R v Nathan John Tucker

[2007] NSWDC 248

CITATION:	R v Nathan John Tucker [2007] NSWDC 248
HEARING DATE(S):	27 & 28 August 2007; 5 & 6 September 2007; 5 November 2007
JUDGMENT DATE:	6 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted.; Granted conditioal s11 bail pursuant to Crimes (SP) Act for a period of 6 months.
CATCHWORDS:	Criminal Law - Sentence - Indecent Assault - 13year old female complainant - asleep - offender well effect by alcohol wearing only underwear - touching vaginal area - lacking insight - long established alcohol addiction - willing to enter full time rehabilitation and attend professional counselling - conditional s.11 bail
LEGISLATION CITED:	s.11 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v Regina [1999] 1SCR 688 Queen v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Rushby [1977] NSWLR 597 R v Zappala unreported NSW CCA 5 November 1991
PARTIES:	Regina Nathan John Tucker
FILE NUMBER(S):	06/61/0125
COUNSEL:	Crown: C Everson Defence: S Beckett
SOLICITORS:

SENTENCE

1 HIS HONOUR: Alcohol can be blamed for many things particularly when it is masking a trait more despicable than drunkenness. Thus it is that many claim alcohol made them violent or alcohol made a sexual assault possible. Nathan John Tucker seeks to blame alcohol for his indecent assault upon a thirteen year old girl. Yet as he was indecently assaulting her he was saying to her “You’re a nice girl”. That was not alcohol driving those comments, that was sexual desire and a perverted expression of appreciation of the innocent object of his criminal conduct.

2 On 3 March 2006 he was arrested in relation to an indecent assault upon VSD. On 19 February 2007 he pleaded guilty to a charge of indecent assault upon VSD. Today he is to be held accountable for his criminal conduct on 10 January 2006.

3 As sentencing judge it falls to me to determine the appropriate sentence for this offence committed by this offender in the larger community of Broken Hill against this victim, see Gladue v Regina [1999] 1 SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts, to which I shall shortly return.

4 It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of the agreed set of facts does not relieve the judge from his or her fact finding responsibility; it simply limits the material from which those facts may be found. To the extent if it be the case that the facts as agreed do not reflect the actual events that occurred it must be remembered the Court can only find facts from the evidence placed before it.

5 The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, whether this offence attracts a standard non-parole period and the length of the parole period and finally of course the ultimate sentencing disposition that is to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperatives that all sentencing should have as its primary focus the protection of the community will also need to be determined, see Queen v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597, R v Rushby [1977] NSWLR 597.

Facts

6 VSD aged thirteen lived with her mother SD, her brother Graham, her uncle William and a grandmother on a camel farm. She slept in what was known as a humpy, that is a camper unit fitted to the rear of a utility motor vehicle. The humpy was located at the rear of a three-bedroom farmhouse, that was where the mother resided. Her grandmother and uncle each occupied a caravan also on the property.

7 The offender who knew Uncle William arrived at the farm at approximately 9pm on 9 January 2006 with a case of beer. He drank the beer with the two other males, Graham and William, for about an hour. The complainant’s mother was present for some of that time. She retired to bed around 10.30pm but had difficulty getting to sleep. About 11pm she heard the offender’s car drive off.

8 In his car were the three men, they drove to a reservoir where they continued drinking beer. The offender raised the subject of his then estranged wife with William. At one stage he threatened a murder/suicide by driving his car over the cliff with all occupants inside. However the three men ultimately returned to the farmhouse after an absence of about two hours. Meanwhile the complainant had retired to her humpy to sleep. Her mother though had been unable to sleep and went to the kitchen making herself some tea, thereafter she sat on the veranda.

9 When the three men returned to the farm they resumed drinking beer. The offender again raised the topic of his ex-wife. He reacted angrily to a comment he thought the brother Graham had made about her. There was a demonstration of violence towards Graham. The offender was noticed to become increasingly agitated and unpredictable. He was told to leave the property. The offender swore at William, who phoned the police and went to the front of the property with his nephew to await their arrival. Meanwhile the offender stayed in his car with the engine running. About 4am before the police arrived the offender drove towards Broken Hill. William phoned the police to cancel their attendance. After that call, the offender returned to the property parking at the rear of the house. William phoned the police, again requesting their attendance. The offender sat in his car for about five minutes while the other three adults, the two men and the complainant’s mother, waited at the front gate for the police.

10 As they were waiting they heard VSD yelling from the van. The complainant’s mother walked towards the van encountering her daughter wearing sleeping attire running through the front house gate. VSD said “Nathan just tried to rape me”. Police, who by then had arrived, were informed.

11 The complainant told police she woke about 5am to the sound of the offender saying something about losing her uncle. She drifted back to sleep awaking a short time later to find the offender standing next to her bed wearing only underwear. He climbed on to the bed, grabbed her by the shoulders, moved her to the middle of the bed. He pulled her pants down to her ankles. He touched her on the vagina in a circular “figure of eight” motion. He said “You’re a nice girl”. She said “No” at least eight times. After some time she managed to push him away, scrambled from the bed, pulled up her pants and ran for help.

12 Her first course was to run to the uncle’s caravan, failing to find him there she ran into the house looking for her mother. She could hear the offender behind her in the house calling her name. She found her mother between the front of the house and the front gate. She complained to her immediately.

13 Police searched for the offender. They found him behind one of the caravans. He was placed under arrest. Police came to the view he was well-affected by intoxicating liquor. He was entered into custody at the Broken Hill station but not interviewed because of his level of intoxication. On 3 March 1006 he was re-arrested. He agreed to participate in an electronically recorded interview. In that interview he stated he could not remember anything between sitting in the house having a drink shortly after his arrival and being arrested down near the uncle’s caravan.

14 He denied entering the complainant’s humpy. As each of the specific allegations was put to him he said “I don’t think so, I’m not that kind of a sick person”. He agreed to providing forensic DNA samples knowing that his purpose in doing so was so that they could be compared with any DNA recovered at the humpy. As events turned out a DNA mixture was recovered from the inside of the complainant’s underpants that she was wearing at the time. The offender had a DNA profile which was the same as the minor component of the mixture of DNA found. A partial DNA was also recovered from the inside front of her boxer shorts. That partial DNA profile was consistent with having originated from the offender.

Objective Criminality

15 I turn to the objective criminality. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the case before the Court with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. Objective criminality has an important bearing on the overall sentencing outcome.

16 There are a number of offences in the Crimes Act 1900 including this one, focussed on the protection of young children from a range of experiences while their physical, emotional and psycho-sexual development is patently immature and also while the power imbalance between the child on the one hand and an adult on the other grossly favours the adult. Mr Justice Lee in describing the jurisprudential philosophy behind these sections said the following:

“One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledge by the legislature in providing for greater penalties when the victim is under sixteen. That acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct.”

17 His Honour also made this observation highlighting the laws focus upon the power imbalance between adult males and young children.

“The law has always sought to protect young children against sexual predators, particularly adult men. The law recognises of course as young girls grow up there is an inevitability of contact with sexual overtones and more with members of the opposite sex of the same age or a little older, and that is simply one of the facts of life. But when it comes to a case of an adult male past middle age tampering with girls of twelve and thirteen years of age the crimes become crimes of enormity, R v Zappala unreported NSW CCA 5 November 1991

18 This offence is said to have been committed when the offender was well-affected by alcohol. The offender said he had taken two-and-a-half dozen beers. The offender gave evidence that at the relevant time he had a problem with alcohol, indeed to such a point that he agreed he had something to gain from a full-time rehabilitation program. Drinking to such a level leaves open an inference which I draw that his tolerance to alcohol was high. Such a view would appear to be supported by his capacity to drive on the night and his decision-making capacity in the hours leading to and subsequent to this assault. In his affidavit he claims to have taken two-and-a-half dozen cans of VB and drunk at least fifteen of them. He says he did not go to sleep. I am prepared to accept he may have drunk somewhere between twelve and fifteen cans of beer. The offender says he could drink over a dozen cans in one session. On the agreed facts he has arrived with a case of beer, not thirty cans.

19 On 9 January 2006 he was still present drinking at the farm at about 11pm. Between 11pm and 1am the offender and the two other men drank at the reservoir, they drove there. It would appear that the offender drove. It would appear the men were still active at 4am on 10 January 2006. It was now at least seven hours since the drinking had commenced, that is an average of about one can of beer every half hour. I am prepared to accept he was well affected by alcohol at the end of the night or at 4am. The police say that that is so. However I am not prepared to accept that he was paralytic or at a gross level of drunkenness. He was able to drive a vehicle. He was able to recognise he was being sought by police. He was able to determine upon a hiding place where he was sufficiently concealed for police to need to search for him. He was able to determine that he needed to hide. He was able to remember the girl’s name and call it out. He was able to understand that the girl, when he called out her name, was seeking help.

20 At the level of drunkenness he was experiencing his inhibition was diminished as was his judgment and other executive functions of his mind. That is not to say however that his actions were not responses to emotions and desires he was experiencing. Rather, inhibitions that would normally stop him yielding to those desires were not functioning effectively at that time. It is in this way that alcohol contributed to his offending. But to deny the existence of the desires, fantasies or whatever else was motivating his activity is to minimise his offending. I am satisfied there was no plan or even a considered potential prospect of offending when he arrived at the farm, or when he returned from drinking at the reservoir. The offence was opportunistic as he remembered the girl from earlier in the evening and came across her humpy on his return.

21 He says he lost the uncle. That may well be so, the uncle was down at the front fence. I cannot exclude that he may have sought to hide in the humpy from the police and being in there took advantage of the opportunity a sleeping thirteen year old girl offered him. I am satisfied he knew who his victim was. He later called her by name. He spoke to her about her uncle, he had seen her earlier that night. There is no doubt the offence was deliberate.

22 The complainant speaks of two encounters, in the first a conversation about losing the uncle seemingly explaining the presence of the accused in her sleeping quarters. She then awakes at some indeterminate time later. Between the first conversation and her awakening the accused had removed his outer garments and is dressed only in underwear. That action indicates the intended action that subsequently followed. He moved her to a position in the bed that better suited his design either to enter the bed and/or to remove her clothing and sexually molest her. While it is true the action was not planned, it was deliberate and it was interrupted.

23 It was interrupted by the girl’s departure. Where this act was going is not known and consequently cannot be the subject of punishment, but I am satisfied the sexual molestation was not finished, at least in the offender’s mind when the girl made her escape.

24 Dr Raeside, a forensic psychiatrist retained by the defence, notes:

“To advance his cause he exposed her vagina by pulling her pants down to her ankles, his touching of her vagina was deliberate and without her consent.”

25 She rejected his advances with a series of no’s. On the agreed facts I could not be satisfied beyond reasonable doubt he persisted after the first rejection, that is the no’s all of them were added. But as I do say, my view is that she probably also was making her escape as she was uttering “No”.

Assessment as to whether a mid-range of seriousness

26 Both counsel agree the offence does not fall within a mid-range of seriousness. To reach a conclusion as to whether an offence falls within the mid-range of seriousness it is appropriate firstly to assess the offence’s seriousness predicated upon the objective criminality and then to determine what impact if any the subjective matters have upon that assessment.

27 Assessed upon the features that comprise its objective criminality the offence fails to reach the mid-point. It does constitute an abuse of power by an adult male upon a sleeping thirteen year old victim. Any thirteen year old is a vulnerable victim; but the level of vulnerability is increased by virtue of the fact that she was asleep. The elements of this offence are such that I cannot take into account the age of the complainant as a circumstance of aggravation. But I can and do take into account her circumstances as aggravating the offence.

28 His criminal conduct constitutes a touching of her vaginal area exposed by pulling her pants down and to use the words of the Crown “skin on skin”. It was a deliberate act by the offender that brought about this offence. However, the offence was of short duration measured in minutes perhaps than quarter hours. Apart from the unwanted sexual touching there was no other violence or other force used towards the complainant. No threats before or post the indecent assault were made. While the offender was clothed only in underwear there was no nakedness or other sexually obvious demonstration by him towards her accompanying his indecent assault. His indecent act was achieved by use of finger rather than any part of the body that itself had sexual significance. His act was opportunistic, it was not part of a series of acts.

29 The age of the victim at thirteen was at about the mid-point of age between ten and sixteen. Of course offences occurring towards girls of the younger age are more serious than offences occurring towards girls towards the upper end of that range. In all the circumstances the act was well below the mid-point of seriousness. However it was not trivial, indeed it amounted to substantial criminality.

Subjective Matters

30 I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but am also sentencing this offender for it.

31 Each offender coming before the court varies from other offenders who stand, or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.

Family Background/Personal Circumstances

32 Nathan Tucker is a thirty-one year old truck driver, he is presently living in a defacto relationship with his partner of about twenty-one months. He is the eldest of three children. His parents separated when he was seven years old. He was raised by his mother and step-father in a violent, alcoholic abusing household.

33 In his late teens it would seem he left home to commence his first relationship. There were two children born of this relationship, a boy now aged thirteen and a daughter aged eight. His relationship was also a relationship in which alcohol abuse was the third partner particularly on the weekends. There was violence in this relationship on two occasions resulting in domestic violence offences being charged against him.

34 There was a second relationship, with marriage, in 2000. There were two children to this relationship also. This too saw alcohol abuse although the offender claims it was more episodic than in the first. He makes allegations of repeated unfaithfulness in this relationship by his partner claiming her second child may not be his child. It was his belief that one of the men, who was drinking with him on the night of the offence had been squiring his wife.

35 As the first wife had done, the second also took out an apprehended violence order. This wife, that is the second wife, moved to Adelaide. The whereabouts of his first wife and children are unknown to him. For a while the same was the case with the second. It seems in more recent times though he has had access to the two younger children in Adelaide.

36 His current partner is significantly younger than he. He described her as a social drinker. Dr Raeside noted his partner attended the interview with him. Dr Raeside said the offender often turned to her for assistance in responding to questions but she encouraged the offender to answer on his own.

Education, Skills and Employment

37 Tucker left school at an early age, I think I saw aged fourteen somewhere. He is however functionally literate. In his early working life he was a plant operator out near Wilcannia, living away from home through the week and returning home on the weekends.

38 He has been enrolled as an apprentice in a panel beating early in his work life but it seems that apprenticeship was not completed.

39 He has an extensive history as a truck driver, an occupation he was engaged in at the time of his offending. His last position was with a Broken Hill mining company, or what I’m told is a local mining company and I understood that to mean Broken Hill, driving on a rotating roster, by which I mean eleven days on and three days off.He is confident of returning to trucking once the rehabilitation program, he is engaged in, is completed. From all accounts he appears to have a very strong work ethic.

Health

40 Dr Raeside took a history from the offender “claiming normal good physical health. There was a iguinal hernia repair in March of this year. The offender is well overweight and presents, at least to me, as having a poor level of physical fitness.”

Mental Health Issues

41 The offender claims good mental health denying any past significant episodes of depression, anxiety, psychosis or suicidal behaviour. Significantly, in my view, particularly given his attitude to the offending, there are a number of factors that belie his claim. His childhood, failed relationships, loss of access to at least two children, heavy alcohol consumption all suggest at least depression if not anxiety as well. Things may well have improved since he and his present partner have come together.

Alcohol and Drug Issues

42 The offender reviewed his criminal antecedents, to which I shall come shortly, with his legal advisers. He noted almost all of his offending was alcohol related. I have already noted his consumption of alcohol on the night of this offence.

43 He began using alcohol at the age of thirteen. He has been a heavy drinker since shortly thereafter. I noted heavy alcohol consumption at weekends during his first relationship. Typically he drank beer and spirits. His consumption has reached peaks of a half a carton of beer plus a half a bottle of spirits daily.

44 There have been attempts to control, at least to some extent, his alcohol consumption by attendance at AA. He has lost his driver’s licence in 1998 and 1999. There have also been numerous episodes of violence some of which saw him before the court yet none of those on their own, or collectively, to date have been sufficient to persuade him to do much more about his alcohol consumption than periodic attendances at AA.

45 This offence, no doubt legal advice and the court proceedings to date have persuaded this offender that rehabilitation should be his top priority.

46 In October he left his job to attend a four month full-time rehabilitation program in Sydney. A report from Hope Community Colleges, run by the Parramatta Mission, has been tendered. It reports the offender became a resident there on 22 October last and has been in residence since.

47 The report observes that the first three months (stage one) of the program is the most intensive as it is daily. This part of the program takes on four parts, The Begin Again Program, The Steps Program, Case Management and Living Skills.

48 The first month in stage one is comprised of an orientation and an introduction to the program. This period is part of the program structure so both the client and the service can establish whether a working relationship will occur. If there is a working relationship the client will then be asked to continue in the program. If no working relationship exists they will work with the client to help him find an outcome that suits his needs.

49 The offender, it is said, appears to have adapted well to the program and a working relationship, it is said, is in the process of being established. The report before me makes this observation, and it is to be noted there is no certainty about it:

“At this stage of Nathan’s journey at Hope Community College I can see no reason why he would not be asked to continue in the program.”

50 In other words he has not yet been accepted into the remaining three months of it. That is because the case manager finds it hard to comment on the offender’s progress given that he has only been there for ten days when this report was compiled on 1 November and would now be seventeen days.

51 The best that could be said was that the offender had personally commented that he is learning about parts of himself and his behaviour that he has hithertofore been unaware of and that he, the offender, recognises that his behaviour needs to change.

52 The case manager makes this observation:

“This shows that Nathan is gaining insight into himself and his behaviours that may not have otherwise occurred.”

53 As to other drugs it appears that there may have been some early experimentation but otherwise there does not appear to be any serious problem with them.

Character and Antecedents

54 This offender has maintained a strong work ethic throughout his adult life. He has been plagued with alcohol abuse, learning it in childhood from his parents and his step-parent and bringing it into his own life in his two earlier relationships. That has led to difficulty in maintaining those relationships. Those difficulties arise because of argumentative and perhaps controlling behaviour and a violent disposition when drunk. His antecedents, as he said, reflect his behaviour.

55 There is a self-administer prohibited drug in 1996, some eleven years ago and other drug charges at the same time. There are assaults, there are, in 1999, contravene apprehended domestic violence orders, there are breaches of recognisance, take and drive in conveyance, mid-range PCAs, a high range PCA, further contravening domestic violence offences and some malicious damage to property.

56 All of his offending thus far has been dealt with in the Local Court, indeed it would appear in the Local Court at Broken Hill. There is one matter which comes from interstate which is really nothing more than a driving offence, driving an unregistered and uninsured vehicle.

Rehabilitation Prospects

57 There are some positive rehabilitation indicators: his work ethic, his generally reasonable good health, the absence of any serious mental health pathology suggesting a predisposition to antisocial behaviour, a willingness to undergo rehabilitation to the extent of prioritising it highly and support from his partner.

58 The negatives in respect of his rehabilitation are these: a very entrenched history of drug abuse, a strong denial and minimisation strategies being employed by the offender rather than confronting his criminality and likewise, it seemed to me a denial and minimisation in respect of any past feelings of depression and anxiety he may have encountered, past episodes of failing to commit completely, for example his past dealings with AA, his failure to complete a community service order, his breaches of recognisance, his relocating interstate when he was not free to do so without first consulting Probation and Parole.

Commencing the Disposition
Deterrence

59 In modern Australian society there is a very extensive raft of criminal laws past by both the federal and the state parliament. The chief purpose of the criminal laws, for example the sexual assault laws, put in place by parliaments is to deter those who are tempted to breach the provisions of those laws. Parliament does that by prescribing maximum penalties for those who engage in conduct prohibited by the criminal law.

60 In this case the maximum penalty is one of seven years with a five year standard non-parole period. That standard non-parole period is also designed by parliament to deter those who would offend against this particular law.

61 Consequently when a person is sentenced for a breach of the criminal law he is exposed to the possible maximum penalty provided by the statute breached.

62 Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind the maximum penalty available and indeed the standard non-parole period for the mid-range offences, where appropriate, and their deterrent purpose.

63 There is also a specific deterrence aimed at individuals, likeminded to this offender, who, but for such deterrences would be willing to commit crimes similar to the crime for this offender is being sentenced.

64 Finally there is a component of deterrence to be considered which is best described as personal to the offender with a view to deterring him from reoffending.

65 The maximum penalty, as I said, for this offence is seven years with a standard non-parole period for an offence falling within the mid-range of five years.

66 This offender pleaded guilty on 19 February. He pleaded after arraignment but as a consequence, it seems to me, of some negotiation conducted with the Crown.

67 In sexual assault cases pleas of guilty are of more utilitarian value than in many other cases that is because it saves, particularly a young and vulnerable person from having to deal with court proceedings.

68 The complainant at the time of this offence was thirteen. At the time of giving evidence would have been fourteen or fifteen. It takes but a moment’s thought to understand that she would have been subject to cross-examination by somebody robed, skilled and mature, another exercise of power imbalance.

69 Indeed some victims or complainants find the court process, particularly given that it is drawn out, usually much longer than the assault, as more arduous and taxing upon them than the assault itself. Of course some see it as supplementing the assault making the whole of the experience a monumental disaster for them.

70 An appropriate benefit will need to be given for the plea. There are other utilitarian values, firstly the guilty plea sustains the community's confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime and the community’s expectation that those guilty of crime will be held accountable for it.

71 That also is particularly important in sexual assault cases where it is quite clear that in some quarters, particularly in some quarters of the government and in some quarters of the victim’s lobby there is concern about the claimed inability of the criminal justice system to bring about correct results.

72 The administration of criminal justice is also served because court time, witness’ time, legal expenses and the like are freed so that they can be devoted to other cases.

73 The guilty plea reduces considerably the likelihood of contest in an appeal to the Court of Criminal Appeal on the issue of guilt. Again an important factor in this case given that this offender has had difficulty coming to grips with his guilt. Thus the guilty plea contributes in a small but positive way to the administration of justice in this State.

74 The benefit that I am giving to the plea, along with other matters, to which I shall come, is firstly by commencing this process with a s 11 bail and compulsory rehabilitation program. In the event that that is successfully completed, while a term of imprisonment will need to be imposed, that term of imprisonment may more confidently be suspended.

75 As I look at both the objective and the subjective features I come to a view that the standard non-parole period will not apply in this case. It would not apply, as I have said already on my assessment of the objective facts, there is nothing in the subjective facts that suggest that I ought to take a more dim view of the objective features than I already have. Indeed in terms of rehabilitation there is positive material mitigating, to some extent, those objective facts.

76 The offender has had, so far as I understand it, no time in custody as a consequence of his arrest. He has, of course been arrested twice in respect of this matter.

77 What I propose to do is to convict the offender of this offence and then to grant him bail pursuant to s 11 of the Crimes (Sentencing Procedure) Act for a period of six months from today. During that six months he will complete the rehabilitation program he is currently in or in the event that he does not qualify for this one enrol in another appropriate rehabilitation program. He will accept immediately supervision of Probation and Parole and obey all their reasonable directions.

78 At the conclusion of the rehabilitation program he will, fortnightly, accept counselling from a psychologist/psychiatrist chosen by his case manager with the Probation and Parole Service after consultation with him. It must be, all things being equal, that he remains with the same psychologist or psychiatrist for the duration of the bail. If that is successful the sentence which will be suspended. These circumstances. these conditions will be mirrored in any good behaviour bond I give him.

79 I say that the service provider must be chosen by the Probation and Parole in consultation with him because his input will be important to determining whether he can work with a woman, whether he can see somebody on this day rather than that and the like. It may be, indeed it seems to me likely to be, that the service will need to be provided at his own expense. I wish him well in that but I insist that he have psychological counselling. If the State will not provide it, Medicare will not provide it then he must provide it.

80 He will, on or by the twenty eighth day of each month, provide proof to his case manager with Probation and Parole that he has attended fortnightly in the previous month. That will be done by either having a copy of the provider’s business card dated, or a copy of the receipt if he is paying for the service.

81 He will also engage in any other courses that Probation and Parole require of him while they are supervising him. He will accept random urine analysis for the presence of drugs but more particularly for the presence of alcohol. He will abstain from alcohol for the duration of the bail or bond when it comes. Any dirty urine or any proved alcohol consumption for any purpose will be deemed a breach of the bail. Any failure to provide urine, as and when required, will be deemed a breach of the bail. Any breach of the bail is to be notified to me by Probation and Parole.

82 There will also be a term specified that he be of good behaviour. Although it is an automatic term, I put it in so that he will know that any offence of violence, any driving offence, any other offence will constitute a breach of the bail.

83 Is there anything else?

BECKET: No your Honour not that I can see.

84 He will need to report to this court - I think it can be done by CCTV. This is a six month bail so he will need to report at the halfway point. That will be on 25 January.

STOOD OVER TO FRIDAY 25 JANUARY 2008

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