R v Forrest

[2019] NSWDC 949

District Court

New South Wales

Medium Neutral Citation:

R v Forrest [2019] NSWDC 949

Hearing dates:

3 April 2019

Decision date:

05 April 2019

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Count 1- Recognizance Release Order revoked – sentenced to 6 months imprisonment in lieu.

Count 2 – Recognizance Release Order revoked – sentenced to 12 months imprisonment I lieu.

Counts 3 & 6 – Intensive Correct Order revoked – sentenced to 4 months imprisonment in lieu.

Counts 4 &5 – Recognizance Release Order revoked – sentenced to 18 months imprisonment in lieu. Prisoner to be released after 6 months upon entering a recognizance in the sum of $500 to be of good behaviour for two years.

Catchwords:

CRIME – sentence – breach call-up – Commonwealth and State offences – use carriage service to transmit child pornography material – possess child abuse material – breached conditional liberty by committing similar offence - intellectual cognitive disability – fails to acknowledge paraphilic disorder – needs intensive treatment program in the community

Legislation Cited:

Commonwealth Crimes Act 1914

Crimes Act 1900 (NSW)

Cases Cited:

DPP (Cth)vDe La Rosa [2010] NSWCCA 19

R v Engert (1995) 84 A Crim R

Category:

Sentence

Parties:

Regina (Crown)
David Michael Forrest (Offender)

Representation:

Solicitors:
Ms Vizinten (CDPP)
Mr McQuade (Offender)

File Number(s):

2015/00013079

Publication restriction:

No

Judgment

1. I will just foreshadow what I am proposing to do in the context of the material, and I will give judgment, but I may not be able to make the orders today. If I have to make them I might have to make them later in the day because the matter is not without complication. I have got other work to do and I have other orders to make in other matters.

2. In respect of what is described in the sentencing orders, as to Count 1, I propose to revoke that recognizance and sentence the offender to six months imprisonment to date from 12 November 2018, the operative date of the term of imprisonment imposed by the Parole Authority.

3. In relation to what is described as Count 2, that is the matter for which I sentenced the offender to one year six months imprisonment directing he be released on a recognizance immediately; I propose to impose a sentence of one year six months imprisonment to date again from 12 November 2018, however I direct that he be released at a time that coincides with the release of the prisoner in respect of another order.

4. In respect of the Intensive Correction Order, Count 3, I propose to revoke that and sentence the offender to eight months imprisonment to date from 12 November 2018.

5. In respect of Counts 4 and 5, I propose to revoke those orders and sentence the offender to 18 months imprisonment from 11 May 2019 but to be released on recognizance after six months.

6. In respect of Count 6, which is another Commonwealth ICO, I propose to treat that in the same terms as Count 3.

7. I am dealing with the ICOs in this way primarily because I would understand, although I do not have this information, that he in fact had been serving his Intensive Correction Order for part of the period of time that he was released. So I have to give him credit. I have not got the precise time but I am drawing a line through the orders made by the Parole Authority. They must have had this information available to them for them to calculate a sentence of eight months and eight days, so they effectively gave him 12 months credit for the time spent under the ICO, as I read their orders.

8. Count 7 is the matter that has already been revoked and so I ultimately will make an order that will permit the release of the offender in respect of all matters on or about 11 December 2019. I bear in mind, in coming to that conclusion, I go back to the orders that I made and the conclusion I had reached in relation to the matters when dealt with at first instance, that all matters taken together, no sentence greater than two years imprisonment would be imposed.

9. David Michael Forrest was sentenced by me on 7 April 2017 in respect of a number of Commonwealth offences and one State offence for which he was placed on various forms of “conditional liberty”.

10. In relation to what is described in the sentencing orders as Count 1, which is a Commonwealth matter, he was ordered to enter into a recognizance himself in the sum of $400 to be of good behaviour for a period of two years.

11. In respect of what is described as Count 2 he was sentence to one year and six months imprisonment but directed, pursuant to s 20(1)(b), to be released forthwith to be of good behaviour for a period of two years.

12. In respect of Count 3 pursuant to s 20AB Commonwealth Crimes Act 1914 he was sentenced to serve 18 months imprisonment by way of Intensive Correction Order.

13. Counts 4 and 5 were dealt with by recognizance release orders pursuant to s 20(1)(b) Crimes Act 1914. He was sentenced in each matter to 18 months imprisonment but to be released on a recognizance to be of good behaviour for a period of three years in respect of each matter.

14. On Count 6, as it was described in the orders, he was sentenced to 18 months imprisonment to be served by Intensive Correction Order pursuant to the terms of the relevant Commonwealth legislation to which I referred.

15. Count 7 was a State offence for which he received a term of 18 months imprisonment to be served by way of Intensive Correction Order commencing on 20 January 2018.

16. I should point out that the Intensive Correction Order in relation to what I have described as Count 3 was to commence on 20 July 2017, therefore it was partly accumulative upon the order in relation to Count 6.

17. I should point out for the record that:

Count 1 was sequence 4 in the matters for which the prisoner had been charged initially at the Local Court.

Count 2 was sequence 6.

Count 3 was described as sequence 19.

Count 4 was sequence 24.

Count 5 was sequence 25.

Count 6 was sequence 2, and

Count 7, the State offence, was sequence 1.

18. The offences for which the prisoner was sentenced by me on 7 April were offences in respect of the first six matters contrary to Commonwealth law as I see it, and all the offences related to the transmission of indecent and or child pornography material, or using a carriage service to transmit indecent material. One count was an offence of using a carriage service to procure a person under the age of 16 years for sexual activity.

19. The State offence, Count 7 as it was described, is an offence of “possess child abuse material” contrary to the relevant provision of the New South Wales Crimes Act. In that judgment, which has been placed in the Court’s Case Law system, I went to great lengths to discuss all the relevant principles that I took into account, including matters relating to the mental health and or disabilities of the prisoner and other related matters. I think it could be fairly said that in sentencing the offender I was very careful to ensure that not too greater weight was given to general deterrence, it being reduced by reason of the character of his mental disability in circumstances where ordinarily the offences that the prisoner committed would require full weight to be given to general deterrence and would have inevitably without matters relating to the prisoner’s mental health and mental disability have required him to serve a substantial term of imprisonment.

20. When one provides a prisoner with an opportunity, as was provided to this prisoner to avoid being in custody for an extended period of time one always hopes that two things will happen. That the prisoner will take the opportunity provided to him or her, and secondly, that the effect of the orders will assist in the reformation or rehabilitation of the prisoner to avoid further offending.

21. I appreciate of course the mental disability of this prisoner and other issues discussed in the reports that I read and in subsequent reports prepared after my sentencing remarks reflect upon the prisoner’s susceptibility or general vulnerability to commit offences of the type that I was concerned with.

22. In October of 2017 at Jannali the prisoner was arrested by police and ultimately charged for having in his possession child abuse material, that is, images consistent with child abuse. I pause for the moment by reference to some history the prisoner has recently given to medical professionals to point out that the prisoner explained, as I read it, to one or other of the professionals that in fact the images that he had initially he thought were in his possession were only five. But he was now confronted with the allegation that he was in fact in possession of many more images, largely in the form of videos.

23. In reading the facts in relation to the apprehension of the prisoner on 20 October 2017 at Railway Crescent Jannali, what emerges is that police spoke to the prisoner at the time that he was driving a motor vehicle in circumstances not fully explained, they examined his phone, and they discovered that he had five images that could be identified readily consistent with child abuse material. These images included a number of images depicting naked males, clearly under the age of 16 years, two images depicting young boys engaged in sexual acts amongst the five images.

24. The police took the prisoner back to the police station, he was placed in custody and they then attempted an electronic download of his phone. The consequence of the electronic download was to lose the five images that had been observed at the scene of his arrest but to discover that the prisoner was using a messenger application that he could form chat groups where he could share links to what is described as “cloud‑based” storage of child abuse material. There were a number of chat groups hosted and joined by the prisoner and within the files stored on the mobile phone there was an amount of images and videos that constituted child abuse material. There were 14 such images and seven videos which are described in the facts under what is described as “INTERPOL Baseline” categorisation. I do not need to go through the categorisations under that system which, are somewhat different from what was formerly called the CETS system of classification which is much more specific.

25. In the facts presented at subsequent court appearances of the prisoner, the summary of the material demonstrates that it is child abuse material. The various images involve female and male children, some under the age of six engaged in various sexual acts either between themselves or with adults, in one case a pregnant female adult, in another case with males. Horrific material which reflects upon the debasement and degradation of individuals with which the prisoner clearly has an interest.

26. I do not need to go through the detail of those various images. The videos run for relatively short periods up to two minutes in some instances showing very graphic acts of sexual activity between children or against children. I do not propose to reiterate what I have said, maybe dozens and dozens of times in other matters, and perhaps in the earlier sentencing of Mr Forrest, but in summary it is the fact that these images show not only the degradation and abuse of children but they show only part of the character of that debasement. I have always wondered what happens to the child before or after the filming, and that is something we can only speculate about. Truly horrific. A matter about which obviously the prisoner does not care and is a matter of concern.

27. The prisoner then appeared before a learned Magistrate, as I understand, at Sutherland Court and was convicted by Magistrate Bartley, a very experienced and wise judicial officer. As I understand, he was sentenced by his Honour to a term of imprisonment of 18 months with a non‑parole period of six months. The non-parole period expires on 11 May 2019.

28. What I did know when the matter first came before me last Wednesday was that in fact there had been other developments which affect the custodial situation of the prisoner. I have been served today with material comprising two breach reports to the Parole Authority in respect of the State Intensive Correction Order that I fixed in respect of Count 7. Those two reports ultimately led to the offender appearing before the Parole Authority, as I understand it, by reference to the custodial record on 5 December 2018. The Intensive Correction Order that I made, that is, 18 months’ imprisonment to be served by way of Intensive Correction Order, was revoked and the Parole Authority fixed a sentence of eight months eight days for the outstanding balance of the Intensive Correction Order. I take that to mean in effect the Parole Authority gave the prisoner credit for 12 months of the 18 months term of imprisonment that I imposed. The reality is the offender remains in custody until 19 July 2019. I suppose there is a possibility he may be eligible for parole between 11 May 2019 and 19 July 2019, of that I am not particularly certain.

29. His learned counsel when he appeared two days ago, provided a bundle of material he asked me to consider and made certain submissions about it. I will come back to what that material represents in the scheme of things in a moment.

30. With regard to the breach reports that were prepared for the Parole Authority, the first report dated 26 October 2017 relates to his arrest. It notes that his response to supervision had been satisfactory, reflected upon diagnoses that were known to the Court when I sentenced him, and reflected upon the program or plan in place for him in relation to his Intensive Correction Order. It was recommended in that report that despite the matter pending in Court his compliance with the conditions of the Intensive Correction Order was satisfactory and the Authority was requested to defer the decision on the breach.

31. The subsequent report dated 13 November 2018, after the prisoner had been sentenced by the Magistrate, recommended that an Intensive Correction Order be revoked because the prisoner had breached his order by committing similar child abuse offences, as it is described, although as I understand, it was only one charge. I may be wrong.

32. This report did say, as had the earlier report, that his response to supervision had been generally satisfactory. He reported in face to face interviews. It reflected upon previous diagnosis, including intellectual cognitive disability, autism, ADHD and depression. It noted that;

“whilst Mr Forrest understood his obligations while subject to the ICO and had a general understanding of the serious nature of his offences he had difficulty discussing the nature of his sex offending and thus had difficulties engaging with interventions for sex offending”.

This was precisely what he was required to do in consequence of the orders that I made.

33. The report did note that Mr Forrest regularly met with his treating psychiatrist and although he was referred to the Forensic Psychology Services Sex Offender Program,

“he failed to engage regularly with his last contact being 25 May 2018”.

That is, as I would understand it, six months or thereabouts before he was sentenced by the magistrate. I understand he was on bail up until the Magistrate’s order. Again the case plan for him was set out in that report.

34. The material presented by the accused includes material that had been previously provided to me, and I do not propose to revisit that material. There is a further report from the psychologist, Stephen J Woods dated 6 July 2018 which revisits, to be frank, a number of matters of which I am already aware and have reflected upon in my earlier judgment.

35. Mr Woods did however, deal with aspects of the “current matter” that is, the charging of the prisoner in October 2017 when apprehended at Jannali. This report of Mr Woods reflected on the fact that whilst it must be acknowledged that Mr Forrest did not at any time admit to having access or produce child abuse material that was the subject of the “charges”, he did make a number of claims and disclosure that caused the author to suspect that he was guilty of the offences for his own paraphilic urges and that those suspicions were gathered from matters identified in the report at p 5.

36. There is some history of his sexual activities in recent times which I do not propose to disclose in open court. Basically reflecting upon the confusion claimed by the prisoner in relation to his sexuality. Mr Woods opined that the prisoner had

“not received the intensive and assertive level of supervision and clinical intervention he requires”.

37. It is difficult for him to receive the relevant level of attention if he fails to attend upon appointments that are arranged for him by Corrective Services. But be that as it may, he made the observation to indicate his concerns in relation to the limited “assertive nature” of intervention that arises from what are described as “limited available resources”.

38. Professor Woods believes that he is the only clinician to whom Mr Forrest has disclosed his sexual interests and that others would have a difficulty in formulating a comprehensive and appropriately assertive treatment and risk management plan in the absence of that information. He identifies matters that could be addressed in the course of appropriate treatment of him. He noted that if he was sentenced to a custodial sentence it would be in his interests, that is the prisoner’s interests, and the community’s interests for him to be held whilst in custody in circumstances where he would not be the victim of sexual exploitation and physical assaults, and he receive treatment to address the identified risk factors earlier identified in the report. Obviously there could be no consideration of a non‑custodial sentence for the matter dealt with in the Local Court.

39. In his concluding comments, Professor Woods acknowledged that previous intervention had not been successful and the probably primary reasons for this were the failure of the prisoner to acknowledge his sexual preference and paraphilic interests, inappropriate influence of other persons, premature discontinuation of treatment with the particular medical practitioner, and possibly the absence of assertive case management. I am assuming Professor Woods’ report was prepared for the Magistrate who dealt with the prisoner in November 2018 but whether it was tendered or not I do not know and is neither here nor there.

40. I have another report dated 9 November 2018 from Dr Jeremy O’Dea, forensic psychiatrist, who had the prisoner referred to him on 9 August 2018. He consulted with the prisoner on three occasions, in August, September and October, and noted history and comments made by previous treating psychiatrists and the like which I need not dwell upon. In relation to the subject of these consultations Dr O’Dea dealt with the prisoner’s version of the offending for which he was required to attend the Local Court. It was in this history that the reference to the loss of the five images to which I have referred was mentioned by the accused. He seemed to be suggesting, as I would understand it, that he could not understand why there were more images the subject of the prosecution when initially the police were only looking at five images. Anyway, there is an explanation for that in the facts.

41. He concluded in relation to the matter that there had been a lack of success in relation to the prisoner’s treatment in the past. He felt, amongst other things, that there was other medication that should be provided to the prisoner, including medication for lowering his testosterone levels. He recommended that the prisoner receive treatment for his paraphilic disorder, his ADHD and depressive disorder, and that he should remain abstinent from alcohol abuse, particularly to assist him in controlling his,

“deviant sexual urges, fantasies and behaviour”.

He believed that the use of testosterone lowering medication was the,

“single most effective intervention in managing the risk of further sexual behaviours in patients such as Mr Forrest”.

42. He reflected upon matters of concern to the Magistrate, particularly whether the provisions of s 32 Mental Health (Forensic Provisions) Act 1990 should be invoked. He made recommendations in relation to a more intensive treatment program within the community and said that such an intensive program was,

“likely to prove the most appropriate intervention in managing and minimising his risk of engaging in further voyeuristic behaviours and could be organised and implemented in the community without placing the community at undue risk”.

43. He opined also that a period of incarceration would not assist the prisoner in meeting his psychiatric treatment needs but as the Crown has pointed out in a different way the issues of specific deterrence require the Magistrate to do nothing else but impose a term of imprisonment, bearing in mind of course the offence for which the prisoner was charged, and was the concern of the Magistrate, had the significant aggravating factor under New South Wales legislation of being committed whilst under conditional liberty in relation to like offences.

44. Part of the material that was provided to me was a pre-sentence report dated 3 May 2018. It noted in May 2018 that whilst the prisoner had demonstrated his ability to be compliant under his current supervised Intensive Correction Order he had also demonstrated ongoing difficulties and resistance to addressing his child sex offending (in a voyeuristic sense) during current psychological sessions. The author noted that previous reports by various psychologists and counsellors who have assessed Mr Forrest have similarly reported that the offender has a poor level of knowledge and lack of understanding around his own sexuality and the concept of age appropriate sexual activity. The various longstanding diagnoses of his mental disabilities are referred to. It is noted that the prisoner would benefit from supervision but ultimately those recommendations were taken into account by the learned Magistrate in fixing a term of imprisonment that included a non-parole period that reflected “special circumstances” under s 44 Crimes (Sentencing Procedure) Act 1999.

45. That summation of the history of the situation as it stands, reflects upon the circumstances in which the Commonwealth Director in accordance with the powers available to the Director pursuant to s 20AC Commonwealth Crimes Act has sought to have the Intensive Correction Orders made under Commonwealth legislation be revoked by the Court. Further, the Crown pursuant to s 20A(5), seeks revocation of the orders made by the Court that I have referred to, pursuant to s 20 of the Commonwealth Act, one order in effect being a good behaviour bond, the orders being as I have outlined, terms of imprisonment suspended on entering a recognizance to be of good behaviour.

46. With regard to s 20AC the Court has a number of options available by regard to s 20AC(6), it may impose a pecuniary penalty, it can revoke the original sentence and subject to s 7, deal with the person in respect of which the sentence was passed and the order was made in any manner in which he could have been dealt with for that offence if the sentence had not been passed or the order had not been previously made, or the Court can “take no action”.

47. In relation to s 20AC(7):

“Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, the Court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account: the fact that he sentence was passed or the order was made, anything done under the sentence or order, or any fine or other pecuniary penalty imposed and any other made for or in respect of the offence.”

48. What I understand that provision to mean is that in revoking the order one must have regard or may have regard to the particular sentence that was previously in place before the revocation. One must have regard to any service of any aspect of the previously made order and, for example, with regard to an Intensive Correction Order I have to note as I have discussed with the parties, the fact that he would have served over a period of time a segment of the Intensive Correction Orders that I made, albeit that they were primarily concurrent with one another, one of the Commonwealth orders was partially cumulative upon the other Commonwealth Intensive Correction Order.

49. I come back to what the evidence seems to suggest to me that the Parole Authority took the view that the prisoner should be given credit for “time served” under the State ICO, ultimately determining that the prisoner should serve the sentence of eight months and eight days to which I earlier referred. The effect of the sentence imposed by the Parole Authority was to backdate it from the date of the order to the commencement date of the non-parole period fixed by the Magistrate. Perhaps I am a day or two out but it does not matter very much. I was hoping that I would have material either from the Parole Authority or Community Corrections as to precisely the basis upon which that calculation was made. I do not have that material. All I have is what I can conclude from the orders that were made by the Court.

50. In respect of the other recognizances the Crown draws my attention in her very helpful submissions, and the Crown has been most helpful in the compilation of relevant material, to the terms of s 20A(5) Commonwealth Crimes Act to which I earlier referred. The Court may under those provisions, which closely mirror the terms of s 20AC, do a number of things. It may revoke the relevant orders and as provided in s 20AC, deal with the prisoner in any manner in which he could have been dealt with if the earlier sentence had not been passed, although having regard to the fact that what it precisely was the sentence passed on the previous occasion and anything done under the sentence or order, what the prisoner was required to do in relation to the recognizances was to be of good behaviour and comply with directions of the Community Corrections Service.

51. I have referred to some extracts from the breach reports, acknowledged that there was performance of responsibilities under the ICOs which run concurrently with the responsibilities that I had specifically identified as conditions for those particular orders. The matter is one of some difficulty because in re- sentencing the prisoner having regard to the additional material, many of the matters that I have previously identified in my judgment of April 2017 are still pertinent. The prisoner still has the same conditions as he had previously. Those conditions in a range of ways it seems can contribute to his offending. However he continues to offend. It brings into sharper focus I would have thought, in the context of the sentencing principles in relation to sentencing of offenders in these circumstances.

52. The matter identified by Gleeson CJ in the decision of R v Engert (1995) 84 A Crim R arises, which has been widely approved in a range of decisions and is particularly noted by McClellan CJ at CL when he set out a summary of principles in relation to the sentencing of mentally ill and disabled prisoners in the decision of DPP (Commonwealth) v De La Rosa [2010] NSWCCA 19. The summary of principles appears at [177]-[178] of that judgment. I appreciate that was a significant judgment in relation to Commonwealth sentencing concerned with constitutional legal issues and also in relation to the categorisation of different types of offending concerned with importing border controlled drugs or controlled drugs into Australia, but the principles that his Honour identified in the course of disposing of the appeal have been widely adopted and repeated, and to some extent refined since. Certainly it is acknowledged that persons with particular mental disabilities or illnesses may not be an appropriate vehicle for the message of general deterrence and lesser weight should be given to general deterrence in that situation. That is not a matter that is in doubt in this instance. There needs to be, notwithstanding this continual offending, a lesser weight to general deterrence because of conditions over which the prisoner has no control.

53. I also acknowledge by reference to those principles summarised by his Honour that the circumstances of custody for this prisoner are more onerous than they would be for prisoners in the normal population both by need for the prisoner to be protected from exploitation and because of his vulnerabilities and physical and mental weaknesses. However, as the Crown pointed out, coming back to the decision of Engert in the manner that Gleeson CJ articulated it more eloquently than I can, there are particular people with particular conditions who because of their continual offending, whilst not necessarily being an appropriate medium for the message of general deterrence, require greater weight to be given to personal or specific deterrence given their susceptibility to offending. I appreciate in the helpful submissions of learned counsel for the prisoner he made the point arising from the additional material provided to me that one should take into account the identification of failures in previous supervision and treatment of the prisoner that had gone apparently “undetected” and that with a new regime before he was committed to custody in November 2018 there was a chance of medical interventions being more successful than they had been in the past.

54. One of the realities of this matter is the fact that the prisoner is serving a term of imprisonment, but in any event making all due allowance for the matters that could be regarded as “mitigatory” the commission of the offence dealt with in the Local Court so soon after I had made my orders and the character of the offence committed, require in every instance in respect of the Commonwealth matters revocation of the orders that I previously made. The revocation of the orders thus must lead to the fixing of terms of imprisonment. It seems to me in the context of the realities of what was done by the Magistrate and what was done by the Parole Authority I should make orders that involve terms of imprisonment that are concurrent in part with the orders made by the Magistrate, and partially accumulative on the sentence imposed by the Magistrate and also the sentence confirmed by the Parole Authority to which I earlier made mention.

55. I have regard to the orders that I previously made and the view that I formed having regard to the evidence available to me that, by reference to the totality of the criminality, I would not have imposed terms of imprisonment greater than two years, a substantially reduced penalty than might otherwise be appropriate for a person who did not have the disabilities this offender has.

56. I foreshadowed therefore, that I would in revoking the various orders, fix terms of imprisonment, some to commence on 12 November 2018, some to commence at the expiry of the current non-parole period. I have indicated that in terms of confirming sentences greater than six months I would fix non-parole periods that would permit the prisoner’s release to the community in November or December 2019, the precise date I have not calculated yet. But in fixing that minimum period, before the prisoner could be released on a Recognizance Release Order, I would make an adjustment to permit the prisoner to have an earlier opportunity than might otherwise be the case to be introduced to an appropriate treatment regime, a regime that might prevent further offending.

57. The introductory remarks I made to this judgment included some indication of the orders that I would make. I may have indicated a non-parole period expiring in December of this year but by reference to my notes which I have made during the course of this morning’s proceedings what I would contemplate is that the minimum term required to be served by the prisoner would be a period of six months beyond the non-parole period fixed by the magistrate with the prospective release date in those circumstances of 11 November 2019 - not a date in December if I in fact indicated that.

58. In coming to this conclusion I have had regard to all the material that has been provided to me and the remarks on sentence that I previously made and the facts in relation to those matters. It is a matter of concern in some respects, the risk the prisoner presents to the community. But consideration of that risk also requires consideration of the underlying factors which contribute to that risk and the need, on the strength of for example, the report of the psychiatrist Dr O’Dea that may be addressed by more intensive treatment when the prisoner is finally released.

59. I can’t make the formal orders now but I will endeavour to do so at 3 o’clock. It is better that Mr Forrest be dealt with today rather than brought back again.

60. SHORT ADJOURNMENT

MATTER STOOD IN LIST

61. Earlier today when this matter was before me I gave ex-tempore reasons for concluding that I should revoke the various orders that I made in relation to Mr Forrest. I just want to place on the record a matter that was raised with me, quite properly by the Crown and by the solicitor for the prisoner, concerning what can be deduced from proceedings before the Parole Authority concerning the recognition of “time spent” in respect of the terms of imprisonment previously ordered to be served by Intensive Correction Order.

62. Just to recap on a subtlety of the matter:

When I sentenced this prisoner in respect of the two Intensive Correction Orders that I am about to revoke, the first order was to be served from 20 July 2018 for a period of 18 months, the second order, that is, in relation to sequence 2 or count 6 was also order to be served from 20 July 2017. The order that I made in respect of the State offence which has since been revoked by the Parole Authority, that the accused serve 18 months imprisonment by way of Intensive Correction Order, was commenced on 20 January 2018. So in effect, although I was dealing with a mixture of State and Commonwealth matters, what I did of no apparent discernment was to make the Intensive Correction Orders in relation to the Commonwealth matters concurrent with one another but make the State offence for which I ordered an Intensive Correction Order to be served partly accumulative upon the Commonwealth orders.

63. What follows from that, in light of the information that was given to me by the learned Crown Prosecutor, and with the assistance of the prisoner’s solicitor, is that when the prisoner came forward to be dealt with by the Parole Authority in December of 2018. The Parole Authority, in respect of the State order that they were revoking, gave him credit for a period of just short of ten months that had been served by the prisoner between 20 January and what I take to be 12 November, being the date that the prisoner commenced serving the sentence imposed by his Honour Magistrate Bartley. So that meant in effect that he was ordered to serve the eight months and eight days imprisonment by the fixed term that I earlier mentioned as the unexpired term of the Intensive Correction Order.

64. It follows from that in respect of the Intensive Correction Orders imposed in relation to the Commonwealth matters, in order to calculate what should be given as credit for time served, bearing in mind it is a term of imprisonment, I am required to look at the matter from the perspective of time served between 20 July 2017 and 12 November 2018, the commencement of the term of imprisonment to which I earlier referred imposed by the Magistrate and subsequently the commencement date of the term of imprisonment in respect of the revoked Intensive Correction Order for the State offence.

65. It is clear that the Commonwealth legislation to which the learned counsel for the Crown referred me, acknowledges the need for the Court to take into account matters such as time served, or the manner in which a particular order has been served. Ultimately, the matter seen that way will not affect the orders that I have decided, save for the fact that the term of imprisonment by way of a term that I will fix on the revocation of the two Intensive Correction Orders in relation to State offences will be the balance of the time between the date I made the original orders and 12 November. I am rounding it down or up a few days but it does not in reality affect the position of the prisoner.

66. That will mean, in effect, in respect of sequence 019 which was described as Count 3 in the early orders that I made, and sequence 002 which was reflected as Count 6 in the original orders that I made, the term of imprisonment to be imposed will be on my calculation four months imprisonment giving credit for the time served, those two terms of imprisonment to be served by way of Intensive Correction Orders ordered by me to be served concurrently when I made the original orders in July.

67. It is in these circumstances that I move to the orders in this matter, and I will refer to the matters by sequence numbers but in the order in which they appear in the original orders by way of count number.

In respect of the offence described as sequence 4, formerly Count 1, I revoke the previous Recognizance Release Order. In lieu, I sentence the prisoner to six months imprisonment to commence on 12 November 2018 and to expire on 11 May 2019.

In relation to sequence 6, formerly Count 2, I revoke the previous Recognizance Release Order. In lieu, I sentence the prisoner to 12 months imprisonment to commence on 12 November 2018 and to expire on 11 November 2019. I decline in relation to that order of a fixed term, to fix a Recognizance Release Order.

In relation to what was Count 3, I revoke the previous Intensive Correction Order. In lieu, I sentence the prisoner to four months imprisonment to commence on 12 November 2018 and to expire on 11 March 2019.

In respect to sequences 24 and 25, formerly Counts 4 and 5, I revoke the previous Recognizance Release Orders. In lieu, I sentence the prisoner to 18 months imprisonment for each offence to commence on 12 May 2019. I direct the prisoner be released after six months imprisonment upon entering a recognizance pursuant to s 20(1)(b) Crimes Act (Commonwealth) himself in the sum of $500 to be of good behaviour for a period of two years from this date and to appear for sentence if called upon to do so at any time in respect of any breach within the said period.

The prisoner is to be supervised by the New South Wales Community Corrections Service for the period of the recognizance.

I am going to have to amend that, and I will explain that in a moment.

In relation to sequence 2, formerly Count 6, the previous Intensive Correction Order is revoked. In lieu, the prisoner is sentenced to four months imprisonment to commence on 12 March 2019 and to expire on 11 July 2019.

68. The matter that I want to make clear that I am amending is in relation to the Recognizance Release Orders involving a term of imprisonment of six months I direct the prisoner be released after six months imprisonment upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914 (Commonwealth) himself in the sum of $500 to be of good behaviour for two years from 12 November 2019.

69. The effect of the orders that I have made is to extend his term of custody from the date in July fixed by the Parole Authority in relation to the fixed sentence to 11 November 2019.

70. MCQUADE: May I raise one thing - and correct me if I am wrong - but under s 19(a)(c)(v), your Honour must give a reason for not having a Recognizance Release Order for the period of imprisonment.

68. HIS HONOUR: I can place that on the record. I thought that might have been so. I should have said that the reason I do not fix a Recognizance Release Order in relation to sequence 6 is because the sentence effectively is concurrent with other orders of imprisonment. The prisoner could not be released on a Recognizance Release Order for that offence, except for the circumstance in which I fixed a Recognizance Release Order to commence after 12 months, but there are already two such orders in place, so it’s unnecessary in the circumstances.

69. MCQUADE: I understand. Thank you for putting that onto the record, your Honour.

70. HIS HONOUR: Mr Forrest, there are a few things that have happened today that I am sure that you don’t understand, but the bottom line is on the current orders that I’ve made, you are to remain in custody until November.

71. OFFENDER: Yes, your Honour.

72. HIS HONOUR: But can I just say something to you. I appreciate in your circumstance it may be difficult to understand, but the reality is, if you keep offending like this, if you keep using the internet to view, or produce, or send images of children having sex, you’re going to go to gaol for longer and longer periods. Do you understand that?

73. OFFENDER: Yes, your Honour, I do.

74. HIS HONOUR: Next time it won’t be effectively a year in custody, it could be three, or four, or five years in custody. Everyone understands, in varying ways, that you’ve got difficulties, but your personal difficulties become less and less important if the protection of the community becomes more and more important. Do you understand that?

75. OFFENDER: Yes, I do, your Honour.

76. HIS HONOUR: To the extent that you can yourself, you’re going to have to control yourself. It’s as simple as that.

77. OFFENDER: Yes, your Honour, I do understand.

78. HIS HONOUR: There may come a time - not that I’m saying you’ve got “excuses” but it’s a handy word to use. There comes a time when people run out of “excuses.” May I say, for example, if you’d come before me two years ago with a prior history of doing what you are being sentenced for, then I probably wouldn’t have given you an Intensive Corrections Order, I wouldn’t have given you a bond to be of good behaviour, I would have had to gaol you immediately for the protection of the community.

79. OFFENDER: Yes, your Honour.

80. HIS HONOUR: And there’s an expression called “personal deterrence”, to give proper weight to “personal deterrence.” I appreciate that’s a complex expression, even lawyers don’t understand it, but the truth of the matter is, for whatever the worth is of my words, you have to, when you get out of gaol, control yourself, and you’ve got to seek professional help to assist you control yourself.

81. OFFENDER: Yes, I will.

82. HIS HONOUR: Whether it’s by injections, or therapy, or counselling, or a combination of these things, you’ve just got to do it. And you’ve got to do it the same way in which people who abuse alcohol or drugs have just got to give up drinking alcohol and using drugs if they’re going to try and save their lives.

83. If you’re not prepared to do the things that a psychiatrist and psychologist say you should do, then all you’re going to do is end up coming back into custody again, which I’m sure you would not like.

84. OFFENDER: No, your Honour.

85. HIS HONOUR: You’re excused, Mr Forrest, thank you very much.

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Decision last updated: 15 January 2021