R v Conway
[2017] ACTSC 275
•12 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Conway |
Citation: | [2017] ACTSC 275 |
Hearing Date: | 4 July 2017 |
DecisionDate: | 12 September 2017 |
Before: | Penfold ACJ |
Decision: | See [68] – [72], [87] and [95] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using carriage service to transmit indecent communications – using carriage service to solicit child pornography – delay in executing search warrants after identifying offender – presumption of harm even where victim possibly 16 or 17 – remorse and acceptance of responsibility – co-operation with law enforcement agency led to discovery of two offences – significant support from family and friends – general deterrence particularly important due to difficulty in detecting such offences. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 11(3) Crimes Act 1914 (Cth), s 19 Criminal Code Act 1995 (Cth), ss 474.19(1), 474.27A, 474.27A(1)(c), 473.1 |
Cases Cited: | Adamson v The Queen [2015] VSCA 194; 47 VR 268 Clarkson v The Queen (2011) 32 VR 361; 212 A Crim R 72 Rampley v The Queen [2010] NSWCCA 293 |
Parties: | The Queen (Crown) David Conway (Offender) |
Representation: | Counsel Mr E Chen (Crown) Mr R Davies (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 22 of 2017 |
The offences
David Conway has pleaded guilty to four offences, as follows:
(a)one offence of using a carriage service to solicit child pornography arising under s 474.19(1) of the Criminal Code Act 1995 (Cth) and carrying a maximum penalty including imprisonment for 15 years;
(b)three offences of using a carriage service to transmit indecent communications to a person under 16 years of age arising under s 474.27A of the Commonwealth Criminal Code and carrying a maximum penalty including imprisonment for 7 years.
The incident
All the offences were committed between June 2015 and July 2016.
The first one took place over a couple of weeks in June 2015, when Mr Conway made contact, via a web site called “Teenchat.com”, with a user who identified herself as a 13-year-old girl but who was in fact a New South Wales Police covert online investigator. In the next couple of weeks, Mr Conway and the other user engaged in Skype conversations with indecent content.
The second indecent communication offence occurred between early April and mid‑May 2016, when Mr Conway engaged in Skype conversations containing indecent communications with a person identifying herself as a 15-year-old girl.
The third indecent communication offence occurred between 25 and 28 July 2016. This time, Mr Conway engaged in Skype conversations containing indecent communications with a person identifying herself as a 14-year-old girl.
The solicit child pornography offence occurred between 12 January 2016 and 28 April 2016. Mr Conway engaged in numerous Skype conversations with a user who presented herself as still at school, and probably no older than 16. He asked her to send photographs and videos of her engaging in various forms of sexual activities in which he coached her during the conversations and it seems that, on a number of occasions, she did so.
The evidence on this charge is not particularly satisfactory, and the prosecutor conceded that it would not have made a particularly strong case if disputed. The offence requires that Mr Conway solicited certain material, and it is clear from the chat logs that he sought from the victim photographs of her with various sexual aspects, including photographs of her masturbating using assorted accessories. What is not so clear is whether these photographs were of “a person who is, or appears to be, under 18 years of age” (s 473.1 of the Criminal Code). Although the material available to me suggests that photographs were sent to Mr Conway, it seems that they are not available, at least to the prosecutors, although the Australian Federal Police (AFP) may have access to them. So there is no basis for me, or anyone else, to determine that the photos were of a person who appears to be under 18.
The Crown relies, however, on the discussions recorded in the chat logs in which the victim says she is still at school, but that people sometimes think she looks 17 or 18, and Mr Conway says things like “You could easily pass for that [age].” Mr Conway’s comments, of course, may cast doubt on whether the victim appeared to be under 18, as much as they might support such a conclusion.
The prosecutor also mentioned that the victim’s apparent frankness about many other things she discussed with Mr Conway suggested that she was also honest about her age, and finally, and unconvincingly, that Mr Conway’s clear interest in underage people, as shown in the indecent communication offences, could have been used as tendency evidence to establish the victim’s age, via Mr Conway’s tendency to be sexually interested in such people.
The fact that Mr Conway had an interest in underage people could not even help to establish that the victim of the soliciting offence was under 18, any more than it could have established that the NSW police officer involved in the first offence was under 18.
However, at the end of this discussion, defence counsel indicated that there was no wish to withdraw the plea of guilty, so Mr Conway is to be sentenced for this offence on the version of the facts just discussed.
Arrest
On 15 June 2015, during a conversation with the police officer who had posed as a 13‑year-old girl, Mr Conway sent photographs of himself. NSW Police captured Mr Conway’s IP address, and at some point established that it was associated with a company in Macquarie in the ACT, of which Mr Conway was the director, as well as with Mr Conway’s residential address at the time.
Some 14 months later, on 17 August 2016, the AFP executed search warrants at the company and residential addresses. Mr Conway was present at the company address and police identified him as the person in the photograph sent on 15 June 2015. The AFP found a laptop containing the same image. At Mr Conway’s house, AFP officers found a laptop which his wife identified as his. Mr Conway was telephoned and he gave AFP officers information and assistance enabling them to access data held in the laptops. Mr Conway was arrested that afternoon.
Later that day, Mr Conway began to take part in a recorded interview with police but, after receiving legal advice, declined to comment. He appeared in the Magistrates Court the next morning and was granted bail.
The third indecent communication offence and the solicit child pornography offence were detected after the devices seized on 17 August 2016 were examined.
I am told that the reason for the long delay, between June 2015 when NSW Police captured Mr Conway’s IP address and 17 August 2016 when they executed search warrants, was that the details were not referred to the AFP for six or seven months, and that then the AFP apparently spent some time unsuccessfully trying to engage with Mr Conway using other assumed identities.
It seems that resource shortages provide some explanation for these delays, and that sometimes police take steps to try to determine whether an offender is engaging in what is known as “contact offending”, which is generally more serious. However, the end result of these delays is that the three later offences were all committed after police had the information they needed to stop Mr Conway.
As at today, Mr Conway has spent three days in custody in respect of these charges.
Mr Conway pleaded guilty to the charges on 3 February 2017 in the Magistrates Court, after the chat logs recording his dealings with the four recipients of the communications had been served on him, and he was committed to this Court for sentence. The Crown accepts that these were early pleas which indicated a willingness to facilitate the course of justice, and that Mr Conway has accepted responsibility and shown remorse for the offences. Mr Conway’s co-operation with law enforcement agencies, specifically the AFP, in enabling access to his laptop will also be recognised, especially since this facilitated, either entirely or at least to some degree, the discovery of two of the offences, including the soliciting offence.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)the online chat logs documenting, to some extent, Mr Conway’s activities that give rise to the charges;
(b)a pre-sentence report; and
(c)the intensive correction order assessment;
all of which were tendered by the prosecution.
The defence tendered:
(a)a psychological report from Dr Michael Barry dated 22 June 2017;
(b)a letter from Mr Conway;
(c)letters of support from Mr Conway’s parents and his wife;
(d)a reference from Timothy Rowe, a friend of Mr Conway’s from university and church;
(e)a reference from Peter Williams, a surveyor, identifying a job offer for Mr Conway and an offer to help pay for Mr Conway’s ongoing counselling sessions;
(f)a reference from Katherine Watts, for whom Mr Conway worked during college and university holidays and after graduation;
(g)a pamphlet from Sexaholics Anonymous; and
(h)a letter from Kate Ehlers, from Child and Youth Protection Services, dated 23 June 2017.
It is clear from the material tendered by the defence that Mr Conway has significant and ongoing family support, as well as a range of friends and colleagues whose shock at his behaviour has not outweighed their respect for him as a man and as a colleague.
Objective seriousness
In considering the objective seriousness of the offence, I have had regard to the following matters.
The offences charged are all regarded as serious, as shown by their significant maximum penalties. The prosecutor pointed out that the maximum penalty for the soliciting offence was increased from 10 to 15 years in 2010.
Although one of the recipients of Mr Conway’s indecent communications was in fact an undercover police officer, the evidence suggests that the other two participants were in fact young people, although neither of them could be identified and, as a result, police were not able to establish the exact ages of those people. However, the indecent communications offence is still made out, as it is in this case, if the offender believes that the person he is dealing with is under 16, (s 474.27A (1)(c) of the Criminal Code (also see R v Gajjar [2008] VSCA 268; 192 A Crim R 76)).
It is unnecessary to go too far into the details of the communications engaged in by Mr Conway, but I note that the three indecent communication offences involved Mr Conway attempting, among other things, to persuade the victims to engage in sexual activity with other young family members.
In the case of the soliciting offence, Mr Conway encouraged the victim, among other things, to invite a particular school friend to her house to engage in various sexual activities suggested by him.
All the offences involved Mr Conway encouraging victims to perform sexual acts that they were clearly uncomfortable with, on occasions describing this as teaching them how to be “naughty”. Mr Conway’s attempts to persuade the victims to visualise committing sexual acts with him, despite having made it clear to each of the victims that he was an adult, is said by the Crown to have the potential to normalise, in the minds of those victims, sexual relations between adults and minors.
The Crown also points to Mr Conway having elicited, during the three indecent communication offences, sensitive information about the victims and their families, as well as photographs (although not of a sexual nature) of the victims. The Crown says that as the victims grow up, they may be increasingly embarrassed or concerned about a stranger having such information about them; clearly those comments only relate to the two indecent communication offences in which the victims may have been real people rather than undercover police officers using false identities. I accept that the soliciting of personal information is an aggravating factor to the extent that the concern involves the facts of a stranger having sensitive personal information in the context of the indecent communications that have taken place between that stranger, namely Mr Conway, and the victim concerned.
The Crown says that the soliciting offence is aggravated by:
(a)“the sheer number of attempts (both successful and unsuccessful) made by [Mr Conway] to solicit photos and videos of the victim masturbating”;
(b)the fact that the offence involved soliciting the creation of child pornography rather than just the soliciting of existing child pornography; and
(c)the fact that Mr Conway’s encouragement to the victim to masturbate included suggestions that she should engage in anal penetration.
I accept that these factors all contribute to the seriousness of this offence.
The Crown submitted that I could presume that the victim of the soliciting offence suffered long-term and serious psychological harm from Mr Conway’s actions. In the case of Adamson v The Queen [2015] VSCA 194; 47 VR 268, the Victorian Court of Appeal:
(a)referred to the presumption of “long-term and serious harm, both physical and psychological” caused to minors by premature sexual activity that was affirmed in Clarkson v The Queen (2011) 32 VR 361; 212 A Crim R 72;
(b)held that the presumption applied not only to “in-person” offences but also in relation to cyber-sex offences; and
(c)concluded that, for offences that apply to victims under 18 years of age, the presumption of harm extends to victims aged 16 and 17, despite the fact that the age of consent for sexual activity is 16.
In other words, I can presume harm even on the basis that the victim might have been 16 or 17; certainly it seems to me likely that, whatever her exact age, looking back on her encounter with Mr Conway will be a very distressing and potentially damaging experience for some years to come. On the other hand, I consider that the presumption of harm is inherent in this offence, and while it remains a presumption (as distinct from harm proved by evidence in a particular case) cannot be regarded as an aggravating factor as such.
The Crown conceded that, given that the participant in one of the indecent communication offences was an adult police officer, and in the absence of any proof of the real age of the other two participants in these offences, I could not rely on the presumption of harm in respect of the indecent communication offences.
No specific mitigating factors affecting the offences have been identified and, indeed, no real explanation for the offences has been provided either.
There have, however, been expressions of contrition and remorse.
The pre-sentence report author reported that Mr Conway did not try to minimise his actions, but acknowledged they were wrong and that he could have stopped, saying that the fact that he knew he was dealing with under-age people but didn’t stop shows that he needed help. Mr Conway wrote a letter to the Court saying that he could not defend his actions, and that he had focused on his own interests without any thought for the effects of his actions on other people involved. He expressed concern for the harm he might have caused to the people he was communicating with online, as well as the distress and embarrassment he had caused to his family.
He detailed the dramatic changes in his circumstances since the offences came to light, and how he has been both humiliated and humbled by those changes. He recognises that he is guilty and that “justice needs to be done”.
All Mr Conway’s referees (that is, his family members, and his friends and colleagues) as well as Dr Barry, refer to his expressions of remorse and regret and the steps that Mr Conway is taking to change himself and his behaviour.
All the offences seem to me to be approaching mid-range seriousness, although the indecent communication offences are slightly less serious given that the presumption of harm is not available for any of them.
Subjective circumstances
I have also had regard in this sentencing to Mr Conway’s subjective circumstances.
Mr Conway is now 29 years old. He has no criminal history.
Mr Conway was born in Canberra and had a stable childhood, apart from having to undergo major surgery as a teenager. He maintains good relationships with his parents and siblings, all of whom live interstate, although the current charges have caused some tensions. Mr Conway has been married since 2011, and has two young children. He left the family home after being charged, and was for a time living in a tent at a caravan park, although it seems he now has accommodation with a friend. For a while, Child and Youth Protection Services (CYPS) was involved with the family to ensure the safety of Mr Conway’s children, but CYPS has now closed the file, noting that Mr Conway’s wife will make decisions about the frequency and nature of contact between Mr Conway and the children.
Defence counsel suggested that Mr Conway’s separation from his wife and children was a form of extra-curial punishment, but I am not convinced that this is anything more than an ordinary consequence of his actions, or that it satisfies the requirements for a finding of extra-curial punishment.
Mr Conway has tertiary qualifications and has worked as a surveyor. He lost his job after the offences came to light, but has since found work as a cleaner (his options are currently limited by bail conditions which severely restrict his access to the internet). As mentioned in one of his references, there was an offer of a job in a surveying firm, and I understand that this has now been taken up.
Mr Conway rarely uses alcohol, and does not use illicit drugs. He has been involved with a sporting club and a church in Canberra; he has ceased involvement with the sporting club, but continues to attend church, and has made his current legal matters known to senior members of the church.
Since the offending came to light, Mr Conway has begun counselling with a psychologist, Dr Barry, and has attended at least 20 sessions so far. He has also been attending meetings of Sexaholics Anonymous, a fellowship for sex addicts run on the principles developed by Alcoholics Anonymous.
It seems that Mr Conway began using internet chat rooms as a somewhat naive teenager, and gradually found himself engaging in “text-based sexual fantasy discussions”. He continued using chat rooms as he grew up until, in his early 20s, he realised that he was older than most of the other participants, and at some point was locked out of teen-specific chat rooms because of his age; however he then joined general groups which were organised into age “bands”, and continued his activities, including in the “teenage” band. He claims, however, never to have lied about his age; accepting the truth of this claim, it seems to be somewhat beside the point, given that the current offences are created to protect children from being drawn into activity that they themselves may not be wise enough to avoid or refuse.
Mr Conway reduced his use of online chat rooms after he married, following a warning from his wife, but then re-engaged later, while hiding that re-engagement from his wife. This of itself is a matter of concern.
Mr Conway explained to Dr Barry that his religious beliefs had created some difficulties in adjusting to married life, and that he had found the chat rooms a useful and apparently safe way of exploring taboo topics and fantasies.
There are suggestions from his family members that he may have engaged in this behaviour in response to financial and other stresses, but no details of any particular sources of stress and no diagnosis of, for instance, an anxiety disorder.
Rehabilitation
Mr Conway has been seeing Dr Barry since September 2016.
Dr Barry provided the following opinions: in summary, that Mr Conway did not suffer a DSM5 diagnosable disorder; in particular, that there is no evidence to suggest:
(a)that Mr Conway suffered any mental impairment, mental dysfunction, intellectual impairment, or emotional, memory, psychological or neuropsychological dysfunction at the time of the offences;
(b)that Mr Conway functioned emotionally or psychologically at a level below his age and state of development; or
(c)that Mr Conway suffered any past trauma that might have affected his emotional responses and behaviour.
Dr Barry did note, however, that Mr Conway had made an unusual effort, compared with his other clients, to seek real insight into his behaviour, including by wide reading in various relevant areas, and that Mr Conway had expressed remorse, and has attempted to demonstrate that remorse through his actions. Dr Barry suggested that Mr Conway would benefit from treatment to help him to develop protective strategies to prevent him from re-offending, including ongoing engagement with Sexaholics Anonymous and possibly Acceptance and Commitment Therapy.
Dr Barry assesses Mr Conway as at a low risk of re-offending; this risk, in Dr Barry’s view, should be further reduced if Mr Conway continues with Sexaholics Anonymous and continues to accept treatment when he is permitted to resume internet use.
Other sentencing considerations
Mr Conway’s financial position has become difficult since he was charged, but as noted, he quickly found work as a cleaner and his wife reports that he has been contributing to the family finances beyond what is required by his child support obligations.
Deterrence
General deterrence is particularly important for offences such as these that are often difficult to detect. At this stage it seems likely that Mr Conway needs little in the way of personal deterrence, although the absence of any clear explanation of his behaviour and what triggered it makes it difficult to predict whether he might again succumb to temptation at some stage in the future.
Burden of full-time custody
Defence counsel submitted that any full-time custody might need to be served in protection and might therefore weigh more heavily on Mr Conway than it otherwise would. However, because this possibility simply relates to the nature of Mr Conway’s offences, it does not seem to me to require any kind of concession in sentencing.
ICO assessment
When the matter was last before the Court, I ordered an intensive correction assessment. That assessment has been provided, and Mr Conway is said to be suitable for an intensive correction order (ICO) and also suitable for a community service order.
Since his offences came to light, Mr Conway seems to have done everything that could possibly have been expected of him, in terms of co-operating with police, entering early guilty pleas, expressing remorse, seeking help with rehabilitation (including by engaging with a psychologist), appropriately disclosing his offences to a wide range of people, leaving the family home in the interests of his children, and doing his best to continue to provide for his family despite having lost his earlier employment.
On the other hand, his offences are quite serious examples of the offences created by the legislation, certainly such as to inspire revulsion in any parent imagining his or her children becoming involved with a person like Mr Conway, and there is no convincing explanation for them in the material before me. The implication of his discussions with Dr Barry that, for instance, fantasies about sexual activity such as those involving young siblings were not able to be discussed within his marriage, does not seem to explain, let alone justify, Mr Conway’s efforts to enact these fantasies over the internet.
Comparable cases
The Crown referred me to several decisions of Courts of Appeal in other jurisdictions to the effect that sentences for Commonwealth offences of these kinds will generally, although not in every case, require a period of actual full-time custody, to ensure that such sentences have a properly deterrent effect.
Counsel also identified four cases that were possibly useful as comparable cases, while noting that each case had some quite different aspects.
In Director of Public Prosecutions (Cth) v Walls [2014] VSCA 323, the Crown unsuccessfully appealed sentences of four months imprisonment each for two indecent communication offences and six months imprisonment for a solicit child pornography offence, which were accumulated so as to add four months on to an 18-month sentence for using a carriage service to procure a child. The 22-month sentence was fully suspended with a two-year good behaviour order.
The Victorian Court of Appeal concluded that the sentence was lenient but not manifestly inadequate. I accept the Crown’s submissions that the offences in this case are objectively more serious than those of Mr Walls, while Mr Walls’ personal circumstances and prospects of rehabilitation, like Mr Conway’s, were good.
In Director of Public Prosecutions (Victoria) v Chatterton [2014] VSCA 1, the Victorian Court of Appeal upheld the DPP’s appeal on the ground of manifest inadequacy. This case involved more offences, including a number of sexual penetration offences, but included an indecent communication offence (involving several different recipients, but otherwise somewhat similar in content to Mr Conway’s communications). Mr Chatterton’s offences had been committed while he was on conditional liberty after serving part of a previous sentence for similar offences. Mr Chatterton’s sentence of 3 months imprisonment and a 3-year community corrections order, to run concurrently with all the other sentences, was increased to 12 months imprisonment, concurrent as to 3 months with a sentence of 6 months for a Commonwealth procurement offence, and wholly concurrent with sentences imposed for the State offences. Mr Chatterton was to serve a total of 2 years 6 months in full-time custody, including the whole of the Commonwealth sentences, before being released on parole.
In R v Nahlous [2013] NSWCCA 90; 273 FLR 232, the New South Wales Court of Criminal Appeal rejected the Crown’s claim that a custodial sentence was required. Mr Nahlous had engaged in Facebook communications with a 14-year-old neighbour. However, his communications were, in the current context, relatively mild, and he made it clear that he did not wish to meet the victim while she was so young, saying on one occasion "maybe in 4 to 5 years". Mr Nahlous’s personal circumstances provided some explanation for his engagement with the victim, and the Court was satisfied of his contrition and shame. The Court upheld a sentence of 18 months imprisonment, with a 3-year recognizance release order, for one grooming offence and five scheduled Commonwealth indecent communication offences.
In Rampley v The Queen [2010] NSWCCA 293, the New South Wales Court of Criminal Appeal dismissed an appeal against a sentence on a plea of guilty for one Commonwealth offence of grooming, carrying a 12-year maximum term of imprisonment. The sentence was 2 years 9 months, and Mr Rampley was to be released on a recognizance release order after 18 months. Much of Mr Rampley’s dealings with the supposed 12-year-old girl involved communications not unlike those made by Mr Conway, in particular with detailed instructions for masturbation.
These cases involve a variety of circumstances, and do not provide a clear framework into which Mr Conway’s case can be fitted. Mr Conway’s apparently good prospects of rehabilitation may not of themselves weigh heavily enough against the relatively serious nature of his offences over a period of 12 months to justify a sentence without a component of full-time custody. However, it seems to me that the unsatisfactory nature of the evidence on the most serious offence, and Mr Conway’s co-operation with the police, which may have made the difference between two of the offences, including the most serious one, coming to light or not, and the relatively strict requirements of an ICO, may be enough to tip the balance in favour of an ICO.
Sentence
Mr Conway, please stand. I record convictions on:
(a)one offence of using a carriage service to solicit child pornography; and
(b)three offences of using a carriage service to transmit indecent communications to a person under 16 years of age.
I now sentence you to imprisonment as follows:
(a)for the soliciting offence, to 22 months imprisonment, reduced from 2 years and 6 months for your plea of guilty; and
(b)for the other three offences, to 6 months imprisonment each, reduced from 8 months, and to be served so as to add 3 months each to the total sentence.
That gives a total of 31 months imprisonment, which will start today and end on 11 April 2020. Since I propose to order you to serve this sentence by an ICO, and the total sentence is more than 2 years, I note for the purposes of s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) that I consider such an order to be appropriate, having regard:
(a)first, to the nature of the offences concerned which, while potentially damaging to victims, involved activities that should be able to be controlled while you are under supervision,
(b)to the fact that, for that reason, you seem unlikely to pose a risk to anyone in the community at this stage; and
(c)finally, to the steps that you are taking to address the matters rendering you culpable in relation to the current offences.
I now order that the sentence be served by way of an ICO. The ICO is subject to the standard core conditions for ICOs. I note the advice from the assessor that your emotional and personal needs and your offending behaviours will be particularly targeted under the implementation of the order.
I also order that, during the term of the ICO:
(a)you perform 300 hours of community service;
(b)you continue to engage with Dr Barry;
(c)you are assessed and, if found suitable, you engage with, and complete, the ACT Corrective Services Adult Sex Offender Program; and
(d)finally, before close of business tomorrow, which you should assume is 4 pm, you attend Corrective Services at Level 1, 249 London Circuit, to arrange supervision under your ICO, and specifically your community service arrangements.
Now, Mr Conway, I need to try and explain what the significance of this order is to you. I assume that your assessor has already explained to you how this will work, and you may already have talked to Mr Davies about it, but I need to say a few important things to you. The sentence of 31 months, as I have said, will start to run today. If you comply with all your ICO requirements, do as your supervisor tells you, complete your community service and the Adult Sex Offender Program, if appropriate, and generally keep out of trouble, then at the end of that 31 months, you will have finished your sentence without any time in custody.
If you commit another offence during the 31 months that has got a prison sentence attached to it, that is, an offence that carries a maximum term of a prison sentence, not necessarily an offence that you get sentenced to imprisonment for, you will come back here and I will have to re-sentence you.
The expectation under the legislation seems to be that at that point, if you came back here having committed another offence that carries a prison term, you would be required to serve out the rest of your term in full-time custody. That is not an absolute guarantee, but you should assume that is what will happen if you commit another offence with an imprisonment penalty in the next 31 months. And I should say in particular, if you were to commit another offence of the kind that you are now being sentenced for, you should be pretty confident that you will be in prison for the rest of the 31 months.
Apart from committing offences, if you breach the ICO, or don’t comply with the directions of your supervisor, then there are various things that your supervisor or Corrective Services can do in dealing with that, starting with giving you warnings, and I understand you can’t get more than 3 warnings in a year, and moving up to putting you in prison for short periods, either 3 days or 7 days at a time, to remind you that this is serious.
Finally, if your supervisor or the intensive correction authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the ICO may be cancelled and you will then find yourself serving the rest of that sentence, so from that date until the end date that I have already specified, in full-time custody without ever coming back to the Court. It won’t be a discretionary matter for the Court, it will be entirely up to Corrective Services.
So agreeing to this order, Mr Conway, is inevitably a bit of a gamble, although at this stage I can’t see any reason why you should struggle to comply with the ICO obligations, and why you shouldn’t succeed in serving your whole sentence in the community, but you do need to make sure you take it seriously because, as I have said, if you don’t take it seriously, you are at risk of serving possibly quite a lot of your sentence in full-time custody, possibly without even a parole period to look forward to.
Finally, I should specify the following matters:
(a)for the soliciting offence, the 22 months imprisonment is to be served from 12 September 2017 to 11 July 2019;
(b)for the first carriage service offence, the 6 months imprisonment is to be served from 12 April 2019 to 11 October 2019;
(c)for the second carriage service offence, the 6 months imprisonment is to be served from 12 July 2019 to 11 January 2020; and
(d)for the third carriage service offence, the 6 months imprisonment is to be served from 12 October 2019 to 11 April 2020;
so the total head sentence runs from 12 September 2017 to end on 11 April 2020. I note that the three days in custody have disappeared because you can’t backdate an ICO.
I also note that although the sentence is for less than 3 years, I decline to make a recognizance release order because I have ordered that the whole sentence be served by an ICO.
You may sit down, Mr Conway.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 31 October 2017 |
5
6
3