DPP v Zampatti
[2020] VCC 628
•15 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
(transferred from Geelong Circuit owing to COVID-19 protocol)CR 19-02533
Indictment No: K12146115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Daniel ZAMPATTI |
---
| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 May 2020 |
| DATE OF SENTENCE: | 15 May 2020 |
| CASE MAY BE CITED AS: | DPP v ZAMPATTI |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 628 |
REASONS FOR SENTENCE
---
Subject: Indecent act with 16 or 17-year-old under care supervision or authority. 10 charges. Accused a classroom teacher of a 17-year-old female VCE student. Had been either teaching her or giving musical tuition since the girl was 8 years old. Most serious instances involved secret trip from Geelong to Melbourne. Accused booked a hotel room and they stayed the night together with sexual contact (non penetrative). Delay. No prior history. Loss of job and profession and loss of subsequent job. Accused was 35 at time of acts and 39 as at date of sentence.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Mr C. Mandy (at Plea) Mr J. Taaffe (at Sentence) | Doogue + George Defence Lawyers |
HIS HONOUR:
1 Daniel Zampatti, you have pleaded guilty to 10 charges of committing an indecent act with a 16 or 17-year-old child under you care supervision or authority. The maximum penalty for each charge is 5 years' imprisonment.
2 You were born on the 23rd December 1980 and are now 39 years of age. You have no prior or subsequent criminal history at all.
3 This matter was opened to me on Monday of this week by the prosecutor Ms Piggott. She opened the case in accordance with a written plea opening that was dated 28 February 2020.
4 I asked your counsel, Mr Mandy, and he told me that it was an agreed summary. As the summary is agreed it really serves no useful purpose my rehashing all of the facts in these my sentencing reasons. I will sentence in accordance with the agreed document. This was plainly serious criminal conduct.
5 I will provide but a brief thumbnail sketch of the facts and in doing so I will use the name of your victim. She and her family I am sure will understand, I told them this the other day, that no-one can publish any information as to her name or information which might tend to identify her and I assure her and her family that when ultimately I publish a copy of these my reasons, I will anonymise her name. That is probably all cold comfort as it is plain from the victim impact statements that given the setting and some of the information previously published, many in the close circle in which they moved including the school community and musical community, were able to join up the dots. It is very plain to me that Angela[1] and her family have been greatly affected by the publicity afforded to this case. I had in fact considered whether I should suppress any reporting of the proceedings altogether in an endeavour to protect her from any further unpleasant impact. That would though have had the effect of keeping from the public the ultimate outcome in a case where there has already been a sizable level of publicity. It would have the effect of leaving out of the public domain statements from this court which may actually correct some of the warped and misguided vitriol directed at your victim as though she was somehow a person at fault. She was 17 years of age and your pupil. There is one person criminally at fault here and that is you, the person committing the crimes. It is important that the court is able to send a message to other likeminded potential future offenders. General deterrence is an important factor here which just cannot be achieved without describing your crimes, your status at the time of the offending and providing details as to the ultimate sentences imposed upon you, the offender.
[1] A pseudonym
The facts
6 So then I turn very briefly to the facts. Your victim, Angela, was a 17 year old student in her VCE year in 2016. She turned 18 in late November of that year. You were a teacher at her school and indeed a teacher in one of her VET classes. Additionally though, you had a long term professional relationship with her as a music teacher stretching right back to when she was 8 years of age. You in fact had arranged a school scholarship for her. You were her class-room teacher in year 6 and 7 and a private music tutor throughout the period. You were her classroom teacher in 2015 and 2016 when she was in year 11 and 12. You had also been involved in out of school bands with her and with some of her family. She had known your wife for many years.
7 You were very much trusted by this child’s family, by her school and by her. She loved music and she looked up to you. You totally abused that trust over a period of about 3 months in that most vital of years for her. The starting point of that abuse was you the adult instigated physical contact by kissing her on the last evening of a school orchestra musical tour up to Sydney in July 2016. There was much phone contact in the course of the tour and on the last evening she met you in the foyer area of the hotel. She believed that you were to meet to discuss her rehearsal schedule in the lead up to her exams. Instead, you knelt in front of her and delivered a long kiss on the lips and said something like “at last”. You had arranged for the trip to be subsidised so she could attend though I do not find that this was done to groom her or with the act in mind. Of course, this conduct is not covered by any charge owing to the event taking place interstate.
8 The summary placed before me then sets out the individual charged occasions where from that point on you, committed a variety of indecent acts. The first when you had her in your charge competing up at a band competition in Ballarat. When you took her back to Geelong you took her to your house and hugged and kissed her. That was repeated on an occasion about 10 days later when you had taken her back to Ballarat for another competition.
9 I am not going to work my way through every charged act though of course I will sentence you for each one of them. Charge 4 involved kissing her intimately and touching her breasts on the outside of her clothing after a private event at the pier in Geelong. She had helped you out on that occasion and an earlier one where you had also kissed her outside her house upon delivering her home.
10 Regrettably, you took it very much to the next level by suggesting a weekend getaway to Melbourne. You were both residents in the Geelong region. You drove together to Melbourne on the morning of Saturday the 17th September 2016. You had earlier in the week booked a room at the Sheraton Hotel. You paid for the accommodation. You swam in the pool together kissing whilst doing so (Charge 5). You went back to your room and undressed and had a shower together where you touched each other (Charge 6). You took her out for dinner in Chinatown and paid for the dinner and then returned to the room and started out kissing and hugging on the bed (Charge 7) before then undressing at which point you committed the most serious of your crimes touching but not penetrating her vagina with your fingers (Charge 8) and having her touch your penis (Charge 9) before then sleeping the night together. Your wife thought you were up at the snow with some friends and Angela’s parents believed she was at a friend’s house in Geelong, as I understand it. After breakfast at the hotel the next day, you drove her back to Geelong.
11 There was another indecent act after a Probus event in early October.
12 After the first kiss in July the two of you had conversations about what was happening and the wrongfulness of it and the importance of keeping it secret. You acknowledged that it was wrong and you asked her to keep it quiet.
13 There is other context evidence in the summary placed before me. It is not suggested that the acts were limited to the number on the indictment but of course you do not fall to be sentenced for that uncharged conduct which is set out in paragraph 28. It discloses the number of contact hours you were having with Angela as her teacher and that there were a number of times when you hugged or held hands or touched her breasts or kissed her at school. This would happen in your office or the band room when no one else was there as well as in the musical portable. Sometimes you would even hold her hand under the cover of your desk when others were in the same room.
14 On 16 October you took her up to Melbourne for her Year 12 music exam and in the car after the exam, you broke the news that your wife had found out and was organising a meeting with the school Principal. You told Angela to delete all your texts.
15 Your wife was also a teacher at the same school and a member of one of the bands that Angela played in outside the school. She had noticed something amiss with you from mid-2016 and in August or September of that year, she asked if you were having an affair, which you denied. After the Sheraton weekend with Angela, you were again challenged by your wife and admitted some of what had occurred. Over the next few days, you provided some detail, a fair bit of which of course was false. You lied about the nature of the conduct saying it was all above the waist and you provided a false account as to the trip to Melbourne and did not detail the fact that you had in fact travelled there together for a planned weekend. You lied to your wife about the relationship being over. Indeed, as I said, the final charge occurred on 9 October of that year.
16 On 20 October, you and your wife met the Principal of the college and whilst you did make some admissions, again you clearly lied about the extent of the conduct. I hasten to add your lies to your wife or to the principal, they are not matters of aggravation. You were suspended and then sacked within a handful of days.
17 Think about this setting for one of your students, Mr Zampatti. A VCE student about half your age and one approaching a critical phase of her schooling. There you were taking her away on a romantic trip to a 5 star hotel up in Melbourne. No doubt it was a very exciting prospect for a 17 year old girl who looked up to you and had done so for years but what on earth was going on in your head? There you are after her first exam in October breaking the news to her, a pupil, that ‘the cat was out of the bag’, that your wife knew and that the school principal would soon know as well, and by inference of course so too Angela’s parents. She presumably had the balance of her final exams in the not too distant future. What a great preparation you afforded her Mr Zampatti as one of her teachers. Just imagine how calm the effect would be as she prepared for her final exams. You were her teacher. You had been a trusted adult for more than half her life and you totally abdicated your responsibilities by engaging in this selfish and what you knew to be forbidden conduct. The suggestion in a letter you wrote to her family that you always had her best interests at heart was pretty wide of the mark, if I may say so. I will come back to that letter when discussing the issue of remorse.
18 As I say, the matter came to a head in October 2016 and, as we know, she went on to sit her exams. Happily she did very well and made her way up to University in Melbourne for the following year.
19 There is nothing unusual about her not at that point being in a position or being prepared for that matter to make a statement to the police. No doubt there would have been swirling and conflicting emotions and loyalties, doubts and fears in her mind. She had a lot going on in her life and that was so before the publicity in the local paper in early 2017 which no doubt rocked her back on her heels. Ultimately she felt able to make a statement in November 2018. You were arrested and interviewed on 25 March 2019 and made a no comment interview as was your right. You were charged on 31 July 2019 and the matter resolved at the second committal mention in December 2019.
20 So much then for my brief summary of the summary. That is all it is. I will sentence in accordance with the full agreed facts noting of course as I already have that I am not dealing with you for a penetrative act. These are charges of indecent act, not sexual penetration. But they are indecent acts of a child under your care supervision or authority and here, it seems to me, each of those words could have applied. She was at various times under your Care, Supervision and Authority.
Victim impact statement
21 I turn now to the victim impact statements. There are very lengthy victim impact statements from your direct victim and from her mother and father. They have been marked as Exhibit B in the proceedings. No issue was taken with them by your counsel. I have read them all again since the plea. Now, sometimes when passing sentence, I go into some of the detail of the impact materials, even quoting from portions of the statements. I will not do so here as none of the authors wanted the statement read aloud in Court. The last thing I want to do is now quote at length from those statements and perhaps in some way add to the already sizeable impact by then publishing that which they did not want read aloud. Let me just say this. There has been very large impact and fallout from your criminal acts. It reverberates right to this day.
22 You were very much responsible, as you know, for instilling in Angela a deep love of music. Her love of music has been greatly tarnished by you, her music teacher. She seriously ponders whether she will pursue music or teaching as a career. Now, I suppose this is none of my business but for what it is worth, I would strongly advise Angela to follow her passion. Music has always been your passion and do not let these events alter in that way the path and the trajectory of your life. I suspect you may have deep regrets if you abandon what has evidently been your passion for so many years but, as I say, I suppose it really has nothing to do with me.
23 The impact statements I hope make so very clear to you why this offence exists on the statute book. This was not an affair. This was not an equal relationship. You were not equals. She was a pupil under the care, supervision or authority of her teacher, you, and one she looked up to. She speaks of the confusion, guilt and conflicting emotions. Hardly surprising, any of that.
24 The fact is you were in a position of great superiority over Angela. You were her valued and trusted teacher for close to 10 years. The offence exists owing to the various imbalances which plainly exist in some relationships for instance that of teacher and student. How would she necessarily know her own mind at that age and in that setting? How would she not be looking up to one who had been so important in her life for so long and not be influenced by those bonds? How would she sensibly negotiate such a relationship as this whilst in her last year of school? Even had it not been discovered, how was it in any way advancing her interests as a student for you to do what you did as her teacher? How could it do anything other than unsettle and destabilise her, and ultimately perhaps with growing maturity and experience, cause her to do as she does now, and look back with much regret and see how she had been so used and let down by you.
25 Well I am not going to descend to the detail of the impact. As I said a short time ago, the sorts of things she and her parents detail in those sad impact statements, they spell out the very reasons why this sort of offence exists and why this was serious criminal conduct on your part.
26 Now, the impact of a crime or crimes is but one of many matters that a Court must have regard to. There are many other matters and of course I will turn to the many matters in mitigation in one moment. But these impact statements, they are the only occasion for a victim to describe the impact of the crimes and they make for sobering reading in this case as you well know. I do heed your counsel’s submission and will not let the impact statements and the impacts of your crimes swamp or overwhelm other considerations in this case. I note also that a deal of the impact arose collaterally and by that I mean in the publicity afforded to the conduct as opposed to the conduct itself.
27 I do however take into account the impact of these crimes as the law requires me to. You have brought about that impact and it has been very sizeable, as you know.
In Mitigation
28 Mr Mandy appeared on your behalf and conducted a thorough plea on your behalf. He left nothing unsaid. He had prepared a comprehensive written outline of submissions dated 7 May 2020 which I marked as Exhibit 1. He took me to your family background as well as your relationship and work history. He sought to place the offending into a context of you having a very genuine regard for the girl and hopes of an adult relationship in the setting of deterioration in your own marriage. He made submissions as to the way I should view the impact materials as well as to the relative seriousness of the offences. He made submissions as to the formal sentencing factors including the weight to be given to the various purposes of sentencing in this case and how that could be achieved. He submitted that you had at the least very good prospects of rehabilitation. He placed before me a handful of character references as well as two psychological reports.
29 In mitigation, Mr Mandy relied mainly upon the following:
· Your early guilty plea;
· The presence of genuine remorse;
· The absence of any criminal offending at all in the past;
· The delay in this matter coming before the courts and being finalised;
· Extra-curial punishment including the loss of your career not to mention another job when there was some adverse publicity about the charges;
· The suggestion of some moderate depression or mental health issues and the impact upon the service of any prison term;
· If imprisoned, the increase in your prison burden owing to the COVID-19 pandemic that is currently sweeping the globe.
30 Mr Mandy argued that as serious as the offending was, a stand-alone community corrections order could achieve all the purposes of sentencing in this case and that the last resort of imprisonment had not been reached.
Prosecution
31 Ms Piggott, who appeared to prosecute, took me to what she said were some of the serious aspects of the offending including duration, planning and lack of spontaneity and the nature of the relationship with the victim and her family since she was a little girl. She submitted this was not some romantic relationship between equals. Not some romantic bubble that burst as it had been described on the plea. It was a pupil and a teacher and that teacher was a 35 year old man acting entirely inappropriately and with knowledge of that fact. Ms Piggott mentioned your attempts to conceal the conduct including the need for secrecy and the direction to Angela to delete the texts. The Director, through Ms Piggott, queried the application of any of the Verdins principles and argued that there was little by way of evidentiary foundation for either the 5th or 6th limbs from that case. They accepted that at least the physical acts in some instances were at the lower level involving as some did kissing and touching on the outside of the clothes but they argued that of course the offence was more than just the physical act. As to the Sheraton offending, they argued that it was of a high level of seriousness with a degree of planning. The prosecution submitted that general deterrence should loom large in a case such as this. The Director of Public Prosecutions through Ms Piggott called for a term of imprisonment but submitted that a combination disposition with release ultimately onto a community corrections order fell within the available range of sentences.
32 Neither your counsel’s submission as to the availability of a stand-alone community corrections order or the Director of Public Prosecution's submission as to the need for a prison term and/or the availability of a release from prison onto such an order bind me. They are arguments or submissions placed before the court by the parties. I do not ignore any submission made to me by either party but of course ultimately it is for me to decide what the appropriate sentence is in this case.
Background
33 I will turn relatively briefly to the details of your background. There was much detail in the report of Dr Barth as well as in the written outline and there is nothing in your upbringing or family background explaining this offending. I accept the background placed before me and see no need to slavishly restate it all now. You were one of five children brought up in a decent and caring family setting by your parents who I infer from the materials were both teachers. Money was not abundant but it was a loving and caring background. You were a good student though you did have some serious enough health issues in adolescence which thankfully abated in adult life. You did well in VCE and you went on and studied a Bachelor of Music out at Monash University where you met your wife to be in your first year together in 2000. Prior to graduation you had worked as a music teacher and tutor and you then did a Graduate Diploma of teaching at Monash in 2004, graduating in 2005. You had been working in paid positions at St Joseph’s College, a school where your family had strong connections. You also did work at Geelong Christian College. In 2012 you became full time at Geelong Christian College. Your father died in that year and in 2015 one of your brothers had a number of serious mental health issues. I cannot draw any connection at all between your brother’s serious mental health issues and your decision to offend in the way that you did. It would be pure speculation to do so.
34 I mentioned that you met your wife to be Kate when you started out at university in the year 2000 and you were together for 16 years, married for nine and you had two children together, Samuel who is now 6 and Olivia who is 8 years of age. That marriage failed owing to these events. Your wife may well have harboured some unkind feelings towards Angela but should have reserved her venom for you and you alone. Some of her texts correctly recognised in both tone and content that Angela was the victim but other texts were less pleasing. However one can only really I suppose have sympathy for her then position as she discovered your conduct. What a confronting thing for her to discover, compounded as it was by your wife being a teacher at the same school and also having long term associations with the family. She was on any view of it met by a pretty dreadful situation of your making.
35 You lost your job as a teacher in October 2016. You separated from your wife in early 2017 and you were deregistered by the Victorian Institute of Teaching in mid-2017. You obtained another job at the RACV club in Torquay but lost that job, I am told, in 2019 when the club became aware of the charges. Until my remand of you earlier this week, you lived in Geelong West and you had been having the children two nights a week. I am told that you have negotiated a decent enough post-separation relationship with your ex-wife and that is a very sensible thing given the shared parenting obligations which you have and which stretch out ahead of you.
36 You were, prior to my remand of you, working freelance in music production and staging but that industry like so many others has been deeply impacted by the global pandemic. You have started a business installing security and smart devices to try to make ends meet. You have a new partner.
37 You have no prior or subsequent criminal history and you now call in aid your past good character. If you had prior convictions, it is hard to envisage that you would have been a teacher. No doubt your past good character was in a way instrumental in your being in a position of trust but the prosecutor does not suggest that resort should be had to section 5AA of the Sentencing Act and I proceed on that basis. I do not apply that provision to my task.
38 You were a first-time offender at the age of 35 and you fall now to be sentenced at the age of 39.
39 It is inescapable that I would reach far less favourable conclusions as to the risk of re-offence and the need to deter you and protect the community from you if for instance you had relevant criminal history. Well, you have none and I cannot just ignore that fact. I will come back to discuss this issue when dealing with your prospects of rehabilitation. I will turn now to consider the other matters that have been raised by Mr Mandy on your behalf.
Guilty plea
40 I turn firstly to your plea of guilty. You have pleaded guilty and at an early stage. There were obviously some negotiations, but the case settled at the second committal mention. I will treat it as a plea at the earliest stage of the proceedings. By virtue of your stance in pleading guilty, no witnesses were required to give evidence. That is of real importance. Having read the impact statements in this case, it is plain to me that even the act of preparing the victim impact statement has taken a toll on the various authors. That is not surprising as they have been required to turn their minds back to these events and to the effect of these events. How much worse it must be to do that in a witness box and also then to be challenged as to the accuracy or truthfulness of an account given on oath. Well, of course, that has not happened here.
41 It does not matter how many alternative procedures are enacted to make the giving of evidence less stressful and less confronting for witnesses, it is still often enough a very unpleasant task. Being cross-examined can be and often is a distressing and confronting experience. Well, it has been completely avoided here. You have facilitated the course of justice. You have taken early responsibility for your offending by pleading guilty. Enough do not but of course you have. The community has been saved the time, the cost and the effort associated with the conduct of a trial in this court or even a committal in the Magistrates' Court.
42 So, I take these various matters into account in mitigation. There was an unusual submission at paragraph 10 of the written outline as to the added benefit that Mr Mandy said should flow to you courtesy of a guilty plea in the setting of the Courts disrupted operations during the COVID-19 pandemic. Two cases were cited and they provide nothing by way of principle that binds me. One is from one of my brother judges applying what he took to be some principle from a decision of Justice Dixon in the case of Bourke. With respect, that principle was a novel and potentially questionable one as far as I am concerned but it was pronounced in the setting of a case that settled in the midst of the disrupted operations of the court. It had a number of significant preliminary matters to be argued waiting in the wings and the case settled in mid-March. That is a totally different setting. In this case, you pleaded guilty in late December 2019 and the matter was first listed for plea in the circuit listing in February 2020. The pandemic had no role to play in your decision to plead guilty nor any significance at that stage at all. There is, in my view, no sensible basis to increase the utilitarian benefit in this case, and frankly, it is already a sizeable utilitarian benefit coming your way owing to the other matters I have recently discussed.
Remorse
43 I turn now to the issue of remorse. Your Counsel urged me to find the presence of remorse and had he left it at that I would now in a very short paragraph pronounce my finding that you are in my judgment remorseful. However, he stated that the depositions were replete with indications of your genuine remorse. Well, I had read the depositional materials and I told him that I disagreed with his assessment of them. Your counsel recognised some of the issues in relation to a full acceptance of the submission he was making. He referred for instance both in his written and oral submissions to the letter that you had sent to the parents of Angela in early 2017.
44 It is true that you have pleaded guilty and at an early stage and a guilty plea is often but not always indicative of the presence of some remorse. Mr Mandy took me to the depositions and he relied upon the account you had given to your wife, to the admissions you had made to her and the admissions made to the school principal and your demeanour when doing so. The problem with that submission is that you lied to both of them. That much is clear. You lied as to the extent of the relationship saying to your wife and to the principal that it was not sexual, saying at another point there was only touching above the waist and giving, as I have said already, a false account to both of them as to the Sheraton expedition. You told the principal that you had ended the relationship after the VCE musical exam. You had not. You had told your wife in September that you would not contact Angela again but you did; you then went on to commit the final charge on the indictment on 9 October. When your wife discovered on 16 October that you had lied about not seeing Angela, you told her that she would not need to report the matter to the school if you ended the relationship.
45 You were lying about your own conduct and you were doing that to protect yourself. I have no doubt about that at all. You seemed to think that you might even hold on to your job and that the school did not need to know. Well, your wife was correctly incredulous and said that this was just a black and white issue. Your counsel took me to your text sent in the midst of all these events at page 54 of the depositions where you said, “I’m guilty and Angela and you are the victims”. Mr Mandy said that was indicative of remorse. You then went on though to say to your wife, “Angela is strong and won’t say anything”.
46 No doubt you hoped that you would never be charged with any offences and when you were arrested and interviewed, you chose to make a no-comment interview as was your right. Well before then though, you had written the extraordinary letter which you then sent to the Angela’s parents. It is true that in that letter dated 19 January 2017, you say that you are deeply sorry for the pain and suffering you had caused them. You thank them for their constant support of Angela and their understanding and good will not to overreact. You say you never had any intention of hurting them or Angela and are deeply sorry for the stress brought upon the family. You then say though that you care for Angela and always had her best interests at heart. You say you had never pressured her into doing anything she does not want to do. That you could think those things were true is pretty incredible but maybe you did. That you could attach such sentiments in a letter sent to Angela's family is quite incredible. There you were conveying that she was a willing and equal participant when of course plainly the relationship was not of equals. You then move on to consider the significant role you have had in Angela’s life and then thanked the parents for them placing their trust in you over the last decade. How perverse was that? Imagine thanking them for that trust when you had done what you had done to abuse it and knew that you had. You speak of challenging her in her VCE year with some difficult works without actually reflecting on the additional challenges exerted upon her by entering an inappropriate and sexual relationship with her in her VCE year. You end up by saying you had never planned for any of this to happen. Well, of course, you were the person who had actually booked the Sheraton Hotel and had discussions with Angela about that escapade but perhaps you were speaking more broadly. You say to these betrayed parents that you hope you can meet again when the time is right and be able at that later time to reflect on all the positives of the relationship over the last decade. It is incredible to be thinking those things and to be sending those sentiments to a family who if you had thought deeply and seriously about what you had actually done, you would know they would never want to hear your name ever spoken again. So there is not too much genuine insight and contrition in that letter even though of course it has some of the trappings of an apology and words that otherwise might be taken as one.
47 But of course, that was written a long time ago and I do not believe that you think or feel the same way now. Mr Mandy takes me to Mr Sullivan’s report but Mr Sullivan saw you for the first time on 28 February 2017 and we know something of your mindset at around that time from the letter I have just discussed at length. I wonder what account you gave to Mr Sullivan of the physical acts. A true one or the false one which you had provided to your wife and to the principal? It is not clear at all. So his opinion as to remorse has some real limits. I do not doubt that you were upset. Nor do I doubt that you were speaking of having regrets and also of having concerns for Angela. Then I have statements made to Dr Barth in January of this year where you said you did not mean to abuse that power as the complainant’s teacher and never meant to hurt her or her family. You are recorded as saying you have great remorse for the impact of your actions but your saying it does not make it true. Dr Barth goes on to say that you have got a developing insight but there is obviously much more work to do. There had previously been in his view some prominent offence supporting cognitions.
48 The only reason I have gone to these matters in such detail is as a result of Mr Mandy saying the materials were replete with expressions of your remorse. They are not. Some statements disclose a lack of true remorse or genuine insight. Those made closer to the events are in fact pretty disturbing in their lack of insight.
49 I have probably spent far too long on this topic. Whilst pretty unimpressed by the evidence of remorse that I was taken to in the depositions, I am prepared though to find that you now do have a sense of remorse for these crimes you have committed.
50 I am prepared to find the existence of remorse here but it is also mixed in with a fair measure or dose of self-pity and regret for your own position and regret for the unquestionably very sad position you have exposed your own family to. Well, that is not remorse. As to remorse for the commission of the offences, I do believe that it exists today and at a much greater level than in the early days of your discovery. So, I take the existence of remorse into account in your favour.
51 I turn now then to your prospects of rehabilitation and that goes to some extent hand in glove with a consideration of what you have lost to this point.
Extra-curial punishment and rehabilitation
52 The ramifications of your offending were pretty dire and pretty swift. Loss of job and then career, the ending of your relationship with your wife. Then of course you also had the publicity. Well in your case you chose to commit these crimes against or at least with a child, that is what Angela was, and of course it was entirely foreseeable that there would be massive ramifications upon you in terms of employment and prospects and reputation. How could there not be? However as predictable as all those ramifications were for you, I cannot just sit here and ignore them or say ‘well you just got your just desserts’. You did get your just desserts, but as a result you are a very different person now with this massive and public fall from grace. This is the position you now find yourself in. Yes, it is your own fault. Yes, it was entirely predictable, but you have lost your career. You will never work again as a teacher. You also lost the job which you obtained at the RACV club down at Torquay owing to your employers finding out about these charges. There has been impact upon you as well from the salacious publicity and of course you must know how this sort of thing impacts upon your ex-wife and even your own children. You have deservedly suffered sizable reputational damage but it fortifies my conclusion that really you will never find yourself in a position of authority or trust in relation to children again. Quite aside from that, surely all these impacts would go some way to deterring you from ever offending in this way again. This offending was borne out of the opportunity provided by your status as a teacher. You will never be engaged in such a role ever again as firstly you would never be so registered, and secondly, even if you were, surely no one in their right mind would ever employ you in such a setting and finally, you will have lifetime reporting and many other obligations under the Sex Offender Registration Act. Contact with children will be strictly controlled.
53 Other than this offending, you are of course a person of good character and that cannot be overlooked. This offending however was not some isolated or spontaneous act. You knew Angela was totally off limits. You knew how wrong and unlawful it was, of that I have no doubt at all and yet that did not stop you. This was about you feeling good about yourself and addressing some of your inadequacies and really you breached every rule in the book and you knew that you were even as you did. You had ample time to pull back from the most serious of the offences occurring up in Melbourne. Yet of course, as we know, you planned the whole event, paying for it and driving her from her hometown up to Melbourne. So this is serious and persistent offending with ample opportunity for you at any point to reconsider what you were doing, to reconsider your conduct and you did not.
54 You have no past criminal history and nothing occurring subsequently and of course we are now a number of years removed from these events. I can have regard to your good behaviour in the course of the delay and of course I do. The community has never needed protection from you in the past. Though undoubtedly you were of bad character in the months spanning this offending, you are to be sentenced as a person of previous good character. I have regard also to the character references that have been placed before me which I see no need to further describe. I have read them again since the plea as well. Given that the setting of this offending is surely never going to be repeated as you will never again be in such a position of authority in relation to a child, what are the probabilities of you reoffending in a similar fashion? I note the risk assessment in the report of Dr Barth who says you have a low to moderate risk which would reduce even further with the appropriate treatment. I believe there is in fact a low risk of your reoffending. You have been deterred already to a degree by being sacked, losing your career and reputation and being portrayed in the media in the way that you have been. Then no doubt deterrence has to a degree been achieved by the process of being charged and brought before the court. Of you having to confront this day of reckoning which you are confronting now sitting in a prison. You will also of course be deterred further by the sentence which I will soon impose. I view the risk of reoffence as being low and your prospects into the future as at least being very good.
Delay
55 I turn to the issue of delay. I have already said I will take into account the delay in the sense that in the period since these offences in 2016, you have remained out of trouble. Had you been offending in that period, well, no doubt I would have reached far less favourable views as to your prospects of rehabilitation. But of course, that is not the position. Your counsel says this matter has been hanging over your head for over 3 ½ years. Well it is true that the offending occurred in 2016 and was brought to a head in October 2016 but you were not charged for a sizable period and you did not have charges suspended over your head until mid-2019. There is nothing unusual, as I said earlier, about a victim not being ready to formally report a matter to the police. Angela had a lot going on in her life. She had many other priorities in her life including moving on to tertiary education. She may even have had a sense of misguided loyalty towards you. Then she was in a position where she could formally complain and she did so in November 2018. You were arrested and interviewed on 25 March 2019 but made no admissions. There was a small delay before you were charged in late July 2019. You then pleaded guilty at the earliest opportunity. You have had the charges over your head for some time and of course that must have been an anxious time for you and I take that into account as far as I am able to. But delay in this case is not a major factor in my view and once charged, the matter has proceed without any great delay at all. Still I take the delay into account and sentence a person who has remained out of trouble and who has sought in difficult circumstances to re-order their life in the period of that delay since offending back in 2016.
The reports Dr Barth and Mr Sullivan
56 I have already mentioned the reports from Mr Sullivan and Dr Barth. I am not going to descend in these reasons to the finer details of those reports or start quoting slabs from them. I have also read them again also since the day of the plea. I take those reports into account. Of note is the fact that you had been referred off in August 2016 by your own general practitioner as you were experiencing depression and relationship problems. You were seen by Mr Sullivan and were moderately depressed in early 2017 with an increasing anxiety reaction. Plainly from Dr Barth’s report much of the anxiety arises in relation to the Court proceedings which is perfectly understandable. You are thinking of your own grave position and unsurprisingly feel to some extent overwhelmed and hopeless. He says you have an adjustment disorder with depressed mood. I take that into account. Going to prison at your age for the first time is no easy thing. You are not travelling very well but this reactive anxiety is not that unusual and it is not a matter I can give any enormous weight to. The report is silent as to the likely impact upon any custodial burden or as to the extent of any decline in prison. Mr Mandy argued that paragraph 45.2 in Dr Barth’s report gave rise to an allowance to be made for the 5th and 6th limbs from the Court of Appeal decision of Verdins v The Queen. There is, in my view, no basis to conclude that there is likely to be a serious risk of prison having a significant adverse effect upon your condition. I am not satisfied of that fact on the balance of probabilities. I give some limited weight to the 5th limb of Verdins despite the pretty unsatisfactory evidentiary basis. The report does not spell out how your burden is likely to be increased by the adjustment disorder and as I have said already, much of that disorder is said to be reactive to the stress of the legal matters. There is nothing in the reports enlivening any of the other limbs of that decision and your counsel was explicit in that submission.
57 I take into account the reports and the opinions in a non-Verdins fashion in any event.
58 The report of Barth is also of use setting out as it does your background and also his assessment of your personality makeup. You are a dependent and socially awkward man and found difficulty maintaining healthy emotional connections in your marriage. You felt misunderstood and under appreciated by your wife. Your self-esteem dropped and you obtained, as I understand it, much gratification and boost to your self-esteem from the positivity of your dealings with Angela. It was in a manner of an escape for you and you threw yourself into what you viewed as a relationship despite all the obvious serious issues including of course the legal ones. She looked up to you and idealised you and that in some way gave you a further boost. There was a power differential which re-enforced your sense of authority. Dr Barth says in a way you were compensating for the failure in your marriage by this inappropriate and unrealistic attachment to an underage girl. Her youth allowed you to feel some semblance of strength and control. Well, he says there is an unequivocal need for treatment in particular a sex offenders treatment program and as far as he is concerned, the sooner the better. It will need to wait. Dr Barth describes your developing insight. There is still some way to go, that much is clear. I have mentioned already his risk assessment. So I am assisted by these reports, Dr Barth’s in particular actually. You are certainly not revelling in your offending and never have and for what it is worth, I am confident that of course whilst you sought to bring about a romantic or sexual relationship, you never deliberately set out to target her in a predatory way or to cause her the damage that has so obviously been caused to her.
COVID-19 Increased burden
59 I turn to the submissions made as to the COVID-19 global pandemic. Your counsel argues that the global pandemic will make your time in custody more difficult. He was relying upon an increased anxiety arising from concerns as to contracting the virus in prison. Also the response to this point and potential future response of Corrections and the anxiety and increased burden posed by Corrections' response to the pandemic. Visiting rights have already been suspended for prisoners. Some lockdowns are already in place.
60 Prisoners will not have the ability of going where they want to go or distancing themselves from other people. A prisoner has no real autonomy in that respect.
61 The Court of Appeal of this State first dealt with the issues of the COVID-19 virus in a decision of Brown [2020] VSCA 60. That was back in late March of this year. They correctly counselled Judges against speculation. There have since been countless decisions in the Supreme Court and also some in the Court of Appeal. See for instance the cases of Re Broes [2020] VSC 128; Re McCann [2020] VSC 138. Re Tong [2020] VSC 141, Madex [2020] VSC 145, Sazimanoska [2020] VSCA 66 and Nguyen [2020] VSCA 76, Nicholls [2020] VSC 189, Re Diab [2020] VSC 196, Wyka [2020] VSCA 104 and Thomas [2020] VSC 206 to name just a few. I asked Mr Mandy then what additional principle was to be gleaned from a variety of New South Wales District Court decisions or a decision from the Queensland Supreme Court that has been placed within the written outline and he said none and so he withdrew any reliance on those cases.
62 It is still too early to know how this is all actually going to play out either in the community or in the prisons. It is a rapidly evolving setting changing almost from week to week.
63 I cannot know how it will actually impact upon you. I do not doubt though for one moment that the pandemic will be generating stress amongst prisoners.
64 It seems likely to me that that there will be some continuing lockdowns and that is because they are already in place to a degree and because social distancing is the key to avoiding the spread of this virus and how else can that really be instituted in a prison setting. We have already had some relaxation of the stay at home directions. The alterations came into effect I think on Midnight of Tuesday this week. Social distancing though is still important. Whatever steps are taken in the future in the community to further relax some of the remaining emergency measures, it seems clear to me that social distancing will continue and that will surely be precisely the same in a prison setting. It will have to be. I note that there is now a 14-day isolation of new prisoners which will apply to anyone entering prison for the first time as you did earlier this week. That itself is a pretty unhappy and desolate start to any prison sentence more so for a first-time prisoner such as you and one with strong family connections as you have.
65 I am not allowed to speculate but I believe that the virus itself, or concern about the virus, will likely limit social interaction, will be likely to limit work opportunities and even access to some courses, education and programs. As I have said already, visits have been suspended. That is not speculative. That has occurred already and one would think that it is likely to continue.
66 So, these things taking place as some have already or even worrying about these things taking place in the future would increase a prisoner's burden. I accept that. There is probably, when you think about it, no good time to be in prison and that is the last place you ever thought you would wind up. However this is certainly not a good time to be there for one such as you being isolated for the first 14 days and then unlikely to have any personal visits in the foreseeable future. There is undoubtedly an increased stress for prisoners. I accept your counsel’s submissions as to an increased burden here. It cannot dominate my task but I do take it into account in mitigation for the various reasons that I have announced.
67 There is nothing by the way to suggest that you are in a high-risk group or that you have any particular health vulnerabilities.
General remarks
68 I have to take into account the nature and the gravity of the offences. So I am moving now to make some general remarks. Your counsel concedes the seriousness of the offending but submitted that some of the conduct at least physically, was at a low level. He argues that you ought not be imprisoned and he speaks of the genuine regard you had for the victim and the explanation for the offending found in Dr Barth’s report. Your counsel mentioned, more than once actually, that Angela was turning 18 in late November 2016. Well, that is true but you knew that this young girl was totally off limits. You rationalised your conduct. It is not to the point that she may have sent some flirtatious texts or was happy to engage with you. You were her teacher. You instigated a romantic attachment and quite simply she could not as a matter of law consent to the acts that you have committed.
69 There are some serious features here. As your counsel says, it is implicit from the charge and the elements that there is a breach of trust bound up in every example of this offence. It is implied, so the fact of a breach of trust cannot of itself be an aggravating feature. That is so but Mr Mandy accepted that it was still necessary to make some assessment of the level, the extent and the circumstances of the breach of trust. Not every offence under these provisions will relate to a teacher and a student. There are many other relationships which may confer care, supervision or authority in relation to a 16 or 17-year-old. You were a teacher and you were in a position of power and authority and you were trusted to engage appropriately with your students. Trusted by the school, trusted by the parents, trusted by the community and trusted by the student. You had a long term and important role in her life since she was a little girl, since she was eight. She was 17 years old and she was your student. Adolescent students are to a degree vulnerable and impressionable especially to adult figures of authority in their lives. It is one of the reasons why this offence actually exists. To protect adolescents who are in the care or under the supervision or authority of an adult and to punish the person in a position of authority who chooses to exploit their position. That protection does not evaporate because the young person is close to their 18th birthday. You had been a very important figure in her life for so many years and always had had the cloak of authority and power as her teacher or tutor. She looked up to you. There was obviously a power imbalance in your favour.
70 These were not spontaneous or isolated acts. The Sheraton expedition, as I have said already, was very much a planned event where you knew you were taking it up to a whole new level. You had ample time to reflect, to consider, to reconsider and to desist. Your professional obligations as a teacher required you to not engage in any of this conduct. There was a sizeable age differential. You were 35 years old; she was 17. Mr Mandy suggested that all things being equal the younger the girl the more serious the crime. Well, I accept that is likely correct but all things of course are never equal. Impacts for instance are not always the same. This offence only covers a period from when a person turns 16 to when they turn 18 so we are dealing with 16 and 17 year old children, boys or girls. But all things, as I say, are rarely equal and, if you think about it, the older the child is in a setting of a teacher/student relationship, the more likely it is that the forbidden conduct is occurring closer to the critical end phase of the student schooling. Entry into a forbidden relationship by a teacher in that time frame is incredibly conflicting as plainly was the position here. Angela texted your wife in October of her VCE year deeply worried about your plight saying that you were going to lose everything and it was all because of her. Well, of course, it was not really her fault. It was yours. I am satisfied beyond reasonable doubt that you knew you were acting in breach of that trust and inappropriately and against the law. You obviously had lost your bearings and perhaps become infatuated with her or the concept of the relationship. You may well have thought that you no longer loved your wife but were in love with Angela and had a future together with her but you knew that what was happening was wrong both morally and legally. I have no doubt about that at all. You told her to keep it quiet, not to tell people and to delete the images. Your moral culpability is high here. You knowingly violated your professional boundaries and engaged in what you knew was an inappropriate relationship with a student. It had more to do with your needs, wishes and desires and you placed those ahead of your very strong professional obligations to protect the young girl in your charge.
71 Mr Mandy suggested that there can be limited weight devoted to specific deterrence owing to the favourable prospects that he urged upon me. I accept that is so. He argues that general deterrence and denunciation have already been to some extent served by the very public ramifications that you have felt already and he argued that a stand-alone community corrections order can achieve all the purposes of sentencing in this case.
72 Some of the acts are, at least physically, at a low level when one considers the sort of conduct that can be embraced by a charge of indecent act. A kiss in a different setting, one not involving a teacher in this forbidden setting, may be very unlikely to even receive a term of imprisonment. But the acts that I am dealing with cannot be viewed in a vacuum. They cannot be isolated and removed from the setting. The expedition to Melbourne was pure madness as you must have known. That was not low-level offending by any measure. You had taken her in your car for an all-expenses paid romantic weekend in Melbourne. You had lied to your wife, you must have known that she had lied to her parents and you were her teacher. You were naked in the shower together touching each other’s bodies and then ultimately were both naked in bed with the physical touching earlier described.
73 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. I have said already they are at least very good. So I am positive, I am upbeat as to your future prospects.
74 You were though not some immature teenager caught up in some moment of immature misjudgement. You were a trusted professional and you were expected and required to honour these professional boundaries.
75 I must consider the need for specific deterrence. That is one of the sentencing purposes. However, as I have these very favourable views as to your rehabilitative prospects, and a sense of there being a low risk of re-offence, it can make no sense to give much weight to the need to deter you.
76 I cannot totally ignore the need to deter you but it is, in my view, of very little weight in my task.
77 As to community protection, well, as I said earlier, the community has never needed protection from you and I doubt will need protection from you in the future. However, if dealing with you as a serious sexual offender and I will be, I must treat the protection of the community as the principal purpose for which sentence is imposed. Now, that is the law but in applying that provision I have to make my own assessment of the risk and, as I have said already, I view it as low. There is obviously no suggestion that I should utilise the power to impose a disproportionate sentence under section 6D(b) of the Sentencing Act and I will not.
78 I must also denounce your conduct. That is an important sentencing purpose in this sort of case. Your conduct must be roundly denounced. It was disgraceful doing what you did. You should be ashamed of yourself.
79 I am also required to punish you justly and proportionately and, again, that is an important purpose of sentencing.
80 The principle of general deterrence is a very important consideration in this sort of case and by general deterrence I am referring to the need to deter others in similar positions of trust from bowing to temptation and offending against those in their charge as you did. You were in a position of care supervision or authority in relation to Angela. Most teachers are in such a position and of course, as I have said already, the offence extends beyond teachers to other occupations. There is a high need to deter others from offending as you did. As I have said, this offence exists because of the bond of trust that exists and the imbalance of power and advantage the older person has over the child. Children even 17-year-old students have to be protected from trusted adults in their sphere and sometimes even from themselves. They certainly need to be protected from those who will consciously or unconsciously use their superior position to engage in an inappropriate or sexual relationship with those in their care, as you plainly did. The message must be sent out very clearly from the courts to every teacher out there that if the line is crossed expect charges to be laid and a very serious and dire court outcome. Expect to wind up in a prison cell.
81 Of course, nothing is set in stone and the outcome will always come down to an assessment of the particular features of the case but the message really must be very clear. Do not engage sexually with a student.
Current sentencing practice
82 I have to take into account the maximum penalty. Here there is a five year maximum term for each offence. I must take into account the nature and the gravity, as well as the impact, of the crimes. I have already spoken of the impact. It has been sizeable.
83 I am also required to pay regard to current sentencing practices. That is just one of the matters that a court must have regard to. It is not a controlling factor. There is no Sentencing Advisory Council Snapshot for this offence but there is some data on the SCSTAT online site. Of course, this offence, as I have said, is not limited just to teachers and students. There are many other relationships which will generate a relationship of care, supervision or authority. Sometimes there is some live argument or dispute as to whether that relationship creates that level of care supervision or authority. But a teacher and student it is a very clear cut position.
84 Over 90% of charges in the time frame from July 2013 to June 2018 ended in a prison term with 63% of those involving a term of less than one year and 34% of the charges resulting in a prison term of between 1 and 2 years. Mr Mandy argues that it is perhaps unusual in this case not to have a charge of sexual penetration of a child under care supervision or authority being dealt with at the same time as the lesser offence and that fact may move the court away from non-custodial orders. There may be something in that but a court can only then impose an appropriate term for the lesser offence of indecent act with a 16 or 17 year old child under care, supervision or authority. The statistics show the duration of those prison terms.
85 Statistics and where available, sentences imposed in other cases, have real limitations.
86 Statistics will never disclose any detail as to the offender or the offence. They do not for instance spell out the age of the child or the nature of the relationship giving rise to care supervision or authority. They do not spell out the extent of a criminal history of the offender or the number or type of acts. They are silent as to remorse or prospects of rehabilitation. They are silent as to the need for specific deterrence in a given case. Indeed, they are completely silent as to any features of aggravation or mitigation in existence. It is no part of my task to sentence based on the most common or average sentences on statistical analysis. I am not sitting up here as a statistician. I am a judge exercising a sentencing discretion in this case.
87 Ms Piggott placed before me a handful of examples of other sentences but even as she did so, acknowledged that it is hard to find a comparable case. See DPP v Hawkins [2017] VCC 1943, DPP v McDouggall [2018] VCC 1101, DPP v Wesley Ellis [2016] VCC 1246, Arnold v The Queen [2013] VSCA 298. She said that the cases that she had raised were not truly comparable. Some that she placed before me had different charges. She said they were mainly relied upon for statements of principle.
88 Mr Mandy went to those cases broadly and said there were matters relating to those other offenders or their crimes which made them more serious. I will resist the temptation of working my way through the individual features of the crimes or those other offenders as it was readily apparent to me that there were a host of differences. No two cases are ever the same. Nor any two offenders. There are very few cases available for examination. Those that exist do not stand as some precedent to be applied or distinguished as the case may be. They are not precedents, and say very little if anything about the sentence required in this case. The principles are what is important and they are not in any way in dispute.
89 Every crime is different and so too is every offender. What I must do is sentence you for your crimes.
90 They are in my view undoubtedly serious with the most serious conduct being the various acts occurring on the planned trip to Melbourne.
91 Prison is always a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. Section 5 ss 4 and ss 4C of the Sentencing Act say as much. A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Confinement cannot be selected if a sentence not involving confinement will achieve the various purposes of sentencing.
92 Mr Mandy submits that a stand-alone community corrections order can achieve those various purposes of sentencing in this case and refers to the Court of Appeal decision of Boulton v The Queen [2014] VSCA 342. He refers to the strong need for treatment spoken of by Dr Barth. Boulton and other cases since, recognised that there will of course be cases where a stand-alone community corrections order or even a community corrections order in combination with a prison term will not pay adequate weight to some of the purposes of sentencing. Each case will be determined on its own facts. If I agreed with your counsel’s submission then plainly I would be required to place you on such an order. As I say, prison is a disposition of last resort. It is reserved for cases which cannot be dealt with other than by that dire option.
93 I have absolutely no doubt at all that I must send you to prison. Despite my favourable views as to your rehabilitation and my view as to the very limited weight to be given to specific deterrence, there is a strong need in this case to give weight to general deterrence, denunciation and punishment. One can always see some advantages in a community corrections order. It is though not my job to focus on a community corrections order as the desired end destination and then artificially find my way to that end disposition. I have to give weight to the various purposes of sentence. I have to pass appropriate sentences. If when engaging in that task, a community corrections order is out of reach, so be it.
94 A stand-alone community corrections order in my view simply does not pay adequate weight to the seriousness of your crimes and to those purposes which are of importance in this case.
95 As far as I am concerned the message which would be sent by not imprisoning you would be entirely the wrong one. Regrettably then I have no choice but to imprison you. Nor do I believe that a combination type order is available here. Up until my remand of you on Monday, you have spent no time in custody at all by way of pre-sentence detention. You have now served 4 days. That being so, you would need to be in a position to commence the community corrections order within 12 months and that is simply not achievable here. Indeed I believe that ultimately it is appropriate to sentence you and at a level where the fixing of a non-parole period is mandated by the relevant provisions.
96 I am going to pass a term of imprisonment and then fix a non-parole period. I will fix a reasonably low non-parole period relative to the head sentence though of course whether or not you are granted parole has got nothing to do with me. I cannot speculate about that. That is a matter for the Adult Parole Board.
Totality
97 I pay regard to totality of sentence.
98 There is a relationship between the offending. It all relates of course to the same child in a relatively limited time frame. The most serious conduct is that occurring on the trip up to Melbourne and there are a number of charges occurring on that weekend. So Charges 5 to 9 occurred in that setting with the first four charges on the indictment involving plainly lesser activity and the last charge post-dating the Sheraton expedition.
99 If I could pass an aggregate sentence I would do so here but that is prohibited by section 9 ss (1A) of the Sentencing Act as you will fall to be sentenced as a serious sexual offender by the time of the third sentence. That status then has the effect of removing the presumption of concurrency with a presumption of cumulation unless I otherwise order. That is the effect of s 6E. That provision does not though have the effect of removing the need to consider the principle of totality. Totality is still an important consideration but s 6E does plainly modify that principle. I must still have regard to the overall effect of my sentences to avoid passing a crushing sentence and to ensure that it is commensurate with your overall criminality.
100 Your criminality though was high.
101 I will have you remain seated and I will pass sentence upon you.
Sentence
102 The most serious offences are in my view, as I have said, Charges 8 and 9, the sexual touching occurring up in the room at the Sheraton Hotel. There is nothing between them in seriousness as far as I can determine so one will be designated the base sentence. Now I believe there are practical difficulties in terms of the Serious Offender provisions and cumulation in the event that I sentence on Charge 8 as the eighth sentence imposed by the Court, which is what I would do if I simply sentenced and followed the order of the charges on the indictment. It would be made the base sentence. I would then have to otherwise direct in relation to that matter, whilst at the same time cumulating other parts of the sentences upon that base sentence and upon each other. I am going to sentence first in relation to Charge 8, then return to the top of the indictment and pass the remaining sentences. I will then make one order for cumulation, then I will announce the extent to which I otherwise order concurrency under s 6E for those charges where you have been sentenced as a serious sexual offender. You will find this process hard to follow, indeed everyone will, but I will explain what it all means at the end by way of total effective sentence and the non-parole period.
103 Remain seated please.
104 On Charge 8 you are convicted and sentenced to 15 months' imprisonment
105 On Charge 1 you are convicted and sentenced to 3' months' imprisonment
Sentenced as a serious sexual offender (to be noted in the court record)
106 From this point for the reminder of the charges you fall to be sentenced as a serious sexual offender.
107 On Charge 2 you are convicted and sentenced to 3 months' imprisonment.
108 On Charge 3 you are convicted and sentenced to 3 months' imprisonment.
109 On Charge 4 you are convicted and sentenced to 3 months' imprisonment.
110 On Charge 5 you are convicted and sentenced to 3 months' imprisonment.
111 On Charge 6 I convict and sentence you to 9 months' imprisonment.
112 On Charge 7 you are convicted and sentenced to 3 months' imprisonment.
113 On Charge 9 you are convicted and sentenced to 15 months' imprisonment.
114 On Charge 10 you are convicted and sentenced to 3 months' imprisonment.
115 The base sentence therefore is the 15 months imposed on Charge 8.
Cumulation
I direct then that 1 month of the sentence imposed on Charge 1 is to be served cumulatively upon the base and other part concurrent sentences.
Section 6E extent to which Court otherwise orders concurrency
116 Thereafter section 6E requires me to state the level of concurrency.
I direct that:
· 2 months of the sentences imposed on each of charges 2, 3, 4, 5, 7 and 10;
· 7 months of the sentence imposed on Charge 6; and
· 12 months of the sentence imposed on Charge 9
are to be served concurrently with the base sentence and each other.
117 These orders firstly as to cumulation and then as to the extent of concurrency produce the total cumulation of 12 months upon the base sentence.
Total effective sentence
118 That results therefore in a total effective sentence of 27 months or 2 years 3 months' imprisonment.
Non-Parole Period
119 I fix a period of 14 months during which you will not be eligible for release on parole.
Section 18
120 You have already spent the period of 4 days in custody on these matters following my remand of you the other day and that is to be declared as having been served under this sentence.
Section 6AAA
121 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to 3 years 9 months' imprisonment. I would have fixed a non-parole period of 2 years 3 months.
Sex Offenders Registration Act 2004
122 You have been sentenced in relation to 10 Class 2 offences under the Sex Offender Registration Act. I note that the five offences occurring at the Sheraton would be treated as a single offence as they occurred within the period of 24 hours. However that does not alter the position. You still are being sentenced in relation to more than three Class 2 offences. Pursuant to s.34 of that Act you must comply and continue to comply with your reporting obligations under that Act upon your release from prison for the rest of your life.
123 I am shortly going to have handed to you, it has been I believe, a document that explains the conditions which will apply to you upon your release from prison including the need to report your personal details to the Chief Commissioner of Police for the rest of your life.
124 There are very many other obligations cast upon you which you will see in that document. You will need to familiarise yourself with those provisions; a breach of them is itself a very serious criminal offence.
125 I am not expecting you are going to sit there now and read every word. That would be impossible for anyone to do. What I am having happen now is you to be given the details of your obligations under the Act. I am asking you now to acknowledge by way of signature that you have been served with your reporting obligations. Do you understand that?
126 OFFENDER: Yes.
127 HIS HONOUR: Could you get the document out please and sign it in the appropriate place please?
128 All right. Do you confirm that you have signed that document? That you have received those documents and you have signed it?
129 OFFENDER: Yes.
130 HIS HONOUR: Yes. Thank you. All right. Let me just check with counsel. Are there any other matters at all or not?
131 MS PIGGOTT: No, Your Honour.
132 HIS HONOUR: Did you all follow the structure of the sentence? I know it is complicated going from cumulation to concurrency but I have checked it a number of times. Is there any issue in terms of the mathematics of it at all?
133 MS PIGGOTT: No, Your Honour. The only thing I missed, Your Honour, under s.6AAA, three year nine months with a non-parole period of two years and I missed the last - - -
134 HIS HONOUR: Two years three months.
135 MS PIGGOTT: Thank you, Your Honour.
136 HIS HONOUR: Yes. All right. Any other matters at all then?
137 MR TAAFFE: No, Your Honour.
138 HIS HONOUR: No. All right. Mr Taaffe, you will have to make - we are going to lose this link I believe pretty shortly I think so you will need to make arrangements to discuss these matters with your client in due course, all right?
139 MR TAAFFE: Yes, Your Honour.
140 HIS HONOUR: Will you go out and see him or - we have just lost it. We have lost your client. So there are no other - - -
141 MR TAAFFE: We will arrange a conference with him.
142 HIS HONOUR: You will arrange a conference to go to see him and to discuss these things presumably remotely but - - -
143 MR TAAFFE: Yes.
144 HIS HONOUR: All right. Well, that completes the matter then. As I say, once I have got these reasons back from VGRS, I will revise them obviously and correct any errors but also I will anonymise them so I will now disconnect then the link, if it has not already - it probably has been disconnected.
145 All right. Anyway, that completes the matter. So I will adjourn off to - - -
146 MS PIGGOTT: Sorry, Your Honour. The only other thing is - and it is probably self-evident but if noted on the court record that he is sentenced as a serious sex offender.
147 HIS HONOUR: Yes. No, well obviously I have - I am not sure if I have actually pronounced that but it is plain that he has been sentenced as a serious sexual offender - - -
148 MS PIGGOTT: Of course, Your Honour. Thank you.
149 HIS HONOUR: - - - and is there any particular need - I mean, if needs be, I can re-establish a link but - - -
150 MS PIGGOTT: No, I do not think so, Your Honour.
151 HIS HONOUR: - - - not till 4 o'clock. Do you need me to do that in your client's presence, Mr Taaffe?
152 MR TAAFFE: No, Your Honour. Your Honour stated that from the - - -
153 HIS HONOUR: It is plain that - I said it even in the structure of remarks that from this point onwards he falls to be sentenced as a serious sexual offender so - - -
154 MS PIGGOTT: Thank you, Your Honour.
155 HIS HONOUR: All right. Well, that completes the matter then. So I will adjourn till 9.30 on Monday.
- - -
5
15
0