Director of Public Prosecutions v Wood
[2018] VCC 769
•25 May 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01563
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON WOOD |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat (sitting in Melbourne) | |
DATE OF HEARING: | 14 May 2018 | |
DATE OF SENTENCE: | 25 May 2018 | |
CASE MAY BE CITED AS: | DPP v Wood | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 769 | |
REASONS FOR SENTENCE
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Catchwords:
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Ms M. Casey | GTC Lawyers |
HER HONOUR:
1
Brandon Wood, you have pleaded guilty to one charge of possession of child pornography. The maximum penalty applicable to that offence is ten years’ imprisonment. This crime arises out of events which took place on
26 December 2016, the particulars of the possession involving 212 images and 51 movies of child pornography on your mobile phone.
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 (Exhibit A). I proceed to sentence you on the basis of the facts as summarised and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious.
3 I turn to a brief summary of your offending.
4 At the time of this offending you were 19 years of age. At sentence you are 21 years of age. You lived with your parents in Ballarat, employed as an apprentice cabinetmaker with Smithbuilt Kitchens and Cabinetry at the time of your offending.
5 On 22 December 2016, Smithbuilt Kitchens and Cabinetry held their Christmas party. You attended along with Benjamin Madden and Lauren Goldsmith, both employees of the company. Rory Patterson, a friend of Madden, also attended the party.
6 Throughout the evening Patterson and Madden obtained your green Apple iPhone and searched through the photo gallery on the phone. They located a folder labelled ‘Recently Deleted’ and opened the folder on the phone.
7 Patterson and Madden observed images of young female children in sexually explicit poses within the ‘Recently Deleted’ folder. They spoke to Goldsmith and showed her the images they had located. The images viewed included young female children masturbating, performing oral sex on an adult male and in sexually explicit poses.
8 Goldsmith photographed the images with her own mobile phone and contacted Ballarat Police.
9 On 23 December 2016 Goldsmith attended the police station and spoke with police. The images on her phone were viewed by police, subsequently photographed and stored in a secure folder in the Ballarat SOCIT internet files.
10 Goldsmith was instructed to delete the photographs from her phone, which she did in the presence of police.
11 On 26 December 2016 a search warrant was executed at your home.
12 A green Apple iPhone belonging to you was seized and in your presence the ‘Recently Deleted’ folder of photographs on the phone was accessed.
13 Police viewed images of young female children in sexually explicit poses.
14 The SIM card was removed and the phone was conveyed back to the police station for secure storage.
15 Police also located a Lexar USB stick, a SanDisk USB stick, a black computer tower, a Toshiba grey laptop in a black case and a Dolphin USB stick from your home.
16
You were arrested, taken to Ballarat Police Station and interviewed on
26 December.
17 During the interview, you said you had pictures of little girls and some of young teenagers on your phone. You agreed some were younger than puberty and some looked like they are pre-school or young primary school. You said the children were naked and in several photos the females were digitally penetrating themselves and performing oral sex on adult men. You said you had obtained most of the photographs of child exploitation material from the INGUS.com website.
18 You said you had been looking for adult pornography when you located a website called INGUS.com. You said you saved photos in the normal camera roll in your mobile phone. You had deleted some of the photos, but they were still present in a folder on your phone labelled ‘Recently Deleted’.
19 You told police they would not find any child pornography on any other devices seized from your property.
20 You said you accessed the website every day for a couple of months using your mobile phone and that some of the images may have doubled up.
21 You said looking at the photos sometimes made you ‘horny’.
22 You communicated with other males through OMEGLE, a chat roulette website, and during your communications sent some of that material you had downloaded to other users.
23 You did not know the identity of the people to whom you sent the images.
24 You said it was ‘relatively correct’ to say you were attracted to younger children.
25 Your Apple iPhone was conveyed to e-Crime Squad and items on the mobile phone were reviewed. The material was categorised in accordance with the Australian Child Exploitation Material (CEM) Categorisation Scheme. Investigators located 212 images of such material and 344 images of adult pornography, the latter, of course, not relevant here. The images of child exploitation material involved 111 images Level 1, 24 Level 2, ie: sexual activity between children or solo masturbation, 32 of Level 3 images, non-penetrative sexual activity between adults and children, 44 Level 4 images of penetrative sexual activity between children and adults.
26 The investigators also located 51 movies of child exploitation material and 41 movies of adult pornography, the latter, of course, not before the court. The movies of child exploitation material involved five Level 1, 17 Level 2, four at Level 3, 23 at Level 4 and two at Level 5, sadism and bestiality.
27 You were committed to the County Court on 3 August 2017 at the first committal mention. The matter proceeded by way of straight hand-up brief with a plea of guilty then being entered to this charge.
28 As at the date of your plea hearing you had not spent any time in custody.
29 By your plea of guilty to this charge, possession of child pornography, which is a Schedule 2 offence, pursuant to the Sex Offenders Registration Act 2004, you are required to report period for 8 years. Your counsel, Ms Casey, agreed such classification and duration applied to you.
30 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. By your plea of guilty, the community has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Further, I take into account, in your favour, you intimated early your intention to plead guilty to this charge. I note you also made admissions to having that material on your phone when interviewed by police.
31 Your intention to plead guilty was indicated at the earliest opportunity and I take that into account in mitigation of your sentence.
32 In all the circumstances, I accept your plea of guilty indicates remorse for your offending.
33 I note you do not have any prior court appearances, nor is there anything subsequent or pending.
34 Your offending, however, is very serious and as the authorities have made clear, whilst good character is not eliminated when sentencing for such offending, it is given less weight.
35 Your counsel, Ms Casey, provided a written outline of submissions and addressed those during the course of the plea hearing. Her submissions were thorough and comprehensive.
36
Ms Casey submitted at the outset she was ultimately urging, by way of disposition for your offending, a community correction order. In particular, she relied upon your age and vulnerabilities referred to in the report of both
Mr Cummins and Mr Lake, to which I shall shortly refer, your remorse for your offending, and your engagement in your own rehabilitation, specifically attending with Mr Lake for approximately ten sessions.
37 Ms Casey also relied upon not only the two reports to which I have just referred, but also a letter from you, dated 11 May 2018 (Exhibit 2) and character references from Kerry Gordon, dated 8 August 2017, and from Phillip Wheat, dated 11 May 2018.
38 Ms Casey, on your behalf, conceded offences of this type were inherently serious and she is correct. I also note the number of images, photos, graphic images, and movies you had, and their respective CETS category level.
39 Whilst this material was not possessed by you for the purposes of sale or profit, you did send some of this material to others, consistent with the prosecution opening.
40 Ms Casey submitted that in the ‘ordinary case’, a term of imprisonment would usually be anticipated. That submission was in accordance with the authorities to which I shall soon refer. Ms Casey, however, urged you did not fall into an ‘ordinary case’ due to your youth and vulnerabilities.
41 Ms Casey submitted you pleaded guilty at the earliest opportunity and, as I said, I accept that was so, and also that you made full and frank admissions. As I have already said, I accept that was so.
42 Ms Casey also relied upon there being a delay of approximately 17 months since your offending and your plea hearing. In that time, you had not committed any further offending. In that time, you turned 21 years of age and were therefore ineligible for a Youth Justice Centre disposition. The delay was not of your making but, it seems, related to listing problems in the Ballarat circuit. I accept that over that time you have had the stress of these proceedings hanging over your head and have not re-offended and have also engaged in your own rehabilitation. I accept her submission reflects positively on your prospects of rehabilitation.
43 I note you lost your employment as a result of this offending.
44 Ms Casey referred to your background and circumstances, much of which was contained in the reports of Mr Cummins and Mr Lake, and I will not repeat those details here.
45 She relied upon your lack of prior criminal history, and I also note that. However, as I discussed with Ms Casey, prior good character, whilst not eliminated, is of less significance in offending such as yours.
46 Ms Casey referred to the reports of Mr Cummins and Mr Lake and conceded she was not relying on the principles in R v Verdins & Ors[1] when sentencing you. That, in my opinion, was an appropriate concession on the material before me.
[1] (2007) 16 VR 269
47
I do, however, accept that your age and immaturity, as described by both
Mr Lake and Mr Cummins, it is likely you would be vulnerable in a prison system, more so than someone with greater maturity and of advanced years.
48 I also note from the report that, to your credit, you commenced seeing Mr Lake within days of you being charged. It appeared, according to Mr Lake, you had now gained an understanding of the immense damage your conduct causes to the children, the subject of the images. I shall shortly refer to the reports of Mr Cummins and Mr Lake in some detail.
49 Ms Casey submitted it was the opinion of Mr Cummins you were a low-moderate risk of re-offending and at the low end of that scale. Mr Cummins noted, as do I, to your credit that you had already embarked upon a course of offence-specific treatment. Continuing with that work and with your employment, he suggested, would be of assistance in your rehabilitation.
50 Ms Casey relied upon you being a youthful offender and urged the principles of R v Mills[2] had application. Rehabilitation of a youthful offender is an important sentencing consideration. She urged you had strong prospects for rehabilitation, given your age, lack of priors, good work history, and the seeking of counselling.
[2][1998] 4 VR 235
51 I am of the opinion your rehabilitation prospects are quite good, providing you maintain your appreciation of the inappropriateness of your offending, and maintain continued awareness of the seriousness of it.
52 Ms Casey also submitted you were remorseful, and I accept that is so.
53 Two reports were before me.
54 I turn firstly to the report of Mike Lake, Psychologist, apparently undated. He conducted a psychologist assessment and saw you on ten occasions between 24 May 2017 and 16 August 2017. In conversation, it was noted you were anxious and for much of your time with him were preoccupied with this pending case.
55 Mr Lake saw no indications of perceptual or cognitive dysfunction and concluded you were of at least average intelligence, although he did not formally test you in that regard.
56 In the opinion of Mr Lake, you had adequate levels of insight into your circumstances. However, in the earlier sessions with him you appeared not to appreciate the seriousness of your current legal situation. He said you now apparently realised you should have taken a more mature approach to becoming involved in this offending. You certainly should have.
57 Test results were consistent, he opined, with a person susceptible to pressure and stress although unlikely to seek assistance, admit to a problem or assert your point of view to deal with any issue more positively.
58 You had difficulty trusting others and avoiding problems. You did not necessarily think in the long term.
59 You were not likely to be well organised in the workplace or in your daily life. You tended to bottle up your emotions.
60 Mr Lake referred to your background. You were living with your parents in Ballarat and had done so for approximately three years doing odd jobs to help them around the motel they managed. Most of your extended family and childhood friends remained in New Zealand.
61 You described your school years as ‘not happy’ and described yourself as ‘a fat, chubby kid who loved food’ and a quiet student. You had difficulty making friends and focussing on school work. You said you ‘just passed HSC and were frequently bullied’.
62 When you left school, you took up an apprenticeship in joinery and at the time of Mr Lake’s report, you were still undergoing that apprenticeship. I was told, whilst effectively in your third year of your apprenticeship, due to papers incorrectly submitted, you are ultimately about to officially complete your first year of your apprenticeship.
63 Your current social circle was limited mainly to male friends who "game" extensively with each on the internet, apparently strategy and war games, rather than having specific sexual content.
64 Your relationships and sexual activity with females has been limited (see paragraph 10 of his report). I will not repeat it here.
65 You described being halfway through your apprenticeship at the time of the report prepared by Mr Lake and described your current employer as good to work for. This was updated during your plea, as I said.
66 Mr Lake conducted a risk assessment which yielded the results contained within his report (paragraph 14).
67 In response to questions raised specifically by your legal representatives, in the opinion of Mr Lake, you were currently suffering from depression with high levels of worry, frustration, vulnerability, confusion, low self-esteem and anxiety. In his opinion, it was most likely you were suffering from these conditions at the time of ‘some of the offences’. You had expressed remorse. Your insight had initially been limited, however, had deepened particularly in relation to life consequences. In the opinion of Mr Lake, you should be able to access appropriate treatment programs through Corrections and Forensicare. You would likely benefit from targeted individual behavioural counselling to develop insight, social skills and confidence.
68 In the opinion of Mr Lake, given your psychological vulnerability, low resistance and lack of relationship skills, imprisonment would possibly be harmful to you. You would be more likely to be victimised in the prison system.
69 In the opinion of Mr Lake, regardless of the outcome of this case (ie: sentencing), you should continue to seek appropriate counselling support, including developing insight and skills in appropriate social sexual behaviour, it was essential. You lacked a degree of maturity and insight but were, in his opinion, capable of developing that.
70
Also before me was a report from Mr Jeffrey Cummins, Clinical and Forensic Psychologist, dated 1 September 2017, who saw you for assessment on
18 August 2017.
71 At interview, Mr Cummins described you as presenting as apologetic and embarrassed, albeit cooperative, interviewee, then just 20 years of age.
72 By way of further details of your background and history, Mr Cummins noted you relocated to Australia in the company of your parents in 2012. You completed your schooling in Australia in 2015 then relocated to live with your parents in Ballarat to assist you to undertake your cabinetmaking apprenticeship. As I said, your parents manage a motel in Ballarat.
73 Your parents remain supportive of you.
74 You reported you had never been a victim of any physical domestic violence or of being sexually abused.
75 You were sacked from your employment with Smithbuilt Kitchens as a result of this material being found on your phone. You then worked at BK Joinery for one and half months but, through no fault of yours, that work ceased. You then worked at Cuban Design in Lavington. You were, at the time of his report, undergoing an apprenticeship with Devine Cabinets in Hoppers Crossing.
76 Mr Cummins noted you had been recently seeing Mr Lake through a mental healthcare plan provided by your general practitioner, Dr Brophy.
77 From the comments made by you at interview regarding your previous relationships with females, he concluded you were psychosexually immature and generally immature.
78 Regarding your offending, you said you first observed child pornography while browsing in the adult internet website when you were 15. From that time, intermittently and accidently you saw child pornography that appeared on your electronic devices when looking at adult pornography.
79 For approximately two to three months prior to your arrest, you had been viewing child pornography on your phone through an adult pornography website.
80 You acknowledged you located multiple child pornography images and videos on that website. You said your primary focus in viewing the child pornography images and videos was on females who were post-pubescent.
81 You acknowledged that whilst viewing the child pornography images and videos, you would sometimes masturbate to that material.
82 Mr Cummins described your social skills as relatively unsophisticated.
83 At interview with Mr Cummins, you apologised for your offending behaviour, and expressed embarrassment, shame and remorse for it. You said you were optimistic you would be able to adopt a more positive attitude about yourself and life, to adopt a more constructive attitude to experimenting with your sexuality.
84
You said it was not until spoken to by police and receiving feedback from
Mr Lake that you appreciated that the persons depicted in child pornography images and videos had been subjected to sexual abuse in the production of the material.
85 Turning to your risk assessment, Mr Cummins utilised the Static-99R and RSVP assessment tools, and the results contained within his report (paragraphs 32 – 38).
86 Based on the information that he had, it was his opinion your current risk of reoffending was low-moderate trending towards low.
87 You told Mr Cummins you had learnt your lesson and were aware that you would inevitably be made a registered sex offender and directed to participate in group-based sex offender programs. Mr Cummins expressed concern you might have difficulty participating in group-based treatment.
88 At interview with Mr Cummins, you presented as moderately anxious and moderately depressed, having been aware you could be incarcerated for this offending.
89 Mr Cummins noted you made full admissions to police when interviewed. Further, you were now receiving offence-specific treatment with Mr Lake. You presented as generally immature with a history which indicated that you were psychosexually immature. You presented also with a dependent personality style.
90 In the opinion of Mr Cummins, one of the most important protective factors for you was your employment and continued undertaking of a cabinetmaking apprenticeship.
91 In his opinion, your mental health would inevitably deteriorate if you were incarcerated in an adult prison. In his opinion, if incarcerated there would be a high probability you would draw negative attention to yourself because of your general immaturity, your psychosexual immaturity and your relatively poor communication skills. You presented as quite a psychologically vulnerable person who could be taken advantage of in a custodial setting.
92 I turn then to the relevant case law and gravity of offending. Regarding the offence of possessing child pornography, there has been an increase in the penalty for such offending. Prior to 22 November 2000 this charge was a summary offence punishable by a maximum term of imprisonment of two years' imprisonment. Then in 2007 this charge became an indictable offence, in other words, up to this court, with a maximum penalty of five years’ imprisonment, and later a maximum penalty of ten years’ imprisonment.
93 At the time of the increase from two to five years, his Honour Vincent JA noted in R v Curtain[3] at paragraph 25:
“The increase in penalty and the categorisation of the offence as indictable were obviously intended to ‘send a clear message’, to use the expression employed by the Attorney-General in his Second Reading Speech introducing the amendment, of the serious view that was taken of the possession of child pornography by this community and to increase the deterrent effect of the law.”
[3] [2001] VSCA 156
94 It is, of course, is not ten years' imprisonment. It is clear from legislation in both the Commonwealth and the State that the respective Parliaments are united in their endeavour to minimise, if not eliminate altogether, child sexual abuse.
95 A number of cases over the years have referred to the sentencing principles applicable, in particular, embodied in the Commonwealth Crimes Act. There are many of those cases that are concerned with possession of child pornography, and the principles which emerge, in my opinion, are equally applicable to the subject charge here.
96 In R v Jones[4], the increase in the penalty for possession of child pornography was described as follows:
“It is apparent that ... Parliament is inviting courts vigorously to pursue the objectives of general deterrence and denunciation in sentencing offenders.
...
The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims. ...”
[4] (1999) 108 A Crim R 50
97 In R v Liddington[5], a decision of the Supreme Court of Western Australia, the court said:
“The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind. It may also be said that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images.”
[5] (1997) 18 WAR 394 at 403
98 In R v Jongsma[6], Batt JA noted:
“...considerations relevant to the gravity of the offending include the volume of pornographic material possessed, the degree of its depravity and the length of time for which it was possessed.”
[6] (2004) 150 A Crim R 386
99 Clearly, courts need to deter people like you from collecting, retaining and disseminating such material and, in your case, possessing it.
100 I acknowledge, of course, the ambit of the charge that is before me, and you are not being sentenced for the activities of others in producing this material and, of course, I must not take into account matters which are not part of the offence actually before me.
101 The need for general deterrence has also been considered by the courts to be a paramount consideration for this type of offending, which is an international problem.
102 The secrecy within which offences such as this are often committed creates difficulties also for detection and prevention.
103 By accessing and further transmitting this pornographic material, there is a contribution to the creation of a market for the exploitation of children.
104 It is now well recognised that in the context of this kind of offending, as I have said already, prior good character is of less significance (albeit, I note, not eliminated).
105 In R v Gent[7], a case which involved importation of child pornography (not, of course, the charge that is now before me), the relevance of prior good character was discussed:
“There is authority in support of the approach of attaching less weight to prior good character for child pornography offences. ...
It appears to be a common feature of [such] offences ... that the offender is otherwise of good character, is in good employment and of sound reputation ...
There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography.” (I note not this offence) ... “General deterrence has been referred to as the ‘paramount consideration’ on sentence for this class of offence ...”
[7](2005) 162 A Crim R 29
106 Those comments were quoted with approval in Mouscas v R[8] which concerned an offender who pleaded guilty to one charge of possessing child pornography.
[8] [2008] NSWCCA 181
107 The court in Gent also referred to:
“... a range of factors [which] bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include:
(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
108 Possessors of child pornography promote the production and distribution of child pornography, and the production of this type of material frequently involves direct child abuse in one form or another.
109 Increased access to the internet has exacerbated the problem of detecting and prosecuting child pornography offences by making pornographic images far more accessible.
110 Turning to relevant sentencing principles, Ms Casey submitted correctly, specific and general deterrence, rehabilitation and community protection were all relevant sentencing considerations.
111 She urged, notwithstanding, the serious nature of your offending, I have you assessed for a CCO. I discussed that at some length with her as the transcript will reveal.
112 Mr Doyle, who appeared on behalf of the prosecution, conceded a Community Correction Order without a term of imprisonment attached to it would be within the appropriate sentencing range.
113 I turn to your correspondence to the court. You referred to currently enjoying your cabinetmaking apprenticeship at Hoppers Crossing. You expressed remorse for your offending, and took full responsibility for it. You said you were aware there was no excuse for your behaviour, that you had found it humiliating telling your parents, older sister and friends. But they continue to support you.
114 You described following being charged with this offending and attending your local GP, being prescribed anti-depressant medication and being referred to
Mr Lake.
115 As I said there were two references before me which I have read, one from Kerry Gordon and also a reference from Phillip Wheat, to which I have previously referred.
116 I received a community correction assessment report prepared by Eva Kafkalas. In that report, you were assessed as suitable for a community correction order should I impose the same. The likely conditions of an order were explained to you by the Corrections officer and you consented to being on such an order.
117 In the decision of Boulton and Ors v The Queen[9], the court was urged to "rethink the conventional wisdom about whether prison is really the only option" and such orders have both a rehabilitative and punitive aspect to them.
[9][2014] VSCA 342
118 CCOs have been referred to and addressed in a number of cases since, including DPP v Maxfield[10], Alam v The Queen[11], Hutchinson v The Queen[12], and relatively recently Gul v The Queen[13]. The list is by no means exhaustive.
[10][2015] VSCA 95
[11][2015] VSCA 48
[12][2015] VSCA 115
[13] [2016] VSCA 82
119 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, which I find to be reasonably good, I must also take into account general deterrence, which is of considerable importance in a case such as this.
120 Also, the need for specific deterrence. Of course, I acknowledge you do not have any prior court appearances; however, this activity of possession on the one day involved a considerable number of images.
121 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re-offending. In that regard, I am comforted somewhat by the risk assessment of Mr Cummins. Of course, any further treatment that you undertake relevant to the sex offender program will only further decrease concerns I have for members of the community.
122 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct, and generally to impose just punishment.
123 I have determined that the appropriate sentence to impose, subject to your consent to it, is a Community Correction Order. It will be with conviction and for a period for 3 years from today's date, being 25 May 2018.
124 Now, before I ask if you to consent to such an order being made, I need to tell you more about the order. Whether you want to hear it or not, I have to tell you because then I will ask you if you consent to the order, which will be recorded should you breach it later on, so listen carefully.
125 These core conditions apply to a Community Correction Order, all of them, including yours:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment. In the next three years, it can even be a driving offence. You could find yourself breaching this order. You have got to be extremely careful.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, Corrections officer if you like, for 3 years.
·You must report to the Community Correction Centre at Ballarat Community Correction Centre, 206-208 Mair Street, Ballarat before 4.00 pm on 29 May 2018. If you are a minute late, you breach the order, potentially, you follow? You are back before me, I have to re-sentence you and the options run out, I can assure you. You have got to report.
·Now, you have to notify the Secretary or his or her nominee, i.e., a Corrections worker, of any change of address or employment within two clear working days after that change. You move address, whatever, you must tell them. You change your job, you must tell them within two days otherwise you breach the order.
·You must not leave Victoria except with the permission of the Community Corrections Order officer. All right? You cannot go holidaying anywhere outside Victoria unless you have permission, and that is for three years.
·You must comply with any direction given by the Community Corrections worker. Any direction they give you, you must do.
126 But there are a number of other conditions that apply to you, these are extra conditions:
· You must perform 250 hours of unpaid community work over a period of 24 months, as you are directed (s48C). I note you reported no health issues or other impediments to completing unpaid community work.
· You must be under the supervision of a community corrections officer for a period of 3 years.
·You are required to be supervised, monitored and managed, as I have said (s48E).
· 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 (s48D(3)(e)). If they tell you you have got to have some assessment you have got to go, you cannot say, "Don't want to." Well, you can but you will see me pretty quickly after that.
· You must undergo programs or courses aimed at addressing factors relating to your offending (s48D(3)(f)), and that will include assessment by the Sex Offender Advice and Treatment Services. It is anticipated there will be an assesment to determine your risk of sexual reoffending and any associated counselling. If they say you have got to go, you have got to go.
· Now, you have to attend for review of your progress and compliance or otherwise with this order and you have got to come back before me on 24 May 2019 at 9.30am, so you have to come and see me in a years' time on the day before today, which I am just making sure it is - it is a Friday as well. Well, there you go. Friday 24 May, 9.30, I want to see you. You either turn up here in person or you arrange a video link. But it is risky you doing that, I think you are going to have to turn up in person, 9.30. If you are still working and you still got time, problems, you just tell them you have got to be somewhere else, take a sickie or something, but make sure you are here at 9.30.
· Now, listen carefully to this one, this is one I add to corrections orders. I direct that I be advised by your corrections officer of any non-compliance with these conditions (s48(1)) and I will then determine if the matter should be brought back before me to encouarge you to comply. I am not breaching you but if you do the wrong thing I will find out about it. Depending on what it is, I will bring you back and we will have a little chat about it. Be careful, be careful otherwise you will be breached. I do not breach but you have got to be careful.
127 Now, as I have said, I can only impose a community corrections order if you agree to it. So I have to tell you more about it.
128 I should advise you that if you breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach, so breaching the order, you get a - that is a charge that comes for that, that goes with that as well, and you can go to gaol.
129 You must be extra careful for the next three years. You can also be re-sentenced for this offence before me and one of those options includes a term of imprisonment. So you have to be extra careful for the next three years, no committing any offences that might incur a term of imprisonment; it could be driving, it could shoplifting, it could be all sorts of things. Otherwise you are back before me an di have to re-sentence you on this charge. In other words, I have got to think of something else to do with you and I can assure you the options are nil, it is gaol. All right, so you have just got to be careful. Knowing all of that, do you want to go and ask him or do you think he understands?
130 MS CASEY: I think he understands Your Honour.
131 HER HONOUR: Right. Nice loud voice, do you consent to the order being made?
132 OFFENDER: Yes.
133 HER HONOUR: All right. All right, I turn then to sentence. I am not going to repeat all that again, I can assure you.
134 But on Charge 1 you are convicted and placed on a community corrections order for a period of three years, with all those terms and conditions to which I have just referred.
135 Now, pursuant to s6AAA, Sentencing Act 1991, the sentence that would have been imposed if you had been convicted of these offences after trial, in other words if you had pleaded not guilty but had been found guilty of this offence (which you did not, but if you did), I have got to tell you this, I would not have imposed a community correction order rather I would have sentenced you to 4 years' imprisonment with a non-parole period of 2 years and 6 months.
136 The prosecution made application for a forensic sample. Ms Casey submitted that was ultimately a matter for me. In my opinion, it is appropriate the order be made and I do that on the basis of the seriousness of your offending. It will be for a saliva sample, so you will have to give a saliva sample. You will be given the paperwork in a moment and I must advise you the authorities may use reasonable force to obtain that sample.
137 The prosecution made application for a disposal order, consented to by counsel on your behalf and I make the order in the terms sought.
138 By your plea of guilty to this charge, as I have previously said, you are required to be registered pursuant to the Sex Offenders Registration Act, for a period of 8 years. Your counsel did not disagree that such classification would apply to you.
139 Should I need to revisit this sentence in the future, which I hope I do not, but I record that you have currently not served any time in custody by way of pre-sentence detention, pursuant to s.18(4) but that is simply to remind me to save me if I have to revisit the sentence in the future, but I hope I do not.
140 Now, my associate, in a moment, is going to walk down the back to get you to sign the documents for Sex Offender Registration Act. When you are signing that I am not asking you if you want to be on the order, I have made that. You are simply being asked to sign for the paperwork, nothing else. If you do not want to sign, so be it, but she has to ask you. All right? So you want to go down the back there in a minute? We will get the Community Correction Order prepared.
141 MR SHARPLEY: If I can hand up the forensic sample order, Your Honour.
142 HER HONOUR: Great.
143 MR SHARPLEY: And there was also a disposal order sought, I think.
144 HER HONOUR: All right, I am handing these down. Nothing further?
145 MR SHARPLEY: Nothing further, Your Honour.
146 MS CASEY: No, Your Honour.
147 HER HONOUR: All right, thanks. All right. Thanks.
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