Director of Public Prosecutions v Wright-Smith
[2025] VCC 839
•23 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-24-01582
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN WRIGHT-SMITH |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2025 | |
DATE OF SENTENCE: | 23 June 2025 | |
CASE MAY BE CITED AS: | DPP v Wright-Smith | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 839 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Sexual penetration of a child under the age of 16 – Failure to comply with reporting obligations – Producing child abuse material – Possessing child abuse material – Guilty pleas following a sentence indication – Totality – Relevant prior history – Standard sentence – Serious Sexual Offender provisions.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:Gordon v R [2013] VSCA 343; Cairncross v The King [2025] VSCA 117; DPP v Dalgleish (2017) 262 CLR 428; R v Verdins (2007) 16 VR 269.
Sentence: Total effective sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry Ms E. Corridon | Office of Public Prosecutions |
| For the Accused | Ms E. Allan | Andrew Taylor Lawyers |
HIS HONOUR:
Introduction
1Justin Wright-Smith, you have pleaded guilty on indictment to:
(a) One rolled-up charge of failing to comply with reporting obligations, contrary to s 46(1A) of the Sex Offenders Registration Act2004.[1] This offence carries a maximum penalty of 5 years’ imprisonment;
(b) Two rolled-up charges of sexual penetration of a child under the age of 16, contrary to s 49B(1) of the Crimes Act 1958.[2] This offence carries a maximum penalty of 15 years’ imprisonment and attracts a standard sentence of 6 years’ imprisonment;
(c) One rolled-up charge of producing child abuse material, contrary to s 51C(1) of the Crimes Act.[3] This offence carries a maximum penalty of 10 years’ imprisonment; and
(d) One rolled-up charge of possessing child abuse material contrary to s 51G(1) of the Crimes Act.[4] This offence also carries a maximum penalty of 10 years’ imprisonment.
[1]Charge 1.
[2]Charges 2 and 3.
[3]Charge 4.
[4]Charge 5.
2A sentence indication hearing proceeded on 2 April 2025. On 7 April 2025, I indicated that upon a plea of guilty, I would impose a head sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 4 months. The indication was formally accepted by you on 8 April 2025.[5] You were arraigned on 15 April 2025 and a plea hearing took place on 30 May 2025.
[5]Confirmed in an email by your solicitor on 8 April 2025.
Circumstances of the offending
3The circumstances of your offending are set out in an agreed summary of prosecution opening for plea dated 26 May 2025.[6]
[6]Exhibit A.
4At the time of the offending you were 35 years of age, residing in the Gippsland region with your wife, and working at both a vegetable farm and a pizza shop. You commenced working at the pizza shop between September and November 2023.
5You are a registered sex offender with a reporting period of eight years. This mandatory registration followed your conviction for an offence of indecent act with a child under 16, at the Bairnsdale Magistrates’ Court on 4 April 2019.
6Between 1 December 2023 and 21 February 2024, you did not inform Victoria Police about commencing employment and working at the pizza shop as required. Over this period, you were employed as a delivery driver and kitchen hand.[7]
[7]Charge 1, fail to comply with reporting obligations – rolled up charge.
7The victims are sisters, Sienna and Erica Durdin,[8] who, together with their mother, were working at the pizza shop where you were employed. During the course of the offending, Sienna was 17 years old and Erica was 15. You were aware of their ages. You did not inform Victoria Police about your contact with the two victims during your employment.[9]
[8]Pseudonyms.
[9]Charge 1, fail to comply with reporting obligations – rolled up charge.
8Sienna had been working there for some three and a half years prior to your commencement. Shortly after you were employed, you and Sienna began communicating outside of work hours through Snapchat. In early January 2024 you offered to help Sienna move house. During this time, you and Sienna commenced a consensual sexual relationship which included engaging in intercourse in your car and also at Sienna’s home.
9You and Sienna exchanged sexually explicit images and videos. You received and downloaded several images and videos of Sienna in sexually explicit situations which were located on your mobile phone.[10]
[10]Charge 5, Possess Child Abuse Material – rolled up.
10In early January 2024, you offered Erica a lift home from work. During the course of the journey, you agreed to connect and converse via Instagram. Sometime later, you and Erica also connected on Snapchat and began conversing through that application.
11Over the next six weeks, you used your phone messaging service and Snapchat to converse with Erica and arrange to meet up for the purpose of engaging in sexual activity. For example:
(a) On or about 9 January 2024, you sent Erica a message stating “Spread them legs open for me”;
(b) At 7.40 pm on 12 February 2024, you sent Erica a text message stating “Yo its juzzy I’m bringing your Billy back I’ll meet you at the carport where I dropped you off soon?”; and
(c) At 3.53 pm on 13 February 2024 you texted Erica asking: “Hey would you be keen for a 3some? Xx”.
12On 14 February 2024, you drove Erica from her house to a nearby river. You remained in your car talking, kissing and cuddling for several hours.
13You then drove Erica to your friend’s house in Sale (‘the Sale property’). You arrived just prior to 5.00 pm and told your friend that Erica was 20 years old. You and Erica then went to the shed for a smoke. You ended up on a couch in the shed. Erica got on top of you and you started to kiss each other. You then inserted your penis into Erica’s mouth, and she sucked it until it became erect.[11]
[11]Charge 2, Sexual Penetration of a Child Under 16 - rolled up.
14Once your penis became erect, Erica got back on top of you and you inserted your penis into her vagina whilst she was facing you.[12]
[12]Charge 3, Sexual Penetration of a Child Under 16 - rolled up.
15You then changed positions and “did it from the back” before resuming with Erica back on top of you until you stopped.
16At around 5.57 pm you took a selfie of yourself and Erica in the shed. Together, you then visited McDonalds before returning to the Sale property where you went back into the shed and listened to music.
17After a couple of hours inside the shed, you again inserted your penis into Erica’s mouth for about two minutes.[13]
[13]Charge 2, Sexual Penetration of a Child Under 16 - rolled up.
18On 15 February 2024, you and Erica were captured on CCTV in your car when you parked in an empty paddock at 12.10 pm. You were in the driver’s seat and Erica in the front passenger seat. Erica who was naked from the waist down, proceeded to perform oral sex on you to get your penis erect.[14]
[14]Charge 2, Sexual Penetration of a Child Under 16 - rolled up.
19You produced your mobile phone and took two videos of Erica performing oral sex on you. The first video is 6 seconds long and the second video lasts 20 seconds.[15]
[15]Charge 4, Produce Child Abuse Material - rolled up.
20Whilst you remained in the driver’s seat, Erica got on top of you and you inserted your penis in her vagina.[16] You engaged in intercourse for approximately three minutes but stopped as it was too difficult.
[16]Charge 3, Sexual Penetration of a Child Under 16 - rolled up.
21At approximately 12.53 am on 16 February 2024, you and Erica were again on the couch in the shed at the Sale property. You used your mobile phone to make a video of you penetrating Erica’s vagina with your penis from behind.[17]
[17]Charge 3, Sexual Penetration of a Child Under 16 - rolled up; Charge 4, Produce Child Abuse Material - rolled up.
22You took another selfie of you and Erica at 3.55 pm. A few minutes later, at 4.00 pm, Erica was bending over looking at her phone wearing denim shorts. Again, you took several photographs of Erica on your phone. Erica then proceeded to perform oral sex on you, inserting your penis into her mouth.[18]
[18]Charge 2, Sexual Penetration of a Child Under 16 - rolled up.
23Whilst this was happening, you took a photograph and made two videos of 8 and 13 seconds duration, capturing Erica performing oral sex on you.[19]
[19]Charge 4, Produce Child Abuse Material - rolled up.
24As Erica was getting dressed, you took more photographs of her, including one depicting her naked from the waist down.[20]
[20]Charge 4, Produce Child Abuse Material - rolled up.
25On 17 February 2024 your wife used her “Find My Phone” application to locate your mobile phone, which was at the Sale property. Your wife arrived at the Sale property at 9.30 am that morning. Your friend confirmed to your wife that you were in the shed on the property. Your wife did not go to the shed, but after she had left, your friend went to the shed and told both you and Erica that your wife had been round.
26At 4.30 pm that afternoon, you and Erica were depicted on CCTV purchasing food in the drive through at KFC. On 18 February 2024, Erica’s mother contacted your wife stating that she believed you were sleeping with Erica. She advised your wife that she would be going to the police and asked your wife to tell you to stay away from both Sienna and Erica.
27The victims’ mother also contacted your friend via Facebook Messenger advising her of Erica’s age and sending a photo of her birth certificate. Your friend then sent a message to you telling you not to bring Erica to the Sale property anymore. During that message conversation you asked your friend to say she did not know anything about Erica and to lie for you by saying she was at the property with a person named Lachlan.
28On 21 February 2024, you and Erica were in your bed at your house. Your wife was away at a friend’s house for a couple of days. Whilst in bed, you inserted your penis into Erica’s mouth and she performed oral sex on you, but you did not ejaculate.[21]
[21]Charge 2, Sexual Penetration of a Child Under 16 - rolled up.
29A number of Erica’s personal items were left at your house including silver hooped earrings depicted in some of the videos located on your phone.
30On 21 February 2024, Sienna told her mother that she had seen the message you sent to Erica about spreading her legs. At 3.45 pm that afternoon Sienna and her mother attended the Police Station. Sienna made a written police statement that day.
31At 5.50 pm that same day, you were arrested at your home address and your mobile phone was seized.[22] Police returned to your home where your wife directed them to the spare bedroom. Police located the silver hoop earrings owned and worn by Erica in some of the videos taken by you.
[22]In your police interview, you stated that you believed your victims were 18 years old.
32Police also searched your vehicle and located in the boot a blue child’s blanket with the name “Erica” on it. Police also located a KFC receipt which matched the date and time you were captured in the KFC drive through on 17 February 2024.
33Investigators located numerous photos and videos on your phone depicting your offending against both Erica and Sienna.[23]
[23]Charge 5, Possess Child Abuse Material - rolled up.
Personal circumstances
34Your counsel adopted your personal circumstances as set out by Ms Megan Rodgers in her report dated 30 January 2025.[24]
[24] Exhibit 2.
35You are now 36 years of age. You are the only member of your family to interact with the criminal justice system and have a longstanding feeling that you are the “black sheep” in the family.
36You were born in Melbourne and are the eldest child in a sibship of three boys, born only two years apart. Your primary school education was disrupted with the family relocating on four occasions. Your family relocated from Melbourne to East Gippsland when you were around 10 years of age.
37When you were 12 years of age your parents separated after your mother had an extramarital affair. Your mother left the home at that time and subsequently moved to Queensland with her new partner. You and your brothers remained in the care of your father. You had a very close relationship with your mother and described relative stability in your life prior to your parents’ separation. Following the separation, your life changed significantly.
38It was around this time you recall first being depressed and engaging in self-harm, reporting that you were deeply affected by your parents’ separation and your mother leaving the family home to be with her new partner.
39Following the separation you “went off the rails” commencing substance use, frequently skipping school and from the age of 14 years, rarely returning to your father’s home.
40You attended high school in Bairnsdale but left at the beginning of Year 9 when you were caught with cannabis. You did not enjoy academic work, but liked woodwork. Upon leaving school you commenced, but did not complete, an apprenticeship in painting and decorating. You have worked sporadically in that line of work, including operating your own business for a period.
41You commenced smoking cigarettes at the age of 12. You first used alcohol at age 13 and were regularly drinking on weekends with peers by 16. You started using cannabis at 14 years and were frequently smoking cannabis by 15. By 16, you commenced regularly using amphetamine and MDMA on weekends. However, it was not until the age of 30 that you were introduced to methamphetamine by a friend, before soon becoming addicted.
42You have had three significant age-appropriate intimate relationships. You have three children from two of these relationships. When you were 19, you were in a relationship from which you have a son. You were later in an eight year relationship that produced two children now aged 10 and 8.
43You have no contact with your children and their respective mothers.[25]
[25]Ms Allan informed the court in oral submissions, that your son from your first relationship wishes to have a relationship with you in the future.
44Your most recent relationship was with your ex-wife. That relationship also lasted for approximately eight years. You were married and owned a house together. You maintained contact despite your remand, however that contact has since ceased. You removed your ex-wife from your phone list so that she could “move on with her life”. You believe she has since moved to Germany. You were unhappy in the latter years of your marriage, with increasing arguments and disconnection, which were contributed to by your methamphetamine addiction.
45Approximately two years ago you consulted your GP who diagnosed you with anxiety and depression, prescribing medication. Although you complied with the prescription initially, you eventually ran out of medication and failed to have your prescription renewed. You continued abusing illicit substances.
46In the lead up to this offending you were unhappy in your marriage and your employment, were addicted to methamphetamine and felt as though you had little hope.
47You have now been in custody for a significant period and have been free of all substances, as well as completing alcohol and other drug programs available to you.
48You speak regularly to both of your parents and enjoy their continued support. Your mother resides in Queensland. Your father still lives in East Gippsland. You also regularly speak with one of your brothers. Your stepfather is a painter and upon your release, you are hoping to move to Queensland and work with him.
Criminal History
49I have had regard to your admitted criminal history dating back to 17 March 2009.
50On 17 March 2009 you were convicted and placed on a Community Based Order for six months in relation to three charges of theft of a motor vehicle. On 17 July 2009 you were convicted and sentenced to a further Community Based Order for entering a private place without authority or excuse. You failed to comply with both Community Based Orders and on 20 October 2009, you were resentenced to an aggregate of one month imprisonment, wholly suspended for a period of 12 months.
51In 2011 you were convicted and fined for an offence of unlawful assault. On 27 June and 19 November 2012, you were convicted of contravening family violence intervention orders for which you were fined and made the subject of an adjourned undertaking.[26] On 24 June 2013 you were convicted and sentenced to a Community Correction Order for 12 months in respect of a charge of recklessly causing injury. On 8 August 2018 you were convicted and fined $1000.00 for unlawful assault, criminal damage, and contravene family violence intervention order.
[26]This offending related to an ex-partner.
52As already referred to, on 4 April 2019, you were convicted of one charge of indecent act with a child under 16.[27] You were fined $1000.00 and made the subject of a Sex Offender Registration Order requiring you to report for a period of eight years. You were subsequently charged and convicted on four separate occasions of failing to comply with your reporting obligations:[28]
(a) On 26 August 2019 you were convicted and fined $750.00;
(b) On 18 March 2020 you were sentenced to one day imprisonment;
(c) On 3 May 2022 you were convicted and fined $1000.00; and
(d) On 6 June 2023 you were convicted and fined $500.00.
[27]According to your counsel, this related to you touching the breasts of a cousin’s daughter.
[28]According to your counsel, in 2019, you failed to report within seven days as required; in 2020, you made contact with your son on fathers’ day; in 2022, you failed to notify a change of address; and in 2023, you did not notify your new employment.
53Accordingly, you have a relevant criminal history for the purposes of this sentencing exercise.
Gravity of the offending
54Any sexual offending against children is serious. You offended against two sisters aged 17 and 15 over a short period in February 2024. The offending against the older sister involved you possessing her images classified as child abuse material. Your offending against the younger sister was particularly serious, involving repeated acts of sexual penetration of her mouth and vagina with your penis.
55I bear in mind that all the charges before me are rolled up charges. In sentencing you, I must take into account the full extent of your offending conduct.
56Charges 2 and 3 are the most serious offences on the indictment, attracting a maximum term of 15 years’ imprisonment and a standard sentence of six years.
57I bear in mind the matters that determine the seriousness of your offending.
58Charge 2 involved five separate acts of oral penetration on four different days between 14 February and 21 February 2024. Two of the acts occurred on 14 February, and one each on 15, 16 and 21 February. Charge 3 involved three separate acts of penile vaginal penetration over a period of three days, on 14, 15 and 16 February. I bear in mind that all of the acts in Charge 3 occurred on the same occasion as three of the acts in Charge 2. In respect of Charge 3, you did not use a condom thereby exposing your victim to the risk of pregnancy and sexually transmitted disease.
59There was a short period of grooming as depicted in the messages you sent Erica in January and February prior to the acts of sexual penetration. During the course of some of the offending subject of Charges 2 and 3, you took photographs and videos which depicted Erica performing oral sex on you and you penetrating her vagina with your penis. This is an aggravating feature of the offending subject to Charges 2 and 3. You also took photographs of Erica which showed her naked from the waist down.
60You were clearly aware that engaging in sexual acts with a 15 year old child was wrong and a criminal offence. Your prior matter should have made that clear. You were an adult and some 20 years older. You knew Erica was 15 but lied to your friend, telling her Erica was 20 so that you could continue to use the shed at the Sale property. After discovering her true age, your friend told you not to bring Erica to her house anymore. Fearing you were in trouble, you told your friend to lie, saying that Erica had attended her house with someone else. Your offending still did not stop. On 21 February 2024, you committed another act constituting Charge 2, this time in a bed in your home while your wife was absent. Despite opportunities to reflect and desist, you persisted with your offending.
61This offending occurred in circumstances where you were a registered sexual offender and aware of not being allowed to have contact with children.
62Your prior matter of indecent act with a child under 16, is relevant to your moral culpability, which I regard as being high. It is also relevant in that any sentence must seek to deter you from re-offending in a similar manner. It also bears on your prospects of rehabilitation and the protection of the community.
63Charge 1 is your fifth offence for breaching your reporting obligations. You have demonstrated a persistent disobedience to comply with reporting obligations.
64In respect of Charges 4 and 5, Mr McKenry informed the court that there were 50 images and 31 videos all falling in category 2.[29] All the images and videos were of your two victims, their faces being visible in some of them. Those relating to Sienna depicted her breasts and genital region. Erica was depicted in some of the images engaging in penetrative acts. I accept that the images and videos were solely in your possession on your phone and were not disseminated.
[29]In the context of this case category 2 pertains to videos and images of pubescent children engaged in sexualised poses including focus on their genital regions and sexual activity.
65While there are no victim impact statements in this matter, I bear in mind that the absolute prohibition on sexual activity with a child is founded on a presumption of harm.[30] In respect of Erica, there is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children.
[30]Charges 2 and 3.
66Charges 4 and 5 relate to the premature sexualisation of an individual aged 17 years and younger with respect to sexualised imagery.
67As the Court of Appeal recently affirmed in Cairncross v The King:[31]
The Court [in Adamson] concluded that the presumption applies to offences involving the use of a carriage service for child sexual offences ‘as well as to offences where the age of the victim is extended to include children who are 16 or 17’.
This, then, includes the portion of the presumed harm relating to ‘premature sexualisation’. For the reasons discussed, whether sexual behaviour is ‘premature’ depends entirely upon the nature of the sexual behaviour and the harm that might flow. Parliament has determined that minors aged 16 years and over are mature enough to consent to ‘sexual activity’ but not to voluntary participation in the making of sexualised imagery. That presumption of harm of ‘premature sexualisation’ applies to those aged 15 years and younger in respect of sexual activity and to those aged 17 years and younger with respect to the making of sexualised imagery. In other words, the presumption is not to be automatically moderated with respect to a child abuse material offence where the victim is aged 16 or 17.
[31]Cairncross v The King [2025] VSCA 117 at [73] and [74] (Priest, Taylor and Kidd JJA).
68Your counsel accepted that the presumption of harm applied in respect of your two victims and did not seek to rebut it.
69I have identified some of the sentencing purposes. Such abhorrent offending, requires an emphasis on deterring other like minded offenders from engaging in such conduct. It should be made crystal clear that sexual offending against children will attract significant terms of imprisonment. Your conduct must be appropriately denounced and you must be justly punished.
Defence submissions
70In addition to her oral submissions, your counsel, Ms Allan, relied upon written submissions dated 22 May 2025.[32] In support of these submissions, Ms Allan relied upon the following material:
(a) The psychological report of Megan Rodgers dated 30 January 2025;[33] and
(b) A bundle of prison certificates.[34]
[32]Exhibit 1.
[33] Exhibit 2.
[34] Exhibit 3.
71Ms Allan relied upon the following matters in mitigation:
(a) Your early guilty pleas;
(b) The principle of totality; and
(c) Your personal circumstances, including your struggles with mental health and drug use.
Plea of guilty
72You have pleaded guilty at a relatively early stage, accepting a sentence indication. By doing so you have facilitated the course of justice and taken responsibility for your actions. You have saved the community the time and expense associated with a trial. More importantly, your two victims have been spared the ordeal of having to give evidence in court. A guilty plea is an important mitigating factor and entitles you to a significant sentencing discount.
73Ms Allan urged me to bear in mind the principle of totality. Recognising the separate criminality involved in each of the charges, she submitted that the factual overlap and the proximity in time gave rise to the careful consideration of totality. I of course bear in mind that I must impose a sentence that is just and appropriate reflecting the overall criminality. I must be careful not to double punish considering that, in respect of the offending against Erica, I have taken into account the production and possession of the images as an aggravating factor of the offending subject to the two sexual penetration charges.
74I have borne in mind your personal circumstances and your struggles upon your mother leaving the family home.
75I have had regard to Ms Rodgers psychological evaluation. She has diagnosed you with a:
· Major Depressive Disorder, Recurrent, Severe without psychotic features.
· Generalised Anxiety Disorder.
· Stimulant Use Disorder – Amphetamine-Type Substance, Severe, currently in remission in a controlled environment.
76Ms Rodgers opines that you have suffered symptoms of these disorders for much of your life. You have managed to cope with adversity and mental illness, however in doing so have not had the opportunity to thrive. You have sought to self-medicate with illicit substances.
77Ms Rodgers refers to your plan to commit suicide prior to your arrest, finding yourself in a negative spiral from which you could see little hope.[35]
[35]Exhibit 2 at [45].
78You have regarded your time in custody as a blessing, being currently clean and sober, taking regular anti-depressant medication and experiencing a clarity of mind.[36] Having said that, Ms Rodgers opines that your history of suicidal ideation and self-harm, the fact that this is your first time in custody,[37] the dissolution of your marriage and your limited employment prospects in the community, require you to be monitored carefully.[38] Ms Allan submitted that I should mitigate your sentence on account of limb 5 of Verdins.[39]
[36]Exhibit 2 at [40], [41] and [46].
[37]Other than 1 day imposed on 18 March 2020.
[38]Exhibit 2 at [35] to [37].
[39]R v Verdins (2007) 16 VR 269 (“Verdins”).
79Despite your mental health currently being under control, I recognise that you have been affected by depression and anxiety over much of your life. This has involved attempts at self-harm. Accordingly, I am prepared to give some limited weight to limb five of Verdins in circumstances where you will be serving a considerable period in custody.
80I note that you have expressed to Ms Rodgers the need to engage in ongoing substance use support upon your return to the community. You also recognise the benefits of treating your mental health.[40] In that regard, I note that you have completed a number of courses in custody, including courses highlighting the harm of substance abuse.[41]
[40]Exhibit 2 at [11] and [31].
[41]See Exhibit 3. This includes a clear urine drug screen.
81In terms of your prospects of rehabilitation, it goes without saying that you must remain abstinent from illicit substances and comply with your prescribed medication once in the community. While you have good intentions to seek treatment in the community and recognise its benefits, I bear in mind that your drug abuse has been long standing, as have your mental health issues, which you have not previously sought to address in any meaningful manner. At this stage, I regard your prospects of rehabilitation as guarded.
Prosecution submissions
82On behalf of the prosecution, Mr McKenry submitted that your offending called for a head sentence and a non-parole period. He highlighted some of the matters that impacted upon the gravity of the offending subject of Charges 2 and 3. This included the age of the victim, the repeated penetrative acts, and the fact that the intercourse was unprotected. He acknowledged the overlap between Charges 2 and 3 and the production and possession of the images. He submitted that the offending in respect of Charges 2 and 3 was properly described as mid-range.
83He submitted that your moral culpability was high and that you were well aware of not being allowed to have contact with children. He submitted that your prospects of rehabilitation were at best, guarded.
84I take no issue with the prosecution submissions.
Standard sentencing
85I bear in mind that Charges 2 and 3 attract a standard sentence of six years’ imprisonment.
86Sentencing requires taking into account a multitude of factors. The standard sentence is one such factor and no more. The sentence specified as the standard sentence is, ‘the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness’.[42]
[42]Sentencing Act 1991 s5A(1)(b).
87The standard sentencing regime does not interfere with the instinctive synthesis approach the court must carry out, which involves distilling all relevant factors to arrive at the appropriate sentence.
88The court must only have regard to sentences imposed in cases where the standard sentence regime applied.[43] I have considered the standard sentencing decisions set out in Ms Allan’s written submissions. Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider.[44] Each case ultimately turns on its own particular facts and circumstances.
[43]Sentencing Act 1991 s5B(2)(b). The court is not, however, precluded from considering principles established in past cases.
[44]DPP v Dalgleish (2017) 262 CLR 428.
89Having taken into account the objective gravity of the offending subject to Charges 2 and 3, your personal circumstances, and all the matters in mitigation, including your plea of guilty, the sentence I will be imposing on Charges 2 and 3 will be lower than the standard sentence.
Serious Sex Offender
90Pursuant to s 6B of the Sentencing Act 1991, upon conviction and being sentenced to a term of imprisonment on Charges 2 and 3, you fall to be sentenced as a serious sexual offender on Charges 4 and 5.
91Pursuant to s 6D of the SentencingAct, in determining the length of any sentence on Charges 4 and 5, I must regard community protection as the principal sentencing purpose. Understandably, the prosecution does not seek a disproportionate sentence.
92Pursuant to s 6E of the Sentencing Act, there is a presumption of accumulation with regards to sentencing for serious sexual offender offences. However, I must bear in mind the overarching principle of totality and the need to avoid a crushing sentence. I must ensure that the totality principal is applied in a manner that does not undermine the legislative policy inherent in s 6E of the Sentencing Act.[45]
[45]Gordon v R [2013] VSCA 343 at [74].
93Pursuant to s 6F(1) of the Sentencing Act, your status as a serious sexual offender is entered into the records of the Court.
Sentencing
94Having taken into account all relevant circumstances and factors, Mr Wright-Smith, you are convicted on all charges and sentenced as follows:
· On Charge 1, you are sentenced to 6 months’ imprisonment.
· On Charge 2, you are sentenced to 5 years and 3 months’ imprisonment.
· On Charge 3, you are sentenced to 5 years and 3 months’ imprisonment.
· On Charge 4, you are sentenced to 1 year and 4 months’ imprisonment.
· On Charge 5, you are sentenced to 12 months’ imprisonment.
95The sentence on Charge 3 will be the base sentence. I direct that 10 months of the sentence on Charge 2, two months of the sentence on Charge 1, three months of the sentence on Charge 4 and three months of the sentence on Charge 5, be served cumulatively upon each other and upon the base sentence.
96This makes a total effective sentence of 6 years and 9 months’ imprisonment.
97I direct that you serve a non-parole period of 4 years and 4 months’ imprisonment.
Pre-sentence Detention
98Pursuant to s 18 of the Sentencing Act, the period of 488 days of pre-sentence detention, not including today’s date, is declared as having already been served in respect of this sentence.
Section 6AAA declaration
99Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 8 years and 6 months’ imprisonment with a non-parole period of 6 years.
Sex Offender Registration
100Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to these offences and the reporting period is life. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. As you well know, it is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
101His Honour: Ms Allan, anything arising?
102Ms Allan: No, your Honour.
103His Honour: Ms Corridon?
104Ms Corridon: No, your Honour.
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