Director of Public Prosecutions v Wilson (a pseudonym)

[2021] VCC 989

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT WILSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2021
DATE OF SENTENCE:	20 July 2021
CASE MAY BE CITED AS:	DPP v WILSON (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 989

REASONS FOR SENTENCE
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Subject:
Catchwords:

Legislation Cited:  Crimes Act 1958 ss49B, 49D, 49F, 51C, 51G; Drugs, Poisons and Controlled Substances Act 1981 s 73; Sex Offenders Registration Act 2004

Cases Cited:  Minehan v The Queen (2010) 201 A Crim R 243
Sentence:  70 months imprisonment, non-parole period of 43 months

S6AAA: 7 years 3 months imprisonment, non-parole period of 5 years 2 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr W. Blake	Stary Norton Halphen

HIS HONOUR:

1.Robert Wilson[1], you have pleaded guilty to the following offences which carry the following maximum penalties:

[1]A pseudonym.

Indictment J10251008.A3 (CR-18-0512) 

Charge Nos.	Charge	Max Penalty
1	Sexual activity in the presence of a child under 16 – s 49F(1) Crimes Act 1958	10 years imprisonment   (Level 5)
2	Sexual activity in the presence of a child under 16 – s 49F(1) Crimes Act 1958	10 years imprisonment   (Level 5)
3	Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958	10 years imprisonment  (Level 5)
4	Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958	10 years imprisonment  (Level 5)
5	Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958	10 years imprisonment  (Level 5)
6	Sexual penetration of a child under 16 – s 49B(1) Crimes Act 1958	15 years imprisonment   (Level 4)
7	Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958	10 years imprisonment  (Level 5)
8	Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958	10 years imprisonment  (Level 5)
9	Sexual assault of a child under 16 – s 49D(1) Crimes Act 1958	10 years imprisonment  (Level 5)
10	Sexual activity in the presence of a child under 16 – s 49F(1) Crimes Act 1958	10 years imprisonment   (Level 5)
11	Sexual activity in the presence of a child under 16 – s 49F(1) Crimes Act 1958	10 years imprisonment   (Level 5)
12	Sexual activity in the presence of a child under 16 – s 49F(1) Crimes Act 1958	10 years imprisonment   (Level 5)

Indictment J10251008.B (CR-18-01578) 

Charge Nos.	Charge	Max Penalty
1	Possess a drug of dependence - s 73 Drugs Poisons and Controlled Substances Act 1981	5 penalty units
2	Possess a drug of dependence - s 73 Drugs Poisons and Controlled Substances Act 1981	30 penalty units and/or 1 year imprisonment (Level 8)

Indictment J10251008.C (CR-21-00287) 

Charge Nos.	Charge	Max Penalty
1	Produce child abuse material - s 51C(1) Crimes Act 1958	10 years imprisonment   (Level 5)
2	Possess child abuse material - s 51G(1) Crimes Act 1958	10 years imprisonment  (Level 5)

Circumstances of Offending 

2.The Crown tendered the Summary of Prosecution Opening dated 24 February 2021 as Exhibit A.  A summary of your offending is as follows:

Introduction

3.The offences which are the subject of each of the indictments were committed between 25 September 2017 and 20 November 2017 at your home in Pascoe Vale.  You resided in a semi-detached bungalow at the rear of a house occupied by your parents.

4.The sexual offences, that is the production of child abuse material and then the sexual contact offences and other offences, involved the complainant, Joshua Bell[2], who was 13 and 14 years of age and staying overnight with you when each offence was committed.

[2]A pseudonym.

5.The drug offences which are the subject of Indictment No: J10251008.B were detected when the drugs involved were located on 20 November 2017, when investigators searched your bungalow.

The complainant

6.The complainant, Joshua Bell, was born in November 2003.  The complainant was 13 years old at the time of the child abuse production charge (indictment J10251008.C) and had just turned 14 years old at the time of the principal offending on indictment J10251008.A3.

7.You have known the complainant since he was an infant, and you became the complainant’s confirmation sponsor when he was in Grade 6.  Your parents and the complainant’s maternal grandparents were also friends.

The Offending

Indictment J10251008.C

8.On an occasion between 25 September 2017 and 11 November 2017, the complainant, Joshua Bell, stayed overnight with you in your bungalow.

9.The complainant consumed alcohol and became highly intoxicated.  During the night, you captured video footage of the complainant which included moments when the camera focused on the complainant’s genitals, covered initially by jeans with the fly undone, and then only by underwear.

10.That footage was later located on your laptop computer when it was analysed by police.  Four brief video clips were located on your computer.

11.You produced (Charge 1) and retained possession of the videos (Charge 2) for your own sexual gratification.

Indictment J10251008.A3

12.On Friday 17 November 2017, the complainant was staying with his grandparents.

13.You again arranged that he should sleep in the bungalow.

14.In the bungalow, you and Joshua Bell began watching various YouTube videos and you began drinking alcohol.  After about two hours, you began to play pornographic videos in full view of the complainant (Charge 1).

15.Shortly after this, the complainant began to feel nauseous from watching the pornography and went to the bathroom to vomit.  When he returned to the lounge area, he saw you rubbing your penis over your clothing while watching the videos.

16.You continued rubbing your penis over your clothing.  You then removed your pants and underwear and began to masturbate your erect penis in full view of the complainant (Charge 2).

17.You looked at the complainant while masturbating and asked him to sit down next to you on the couch.  The complainant got up and sat on the couch next to you. You asked him if he could touch you on the penis, to which he said ‘No’.  You then asked if he wanted to touch his penis and the complainant refused.

18.You reached over and began rubbing Joshua Bell’s penis over his clothing and continued to masturbate your own penis.  You then removed Joshua Bell’s pants, but Joshua Bell shook his head when you tried to remove his underwear because he did not want you to do so.  You ignored him and began to laugh and removed his underwear.  You then began masturbating the complainant’s penis, and caressed and squeezed his testicles (Charge 3).

19.You then reached over and pushed the complainant’s head down, and placed your penis against his mouth for several seconds (Charge 4).  The complainant then got up and ran to the toilet, where he vomited.

20.While Joshua Bell was in the bathroom, you called out to him, ‘You’re not done yet’ and ‘You still have to finish me off’.

21.When the complainant came out of the bathroom, you directed him to sit next to you on the couch. The complainant did not want to engage in any sexual activity with you, but believed that he had no choice.

22.You were both still naked from the waist down.  After Joshua Bell sat down on the couch, you reached over and continued masturbating his penis.  He pushed your hand away several times, but each time, you replaced your hand and continued to touch his penis (Charge 5).

23.When Joshua Bell said he did not want to do this and that he had had enough, you replied ‘Just give it a go’ and ‘We’re both guys’.  You then bent down and inserted the top of the complainant’s penis in your mouth (Charge 6).

24.After you removed his penis from your mouth, you reached out and pulled the complainant’s head towards your penis.  This brought the complainant’s mouth close to your penis, but he pulled his head away and broke your grip (Charge 7).  He again ran to the toilet to vomit.

25.After Joshua Bell returned from the bathroom, you told him to lie down on the single bed. As he lay naked on the bed, you lay on top of him and began kissing and licking his chest while masturbating his penis and your own.  You then began grinding your hips and groin against the complainant’s groin, simulating sexual intercourse (Charge 8).

26.You then took one of your green and black skate shoes and placed it over the complainant’s penis.

27.You then returned to the lounge area, sat down on the couch and told the complainant to ‘Finish [you] off’.  Joshua Bell was afraid of what may happen to him if he did not obey you and that if he called anyone or told your parents, no one would believe him.

28.He sat down next to you and you grabbed his hand and placed it on your penis. You forced Joshua Bell to masturbate you until you ejaculated (Charge 9).  Your semen went all over his hand and some touched his lip.  Afterwards, you gave him a towel to clean himself up with.

29.You offered to masturbate the complainant, stating ‘I’ve got to do you now’, but he refused.  You replied, ‘Okay but one day I’ll do it for you.’  You then began to watch more pornography on the television in full view of Joshua Bell; this time involving homosexual men (Charge 10).

30.Joshua Bell then went back to your bed to go to sleep.  Before he could go to sleep, you said ‘Remember, this is a secret between me and you’ and ‘Don’t go telling anyone.’

31.In the morning, you opened an internet site and began displaying pornography in view of the complainant (Charge 11).  You then watched the pornography and began masturbating (Charge 12).

32.You drove Joshua Bell back to his grandmother’s house in Fawkner at about 2:30pm that day.  You again told him not to tell anyone as he would be in ‘big trouble’.

33.At approximately 11pm that night, the complainant told his grandmother what you had done.  A full forensic medical examination was conducted on him, including the taking of wet swabs from his hand, lip and penis.  On 19 November 2017, the complainant made a video recorded statement.

34.On 20 November 2017, a search warrant was executed at your bungalow.  Police located a brown bath towel, the skate shoes, three mobile phones and a laptop. You were arrested at that premises and interviewed at the Fawkner Police Station.

Indictment No: J10251008.B

35.During the police search at your bungalow, police investigators located three small snap lock bags containing cannabis weighing 0.6 g, which was for your personal use.

36.There was also a snap lock bag containing what you stated was amphetamines for personal use.

37.During your interview with police, you told them that:

a.The complainant had attended your home on 17 November 2018 and stayed the night;

b.Joshua Bell asked to watch YouTube videos on your laptop which was connected to your television;

c.You began watching YouTube videos and Joshua Bell began looking up pornographic videos online;

d.You told Joshua Bell to search for ‘girls with big tits’ on YouTube and you then watched several pornographic videos before returning to non-pornographic videos on the internet;

e.Then during the night, Joshua Bell constantly went to the toilet to vomit and he said that he felt unwell because he had not eaten dinner.

38.You denied that you had ever touched Joshua Bell or engaged in any sexual acts with or in the presence of Joshua Bell.  You described Joshua Bell as 'a fuckin’ liar' (A399), 'a fuckin' little liar' (A427), 'a liar, little shit' (A451) 'fuckin' little liar' (A564), and adding “I’m now out to prove that him and his mother are little fuckin' liars and from what you've said, you'll see in the proof, mate.  Yeah.  I can't believe that, I can't believe they've done this.” (A590).

39.Test results provided very strong support for your DNA being located on the complainant’s penis shaft, and extremely strong support for your DNA being on the complainant’s hand. The DNA sample taken from the complainant’s lip was insufficient for further DNA testing.

40.The four videos of the complainant, depicting him partially clothed and in an unconscious state, were found on your laptop (Charges 1 and 2 on Indictment J10251008.C).

41.You were remanded in custody after pleading guilty to the charges on Indictment J10251008.A3 on 23 February 2021 and you have now spent 147 days on remand by way of pre-sentence detention.  I will reckon that period as already served.

42.The matter did not resolve until approximately three and a half years after you were arrested.

Objective Gravity and Moral Culpability 

43.I turn now to consider the objective gravity of, and your moral culpability for, your offending.

44.The criminal law prohibits sexual offending and specifically sexual offending against children with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  It protects children from the harms which premature sexual activity causes, thereby protecting children from their own immaturity.  The prohibition is intended to deter others who may consider engaging in sexual activity with a child.

45.The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious and manifests itself in both physical and psychological forms.  Therefore, the harm to your victim is presumed irrespective of whether the child purportedly consented or appreciated the acts in full in a particular case.

46.Your offending is serious for the fact that you are a person who was trusted by the complainant’s mother.  You acted as the complainant’s sponsor in his confirmation.  In the victim impact statement provided by the complainant’s mother, she speaks of the fact that you told her you would protect the complainant and would be there for him.

47.Furthermore, there is a pattern of escalation in your contact offending.  You went from filming the complainant on an earlier occasion, to taking him into the bungalow for a period of hours.  On the two occasions, you provided alcohol.  On the occasion of the principal offending, you engaged in escalating behaviour, with words of encouragement, and some mildly coercive conduct such as placing his hand on your penis and pushing his head towards your penis in an effort to get him to do as you desired.  I note of course that you are not charged with consent based offending.  I will not use this as such, but I am satisfied that your conduct was at least grooming-like in its intention.

48.Mr Grant for the Crown referred me to a number of cases – not for the purpose of comparison of sentences, but to outline several principles to be considered and applied in sentencing.  In particular, Mr Grant took me to cases which emphasized the seriousness of offending where the age difference between the adult offender and the youthful victim means that there is a difference in maturity, age, and the balance of power.  It may also mean due to their age and psychological make up, as here, that the victim is vulnerable.

49.The cases also point out that the seriousness of the offending may be affected where the offender acts in a predatory and clandestine manner; and where there is a breach of trust.  I consider that these factors operate in this case.

50.The victim impact statement made by Joshua Bell’s mother speaks of the lifelong difficulties her son has endured with autism spectrum disorder.  Since the offending, the complainant has left school, is withdrawn, socially isolated and has feared leaving the house.  The statement speaks of the fact that the complainant has been diagnosed with post-traumatic stress disorder.  I note in passing that the larger fallout for the family has been seismic.

51.These offences are indeed serious.  Principles of deterrence, denunciation and to an extent, protection of the community must loom large.

52.I was referred to the NSWCCA authority of Minehan in relation to your earlier offending in the making and possession of child abuse material.  The production and possession of child abuse material is always reprehensible and must be met by deterrence, denunciation and protection of the community.  Your offending in this respect is marked by the fact that you first plied the complainant with alcohol, and then filmed him when he was unconscious.  He was, at least, partially clothed when you filmed him.

53.When I consider the factors in Minehan, I conclude that your offending in this respect is at the relatively low end of seriousness for this type of offending.

54.Your drug offending is at the low end of seriousness.  Given your lack of prior convictions and the small amounts of cannabis and methamphetamines involved, these offences can be punished by fines.

Personal circumstances 

55.I turn now to your personal circumstances.

56.You were born in March 1978 and were 39 years of age at the time of the offending.  You are now aged 42.

57.You are the youngest of three siblings and have always had a close relationship with your family.

58.You successfully completed primary and secondary school.  You report that you performed well academically and recall schooling as a positive experience.  You completed a Diploma in Electrical Engineering and subsequently worked for a computer services company.  You were first employed part time at 12 years of age and you have been employed in a variety of areas since then, including factory work, earthmoving and construction, electronic and computer repairs, electrical design and the installation of ‘smart houses’, and maintenance on your aunt and uncle’s cattle farm.

59.You returned to live with your parents about 10 years ago after your mother was involved in a car accident, and you have provided ongoing care and support to them throughout this period.  You assisted your parents by ensuring that they take their medications, cleaning and maintaining the household, shopping, driving them to medical appointments and other more general tasks.

60.You have had one significant relationship which was marred with substance abuse and ended after three years.

61.You have a history of substance abuse, and have reported ongoing issues with cannabis since you commenced using the drug at 20 years old.  This escalated to smoking daily until you were remanded in February 2021.  You rationalised that your social life was limited by caring for your parents and so you would smoke cannabis at night after you had completed carer duties.  Dr Barth considers your drug use warrants a diagnosis of cannabis use disorder; formerly severe but currently in early remission in a controlled environment.

62.You have no criminal history and this is your first time in prison.

63.Since you have been in prison, you have undertaken the following courses: Adapt, Take Stock A, and Take Stock B.

64.You have been working in prison industries making custom number plates five days a week, and every second Saturday and Sunday.

Psychological Report by Dr Mathew Barth dated 7 May 2021

65.I was provided with the psychological report of Dr Mathew Barth dated 7 May 2021.

66.Dr Barth reports that you have experienced some fear and confusion in respect to your homosexual fantasies.  He notes that you have experienced pervasive problems obtaining healthy adult intimacy and you have suffered from a significant substance abuse issue.

67.Specifically in relation to your offending on this occasion, which involved a 14 year old boy, Dr Barth noted typical behaviour was 'underpinned by prominent offence supporting cognitions regarding the distorted view of the complainant’s sexuality, the deviant sexual arousal patterns inherent in your conduct and your insight into your offending remains poor'.

68.Dr Barth notes that your offending was relatively brief, you have no instances of nonsexual criminality, you do not possess psychopathic traits and you have strong support from your family.  These factors mitigate your risk to some extent.  Dr Barth estimates the risk of reoffending (after testing) as moderate.

69.Although you are anxious about your parents and stressed at the prospect of serving a period of imprisonment, Dr Barth does not consider your symptoms are sufficiently severe to meet the criteria for any mental disorder.  You are not psychotic, your reality testing is intact and your moral judgment is unimpaired.  Your intelligence is estimated to fall in the normal range.

70.While these factors provide a good foundation for your prospects for rehabilitation, and you have recently displayed a motivation to understand your behaviour,
Dr Barth raises that you acted out your sexual desires with a vulnerable, underage complainant who is less likely to challenge your insecurity about your sexuality. Moreover, Dr Barth reports that you justified that the complainant purportedly showed formative signs of sexual interest and therefore was able to consent to your sexual conduct.  This leads Dr Barth to conclude that your 'sexual adjustment is intensely problematic and warrants participation in detailed offence specific treatment'.

71.Moreover, not only did you intend to take the matter to trial right up until the date of your plea in February 2021, but you delayed the initial date of trial in 2018 by seeking to have your computer analysed.  This resulted in further evidence obtained against you (that is, the four video clips you took of the complainant in his underwear) but even then you maintained a plea of not guilty and argued that the clips were not sexual in nature.  You caused the trial date to be adjourned twice in 2019, and you sacked your legal representatives.  The point I make is that any insight into or acceptance of responsibility for your offending is very recent indeed.

72.Mr Johnston and Mr Blake, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:

a.You are a person previously of good character  with no prior criminal history and nothing outstanding;

b.Your plea of guilty;

c.There is remorse in your representations made to the psychologist Dr Barth;

d.There is the burden of imprisonment in a time of COVID-19 with restrictions on visits and occasional courses that you are able to undertake;

e.Totality.  Whilst there might be some cumulation, there ought to be a high degree of concurrency warranted, given that the majority of the offending occurred over a period of around 12 hours;

f.Your prospects of rehabilitation are good as indicated by your expression of remorse, your lack of prior criminal history, the presence of strong supports in the community including parents and siblings, and the assessment of Dr Barth that you only pose a moderate risk of reoffending;

g.It was submitted that, whilst your sentence warranted immediate imprisonment,  a longer parole period than might otherwise be imposed should be ordered.

73.Mr Grant, who appeared for the prosecution, submitted that the following sentencing considerations affect the gravity of your offending:

a.First, Mr Grant referred to Charge 6 (the charge of sexual penetration) and submitted this is a serious example due to the significant breach of trust, the age difference between you, it was a situation in which complainant was entitled to feel safe (that is, staying at bungalow with his mother’s approval), had involved a significant degree of grooming, and you twice warned the complainant against disclosing what you did.

b.Next, he submitted, as I have already observed, that children are vulnerable and must be protected from sexual exploitation and that there is a presumption of severe and long lasting psychological and physical damage to children from sexual offending.

c.Third, Mr Grant submitted that producing and possessing child abuse material normally warrants an immediate term of imprisonment.

d.Fourth, he submitted that the sexual assault and the sexual activity charges warranted a degree of cumulation because the acts were part of the process of grooming; despite the acts being closely associated in time.  He submitted they do represent acts which would have caused separate and substantial harm to the complainant.

e.Fifth, as to the possession of a drug of dependence, Mr Grant submitted that these were relatively less serious than the sexual offences and there is no need for the imposition of a custodial sentence as you have not previously been found guilty of drug related offending.

74.Mr Grant submitted that the following factors are relevant to your moral culpability:

a.General deterrence, denunciation and just punishment are all paramount sentencing considerations in the present case;

b.It would be appropriate for some degree of cumulation to be imposed, as the offending was committed over a period of some weeks between the child abuse offences and the contact offences;

c.The matter has a lengthy history, with several delays caused by you;

d.You denied committing the current offences when interviewed;

e.In your favour, you have no previous criminal history; and

f.The prosecution accepts that, by indicating a willingness to plead guilty to the current charges, you are entitled to the utilitarian benefits that flow from a plea of guilty.

g.Ultimately, a term of imprisonment, involving the imposition of a head sentence and a non-parole period, is the only appropriate sentence.

75.I have considered all of the submissions made by Mr Grant.  As I have already stated, I consider that overall, your sexual offending was serious, and that you have taken a long time to even begin to acknowledge your responsibility for your conduct.  As such, I agree that a term of imprisonment with a non-parole period is inevitable.

76.However, I consider that there is also force in the submissions made on your behalf by Mr Johnston and Mr Blake.  I do take into account your otherwise previous good character and I certainly take into account that you made some beginnings of expressions of insight to Dr Barth.  I accept the burden of imprisonment caused by the COVID-19 pandemic.  It is apparent that whilst you have been in custody your ability to undertake vocational courses has been limited.  I understand from Corrections that movements around the facilities is limited and the ability to hold contact visits, which someone in your position would hold very dear, I am sure, has been limited and at times suspended altogether, often for lengthy periods. I accept that all of these factors makes your time in prison more burdensome.

77.I do accept that totality must play a role in my sentencing for this offending.  I do accept that notwithstanding your late expressions of insight, that you do have some prospects for your rehabilitation based on your lack of prior criminal history, the strong supports you have in the community, those including your parents and siblings, and that you have no mental illness, no intelligence difficulties and you have had previously a good work history.

78.Whilst your late and limited insight into your offending is of concern, I do take all of those factors into account, and it is apparent that you have not previously offended and you do have some pro social supports.  I do accept Dr Barth’s assessment of your risk of reoffending as being moderate.  In the circumstances, I assess your prospects for your overall rehabilitation as being reasonable.

79.It is apparent that the prospects for your rehabilitation are contingent somewhat upon you making further progress in relation to your treatment for sexual offending, and also making progress in respect to your use of cannabis.

80.The sentences I am about to impose must also take into account the principle of totality.  That is, I must not impose and cumulate individual sentences such as to reach a total effective sentence which is crushing or disproportionate in its effect.

81.Given your pleas of guilty, your lack of prior convictions and consequently the fact that this is your first time in prison, I have decided to impose a sentence which provides the opportunity for a reasonable period of parole.  The object of parole (if granted) is to provide you with the support and structure upon your release, but also with supervision, which provides some protection to the community.

82.Further protection to the community will be provided by the fact that you will registered under the Sex Offenders Registration Act for the rest of your life and I will say something about that at the end of the sentence.  I will proceed to sentence.

Indictment J10251008.A3 (CR-18-0512) 

83.On Indictment J10251008.A3, on Charge 1, sexual activity in the presence of a child, being the playing of pornographic videos, you are convicted and sentenced to five months' imprisonment.

84.On Charge 2, sexual activity, that is rubbing your own penis, you are sentenced to six months' imprisonment.

85.On Charge 3, sexual assault, you are convicted and sentenced to 24 months' imprisonment.

86.On Charge 4, sexual assault, you are convicted and sentenced to 30 months' imprisonment.

87.On Charge 5, sexual assault, you are convicted and sentenced to 24 months' imprisonment.

88.On Charge 6, sexual penetration, you are convicted and sentenced to 39 months' imprisonment.  That will be the base sentence.

89.On Charge 7, sexual assault, you are convicted and sentenced to 30 months' imprisonment.

90.On Charge 8, sexual assault, you are convicted and sentenced to 24 months' imprisonment.

91.On Charge 9, sexual assault, you are convicted and sentenced to 27 months' imprisonment.

92.On Charge 10, sexual activity, you are convicted and sentenced to five months' imprisonment.

93.On Charge 11, sexual activity, you are convicted and sentenced to five months' imprisonment.

94.On Charge 12, sexual activity, you are convicted and sentenced to six months' imprisonment.

Indictment J10251008.B

95.On Indictment J10251008.B, that is the possession of drugs, on Charge 1, possession of a drug of dependence, without conviction you are fined the sum of $100.

96.On Charge 2, possession of a drug of dependence, without conviction you are sentenced to a fine of $300.

Indictment J10251008.C

97.On Indictment J10251008.C, Charge 1, produce child abuse material, you are convicted and sentenced to six months’ imprisonment.

98.On Charge 2, possession of child abuse material, you are convicted and sentenced to two months' imprisonment.

99.The periods of cumulation are all cumulated on Charge 6 (Indictment J10251008.A3) and on each other, and are as follows.  On Indictment J10251008.A3, Charge 1 I cumulate one month; Charge 2, one month; Charge 3, four months; Charge 4, six months; Charge 5, three months; Charge 7, six months; Charge 8, one month; Charge 9, six months; Charge 12, one month; and on Indictment J10251008.C, Charge 1, I cumulate two months.

100.On my calculation the total effective sentence is a sentence of 70 months.  I order you serve a non-parole period, that is the period you must serve before you become eligible for parole, of 43 months.

101.Pre-sentence detention is 147 days excluding today reckoned as already served.  The 6AAA declaration.  But for your plea of guilty I would have imposed an overall sentence of seven years three months, with five years two months to serve.

102.Mr Wilson, you are ordered that you will be registered under the Sex Offenders Registration Act for life. That carries a number of strict conditions which will affect your ability to move around without telling the police and the like. The paperwork will be provided to you in prison.

103.Mr Grant, is there anything further from your perspective?

104.MR GRANT:  There was an application for a disposal order in relation to the drugs seized and a forfeiture order in relation to
Mr Wilson's computer which I think has been filed.  The other issue, Your Honour, and I could have missed it, but I don't think Your Honour mentioned the serious sex offender legislation.  Because Mr Wilson has now been sentenced to imprisonment for more than two offences, and I think in the order Your Honour did it, the first two charges on indictment ending in A3 were the first sentences, he falls to be sentenced as a serious sexual offender for Charge 3 to 12 on that indictment and 1 and 2 on indictment ending in C. 

105.MR BLAKE:  I have nothing to say in relation to what Mr Grant has said.  I understand that those provisions would be applicable.  I was just searching the schedules under the Sex Offenders Act and it appears as though each of the charges that Mr Grant mentioned do fall under those provisions.

106.HIS HONOUR:  All right, then.  I add these to my sentencing remarks.

107.Mr Wilson, because of the nature of your offending, after your conviction on a number of sexual offences you fall to be sentenced a serious sexual offender and I cause that fact to be entered into the records of the court.

108.That means that once you fall to be sentenced as a serious sexual offender then the principal sentencing factor becomes the protection of the community.  The protection of the community is something I have already referred to and taken into account in formulating the sentences I have imposed and in my sentencing consideration.

109.This is not a case, however, where in order to achieve the protection of the community the Crown submits that a disproportionate sentence is warranted.  In the circumstances, I do not intend to impose a disproportionate sentence in relation to any of the offences or the overall sentencing in this case.

110.The serious sexual offence legislation also presumes that there will be cumulation unless otherwise ordered.  In this case it will be apparent from the sentences that I have imposed that I have imposed a degree of cumulation in respect to most of the offences and particularly most of the sexual offences.  In this case I consider that whilst cumulation is warranted, it must be tempered to some extent by the principles of totality and accordingly I have cumulated as I have done to achieve a sentence which I consider just in the circumstances overall.

111.MR GRANT:  Thank you, Your Honour.  No further submissions.

112.HIS HONOUR:  Anything else, Mr Blake?

113.MR BLAKE:  Nothing further, Your Honour.

114.HIS HONOUR:  Thank you, I will adjourn now.

115.MR BLAKE:  As the Court pleases.

116.MR GRANT:  As Your Honour pleases.

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