Director of Public Prosecutions v Winter

[2023] VCC 1027

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02220

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

JOHN WINTER

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF SENTENCE:	15 June 2023
CASE MAY BE CITED AS:	DPP v Winter
MEDIUM NEUTRAL CITATION:	[2023] VCC 1027

REASONS FOR SENTENCE

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Subject:  grooming person to make it easier to engage in sexual activity with a child outside Australia. Almost 73 years of age at time of offending. No prior history of any significance.  Early plea, Worboyes

Legislation Cited: ss272.15A and 272.30 Criminal Code Act 1995 (Cth), ss 16A(1),(2) and (2AAA), 17A, 20(1)(b), 20(1B) Crimes Act 1914 (Cth), Sex Offender Registration Act 2004 (Vic)

Cases Cited: DPP v Guerro [2020] VCC 1790, R v Tootell; ex parte [2012] QCA 273, Worboyes v The Queen [2021] VSCA 169

Sentence: 2 years imprisonment with immediate release onto a recognisance release order, security by recognisance of $2,000, 3 years good behaviour and other mandatory conditions, including sex offender program

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms C. Hill	Commonwealth Director of Public Prosecutions
For the Accused	Mr D. Connors	Moorehead Lawyers

HIS HONOUR:

1John Winter you have pleaded guilty to one charge of grooming a person to make it easier to engage in sexual activity with a child outside Australia. The maximum penalty is 15 years' imprisonment.

2You have no relevant criminal history. There are a couple of very old matters including some wilful and obscene exposure matters that were dealt with many decades ago but the criminal history does not in any way inform my task.

3You were born in January 1949 and so you are now 74 years of age. You were just shy of your 73rd birthday when you committed this offence in January of last year.

4The prosecutor Ms Hill opened this matter to me on Tuesday of this week in accordance with a written summary dated 19 April 2023.  Mr Connors who acts for you told me that it was an agreed opening. In such circumstances I see no need to descend to the full detail of your offending. The agreed summary marked as Exhibit A does that and I will sentence pursuant to that document. I also raised with the parties that I had read the full Viber communications which are part of the depositional material.

Facts

5I will say something briefly as to the facts so that my sentencing remarks might be understood by anyone who happens to access them, but as I say, I sentence pursuant to the agreed summary.

6You were arrested upon your arrival back into this country from Vietnam on 2 August of last year. Your mobile phone was examined out at the airport and the Viber conversation the subject of this charge was detected.

7The actual chat is detailed in the summary and it is worthless my trying to set it all out in these, my reasons. It was a chat with a person identifying herself as Eva and it unmistakably related to efforts being taken by you to groom a child in the Philippines. Not Eva but she was being used to track down an underage girl or girls. It must be said that that conversation was surrounded by other conversation or communications not involving any focus on children but focussing on adult pornography and transmission of either photographs or footage to you. That was not against the law. There was also though some interest being shown in relation to younger girls in the days preceding 6 January. That is pretty obvious from the communications. As a matter of fairness, I raised those communications with the parties so that they could address me in relation to them, if they saw fit. Those earlier communications are just part of the background to the actual conversation which is relied upon to found this charge. That background though was of someone in another country, that is, Eva, obviously prepared to act on your requests. That is a dangerous enough background when your requests then turned, as they did on 6 January, to the involvement of a child.

8Your interview account is set out in some detail in the summary. I have read the entire interview and much of what you said in that interview made very little sense. It also tended to deny your possessing the required intent. Well, of course that was open to you to say those things in the course of your police interview, for at that stage you had not been charged and had not decided upon your ultimate plea. It is very different though when I consider many of the things that you said far more recently to Mr Cummins and in fact many of his own observations which involve a traversal of your plea.

9This was not a joke. This was not you in any way testing out Eva to see how far she would go. That was not what you were doing. You have admitted by your guilty plea grooming with a view to making it easier to engage in sexual activity overseas with a child outside Australia. I cannot act on any suggestion that you were not seeking to groom a child or that you had no such intent. To be truthful, your interview with the police was a bit of a shambles and involved many contradictory statements made by you, including denial even at one point of sending any money to Eva, which of course you did. The records made that very clear.

10This offence is one where absent exceptional circumstances, a court must as a matter of law have you serve some actual time in prison, if satisfied that s17A of the act is satisfied. That is the result of a legislative provision that has been inserted into this Act, not merely some statement of guiding principle from the courts above me in the hierarchy.

11You have served no time in custody.

12So much then for really what is only my brief summary of the summary in this matter.

In Mitigation

13Mr Connors appeared for you and he relied upon an outline of submissions dated 9 June 2023. He relied upon a report from forensic psychologist Mr Cummins, as well as a character reference from a friend, Ms Link. In fact, Ms Link together with her husband and daughter were present during the plea and I note that members of that family are present here again today. Ms Link in fact was called and gave evidence before me the other day. I have no reason at all to doubt her genuineness.

14Your counsel told me about your personal and family background, including your relationship, educational and work history. He withdrew any reliance on the very many portions of his written submissions which focussed on the certain loss of your home and the impact of that disastrous event should you be imprisoned in this case. That followed on from discussions between he and I about your actual financial position and those discussion made it clear that there was in fact very sizeable equity, a modest current mortgage and the ability to draw down another $95,000 and no repayments to be made.

15Mr Connors made submissions as to the objective seriousness of the offence as well as to your prospects of rehabilitation.

16He relied upon the following matters in mitigation:

·Your early guilty plea;

·The presence of remorse; and

·The absence of any matters of significance in your past history before the courts.

17Notwithstanding the matters in mitigation, your counsel was conceding that a prison term was inevitable here. He argued though that there were exceptional circumstances such that an actual term of imprisonment to be served was not required in this case. That is, that you could be released immediately onto a Recognisance Release Order. He relied upon a Victorian case of Guerrero[1], a decision of a judge of this court, as well as a Queensland case of Tootell[2], that later case providing some guidance to the interpretation of the phrase 'exceptional circumstances'.

Prosecution

[1]DPP v Guerro [2020] VCC 1790 (“Guerro”)

[2]R v Tootell; ex parte [2012] QCA 273 (“Tootell”)

18The prosecutor Ms Hill had filed some very detailed written sentencing submissions. That document went to many matters of what were plainly well-established general principles derived from a variety of cases which were footnoted in the submissions. Those general submissions were quite uncontroversial. They also dealt with some of the legislative provisions which operated here and which required an actual prison term to be served unless exceptional circumstances were made out.

19The submissions then turned to the actual offence before the court. I will come back to some of these matters later in my reasons. The written submissions made clear that there was very little judicial guidance in this area in terms of current sentencing practice, given the recency of the provision that I am dealing with.

20The prosecution challenged some aspects of the submissions that have been made on your behalf, for instance, they queried the extent of your remorse or contrition, or for that matter, the contention that there was no power imbalance in play here.

21The Commonwealth Director submitted that a prison term was required in this case. Well, so much had been readily conceded by your own counsel. As a result of discussions between the Bench and your counsel, Ms Hill withdrew from her written submissions that portion that accepted that there was hardship arising from the loss of your house. That issue no longer arose in this case.

22The Commonwealth Director of Public Prosecutions, through Ms Hill, conceded that it would be open to the court in this case to find the exceptional circumstances required under the provision and hence, to avoid an immediate prison term in this case. She made it clear that the prosecution were not saying that exceptional circumstances had been made out. That really was a matter for the court. They argued though, that if not made out, then you would plainly need to serve some time in custody. That simply was the legal position under the legislation.

23I am not bound by any submission made by either of the parties as to the sentence required in this case, or as to whether or not exceptional circumstances are made out in the material before me. I have to exercise my own sentencing discretion. I have to determine these matters myself.

24I will turn briefly to your background before coming back to the various matters in mitigation.

Background

25Your background is set out in detail in the report of Mr Cummins as well as in the written outline placed before me and I see no point in just slavishly repeating it here in my reasons. I do accept the family and personal background that has been placed before me. It was an unmistakably unusual background in your case. It was not at all easy and I take that into account as far as I am able to.

26A very brief summary is all that I descend to now. You were born in January 1949 in Italy. You were orphaned at a young age and you grew up in an orphanage in Italy until you were nine or so. When I say you were orphaned, you grew up in an orphanage but you really have no idea as to why that was so.

27You were adopted by an Australian woman and arrived in this country in 1959. You grew up with your adoptive mother. She was a nursing sister. You had no English when you arrived in this country so pretty predictably, schooling was not easy for you. In fact you battled to master the language up until you were 19 years of age or so. You had left school at the age of 16. You worked as a wool classer for a number of years and then as a printer. You remained in that industry until your retirement in 2015 at the age of 65. You worked for some 40 years for one employer. So unlike so many of the cases coming before this court, there is an excellent employment record here and that is so despite the obvious early setbacks in your life. You have been unable to find out any details as to your biological parents and the circumstances of your winding up in an orphanage and that has not been at all easy.

28In 2018 you met and married a Vietnamese woman but I was told that COVID intervened and that relationship came to an end. There was a bit of a strangeness to that relationship in that there was a meeting online I believe, a massive age difference and your desire to father a child at really what was quite an advanced age. Nonetheless, the loss of that relationship was a large blow as Ms Link described in her evidence before me.

29I have said already that you have a brief criminal history. It is of no relevance to my task given the age of those matters and the absence of any breaches or subsequent offending since those very distant times. So I put those matters aside altogether.

30You have been on the pension for about 10 years and you own your own home. There is what I was told was a reverse mortgage over the property and as I have said already, any suggestion of the likely loss of the property was completely abandoned in the course of this plea. It really never should have featured so prominently as it did. Nor for that matter should the assertion as to the loss of your property have been accepted by Mr Cummins, as it obviously was. See paragraph 47 of his report. I will add that to my long list of concerns about the quality of Mr Cummins' report. I probed your counsel as to the financial submissions that he had made in his written outline, as there was no material before me as to the actual financial position. It was just a nebulous claim about the loss of your house. I stood the matter down so that he could get some instructions from you. He did and having done so, I was then promptly told that those submissions were abandoned. I was told that your unit was valued at some $750,000 and that you had obtained a reverse mortgage facility and that that was not to fund these proceedings at all. You had drawn down only $55,000 of the $150,000 available to you. So, as I say, Mr Connors abandoned one of his principal submissions relating to the loss of the home and the savage blow that this would represent to one of your age.

31There have been some relatively minor health issues mentioned at paragraph 36 of the outline. It is not suggested that they would increase your burden of imprisonment.

32The reference from Ms Link speaks of some of your qualities and I take that reference into account. So too her evidence given before me the other day. She, and the family for that matter, have obviously had a long-term connection to you. Her evidence persuades me that you are obviously far more than just the person who has committed this serious offence. She speaks of your response to this offence and your remorse but she concedes that there were some discussions where you raised issues as to your actual intent. The sorts of things that were raised in the course of your interview, it would seem.

33Let me turn then to the matters raised in mitigation.

Guilty plea

34The first of those is your plea of guilty. You have pleaded guilty and you have done that at the earliest opportunity. Of course that is important.

35You have taken this early responsibility for your offending. Witnesses have been spared the experience of coming to court to give evidence. The community has been saved the time, the cost and the effort associated with the conduct of a committal in the Magistrates' Court or a trial up in this court. You also made admissions in the interview and plainly you were co-operative with the police. You have also consented to forfeiture of your phone.

36I must reward you for facilitating the course of justice in the ways that you have. There is also the heightened value attaching to a guilty plea made in the course of the global pandemic for the many reasons mentioned in the case of Worboyes.[3]  Well, we have emerged out of that pandemic, but not without a very large backlog of cases in this court. That large backlog of cases arose in the course of the COVID pandemic and of course, your case was never part of that backlog. It settled very swiftly. So, a guilty plea is especially valuable in such a setting as this.

[3]Worboyes v The Queen [2021] VSCA 169

Contrition

37I move then to the aspect of contrition or remorse.

38It is true that a guilty plea is often indicative of some contrition or remorse and you have pleaded guilty at the earliest of stages. I have also the evidence of Ms Link and her reference. However, there are some statements both in your police interview and in your discussion with Mr Cummins that cause me to have some strong reservations as to the extent of your actual contrition in this case. You quibbled with your actual intent in the police interview, but of course that was a long time ago. More recently though it is plain that you have, to a degree, maintained that stance in discussions with Mr Cummins and that was so despite the fact that you were pleading guilty. See paragraph 46 of his report. Your guilty plea is totally inconsistent, with this communication being some joke or a testing out of Eva. That is not what was happening here at all. You have admitted by your plea that you were acting with intent to make it easier to procure a child to engage in sexual activity. That was your intent.

39I am not persuaded that there is fulsome contrition or remorse in this case. I am not though suggesting that you are somehow revelling in the offending or have no regret for it. That is not the position. It is a bit of a mixed bag here. You are still, I think, a work in progress and still have, to a degree, a of lack of insight as to the seriousness of the conduct. I do find the existence of some contrition or remorse in this case and I take that into account in your favour.

Rehabilitation

40I turn then to consider your prospects of rehabilitation. You have complied with your bail conditions. Well, it would be surprising if you had not and prior to that of course you were co-operative with the police. You have stayed out of trouble since and of course I have the absence of any matters of relevance in your past history before the courts and that is so despite a pretty rocky start in your life.  You have a very strong past employment record. You are 74 years of age but of course your age did not impede you from offending. You offended at the age of almost 73 years. You are judged to have a low risk of re-offence in the sexual domain. That is set out in Mr Cummins' report.

41I am not at all impressed by his report. He seems to be advocating for you and should not, and he has from what he says in his report, perhaps a marginal understanding of the scope of this offence. It was no business of his to talk about his expectation of discussions taking place about the charge being withdrawn or the limited prospects of your visiting the country as though that was somehow a decisive factor. It was not. Your offending was not dependent upon visiting the Philippines in person at all. It was not even dependent upon your viewing any live streaming of any sexual act, if one took place. This was a grooming offence.

42As I have indicated, there are limits to your remorse. I do accept that the matter coming to light and your being arrested and interviewed and charged and being brought before the court would all serve to deter you. So too, of course, the sentence which I will impose. So too any counselling or treatment that you are required to engage in. All these things would surely reduce your future risk.

43I do not assess your prospects of rehabilitation as highly as your counsel urges me to. I am still however prepared to find that you have positive prospects of rehabilitation and a low risk of reoffending in this way again.

Report of Mr Cummins

44I have mentioned already the report of Mr Cummins and some of my concerns as to that report. I will not repeat all that I have said. The report has very significant limitations owing to the extent of his advocacy. He attached great weight to your account of having no intention and of your being ‘stupid’ or the like, see paragraph 28. He refers to 'inadvertent offending' at paragraph 31. He seemed to accept your account that you were joking and stupid, see paragraph 32. Also, that you had no sexual interest in underage persons, see paragraph 32 again.

45He did perform a risk assessment and says there is a low risk of reoffending though I note he factored in your account of having a strong opposition to sexual contact between an adult and an underage person, see s35. It just totally ignores the reality of this offending and the intent that you admit through your guilty plea.

46He accepted your account as to the loss of your house, see paragraph 47. He should not have.

47What possessed him to set out his opinion that he was not at all surprised to learn that there had been attempts made to withdraw the charge is anyone's guess. It reeks of him accepting your account of a lack of intent and hence a lack of criminality and it has no business being in the report, no more than his acceptance in the following paragraph of your joking around and essentially pleading guilty only because running a trial was too expensive. You cannot traverse the plea. Nor can he on your behalf. I must say in my time as a Judge over the last 13 years, I have seen plenty of poor psychological reports. This is an extremely poor one.

48It does at least detail your personal background.

49He conveys that you are prepared to accept such treatment as is ordered and I am also prepared to take into account his risk assessment which is to a large degree driven by objective measures and not his impression. So I take into account the report in the limited ways I have mentioned.

Principles

50I turn now then to some of the general principles at play in this sort of matter and when I say this sort of matter, I am speaking very broadly of child abuse or child sex offences.

51The general principles for sentencing in relation to this sort of matter are really not in doubt. Many of the general principles are referred to in the prosecution written submissions at paragraph 8(a)-(h). I am not going to repeat them all. There are additional factors set out within the Crimes Act 1914 (Cth) itself. See paragraphs 9-10 of the outline. I also have the matters set out in s20(1)(b) as well as the matters within the Criminal Code itself. See the Crown submissions, paragraphs 12-18. The written submissions deal with various amendments which have been made including the presumption of imprisonment in the absence of exceptional circumstances and the range of conditions which must be attached to a Recognisance Release Order, as well as the reasons behind the amendments. See paragraphs 19-29 of the Crown Sentencing Outline. None of these matters were in any way controversial. I am not going to descend to the detail of all of them. There is no point. The submissions then focussed on this particular charge from paragraph 30 onwards. I will not set this all out either, as again, there really was no great controversy, if any.

52This was a brief communication, that much is obvious.  Sometimes offences can span a sizeable period. There can be ongoing communication for days, or weeks, or months or years. Well, this one did not. As brief as it was, it unmistakably was directed by you to the topic of children. You drove the communication in that direction and you were not just joking. You were not just going along with Eva. You were not just being passive. You were actively grooming Eva to procure a child. It was not as spontaneous as suggested by your counsel given some of the lead up to the 6 January conversation.

53It is not to the point that you were not in the Philippines or intending to travel there. In any event, you seem to have had something of a penchant for travel and had travelled in the recent past to the Philippines and Vietnam. The seriousness of this offence is not to be gauged by the likelihood of actual physical contact between you and a child. This is a grooming offence. Had you gone further, well, the answer is there probably would have been some other charge, either grooming of a child, or procuring a sexual act with a child; or a more serious example of this offence had there been ongoing discussions with Eva; or a more serious contact offence under the Criminal Code had you gone to the Philippines and committed sexual activity. Well, I am not dealing with you for other crimes. I am dealing with you for this one. Nor it is it to the point that child abuse material was not discovered upon the execution of the search warrants. Mr Cummins seems to use that fact as somehow indicative of a lack of intent at the time of the communication, which is of course completely invalid. You admit by your plea your intent at the time of these communications. Had there been child abuse material found upon execution of the warrant, well you would have faced other charges. The absence of such material says very little, if anything, as to the gravity of this offence, for it does not impact upon your actual intent at the time that you communicated on 6 January.

54You were dealing with Eva, a woman in the Philippines, a person who plainly from the communications, was not prosperous. She had been engaged in conversations with you from 4 January and she had in that short time proved herself prepared and able to provide material to you. This was adult pornography, either photographs or videos. You had been paying her and she purported to be in contact with, as she described, the 'talent', the word that she used to describe players who would participate in footage. What was there to suggest that she would not act on your request to track down a child?  She was plainly not in a strong financial position and you of course were wielding what would seem to her to be the power of the Western dollar, whatever your financial state in this country. This was serious offending and the failure to have taken it further is simply not a matter in mitigation at all. It is really only the absence of a feature of aggravation. Well as I say, I will deal with you for this offence, the offence that you have committed.

55There is a strong public interest in protecting children. These provisions and many like them exist to protect children from the considerable harm that may be done to them by communications on the internet. Communications either with them or with others with a view to procuring sexual acts with a child. They extend now, as you learn, to protect children overseas from conduct in this country.

56You were 72 years of age. You were grooming, so communicating with a view to making it easier to procure a child to engage in a sexual act overseas. It is an unmistakably serious crime. It is inherently serious. The maximum penalty indicates Parliament's assessment of the seriousness of the offence. It provides a yardstick. There is no reduced culpability in this case. You were not labouring under some psychological condition that should lead to any sort of reduction in your culpability. Nor have you engaged in any treatment in the lengthy enough period since you were arrested last year. You have seen Mr Cummins once in April as I understand it.

57General deterrence is a very important, if not the paramount sentencing consideration in this sort of case. Less weight is given to an offender's personal circumstances. Quite aside from the statutory presumption of actual imprisonment which applies here, sentencing principles derived from a great number of cases make it plain that ordinarily, for offending of this kind, a prison term is to be expected.

58I take into account the matters that are set out within the relevant provisions of the Crimes Act, in particular ss16A(1) and (2), also s16A(2AAA). I have already said, general deterrence is obviously very important in this case. So too denunciation. I have to give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. I have to also pay regard to your rehabilitation.

59I apply the provisions of s272.30 of the Criminal Code to my task as well.

60Prison is always a disposition of last resort. Section 17A of the Crimes Act tells me what is obvious. It is always a disposition of last resort, whether imposing a sentence in a State sentencing exercise or in the Federal regime. Plainly though, prison is the only option here. There is just no question about that. Your counsel concedes that fact and he is right to make that concession.

61The first issue for me to determine is whether I can fix a release mechanism pursuant to a Recognisance Release Order or proceed with a head sentence and fix a non‑parole period. The length of the sentence determines that issue. A Recognisance Release Order cannot be ordered if a sentence of greater than 3 years is imposed. Secondly, if a Recognisance Release Order is the appropriate release mechanism, and I believe it is in this case, I must then consider the extent of any period to be served by you in prison prior to release. I have the statutory presumption in s20(1)(b) of the Act. Pursuant to that section, unless I am satisfied of the existence of exceptional circumstances that justify you being released immediately, you must serve a period in prison. No minimum period is specified so that provision could be satisfied by release after serving a single day.

62Consistency of sentencing is an important consideration. However, the Crown in their submissions advise me that there are no appellate level decisions dealing with the provision that I am dealing with, s272.15A of the Criminal Code. I have been provided with a single example of another sentence imposed by another Judge sitting in the District Court up in Queensland.[4] There are many differences in the offence and in the offender details, and really, that case does not assist me at all. Nor does the case of Guerrero which your counsel referred me to. It did not even deal with the exceptional circumstances statutory provision at all and it related to quite different legislative provisions and activity committed by that person. It was not in any way a comparable case. It had, for instance, a youthful offender and one who had engaged in a power of treatment and counselling prior to the plea. Nor am I greatly assisted by being referred to the Queensland decision of Tootell. There are many occasions where the term, exceptional circumstances, has been defined far closer to home, though I acknowledge that I am imposing a sentence in the Federal regime. That term, exceptional circumstances, has been employed in the Bail Act in this State for many years. It was employed in the Sentencing Act suspended sentence provisions, setting out what had to be established to avoid restoration of a suspended sentence upon a breach proceeding. Exceptional is an ordinary word. It has no special meaning.

[4]R v Fenton [2022] QDC (Judge Richards) 16 March 2022

63Prison is unavoidable here as is directly conceded by your counsel.

Sentence

64I will have you remain seated I think in the circumstances because my sentencing remarks still have some way to go.

65On Charge 1 you are convicted and sentenced to 24 months or 2 years' imprisonment.

66Of course, that is not the end of my task. The question then for me is how much of that sentence, if any, that you should serve before being released into the community and whether exceptional circumstances are demonstrated here. If not, well you must enter prison because there is no pre-sentence detention for me to declare. Well, as I have said, exceptional is an ordinary word. Exception circumstances means not 'usual'. Not run of the mill. Something that takes the case out of the normal or routine or the typical class. It is a high test, there is no question about that, but plainly it is not designed to be impossibly high. It is inserted into the Act for a particular purpose. It is clear that I am not limited to the matters that were initially referred to in the written submissions of either of the parties. It is for me to determine in this case whether there are either individual factors, or for that matter a range of factors which in combination amount to exceptional circumstances such that an immediate release is justified in this case. It is obvious that one is making something of a value judgment here. Reasonable minds might differ on the outcome of this sort of assessment.

67Your counsel pointed to a number of features. Amongst them, were your advanced age, your very unusual family and personal background in your early years, your strong work history, your lack of relevant criminal history, the brief nature of this communication and failure to progress it in the following months, your early guilty plea, a degree of contrition and strong rehabilitative prospects with a preparedness to engage in treatment and counselling. He was arguing that an immediate release was open here. That the combination of these various factors would amount to exceptional circumstances here.

68The Commonwealth Director of Public Prosecution represented by Ms Hill argued that despite some of the issues taken with some of the mitigatory submissions made on your behalf, that it would fall within my discretion to order your immediate release. They say in their written submissions that it is open in this case to find that exceptional circumstances have been made out and to order your immediate release.

69I have had some reservations as to that submission and since the plea was conducted I confess that I have spent a fair amount of time working my way through the matters in mitigation and aggravation as well as the relevant sentencing principles and the law in this area and considering whether exceptional circumstances are actually made out in this case.

70Part of my reason for holding such reservations is that none of these matters relied upon by your counsel considered individually are in my view exceptional at all.

71However, I would be falling into error looking only at the individual factors one at a time. What I must do is look at the combination of factors as well. Having done that and I can tell you by the barest of margins, I find that exceptional circumstances are made out owing to the combination of matters placed before me. I am fortified in that view by the stance taken by the Commonwealth Director, a stance telling me that such a finding is certainly open in this case.

Recognisance Release Order

72So that 24-month prison term will essentially be wholly suspended. Pursuant to s20(1)(b) of the Crimes Act, I propose to order that you be released from this Commonwealth sentence forthwith, that is, immediately upon giving security in the sum of $2,000, to comply with the following conditions. Some of these are mandatory provisions set out within the Act, some are general conditions.

73So there is a 24 month term of imprisonment with release forthwith, on the condition that – and I am proposing these matters, I will list the matters that I have in mind and I will hear from the parties as to whether there is anything I have overlooked or any wording that needs to be tweaked in any respect.

74Firstly there will be the mandatory conditions under s20(1B) of the Crimes Act. So the first of the mandatory conditions, this is something that I have to attach to the order. The duration is not mandatory but the first of those is that:

a)the defendant is to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for a period of 2 years; and

b)that the defendant is not to leave Victoria except with the permission of an officer at the specified community corrections centre for a period of 2 years; and

c)that the defendant is to obey all lawful instructions and directions of community corrections officers for a period of 2 years; and

d)the defendant is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs for a period of 2 years.

75So they are the mandatory conditions as I perceive them. Then there are general conditions.

General conditions

76Now the first of those is that the defendant:

e)is to be of good behaviour for 3 Years;

f)secondly, that you are to attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce re‑offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for a period of 2 years;

g)that you are to report - the defendant is to report to the Box Hill Community Corrections Centre by 4 pm on Monday 19 July 2023;

h)that the defendant is to report to and receive visits from a community corrections officer or officers for a period of 2 years; and

i)that the defendant is to notify an officer at the specified community corrections centre of any change of address within 2 clear working days after the change.

77So let me just look at those matters. That I think contains the full suite of mandatory terms and conditions that I intend to attach to this order.

78Ms Hill, do you see any issues with any of the wording there at all or not?

79MS HILL:  It would just be (g).

80HIS HONOUR:  (g).

81MS HILL:  You refer to Monday 19 July, we presume you mean June.

82HIS HONOUR:  I do, I say June. I thought I said June. If I said July, I am wrong. 19 June, yes.

83MS HILL:  No other issues.

84HIS HONOUR:  All right. Anyway, no other issues from your perspective?  Yes?

85MR CONNORS:  Your Honour, just as an abundance of caution, there is obviously a recognition by Mr Winter as to the effect and purpose of the RRO and that has to be explained, I am ‑ ‑ ‑ 

86HIS HONOUR:  Well I am going to do that.

87MR CONNORS:  Very good.

88HIS HONOUR:  Yes, I will explain it and – in a moment but I am just dealing with the terminology and you each agree then that there is no issue in terms of the way I have pronounced that order?

89MS HILL:  No issue.

90HIS HONOUR:  That is the order that I will formalise in one moment.

91HIS HONOUR: Your counsel is right, Mr Winter, I do have to explain the order and I am not sure there are many people who are roaming around the community who would have the slightest idea what a ‘recognisance’ is, I don't know why that language is employed. It is absurd.

92This is essentially your promise to do these things. You will be signing this document in a moment. I will be signing it as well and your undertaking to do the various things that are spelt out in the order, your promise to be of good behaviour for the next 3 years. It is your promise to comply with the various other conditions that I have spelt out for the next two years of the order, to do such treatment as you require to do, to turn up when you are told to turn up, to report to and receive visits, to let them know within 2 days of any change of address or employment, to obey all lawful instructions.  I mean, they are on the document, you will see them and they are the promises that you are making and that is the basis upon which you are not today going to prison. That you are making these promises.

93It is like a suspended sentence, a disposition that has lapsed in the State sentencing armoury some years back. But in this case, what I have done is I have imposed a 2 year term of imprisonment but today you are going to leave via the public exit, not go down in the van to prison because essentially that term is suspended. It is suspended over your head subject to you complying with these promises. Some of these promises relate to things you must do for the next 2 years. There is also the promise to be of good behaviour for the next 3 years. Breach any of these conditions, breach any of them, and you will be breached on this Recognisance Release Order. You will be brought back before me for breach.

94The recognisance will be in the sum of $2,000. So the starting point is you would be forfeiting an amount of $2,000. You do not have to ‘stump that up’ now but if you breach it, you will be forfeiting that amount.

95But that is not the real sting. The sting is this. You breach this order, you will be brought back before me, and then I have to deal with you under the provisions of the Crimes Act for breaching this Recognisance Release Order. There are various options that are open to a court. A court can make no order. A court can make another order, a court can fine you. All sorts of things can be done.

96But if you breach this order, what you should expect is that you will be ordered to serve that 2 years that has been held on suspense, right?  That is one of the options open to a court and it really is the most commonly exercised option when a person is brought back for breach. You should treat that as the most likely outcome.

97Breach this order, breach any of the conditions, fail to be of good behaviour, or do not do the things that are requested of you, you will brought back for breach and you should expect that you will receive a term of imprisonment.

98I should tell you. It is pretty obvious but you commit any sort of offence like this ever again and of course you will be breaching this order if it occurs in the next 3 years.  Further, this offence as a second or subsequent offence, is punishable by a mandatory period of 4 years' imprisonment, right?  So you should be under no illusions. If you commit anything like this ever again, you will go to prison for a sizeable period of time. Let me just see if there is anything else I need to explain.

99Are you satisfied that I have adequately explained the effect of the order, Ms Hill?

100MS HILL:  Yes, Your Honour.

101HIS HONOUR:  Yes. You, Mr Connors, do you need to – I am going to get him to sign it, does he understand what he is going to be signing?  If he does not, I am happy to let you speak to him.

102MR CONNORS:  No, Your Honour, I think that anyone would have understand that direction ‑ ‑ ‑ 

103HIS HONOUR:  Yes.

104MR CONNORS:  ‑ ‑ ‑ and the import of breach.

105HIS HONOUR:  He’s got 2 years prison over his head, whether it is ever served by him is entirely in his hands. So if he breaches this serious order then he will be brought back and he will wind up in prison. That is what it amounts to.

106MR CONNORS:  And obviously, Your Honour, I was just talking about this with my learned friend, there is the requirement as a result of the finding of guilty, that he be placed on the Sex Offenders Register and that is obviously part of his regime.

107HIS HONOUR:  Well let me just deal then with the – we might have that come down to the Bar table, just both of you have a look at it and tell me if there is any issue. If there is none then I will have my associate take the order over for signature.

108Is there any issue in terms of that at all or not?

109MR CONNORS:  No, it all seems perfectly in order, Your Honour.

110HIS HONOUR:  All right, well I will have that order taken over for signature, thank you. Right, Mr Winters, stand up then please. Thank you. Do you acknowledge that you have signed this document?

111OFFENDER:  Yes.

112HIS HONOUR:  All right, and that you have – understand the effect of this order, that essentially you have got this 2 years' imprisonment over your head, you must be of good behaviour for the next 3 years, you must also comply with the various conditions attached to the order for the next 2 years and you understand the ramifications if you breach this, you will brought back before me. You understand that, and likely sent to prison, do you understand that?

113OFFENDER:  Yes.

114HIS HONOUR: Well thank you, grab a seat then for a moment. You will get a copy of this order. I am not sure I made it plain but I think the order probably has. His requirement will be to report to the Box Hill Community Corrections Centre within the 2 clear working days.

115MR CONNORS:  I will certainly make that clear, Your Honour.

Section 17A

116HIS HONOUR:  I am obliged to state my reasons for proceeding to impose a term of imprisonment that is notwithstanding the fact that you are not going immediately to prison. It is still a term of imprisonment.  It is obvious that no other sentence was appropriate in this case, given the nature and the gravity of the crime that you have committed and this was a fact that was conceded by your own counsel. So my sentencing remarks will state the reasons why there was no other alternative but to impose a term of imprisonment.

6AAA

117I have also told you that I have reduced your sentence and I have done that because of your guilty plea. I now reveal to you the dimensions of the reduction. I have taken into account your guilty plea. If you had been convicted of this offence following a trial, I would have sentenced you to be imprisoned for a period of three and a half years. There would have been no capacity to fix a Recognisance Release Order in such a setting as that I would have fixed a non-parole period of two years and that statement is to be noted in the records of the court.

Sex Offender Registration

118You have been sentenced by me in relation to what is described as a Class 2 offence. That is a Class 2 offence under the Sex Offender Registration Act 2004. This triggers an obligation for you to report and comply with your obligations under the Sex Offender Registration Act.

119You must comply with your reporting and other obligations under that Act for the next 8 years. The failure to comply with your obligations under that Act is itself a criminal offence. It is punishable by a term of imprisonment. There are many ways in which people breach their reporting obligations. You best not be one of them because if you are and it occurred in the next 3 years, you would also breach this promise to be of good behaviour.

120I have a document that will be brought down to you in a moment. You will need to acquaint yourself with that document in due course. It is impossible to think that you are going to sit there now and understand everything in it. I am not expecting you to do that. It is a very lengthy document.  What I am doing now is I am providing for you a document to sign and in signing you are just acknowledging that you have received the more detailed explanations as to your responsibilities under that Act.  When you get a chance to read it, you will see that the Sex Offender Registration Act imposes a number of conditions upon you. They are serious matters. They include all sorts of matters, including for instance, impediments to any future employment in a number of areas.  There are some serious impediments to your future contact with children and your obligation to report any contact and for that matter an obligation to report any change of details. You are really going to need to familiarise yourself with these matters and get legal advice if needs be.  As I say, a breach of your obligations under this Act is itself a serious criminal offence. It is punishable by a term of imprisonment and it would itself breach the terms of this promise that you have made a short time ago.

121Mr Connors, you may or may not have seen these documents, they are very lengthy. As I say, I am just dealing with the notification of his reporting obligations. It is a very lengthy document; I am not expecting that he is going to sit there and read it now. It would be impossible for him to do that. It goes into all his requirements under the Act including his need to have the initial report. He will need to read it. He will need to have it explained to him if there is a need for explanation. I think there will be. If he needs any advice he can no doubt get it from you but he is being merely asked at this stage to acknowledge by his signature the receipt of the notice under the Act. Do you understand that?

122MR CONNORS:  Certainly it's the receipt Your Honour, but in circumstances like this I have normally asked my instructors to make sure they understand this at a later time.

123HIS HONOUR:  That is fine.

124MR CONNORS:  Yes.

125HIS HONOUR:  There is obviously generally a reluctance to sign something you have not read. All he is doing is signing the acknowledgment.

126MR CONNORS:  Yes.

127HIS HONOUR:  That is really the point I am making.

128MR CONNORS:  Receipt.

129HIS HONOUR:  I have signed it myself so I will have it brought to him so he can sign it then please. Thank you.

130Yes, all right, well that has been acknowledged by this signature. So let me just see, are there any other matters I need to deal with then at all or not?

131MS HILL:  No, Your Honour.

132HIS HONOUR:  No. From your perspective, no?

133MR CONNORS:  No, Your Honour.

134HIS HONOUR:  Right, well thank you. That completes the matter then so I will adjourn to 10 am tomorrow then please.

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