R v WB

[2019] NSWDC 898

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v WB [2019] NSWDC 898
Hearing dates:	28 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Full time custodial sentence. Decision at [64] - [76]
Catchwords:	CRIME – sentencing – use carriage service to access child pornography – child sex Offender accessing abuse material
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 NSW s17(1) Crimes Act 1914 (Cth) ss 16A, 20(1)(b), 23ZD Criminal Code Act 1995 s 474.19(1)
Cases Cited:	Minehan v R [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174
Category:	Sentence
Parties:	Regina (Crown) [Identity suppressed] (Offender)
Representation:	Counsel:     Solicitors:
File Number(s):	2018/00198362
Publication restriction:	Non-publication order in relation to the identity of any complainants of earlier offending or any information which may lead to them being identified such as their relationship to the Offender.

Judgment

1. The Offender appears before the Court today for sentencing in relation to a number of offences, two State offences and one Commonwealth offence. The two State offences are under the same section of the same Act, that is, s 17(1) Child Protection (Offenders Registration) Act 2000 NSW. A breach of that section carries a maximum penalty of five years’ imprisonment. The third charge is pursuant to s 474.19(1) Criminal Code Act 1995 - that is, use a carriage service to access child pornography, which carries a maximum penalty of 15 years’ imprisonment.

2. The Offender was committed for sentence on 10 April 2019 from the Central Local Court, having pleaded guilty to the charges at an early stage. That, again, provides some utilitarian benefit to the State in terms of dealing with what otherwise may have been a contested hearing, as well as assisting in the administration and the facilitation of justice. Those matters require a reduction in the sentence to be imposed. Although not necessary to indicate same, I propose to reduce the intended sentence by 25% to reflect those dual advantages.

3. The offending occurred between 5 March 2018 and 27 June 2018. The Offender was arrested 28 June 2018 and has been in custody for some 391 days.

4. The Statement of Facts agreed between the parties, relevantly, provides as follows. I should note that some detail will be omitted, but can nevertheless be obtained by the Statement of Facts which will be attached to these reasons and marked annexure A.

5. The Offender, is a registerable person as defined by the Child Protection (Offenders Registration) Act NSW (CPORA). The Offender was placed on that register on 24 December 2012 following some earlier offending involving children. On several occasions since the date of his registration, the Offender has met with police and discussed the reporting obligations. On the last occasion that occurred, 29 December 2018, the Offender signed a document stating that he did not have any internet usage details to report as per his obligations as a registerable person under the CPORA.

6. On 8 March 2018 New South Wales police attended the home address of the Offender in order to conduct an inspection to verify the personal information provided to police by the Offender. Police informed the Offender of the procedures involved with a 16C inspection and obtained a signed acknowledgment from the Offender before proceeding.

7. During the course of the inspection, police sought the permission of the Offender to review the Offender’s electronic devices. The Offender agreed and his black Alcatel-brand smart phone with an associated number ending in 027 was reviewed. This smart phone was locked with a PIN. The Offender willingly gave the PIN to the police. Police reviewed the Offender’s browser history, and observed an image of a young female aged about ten to 12 years wearing a swimsuit and placed in a provocative, sexual pose. This image was the most recent image viewed on the web browser, and was “open” at the time of examination. The image was one of what appeared to be one of many similar ones on a Russian-based image sharing website. The Offender was cautioned and informed that the mobile phone contained material that may constitute an offence, and that the phone would be seized for examination. Police then left the premises and the phone was submitted to examination.

8. On 27 June 2018 police attended the home of the Offender and placed him under arrest. Police escorted the Offender back to his room so that he could gather some clothing prior to being conveyed to Newtown police station. The Offender sat on his bed and retrieved a brown wallet and a black Apple brand smart phone from the mattress.

9. Police reviewed the Offender’s black Apple brand smart phone at Newtown police station, which contained a number of social media applications, including WhatsApp and Facebook Messenger. This phone was also seized.

10. The Offender was cautioned and agreed - although there was some confusion or dispute about that matter - to participate in an electronically-recorded interview with the police officers, where he made the following statements:

1. he has an Instagram account;

2. he uses an email address referred to in the agreed facts;

3. he has a Tinder account in the name referred to in the Agreed Facts;

4. he uses WhatsApp to talk and text and has used WhatsApp since “Youse come that time first time”;

5. He uses Facebook Messenger;

6. He uses the application “Hangout” which he describes to be the same as Facebook Messenger and WhatsApp;

7. he uses Viber to talk to a person about work;

8. he has Snapchat to talk to another person;

9. in regards to the first picture shown to him the police in para 5 of the statement of facts, the Offender admitted that it looked like an Asian girl in her Speedos and was approximately ten years of age “from a glance”;

10. the Offender stated that he had never seen the image before and he could not explain how it came to be on his phone;

11. the Offender stated that web sites would come up on his phone when it was in his pocket. When asked whether that would happen with any pornographic sites, the Offender said, “I think Pornhub”. When asked whether that had ever happened with children in the porn he said, “No, never”;

12. the Offender states that he was the only one to use his phone;

13. that he was not doing any searches on the internet;

14. that he was working between 9am and 3pm and that he would not use the internet during those hours;

15. that he has never seen or heard of the images read out to him with the names, “Teen girl Hayley aged eight years old to age 15 years old, violent rape her”, “Marina hot girl, young and nice” and “Katy from 11 to 13 years”;

16. that he may have accidentally seen an image “like that image of that Asian girl in the bathers”;

17. the Offender denied ever having accessed any photo-sharing web sites;

18. when asked about drug consumption, the Offender admitted he smoked marijuana, but denied the possibility of having been high and other things he may have forgotten.

11. Material identified by the New South Wales Police as child pornography is classified into categories according to the Interpol Baseline Categorisation System. This categorisation system makes reference to the activity depicted in the child pornography material. The Agreed Facts set out categories 1 and 2.

12. I note that in relation to the subject offending, the material was either not the subject of categorisation pursuant to the Interpol database or alternatively fell into category 2, which is defined as including the following:

“other child abuse material that is illegal within New South Wales, but does not fit with the Interpol Baseline Category above, that is, material depicting a person who is, appears to be or is implied to be a child and is depicted or described in a way that reasonable persons would regard, in all the circumstances, offensive who:    

a. is a victim of torture, cruelty or physical abuse; and

b. is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others);

c. is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity or;

d. is exposing the genital area or anal area or breasts of a female child.”

13. Of those sub-categories, I note that none of the images portrayed a victim of torture or abuse. None of the images portrayed the victims engaged in any sexual or apparent sexual activity. There were images of genital and breast areas, although clothed, and there were images of poses of a sexual nature.

14. An examination of the black Alcatel smart phone revealed that between 5 March 2018 and 7 March 2018 the Offender used the web browser on his smart phone to access a large number of images via a Russian-based image sharing site referred to in the facts. Detectives have been able to view several files that had been accessed by the Offender and have confirmed that the images contained within the files constitute child pornography material, as per the definition in the Criminal Code Act 1995 (Cth) in that the images depict persons clearly under the age of 18 years engaged in a sexual pose in a way that a reasonable person would regard as being, in all the circumstances, offensive.

15. Commencing at paragraph 16 of the Agreed Facts is a table, which will be apparent from Annexure A to these reasons, identifying the files which were located. There were some 26 files which were located, including varying numbers of images, all of which either fell within category 2 or fell outside the Interpol Baseline Category System. In relation to the latter, I note, for example, item 17 included a collection of 23 images of a prepubescent female posing for the camera in a variety of different settings. In five of the photographs the child is wearing a swimsuit.

16. In total, approximately 20 to 30 individual victims were depicted in the accessed child pornography material. The following files were viewed by New South Wales Police and identified as containing child pornography material, but were removed from the internet prior to being saved, and as a result have not been categorised further. In paragraph 18 of the Agreed Facts (Annexure A) the police have set out the six files, together with the dates upon which those files were accessed by the Offender.

17. Next, web sites were recorded as having been accessed by the Offender, but the contents were not able to be viewed by detectives as they were removed from the server. I do not intend to read the file names onto the record, save to observe that they are set out in full in paragraph 19 of Annexure A to these reasons, providing both the file name and the date of access. It is apparent from the file names that the vast majority of the material is, on its face, child abuse material.

18. Examination of the black Alcatel smart phone revealed that the Offender failed to comply with his reporting obligations. The statement below describes the details that were not provided to police, despite the Offender’s requirement to do so.

“Any email address, internet user names, instant messaging user names, chat room user names or any other user name or identity used or intended to be used by the person through the internet or other electrical communication service”.

19. It follows in paragraph 21 of Annexure A, detailing various information which was found on the black Alcatel smart phone by way of email, Instagram, an app called Sweep, Google Hangout, WhatsApp and Viber. Those are matters which, had the Offender been compliant with his obligations, would have been disclosed to the police when asked about them.

20. There is a second charge of failing to comply with reporting obligations arising from the black Alcatel smart phone. Again, there is a table which commences at paragraph 23 of the Agreed Facts (annexure A), which describes the details that were not provided to police, despite the reporting requirements. There is a series of categories of information including emails, with an email address referred to, an app called Tinder with a username referred to, Facebook Messenger, the app Snapchat and the app WeChat. Again, these are matters which, had the Offender been compliant with his obligations, he would have disclosed to the police, particularly in light of the fact that he was made aware of his requirements in March 2018.

21. The Offender was born on 25 July 1962. He has a wife and a son in Samoa. His son is five years of age. He has lost contact with his wife over the past four months. The Offender has criminal records in New South Wales, Queensland and South Australia.

22. In February 2008 the Offender was convicted of two counts of sexual intercourse with a person under ten years and two counts aggravated sexual assault with victims under the age of 16 years. The Offender is the paternal uncle of the two victims of those offences. Those offences are Class 1 registrable offences, pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW). For those offences, the Offender was sentenced to five years’ imprisonment and was released on 20 December 2012.

23. On 7 April 2015 the Offender was sentenced to a s9 bond for 12 months for failure to comply with reporting obligations. The Offender failed to provide police with details of a mobile phone which has the capacity to access the internet. The Offender was refused Supreme Court bail and has been in custody since 28 June 2018 for the subject offending.

24. Also forming part of Exhibit A are the Offender's antecedents. They commence back in 1976 with stealing offences. There are a number of driving-related offences. I have already made mention of the prior sexual offences which were the subject of a plea of guilt and determined in the East Maitland District Court on or about 29 February 2008. I have already mentioned the failing to report breach which resulted in the s9 bond previously. Since that time there have been a number of driving-related offences, as well as possession of a prohibited drug.

25. Other than the matters just referred to, there are no other offences related to using a carriage service, and there is just that one prior failing to comply with requirements.

26. Whilst the Offender’s criminal history is not ideal, I do not consider it to be an aggravating factor in a statutory sense. It does, however, disentitle him to any leniency which may otherwise be shown.

27. I have also read the Queensland Court Outcomes Document, part of Exhibit A. There is nothing particularly pertinent or relevant to this offending which appears in that record.

28. The documents produced by the New South Wales Department of Corrective Services fail to identify any infringements by the Offender since his incarceration last year, that is, on 28 June 2018. I infer from that that he has been a compliant prisoner.

29. The defence relies upon two psychiatric reports to inform the Court as to the subjective case. The first is a report by a Mr Jones dated 24 November 2019 (Exhibit 1). That report was prepared following an AVL interview with the Offender who was in custody at the time. In his evidence today, the Offender described some difficulties he had in relating to the reporter, Mr Jones. He felt intimidated by him and that some of his questions he considered to be blunt, if not offensive. When asked by Mr Jones whether he was aware of the child pornography material on his phone, he said that he was unaware the material was on his phone and denied ever having used it. He admitted that he had the apps on the phone, but did not realise that they were a carriage service within the meaning of the legislation.

30. At paragraph 6 of the report, Mr Jones referred to the fact that the Offender denied having a sexual interest in children, and he stated that his only interest is his son. That is not meant to suggest that there is a sexual interest in his son, but his main concern is the welfare of his son.

31. When asked, he was unable to explain how the images were downloaded to his device, although he believed they were downloaded automatically when viewing other sites relating to pornography and/or cars.

32. Mr Jones took a history of the Offender being sexually abused at the ages of 10, 11, an unspecified age and also the age of 12. There was also a suggestion that he was sexually abused by his father, however, the Offender declined to elaborate upon that allegation. Mr Jones then referred to a previous diagnosis made in a report by a Mr Perry in 2013. I have the report by Mr Perry and I shall refer to that directly.

33. Troubling is the fact that the Offender told Mr Jones that he had not seen a psychologist since 2005. When I say “troubling”, it is of concern that he has not had the benefit of being treated by an appropriate psychologist since that time. There is a reference in the report by Mr Jones of some cognitive deficiencies, and he refers back to the previous neuropsychological assessment performed by Mr Perry in 2013.

34. As a footnote to his report on page 6 (footnote 2), relating to his prior offending appears the following quote:

“Mr [REDACTED] maintained he was convicted of an offence he did not commit, but one he nonetheless pleaded guilty to. He indicated he did not challenge the allegations as he did not want to place the alleged victims (I interpolate his nieces) in a situation where they would have to say the lies to the Court.”

35. In paragraph 39 of the report, the author stated that the Offender used self-serving statements throughout the assessment, and denied any sexual wrongdoing. That is regrettable, and deprived the report of any great evidentiary value.

36. In paragraph 40 the Offender denied having accessed child abuse material and, applying the LSI-R inventory assessment as to the risk of reoffending, Mr Jones found that the risk of reoffending was low/moderate and that he would require a low/moderate level of supervision.

37. In the final paragraph of his report, Mr Jones expressed the opinion that it will be necessary for the Offender to undergo therapy until such time as the treating psychologist/psychiatrist believes appropriate. Mr Jones thought that might be a period of some 9 to 12 months.

38. In paragraphs 46 through 48 of his report, he set out a number of treatment options in the community, which I have invited counsel and the prosecutor to consider as conditions to be complied with by the Offender whilst the subject of a recognisance release order.

39. Next is a report of Mr Perry. Whilst it is some six years old, it does provide some helpful background as to the Offender’s previous conditions. That is that he was in receipt of a disability support pension for post-traumatic stress disorder and alcoholism. He later moved to a Newstart allowance. At the time of the report he was taking a variety of medications directed to mood balance. A number of tests were administered by Mr Perry, which indicated that the Offender was in the low average range for general intellectual functioning. There were also a number of other negative findings made by Mr Perry in the course of analysing the Offender in 2013.

40. The opinion of Mr Perry is largely stated in the first paragraph under the heading Opinion:

“Mr [REDACTED] is a 50-year-old man with a history of post-traumatic stress disorder (PTSD) and a head injury secondary to an assault in 2002, in addition to a number of previous head injuries. He was referred for the current assessment to delineate his cognitive and psychological functioning and for an opinion regarding diagnosis, prognosis and work capacity”.

41. The author goes on to refer to the weaknesses to which I have already made some reference. He thought that the presentation of the Offender was generally consistent with a person who had suffered a traumatic brain injury. He was certified unfit for employment at that time.

42. As mentioned previously, although it was not the intention of counsel appearing for the Offender to call his client to give evidence, after preliminary

41. discussions it was decided that the Court would be assisted by evidence from the Offender. He told the Court that he was 56 years of age and that he was arrested on 28 June 2018 in relation to the subject offending. He referred to and described the events that occurred in March 2018.

42. In the course of giving evidence, it became apparent that the Offender was a person who would, by reason of embarrassment or otherwise, deny the offending. He said he was embarrassed and ashamed of himself. Whilst that is truly understandable, nevertheless, in the course of providing evidence he made a number of very frank admissions, some of which are inconsistent with prior histories taken by both the police and also the medical practitioners referred to. Most significantly, in my view, the Offender admitted that he does have or has had a sexual interest in prepubescent girls, and that despite what he told the psychologist, he acted upon those urges in relation to his nieces, resulting in the sentence previously referred to.

43. He told the Court that since being imprisoned this last time he has reflected closely upon his offending behaviour, and again he stated that he was embarrassed and ashamed by it. In fact, he said “It makes me sick”. He said that he keeps thinking about his now five-year-old son and what effect it would have upon him if he was ever subjected to abuse of a sexual nature.

44. In my view, the Offender demonstrated remorse. He acknowledged his wrongdoing and also the effect that his wrongdoing has had upon the victims, that is, the innocent children who were exploited by others and then viewed by the Offender.

45. My impression of the Offender overall is that he is a troubled person who suffers from an antisocial illness, which is acknowledged and for which he wishes to receive treatment. In structuring the sentence, my concern has been to ensure adequacy of punishment, deterrence in both senses, as well as the rehabilitation of the Offender. I have been very helpfully assisted by the written submissions by the Crown, which are marked for identification MFI 1. It begins by identifying the general principles relating to sentencing for Commonwealth offences.

46. The matters to which the Court is to have regard when passing sentence for federal offences is set out in s 16A of the Crimes Act1914 (Cth). The initial consideration is to ensure that the sentence is of a severity appropriate in all the circumstances for the offence, that is, that the sentence is neither too harsh nor too lenient having regard to the objective nature of the offending. The Court then has regard to a number of matters set out in s 16A(2) of the Act, to which I will return in a moment.

47. In terms of assessing the objective gravity of the offending, in my view it falls below the mid-range. It is obviously not at the bottom of the mid range, but somewhere just below the mid-range. I make that finding cognisant of the fact that the Offender has a history of sexual offending against children, and that the offending the subject of this sentence occurred whilst he was the subject of the registration as a child sex Offender. That bears directly upon the Commonwealth charge as, in relation to the two state offences, the offences would not have arisen had he not been on the register.

48. Sub-section (a) requires the Court to have regard to the nature and circumstances of the offence. There is no doubt that offending of this type is serious and must be met with stern sentences. The Crown submitted the offending fell in the middle of the range: I have already made my own finding in that respect. The Crown referred to the decision of Minehan v R [2010] NSWCCA 140 at 94 and R v Hutchinson [2018] NSWCCA 152 at 45 where, in the latter case, the Court referred to a number of factors that ordinarily exist in circumstances such as the present. As I expressed the view to counsel for the Offender, the absence of any such factors does not mitigate against the seriousness of the offending, but serves merely to not further aggravate the offending.

49. Just briefly dealing with the Minehan/Hutchinson factors:

1. whether actual children were used in the creating of the material, in this case, yes;

2. the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. Whilst their ages were prepubescent in general description, what was portrayed was certainly nowhere near the worst example of child exploitation of a sexual nature. It would fall towards the low end of such categorisation, as reflected by the categorisation according to the Interpol system;

3. the extent of the cruelty or physical harm occasioned. There is no indication that that arises in this case;

4. next is the number of children depicted. I note that the Crown in its submissions at para 10(e) submitted that the images were of some 20 to 30 individual victims. That is obviously a matter of some significance;

5. whether the images were in the possession of the Offender for personal use or for sale or dissemination. There is no suggestion they were for any other purpose than personal use;

6. (f) does not arise;

7. (g) does not arise;

8. (h) does not arise;

9. (i) does not arise;

10. the degree of planning. The evidence of the Offender, which I accept, is that it was impulsive. There was no planning, organisation or any sophistication in terms of his offending;

11. (k) does not arise;

12. (l) does not arise;

13. (m) does not arise, and

14. is any other matter in s 16A of the Commonwealth Crimes Act which may bear upon the objective seriousness of the offending.

52. I note the Crown also directed the Court’s attention to a decision of Johnson J in the matter of R v Porte [2015] NSWCCA 174, where his Honour referred to a number of additional factors or propositions the Court should keep in mind, namely:

1. the absence of sale, distribution or dissemination of material does not mitigate the penalty for a possession offence. I have already commented upon that matter;

2. the possession of child pornography material creates a market for the continued corruption and exploitation of children. I have taken that matter into consideration; and

3. the possession of child pornography is not a victimless crime and the harm is ongoing because the material remains in circulation on the internet. I have already made observations concerning that consideration and indeed raised that matter with the Offender in the course of giving evidence. He acknowledged that harm which has been caused and which would be ongoing was a result of his participation in possessing child sexual abuse material.

53. I am turning to the considerations under s 16A(2). I am mindful of the fact that the Offender has pleaded guilty at an early stage, and that, as I have said, will be reflected in a discount on sentence. I am also mindful of the fact that the sentence must call for strong deterrence, both specific and general, although the personal acknowledgement by the Offender of his problem is the first step in addressing that issue and achieving his rehabilitation, which may weigh against specific deterrence being a major sentencing consideration. Nevertheless, offending of this type calls for a stern sentence to achieve the outcome of general deterrence.

54. Section 16A(2)(k) is the need to ensure that the person is adequately punished for the offence. I have already taken that matter into account.

55. Section 16A(2)(m) considers the character, antecedents, age, means and physical and mental condition of the person. In that regard, I have taken into account the age of the Offender, his prior criminal history, the fact that he suffers from what appears to be a cognitive disorder as a result of a traumatic brain injury, as well as post-traumatic stress disorder. I note that he was sexually abused himself as a child and has not received adequate treatment for that. He is currently pursuing a claim for damages, I assume he meant, in relation to that offending.

56. Section 16A(2)(n) refers to the prospects of rehabilitation of a person. In my opinion, the prospects of rehabilitation can only be assessed as being guarded. The reason for that is that, having been approached by the police in March 2018 and the circumstance of that offending being explained to him, he continued to offend in the period up to June 2018. The Offender needs to accept a course of rehabilitation and stick to it.

57. In my view, the threshold under s5 for the State offences has been crossed. Likewise for the Commonwealth offences, and that a sentence other than full-time custodial imprisonment would not be reasonable. That is, it would be inadequate.

58. In relation to the State offences, I have had regard to the matters set out in s3A as being the purposes of sentencing, and as I have already explained, apart from the adequacy of punishment, in my opinion, deterrence and rehabilitation loom the largest.

59. In respect of the State offending, I intend to impose an aggregate sentence. In relation to sequence 1, were it not for the fact that I intended to provide an aggregate sentence, I would have sentenced the Offender to a period of imprisonment of 16 months. After a 25% discount for the guilty plea is a period of imprisonment of 12 months.

60. In respect of sequence 9, were it not for the fact that I intend to propose an aggregate sentence between sequences 1 and 9, I would have imposed a sentence of 24 months. After a 25% reduction for the guilty plea is a sentence of 18 months.

61. For the two State offences, being sequences 1 and 9, I intend to impose an aggregate sentence of 24 months with a non-parole period of 16 months.

62. In respect of the Commonwealth offence, that is, sequence 7, I intend to impose a period of imprisonment of two years - a fixed sentence of 18 months to date from 28 March 2019. That has been backdated to avoid a crushing sentence and to accommodate principles of totality, proportionality and the like.

63. I intend then to release the Offender after the expiration of that sentence on a recognisance release order for a period of two years with conditions.

64. Mr [REDACTED], you are convicted of the following offences:

1. failing to comply with reporting obligations in breach of s 17(1) of the Child Protection (Offenders Registration) Act 2000;

2. again failing to comply with your reporting obligations in breach of the same section; and

3. using a carriage service to access child pornography in breach of s 474.19(1) of the Criminal Code (Cth).

65. In respect of those offences I intend to impose an aggregate sentence in relation to the State matters, of two years, commencing 28 June 2018 and expiring 27 June 2020.

66. In respect of the State offences, I impose a non-parole period of 16 months, which commenced 28 June 2018 and expired 27 October 2019.

67. In relation to the Commonwealth offences, I impose a fixed term of 18 months, to date from 28 March 2019 and to be released on a recognisance release order after a period of nine months, that is, on 27 December 2019.

68. The Recognisance Release Order will run for a period of two years.

69. In accordance with s 20(1)(b) of the Commonwealth Crimes Act, I impose the following additional conditions upon your Recognisance Release Order, which will run from 27 December 2019 through to 26 December 2021. The conditions are as follows:

1. you must give surety in the amount of $100;

2. you must obey all directions of the Corrective Services officers;

3. you must at all times during that period of two years, and hopefully well beyond it, be of good behaviour;

4. you must attend Court if called upon to do so;

5. in accordance with the recommendation by the psychologist, Mr Jones, you must engage through Community Services New South Wales with a community-based sex Offender program treatment groups for low moderate and moderate high risk / needs sexual Offenders.

70. In addition, I impose the following condition, that through Community Services New South Wales you must engage in community-based maintenance groups for Offenders who have completed the Community Services New South Wales sex Offenders programs.

71. Finally, you must obey all directions provided to you as to treatment, including therapy and the like, provided by Community Services New South Wales and lastly, that you will remain subject to supervision for the duration of the recognisance release order.

72. To make it clear, I’ll just state for the record that the sentence relates to the date periods which appear upon the indictment.

73. The effect of the sentence is that you will be released under strict supervision on 27 December 2019. You must comply with the conditions and you will be made aware of those conditions. You will receive a document which sets them out. If you don’t comply with the conditions then there will be consequences, in terms of whether you remain at liberty or whether you go back into prison.

74. What I have done, having listened to your evidence, is try to craft a sentence which will give you the best possible chance of not offending again. I will say that had you not given evidence I wouldn’t have been so inclined. I would have imposed a harsher sentence. So you were well advised to give evidence and to be honest with the Court as you were.

75. On the application of the Crown and with the consent of the Offender, I make a Forfeiture Order in accordance with the Short Minute of Order handed up today, which I shall sign and date 28 November 2019.

76. The Court orders that, pursuant to s23ZD of the Crimes Act 1914, and upon the application of the Director of Public Prosecutions, the following items are forfeited to the Commonwealth: a black Alcatel smart phone exhibit X0003054058. I will sign that order and my Associate will place it on the Court file.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File;

B. A certified copy of these remarks are available upon request.

Amendments

22 May 2020 - Spelling and grammar amendments

Decision last updated: 22 May 2020