropriately ordered through a Community Correction Order rather than further imprisonment with a parole period. Such, he submitted, may enable recommendations in the recent report of Dr Loretta Evans to be implemented.
77 A number of documents were tendered during your plea, which I have read and discussed briefly with counsel during your plea hearing. A report of Dr Nayate, Clinical Neuropsychologist, dated 13 August 2013.
78 In summary, he concluded your cognitive profile showed a level of cognition in the mild intellectual disability range. You were prone to becoming overloaded with information which was particularly apparent when upset or agitated. You demonstrated appropriate responses to the examiner and were reasonably able to shift, inhibit and monitor your performances on cognitive tasks, however, as they became more complex and challenging, it was difficult for you.
79 In the opinion of Dr Nayate, there are a number of factors that accounted for your then difficulties including your drug use, background of maltreatment and early trauma. A number of recommendations were included in his report.
80 There was also a report from Dr Loretta Evans, Clinical Neuropsychologist, dated 11 March 2018. It appeared that report was prepared at the request of Magistrate Pithouse in relation to a number of assault and graffiti-related offences which I understand are yet to be finalised before him. That report was helpful in providing details of her analysis and assessment which, in my opinion, are relevant when sentencing for the offences before me today.
81 Specifically, when addressing questions posed by your solicitors it was the opinion of Dr Evans that you demonstrated a substance-related and potentially trauma-related acquired brain injury, which affected your skills mediated by frontal and temporal lobes. That was on a background low cognitive reserve at the outset.
82 She considered your cognitive inefficiencies were likely to have been present at the time of that offending that she was dealing with. You mentioned the current offending, albeit in brief, to Dr Evans, as I discussed with Mr Casement.
83 Regarding a recent psychiatric review of you whilst in prison, you reported ongoing visual and auditory hallucinations with indications of an emerging borderline personality disorder. Further, psychiatric disturbance and maladaptive personality traits appeared to be pervasive aspects to your presentation at the time of her report. She strongly recommended psychological and psychiatric functioning be explored and treated appropriately.
84 Regarding your risk of re-offending and prospects of rehabilitation, given your history of repeat offending combined with cognitive deficits, impulsive behaviour, poor insight and ego-centric thinking, it was the opinion of Dr Evans you were a high risk of re-offending without appropriate intervention. I note at that time, however, you were not then being assessed for this sexual offending currently before me. There has not been an assessment by anyone to date regarding your risk of sexual re-offending. Regarding your future risk, in that regard it is difficult for me to therefore draw any conclusions about that, other than to note you still have sexuality issues to address.
85 The facts of your offending involving you indecently assaulting a person you knew to be 13 years of age does concern me and any risk of sexual re-offending will hopefully be reduced by you successfully completing any programs you are directed to attend relevant to your sexual offending with SOATS or equivalent.
86 In her summary, Dr Evans referred to you having a confirmed history of a traumatic and abusive childhood, gender identity issues from a young age, learning difficulties, low IQ, previously diagnosed mild intellectual disability, maladaptive and aggressive behaviours and psychological and psychiatric pathology. Further, you had a number of physical medical conditions, specifically a congenital heart condition, reports of head trauma, and a background of illicit substance abuse from a very early age. Further, you have a longstanding psychiatric history involving self-harming behaviours, prior suicide attempts and admissions to psychiatric facilities.
87 A number of treatment options were suggested by Dr Evans including drug and alcohol counselling, although she was mindful that due to your minimal insight, such engagement might be problematic. She recommended relapse prevention strategies, peer support and education. You needed structure and routine, including permanent house arrangements, vocational options and linkage with peer supports to facilitate your release from prison. The current lack of those supports worries me greatly.
88 In that regard I hope Corrections will be able to assist you to find suitable accommodation if you do not already have it, including liaising with the Jesuits, who whilst in custody were involved in assisting you I gather in that regard.
89 Also before me was a Justice Plan dated 19 March 2018 prepared by Janelle Devine, which I have read, also a Client Overview Report prepared by the same author, same date, I understand prepared in preparation for the future hearing involving Magistrate Pithouse. I digress and say this has been extensively discussed with your counsel and the prosecution today prior to sentencing in relation to the applicability or otherwise of a Justice Plan as being incorporated with any Community Correction Order, should I order same. The transcript will reveal that discussion, I am not going to further refer to it now.
90 You have had numerous opportunities in the past by way of other court orders. Unfortunately you have not been able to effectively take those opportunities on board and not reoffend. Also at this stage there is no formal assessment regarding your likelihood of sexually re-offending in the future, although I note that it is not a part of your prior history, but nevertheless you have gender identity issues which mean I remain concerned about your prospects of further reoffending in relation to sexual matters.
91 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
92 There is also the need for specific deterrence when sentencing you. Whilst you do not have any prior offending of a similar nature, in particular relevant to sexual offending and possession of child pornography which I have said now many times, you do have a number of troubling court appearances for offending on multiple occasions. I note Mr Casement referred to your appearance on 6 February 2014 involving a consolidation of a number of matters.
93 You do not have any similar offending, however you have appeared at court on multiple occasions, despite your age, for serious offences. You have been given opportunities by the court during each of those sentences, in particular most recently, when you were granted parole, but nevertheless offended whilst on it. There is a need for specific deterrence when sentencing you.
94 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. This does concern me. I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
95 I have previously referred to the submissions made by Mr Casement on your behalf referrable to an appropriate disposition.
96 Mr Stougiannos, on behalf of the prosecution, submitted that time served or time served together with a Community Correction Order would not be outside the range of appropriate dispositions in your case. Further, he submitted the prosecution did not consider that further time in custody would need to be served by you to appropriately address all sentencing considerations.
97 In my opinion, the current days spent in custody, 437 as at 16 April 2018, would not adequately or appropriately address all relevant sentencing considerations including all matters in mitigation of your sentence. I do, however, consider should you be suitable you be placed on a Community Correction Order rather that requiring you to serve further time in custody would be an appropriate disposition.
98 So to that end, I had you assessed for your suitability or otherwise for a Community Correction Order and received a report from Ms De Rozario. You are considered suitable for such an order should I be minded to make one and you indicated your consent to the order as I understand it when discussed with her, and to any proposed conditions of the order and likely ramifications of breach of it.
99 But before I formally sentence you, I must indicate what I propose regarding a Community Correction Order then I have to ask if you consent or otherwise to such an order being made. So I have to tell you first of all what the core conditions of that order will be. I am going to leave you, Mr Casement, to explain all of this before he consents or otherwise.
100 The Core conditions apply to all Community Correction Orders and to you:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, i.e. a Corrections worker, during the period of the Order.
·You must report to the Community Correction Centre at Ballarat within 2 clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
101 There will be a number of additional conditions attached to this Order, which will apply in your case:
· The order will be with a conviction recorded and for a period of 2 years and 6 months from today’s date.
· You must perform 200 hours of unpaid community work over a period of 2 years as directed by the Regional Manager (s48C).
· You must be under the supervision of a Community Corrections Officer for a period of 2 years and 6 months. I am aware that that period of time for the number of hours is of 2 years, not 2 years 6 months, but it is to be done over 2 years. Supervision is for the entirety, i.e 2 years and 6 months.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).
·You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the Regional Manager.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to the Sex Offenders Program (s48D(3)(f)).
· You must attend for review of your progress and compliance or otherwise with conditions of the Orders, you have to come back before me on 23 October 2018 at 9.30am (s48K).
· I direct that I be advised by your Corrections Officer of any non-compliance of these conditions (s48(1)) and I will then determine if the matter should be brought back before me to encourage your compliance try and avoid breach.
· Also you must participate in the services specified in the Justice Plan dated 19 March 2018 (s80) which is to commence today, 17 April 2018, for a period of 2 years and 6 months.
102 I can only impose a Community Correction Order if you agree to such an Order being imposed. I have to tell you more about that.
103 I should advise you that if you breach that order by committing further offences, so if you commit any further offences from today's date, you can be charged with breaching the order and a sentence of imprisonment is one of the options for that breach (s83A(d)).
104 You can also be re-sentenced for the offences that are before me. One of the options available includes a further term of imprisonment (s83A(s)). I can send you back to gaol. Beware.
105 So you have to be extra careful for the next 2 years and 6 months which in your lifetime is a long time. No committing any further offences that might incur a term of imprisonment, such as driving whilst disqualified. Otherwise you are back before the Court, back before me and you will be re-sentenced on these three charges that are before me.
106 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
107 Now I am going to ask if he is aware of all that, so I am going to give you a chance Mr Casement, to go back and discuss that as best you can.
108 MR CASEMENT: Can I have a copy of the order whilst I am doing so, Your Honour, or a draft copy of the order.
109 HER HONOUR: I will hand down what I have - just give page 15 to him, sorry just give Mr Casement pp.15 to 17 of my reasons. There are few typos that need to be fixed up, but it is just to assist you with the conditions. I will ask for those three pages back, because I have not got to some of them.
110 MR CASEMENT: Thank Your Honour.
111 HER HONOUR: But it just gives you a clue. All right? So 15 to 17 is all at this stage. I am up to paragraph 117. My next question will be, do you consent to the order in these terms, so that is where we're at. All right, give that to Mr Casement. All right, now do you want me to leave, or are you going to be able to just - - -
112 MR CASEMENT: No, I think we should be able to do it, Your Honour.
113 HER HONOUR: See how you go.
114 MR CASEMENT: Yes.
115 HER HONOUR: How did you go?
116 MR CASEMENT: He was responsive to each of the items, Your Honour, and he indicated, stated to me that he would agree to being placed on the order.
117 HER HONOUR: Okay. So I have to ask you, so can you stand up, speak into the microphone. No, you are aware of all of those conditions and what it all means. Do you consent to this order being in those terms with those conditions?
118 ACCUSED: Yes, Your Honour.
119 HER HONOUR: I will move on.
120 The prosecutor submitted you could be sentenced by way of an imposition of an aggregate sentence a Community Correction Order, i.e. on Charges 1, 2 and 3, and I proceed on that basis. Mr Casement agreed such an approach was consistent with case law, or at least did not oppose that approach is perhaps more accurate.
121 So I formally turn to sentence.
122 On Charges 1, 2 and 3, you are convicted and sentenced to be on a Community Correction Order for a period of 2 years and 6 months, effective from today’s date, being 17 April 2018 and in the terms to which I have just referred and outlined and that were told to you by Mr Casement, that is, with all those conditions that I have just mentioned and you discussed with him.
123 Pursuant to s18(4) Sentencing Act 1991, I do not declare the 437 days you have served by way of pre‑sentence detention in relation to the sentence I have imposed today, as I discussed with counsel at the time.
124 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these charges, so if you pleaded not guilty to these three charges, but following jury verdict, been found guilty of them, I would not have imposed a Community Correction Order at all. Rather, I would have sentenced you to a term of imprisonment of 4 years and I would have set a non-parole period of 2 years and 6 months.
125 Indecent act and possess child pornography are Class 2 offences and therefore you are subject to registration for a period of 15 years pursuant to the Sex Offenders Registration Act 2004 (s34(1B)(ii)). Mr Casement conceded such applied to you as I have said.
126 Following this sentencing, my associate, Ms Jackson, will approach you and ask you to sign papers acknowledging receipt of that paperwork. You are not being asked if you want to be under that Act. I have made that decision, you are. All you are being asked to sign for is the paperwork. If you do not want to sign it, so be it, but she has to ask, it is her job.
127 The prosecution made application pursuant to s464ZF Crimes Act 1958 for a forensic sample. That was not opposed by counsel on your behalf. I make the order in the terms sought. It will be for a saliva sample and I make the order on the basis of the seriousness of your offending and your prior criminal history, and I must advise you the authorities may use reasonable force to obtain that sample.
128 Were there any other orders sought?
129 MR STOUGIANNOS: No, Your Honour.
130 HER HONOUR: Now did we get that right, the PSD which is not PSD, but I just want it in the material, is it correct that it is 437 up to and including yesterday, 16 April?
131 MR CASEMENT: Yes, Your Honour.
132 HER HONOUR: I just want that to be correct. Now, is there anything there that either counsel, given the nature and the way this has progressed, are unsure about or unclear about. Mr Stougiannos?
133 MR STOUGIANNOS: No.
134 HER HONOUR: Or given the way this has gone and we have had other issues, is there anything I have missed or are unclear to you or you want me to - - -
135 MR STOUGIANNOS: I don't believe so, Your Honour. You are thorough as always.
136 HER HONOUR: All right, well thanks for that. Now, Mr Casement, over to you. Is there anything I have missed? Anything that's inaccurate or anything like that?
137 MR CASEMENT: No, Your Honour.
138 HER HONOUR: All right. Now my understanding, officers, is that he goes back to MAP is that right?
139 CORRECTIONS OFFICER: Yes.
140 HER HONOUR: And because of the order I have made, he is likely to be released, I know you don't know exactly, but roughly when is that? Today or tomorrow or what happens?
141 CORRECTIONS OFFICER: Hard to tell.
142 HER HONOUR: Yes, hard to tell. Well it does concern me, thanks for that anyway. I do not expect an answer, I just ask the question. It does concern me that now he is on this order, if he walks out the door at seven o'clock tonight, has he got somewhere to go. I do not want to see him back here, but I will not be currying favour if he does offend between now and two days attending with Corrections. I know you don't know the answer to this, but he could walk out at seven o'clock.
143 MR CASEMENT: I'm told - - -
144 HER HONOUR: I assume he has got somewhere to stay.
145 MR CASEMENT: I'm told Your Honour, he is going to be straight on his way to Ballarat.
146 HER HONOUR: So he has got the money to get on the train.
147 MR CASEMENT: He's got the - - -
148 HER HONOUR: And he is going to have the wherewithal to hop on the train and mum's expecting him?
149 MR CASEMENT: I think the - the Community Corrections order report refers to him having a Myki card, the custody will be - - -
150 HER HONOUR: I saw that.
151 MR CASEMENT: - - - reactivating a Myki card for him to get going to Ballarat.
152 HER HONOUR: All I can say is, if you make it abundantly clear to him, I don't know, just tell me, I think he signs it first, or do you want me to read it? Sorry, Mr Casement, I am still talking to you, I was just distracted, I'm sorry, my apologies. Forgotten what I was going to say. Anyway you understand that he is going back to Ballarat.
153 MR CASEMENT: He is.
154 HER HONOUR: Because if he goes out, he has got to report in within two clear working days, so he should report by probably Thursday at 4 pm.
155 MR CASEMENT: Yes.
156 HER HONOUR: And if anything happens in between, I am not going to be very favourable, or very happy and you know, he has had his chance.
157 MR CASEMENT: Your Honour, I have stated on a number of occasions now, and I think the message is through and I think he has stated to me, has stated to me, that he's on his way down to Ballarat.
158 HER HONOUR: And he knows he's got to attend Corrections within the next two days.
159 MR CASEMENT: Within two days, he knows - - -
160 HER HONOUR: And not get up to any offending behaviour.
161 MR CASEMENT: (Indistinct).
162 HER HONOUR: Yes, okay.
163 MR CASEMENT: Thank you.
164 HER HONOUR: I know you can only do your best. I am not being critical.
165 MR STOUGIANNOS: Can I just raise one matter, Your Honour? I'm sorry for not doing it earlier.
166 HER HONOUR: Sure.
167 MR STOUGIANNOS: There is an issue about that pornographic picture being on a mobile phone and we're not a hundred per cent clear whether the phone is still in the possession of the authorities but it may be we will be seeking a disposal order for it.
168 HER HONOUR: Yes, well I will - - -
169 MR STOUGIANNOS: Apologies about that, but we've overlooked - - -
170 HER HONOUR: I'll ask Mr Casement, that's the least of his worries.
171 MR STOUGIANNOS: Yes.
172 HER HONOUR: Apparently the phone that had, my understanding is Mr Stougiannos is in essence saying look he might have to get a disposal order in relation to the phone that contained the photograph. So what's the attitude?
173 MR CASEMENT: That wouldn't be opposed, Your Honour.
174 HER HONOUR: All right, so if that is the case Mr Stougiannos, can your instructor please prepare the relevant documentation and that order I will make if it eventuates.
175 MR STOUGIANNOS: Yes.
176 HER HONOUR: But sort of in the next week or two max while it is fresh in everyone's mind.
177 MR STOUGIANNOS: Yes, we will do that promptly. Thank you, Your Honour.
178 HER HONOUR: Okay, thanks. Sorry Mr Casement, I will let you go.
179 MR CASEMENT: Thank you.
180 HER HONOUR: There you go. All right, have a seat. All right then, I am sorry that took much longer than anticipated, but it is imperative in my opinion these matters are discussed in open court and that is why we have spent as long as we have on it. Okay, copies are being made, a copy will be given to you. It is happening, you will get a copy Mr Stougiannos and I think that is it. Is there anything further in this matter?
181 MR STOUGIANNOS: No, Your Honour, thank Your Honour.
182 MR CASEMENT: No, Your Honour.
183 HER HONOUR: No? Excellent, all right then, well thank you very much. Yes.
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