The Queen v Butcher

[2017] VCC 1272

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00793

THE QUEEN

v

Joshua BUTCHER

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATES OF HEARING:	4 September 2017
DATE OF SENTENCE:	5 September 2017
CASE MAY BE CITED AS:	The Queen v Butcher
MEDIUM NEUTRAL CITATION:	[2017] VCC 1272

REASONS FOR SENTENCE
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Subject: Access child pornography; small number of images;

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APPEARANCES:	Counsel	Solicitors
For the Director of Public  Prosecutions	Mr Darby	Commonwealth Director of Public Prosecutions
For the Offender	Mr P. Chadwick QC	Balot Riley & Associates

HIS HONOUR:

1

Joshua Garland Butcher, you have pleaded guilty to one charge of use of

a carriage service to access child pornography material.  The charge is laid on a between dates basis of approximately six months.

2The maximum penalty is 15 years' imprisonment.  

3You have a short prior criminal history.  It is constituted by one appearance for three dishonesty offences and that appearance is of no relevance to my task.

4You are 28 years of age.

5The matter was opened to me yesterday by the prosecutor, Mr Darby, in accordance with a four page written plea opening, dated 7 August 2017.  That document was marked as Exhibit A on the plea.  Your counsel, Mr Chadwick, told me that this was an agreed statement of facts.  I see no need, in those circumstances, to fully recite the facts in this case.  I will not go beyond the agreed summary.

6Very briefly stated, you were linked to an IP address that was requesting and downloading child pornography.  The Australian Federal Police began investigations in July 2016.  A warrant was executed upon your business address on 20 January of this year.  You were then in the very act of downloading child pornography.  Analysis of your computer disclosed that you had accessed a range of child pornography in the between dates period.  The images, of varying categories, had been deleted, but were found upon that forensic examination of your device.  There were a relatively small number of still images and four videos.  They are the matters, the subject of this access charge.  The classification of that material is referred to in some detail in the summary.  The broader context is, as paragraph 13 makes plain enough, your use of the Bit-torrent software to regularly download files which, from their titles, appeared to be child pornography materials, though those files were not disclosed on the forensic examination of the computer or embraced in the charge.

7You were co-operative with the Australian Federal Police and you made full admissions upon interview and these are matters to your credit.

8There are no victim impact statements in this matter, but this is no victimless crime.  Far from it.  Every face looking out from a video, or captured in a still image, is a victim.

9Your counsel, Mr Chadwick, relied upon a number of matters in mitigation. Chiefly they were:

·    Your guilty plea and the very early stage at which it was entered;

·    Your high level of co-operation with the police;

·    Your lack of any relevant criminal history or subsequent offending;

·    Your past good behaviour, very good work history, response to the offending through counselling and what he said were your excellent prospects of rehabilitation;

·    As to the offending, it was argued that it was a small number of images, with no suggestion of commerciality or dissemination by you.

·    Mr Chadwick relied upon the reports of Dr Grech and Ms Prior, but directly disavowed any reliance upon any of the principles from the Court of Appeal decision of Verdins v R.

10Mr Chadwick conceded the seriousness of the offending and the importance of general deterrence in a case such as this, but argued that it would be open to deal with you by way of a community corrections order, or failing that, by the imposition of a term of imprisonment with release forthwith upon a recognizance release order.  Mr Chadwick took me to some of the cases in this area.

Prosecution

11The prosecutor, Mr Darby, also made submissions, spelling out the seriousness of the offending and the need for weight to be given to general deterrence.  The prosecution also took me to some of the cases in this area.  There was a table of comparable cases placed before me and marked as part of Exhibit B.  The Commonwealth, in fact, had filed written submissions as to sentence which were entirely uncontroversial.  In oral submissions, the prosecutor queried the extent to which your account of accessing the material out of curiosity could be accepted, as well as the extent to which any reliance could be placed on the overly optimistic risk assessment opined by Dr Grech.  They submitted on behalf of the Director that your offending warranted a term of imprisonment, though how it was served was essentially a matter for the court.  They have made plain enough that in the assessment of the Director, at least, it was within my sentencing discretion to order an immediate release on a recognizance release.

Background

12I see no useful purpose in restating your background in great detail.  It was set out in quite some detail, as you have heard, in the oral submissions and indeed, it was in the written submissions of your counsel as well.  Additionally, it was contained in greater detail still in the reports of Dr Grech and Ms Prior.  

13You were born in October 1988.  You are now 28 years of age and you will be turning 29 in October of this year. 

14You have one past appearance for dishonesty offences and I mention it only to state that it is of no relevance at all to my task, involving as it did, some petrol drive-aways when you were going through some tough financial times associated with the collapse of a business.

15You were one of two children brought up in what I perceived to be a functioning, stable and happy family unit.  You have a younger sister.  Your parents are still together.  The family are obviously very decent, law-abiding people and they are to a person, both shocked and dismayed by your conduct.  They are taking it very seriously.  

16

You were educated to the start of Year 12, but you left school then to take up

a carpentry apprenticeship, but that was not to your liking.  You left that after about 12 months, before then working for your father, initially as a labourer.  You progressed to being a site manager.  At one point you set up your own demolition company, whilst still very young, but that company failed a while back and you went into bankruptcy.  

17From about 2014, you have been back running your own business, in partnership with another man.  You work long hours and it would seem that most of the profits have gone back into the business, which employs a large number of people.  Though the business is described as successful, it has been tough going at times, with stress and difficulties in making ends meet and some disagreement between you and your partner, as to the means of running, if not saving the business.  There have been some high levels of debt, which you have, at times, struggled to service and it seems from the reports that 2016 was a pretty stressful period, on the work front at least.  On the whole, your employment record since leaving school has been excellent and you plainly are not afraid of hard work.  

18I was taken to some of your relationship history in the reports and I see little need to repeat much of that material.  It is obvious that there were a couple of turbulent and negative intimate relationships in the past.  The recent past is much brighter.  Of note, is that you and your partner, Emma, have been together for over three years.  You seem to have a loving relationship.  You have a  two year old boy together and she also has a five year old daughter from a previous relationship, whom you treat as your child.  As a result of these serious allegations though, there has been put in place a case plan in in favour of the Department of Health and Human Services, which required you not to stay overnight at the house with your children. That required you to move away at night and you have moved home to live with your parents.  That has not been easy for you.

19What is very plain to me sitting up here, is that there is a lot of support for you, as one would hope there would be.  Your mother and father, your sister and your partner, they have all been present at court, obviously concerned about your predicament and many have, in fact, been actively engaged in the counselling process with the experts, whose opinions were placed before the court.  You mother, your father, you partner and your sister have all written strong personal references, which were as a bundle, marked as Exhibit 5 on the plea and I take them all into account.  I am not going to descend to the detail of them in my reasons.  I do take them into account.  I also take into account your own written apology, that is marked as Exhibit 4 on the plea.

20Now one thing I have not mentioned as part of your background, is that the happiness of it was shattered by events in your childhood.  You were subject to some sexual abuse at the hands of a cousin.  It was ongoing abuse.  It has clearly deeply affected you in many ways.  I do not doubt that for one moment. I have serious question marks as to there being any connection between that offending against you all those years ago and your decision to access this child pornography in 2016.

21You have attended very many sessions with Dr Grech and with Ms Prior, though you have stressed to each that you were accessing the material, either out of curiosity and/or in some endeavour to deal with and to understand your past and not for any reason connected with sexual gratification.  They seem to take you at your word on this score.  They really should not have.  They seem to have lost sight of the between dates nature of the access and your continued accessing of the material.  I do not accept your account on the balance of probabilities.  Indeed, it is inescapable that there was, for some reason, some sense of either sexual gratification or sexual interest at play behind your accessing this material and I am, in fact, satisfied of that beyond reasonable doubt.  That is not to say that those reports are without value.  They are of value to the court and so too is the treatment that you have received. It is valuable to you for reasons aside from the reasons that bring you to this court.  You have been dealing with the past issues in your life, which have probably been put on hold for a long, long time.

Guilty plea

22I turn then to consider the various matters raised in mitigation.  The first of those is the fact of your guilty plea.

23You have pleaded guilty and you have done that at the earliest stage.  The fact of your guilty plea, its early stage and the extent of your level of co-operation, well they are all matters of significance to my task.  You have taken early responsibility for your offending.  Not everyone does, but you have.  I reward you for facilitating the course of justice in the way that you have.  Witnesses have been spared the experience of coming to this court.  The community has been saved the time and the cost and the effort associated with the conduct of a contested criminal hearing, either in the Magistrates' Court below, or up in this court.  I take into account, by way of mitigation, the extent of your co-operation, your guilty plea and the stage at which it has been entered and I reward you for facilitating the course of justice.  I make clear to you that I would have imposed a far more significant sentence upon you, had you been found guilty following a contested hearing.

Contrition

24

What then of the claim as to the presence of contrition or remorse?  You have pleaded guilty and as I have said, you have done that at the earliest stage.  

A guilty plea is usually indicative of some contrition or remorse.  It is not always the position though.  Here there are many other indications of contrition, including those I can access, contained in the references from your family members, from your partner, in the expert reports and in your own written apology.  I am, in fact, prepared to find the presence of remorse or contrition in this case and I take that into account in your favour.

Rehabilitation

25Your counsel submitted that you had excellent prospects of rehabilitation.  In support of this submission, he argued that Dr Grech suggested you had zero risk of re-offending.  I did not accept that that was a sensible or accurate thing to place within an expert report.  I did not and I do not accept that piece of evidence and I flagged that at the time the submission was made yesterday by Mr Chadwick.  It seemed not to be based on the psychometric testing which had been administered, which disclosed at least some level of risk.  Over the lunch adjournment yesterday, Mr Chadwick spoke to Dr Grech about that conclusion and Dr Grech evidently conceded that the word "negligible" may have been a better adjective, given the very low results and his opinion as to the likely risk profile of people with that very low risk assessment.   

26Well, it was not satisfactory that it was done in this way.  This material should have been within the report.  Dr Grech should place within his report, the level of risk determined on the psychometric testing and should then explain any move away from that level of risk.  For some reason he did not.  I will act on the basis of your having an extremely low to negligible risk of meaningful re-offending, which is what is stated at p.10 of that report.  Anyway, I do not want to get too caught up in this.  Perhaps I have. 

27

I think there are many things in your favour, including the ongoing counselling with Dr Grech and Ms Prior and the knowledge of those around you as to your offending and importantly, their continued support.  It is true that you have no relevant criminal history at all.  You have held down a job for most of your life. You are still, at least to my way of thinking, relatively young.  I would expect that you will be required to be assessed for and if suitable, to do the sexual offenders' program.  The trouble is you have engaged over a decent enough period in conduct which makes plain enough that despite what you tell the experts, you must have had some attraction to this sort of warped material.  

I do not know why you said these things to the experts, but your answers as to curiosity for accessing the material, trying to understand why your cousin abused you and even of unintentional access, well they are not answers at all in my view to your offending.  Maybe future counselling will provide some further answers.

28I do have the reports of those two experts.  I have the undoubted impact upon you of the sexual abuse committed upon you all those years ago.  It is of real importance that you continue with counselling in relation to that conduct. However, as I have explained a moment ago, I am far from satisfied as to the level of rigour in the opinions that those authors may offer as to any connection existing between the offending and your past abuse, or their seeming acceptance of your explanation for the offending.

29There is, I am afraid to say, an air of advocacy that exists in those reports, probably courtesy of both of them being your treating practitioners.  Dr Grech started out as a consultant, but essentially became a treater, seeing you as regularly as he has.  Maybe even it is unconscious advocacy derived from the close connections that they have forged.  

30Ms Prior writes a virtual testimonial at the end of her report, referring to you as, as she put it, "At core, a good, proud and responsible man".  She then trespasses on the court's domain by citing what she says is the community's best interests being served, by allowing you to continue in your ownership role within the company which financially supports 40 families. She should not concern herself with this sort of matter.  It is advocacy.  It has no place in an expert report.  Your role within the company, or the position of those within the company, is of very little, if any, concern to this court in coming to the view as to the correct sentence to impose upon you for your serious offending.

31

Dr Grech’s reference to the "zero risk", well it has worried me.  The strenuous challenging of your explanations of the context and the specific circumstances of offence spoken of by Dr Grech, would surely have involved questioning as to the level of frequency of access and the duration of the period of access. Curiosity as the driving force, would be exhausted after a session or after

a photo or two.  You kept accessing material.  The suggestion of you having limited or no control over what was actually downloaded, is itself something of a nonsense, in that you were entering in search terms, such as “Pedo” and must have seen what that sort of search term elicited time after time.  

32Your computer was not holding you hostage.  You were entering search terms targeting child pornography.  Material was accessed, you watched or viewed the material, then deleted it and then went through the same business again. So Dr Grech’s claim as to the absence of minimization is itself quite puzzling. There is minimisation in your account.  So curiosity, perverse or otherwise, it does not provide the answer to your offending.  Nor does the access in 2016 have any meaningful connection to what happened to you as a child.  I am not satisfied, on the balance of probabilities, that this was the driver behind your offending.  Maybe the truth is, you do not know why you accessed the material, or you do not know why you had an interest in it.  I do not really know. 

33I would hope that the process of being arrested, charged, brought before the court, as well as serving the sentence that I will soon pronounce, will also serve to deter you in the future.  I am sure it will.  You have engaged in this counselling that I have spoken of and involved your family members as well.  Your mother and your partner have been very directly engaged in that whole process and that is a big positive.  Whatever doubts I have as to the accuracy of your account to the experts in terms of your reason for access, I do not doubt that you need counselling for the past abuse committed upon you when you were a boy.  

34You have real and strong family support. That is also a big positive.  I am prepared to accept that you do have very good prospects of rehabilitation and that you have taken steps already along that path, with the many sessions of counselling and it would seem, a developing insight into the seriousness of your conduct.  You will need to actively and honestly engage in treatment in the future.  Before leaving these reports, I want to make plain that your counsel explicitly disavowed any application of any of the principles from the case of Verdins v R.

Principles

35I turn then to some of the principles at play in dealing with offenders such as you.  As to your offending, it is clearly not connected to any commercial undertaking or profit motive for you.  You are not linked to the production or creation of the images, or to their dissemination in any way.  You are accessing the material.  That is serious enough in its own right, make no mistake.  For whatever reason, you did not see the children in the material you accessed as being victims.  Well of course they were.  Your claim in the interview that you would never hurt a child, betrays your then lack of insight into your own offending.  You make up the market for this sort of material and it is because of people like you who make up the market, that children depicted in these images are being debauched and abused in the way they are, on these shores and beyond these shores.  From your written apology, you seem to have developed some insight into this concept since the offending and that again is a positive.

36General deterrence is the paramount consideration for this sort of matter.  That is accepted by your counsel.  That is, the need for this court to send a strong, loud and unequivocal message about the seriousness of this sort of offending to like-minded offenders out in the community.  The internet has changed our world forever, both for good and for bad.  This sort of crime demonstrates the massive capacity for harm presented by this medium.  The world has literally been opened up.  There is a vast market out there inhabited by people such as you were, who for whatever reason, wish to access this awful material.  Whether you know it or not, and you seemed not to, at the time at least, you and people like you drive the production of this material.  Those portrayed in the images, be they still images or videos, they are not actors.  They are victims.  They are children.  They are innocent, helpless victims, children, sometimes even infants, being sexually abused and debauched to provide this imagery.

37It is clear from the various authorities to which I have been referred, that the problem of child pornography is a significant and an international problem.  The prevalence and the ready availability of pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount consideration.  As I have said, child pornography is not a victimless crime.  Those inclined to exploit children by involving them in child pornography are encouraged to do so by the market that exists for such material and you are one of those who made up that market.  It is clear that, given the prevalence of the offending and the paramountcy of general deterrence, that past good conduct is to be afforded lesser weight than is often the case.

38In DPP v D'Alessandro (2010) 26 VR 477, Harper JA said;

"For reasons which to the ordinary lay mind are very hard to comprehend, there are those who have such lack of empathy that they cannot assimilate a simple truth; that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation they are being subjected to."

39Well that is the position that you evidently found yourself in, a person who for whatever reason, seemingly did not draw the connection between the child portrayed in the still image or in the video and the concept of that person being a victim.  That mindset has been challenged by counselling and your views have seemingly altered and for the positive.

40I have, in my reasons to date, dealt with various matters raised in mitigation, or going to your offending generally, but I have done so without referring back to the specific statutory provisions in s.16A(2) of the Crimes Act 1914 (Cth). I must and do take into account the relevant matters referred to in that non-exhaustive list set out in those provisions.

41I am required to impose sentences, or make orders that are of a severity appropriate to all the circumstances of the offence.  So prison is a disposition of last resort.  My sentence must be proportionate.  Consistency of sentencing is also, of course, an important consideration.

42

I have looked at the various cases that I have been referred to.  I must say, use of other cases, even comparable cases, has inherent and obvious limitations and that is because I have to pass an appropriate sentence in your case.  There are no two cases that are ever the same, nor any two offenders. 

I was not greatly assisted by Mr Chadwick taking me to cases where there were significant differences, for instance, offending committed by a teenager, or offending against the provision dealt with over seven years ago in our courts when there was a lesser maximum penalty at play.  Mr Chadwick was arguing that he was taking me to cases to establish matters of principle.  Well, there are matters of principle in those cases, but that purpose was quickly enough undermined, or at least overhauled by his desire to go to the individual facts and contrast those facts with the facts of this case, that is, the numbers of images and the duration of offending.  

43The unspoken conclusion to be drawn was that these other offenders were worse than you and yet received a particular outcome and that hence you should do better than those others.  Well, this process of trawling through other cases, it adds significantly to the duration of the plea and it produces often enough, in my experience, no great benefit to the court and no insight into the sentence required in the instant case.  I did not need to look at other cases to know that the number of files accessed here was relatively low, in the scheme of this style of offence.  That does not make the offence a minor crime.  It is not.  I have already commented on your having no role in the creation or production of the images, or in their distribution.  There is no commercial setting here.  You had no profit motive. You were accessing this material. 

44

There are very many decisions published by our Court of Appeal dealing with the seriousness of this sort of crime and the relevant sentencing principles at play.  The trend, if I might use that term, is of the Court of Appeal of this State over the last few years, seemingly tightening up the circumstances in which

a non-custodial disposition, as in a non-immediate term, should be imposed for this sort of offending.  Occasionally courts, either in this State or in New South Wales, have taken it perhaps a bit further and have spoken of the need for an immediate term, other than in cases where exceptional circumstances are found to exist.  One has to be very careful in that regard.  There is no exceptional circumstances test set out in the Act itself or that is to be imported into the Act.  What I have to do, is to exercise my discretion in your case, bearing in mind constantly, of course, that prison is a disposition of last resort.

45

Now the relatively recent case of Garside [2016] VSCA 74, to which you heard reference yesterday, drew together some of the case law and the principles to be derived from it.  It is plain enough that child pornography offences are considered as especially grave, by both the courts and by our Parliament.  General deterrence is to be the paramount consideration.  Denunciation is very important. It is

a prevalent crime and prior good character is generally to be given less weight.

46The Court of Appeal, in that decision, dealt with the finer detail, in terms of the matter of the assessment of the gravity of the offending, including considering the nature and the content of the material, the age of the victims, the gravity of the sexual activity portrayed, the number of images accessed and whether there was a commercial setting or distribution in mind, or any profit motive engaged.  They went on to say that it is clear from the authorities that they traversed in their decision, that access to child pornography is regarded as very serious, morally depraved conduct that is harmful to children.  They went on to say at paragraph 62, that:

"The authorities speak with one voice, that a term of immediate    imprisonment will ordinarily be expected for such offending."

47They set down no broader principle though, in terms of any need to establish exceptional circumstances to avoid such an outcome and that is because each case must be decided, according to its own circumstances.  The case of Boulton, a decision of our Court of Appeal in 2014, dealing with community corrections order dispositions, does not apply to my task in the Federal sentencing sphere.

48I have here a quite small number of images accessed, small when compared to some of the other cases where there are hundreds, thousands, tens of thousands, or even more.  Still it is serious offending.  The prosecutor correctly says there are dozens of child victims and in your case, your conduct was not isolated, it was over a duration of six months.  The Crown argue, on behalf of the Director of Public Prosecutions, for a term of imprisonment.  They say that is warranted, when one has regard to the nature of your offending and the nature of the authorities dealing with matters of principle in this area. 

49As I have said, prison is a disposition of last resort for any court and I do not ignore the views of the Court of Appeal, as to what ordinarily flows by way of sentencing outcome from the commission of this style of crime.  But I must sentence the individual offender for the individual crime and I am not of the view that this last resort has been reached here.  This does not strike me as being an ordinary case.  That is chiefly as a result of the relatively small number of images accessed and the significant steps that you have already undertaken to engage with counsellors and the potential for damage, should that process be interrupted.  The community may very well be best served in your continuing to engage in the way that you are.  An immediate term of imprisonment may in fact produce a disengagement from counselling and treatment and damage your prospects, whilst at the same time, increasing your future risk.

50I believe then that in the circumstances, a community corrections order, in combination with the imposition of a fine, gives me a greater level of flexibility, in terms of imposing a strong punitive element.  I have no ability to impose unpaid work, if sentencing you to a term of imprisonment and releasing you forthwith on a recognizance release order.  I have only one charge to deal with.  A community corrections order, on the other hand, permits me to secure your continued access to treatment from your treating psychologist, to mandate the sex offender's program and to impose a sizeable number of unpaid hours by way of additional punishment.

51

It is for these reasons that I believe that it is open to me to convict you and to release you on a relatively lengthy community corrections order.  Now, I can only release you on such an order if you consent to it and I am required to explain to you the terms of the order that I have in mind, so listen carefully, because

I will ask you at the end whether you do consent.  You would be breaching this order, if I place you on it, at your own peril.  I make that very plain.   

52I intend to convict you in relation to this offence of accessing child pornography.

53I intend to convict you and release you on a two and a half year community corrections order.

54Now, these things have been explained to you.  You have not had one before, obviously, but I see that there is a signed consent to the making of the order and that indicates that you have had the conditions and the requirements of the order explained to you and that you understand them, but nonetheless, I will deal with some of these matters just briefly.  You will get a copy of this document, by the way. 

55These orders have mandatory terms.  They apply to every person who gets one.  You are getting one, so they apply to you. 

56The first mandatory term is that you must not commit another offence, for which you could be imprisoned, in the period of the order.  All right?  Well that is pretty straightforward, you stay out of trouble.  That should not be a problem.  You have stayed out of trouble for most of your life.  But if you commit any offence punishable by imprisonment, then you will breach this order.  And these days, literally every offence is punishable by imprisonment.  I am not talking about, you know, a traffic offence or something like that, in terms of travelling above the speed limit, but virtually every criminal offence, and for that matter, some driving offences, are punishable by imprisonment. 

57To illustrate it further, not that there is any suggestion you are going to do this, but just to drive home the point.  It is the commission of an offence that could, in theory, be punished by a term of imprisonment, that is the breaching conduct.  Not whether or not another court locks you up.  No suggestion you are going to do it, but just to illustrate.  If you went into a newsagent and stole a Freddo Frog.  I do not know what a Freddo Frog is worth, probably 50 cents.  You are not going to do it, but if you did that, that would be a charge of theft, all right? 

58Now I would like to think that there would not be a magistrate in their right mind who would lock someone up for theft of a Freddo Frog.  I hope I am right.  But theft, even of an item like that, would breach this order.  That is the point I am making.  Any offence punishable by imprisonment in the next two and a half years, you breach the order. 

59There are lots of other terms here.  You will see them. 

·You have got to comply with your obligations and requirements under the Sentencing Regulations.  That means you have got to turn up for treatment or for unpaid work, on time, in a fit state to engage, not affected in any way by alcohol or drugs.  That should not be an issue for you. 

·You must report to and receive visits from the Community Corrections officer. 

·You have got to report within two clear working days of the order starting.  That is down at the Pakenham Community Corrections Services office, so within two clear working days.

·You have got to let them know within two clear working days of any change of address or job. 

·You are not allowed to leave Victoria without first getting permission to do so. 

·You must obey all lawful instructions from the Community Corrections crowd.

60So they are the mandatory terms.  They apply to you.  And those terms should not be a problem for you.  They are a massive problem for most people who get these orders.  I am telling you, they come here with big addiction issues, drug addiction issues, shocking backgrounds, the very concept of staying out of trouble for, you know, 12 months or two years is a foreign thing in their lives.  It should not be for you.  There are people who cannot get out of bed in the morning.  There are people who have never had jobs in their life, who do not have any idea of the discipline of turning up when they say they will turn up.  Again, it should not be a problem for you.  You have been doing these things your whole life.  Anyway, they are the mandatory terms.

61Then there are conditions that I apply and they are tailored to the particular needs of the offender, and for that matter, the particular needs of the purposes of sentencing at play in a case such as this.  So they are the tailored conditions. One of them is unmistakably punitive. 

·You must perform some unpaid work and I am requiring that you perform 400 hours of unpaid community work over the period of this order.

·You will be under the supervision of a Community Corrections officer for the full period of this order.

62There are then some treatment and rehabilitation conditions. 

·You must undergo any mental health assessment and treatment and that can include all sorts of things, including psychological and neuropsychological, psychiatric treatment, but the thing is, it is as directed by the Regional Manager.  Now it may well be that they will be directing that you continue to engage with Ms Prior.  Indeed, I am going to make it a specific condition that you continue to so engage.  So I have no reason to think that they are going to spring upon you some need to see a new practitioner.  Maybe they will, maybe the will not.  Whatever they say goes. 

63

You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager and I will make it

a condition that you must attend for assessment by the Specialised Offender Assessment and Treatment Service and if assessed as suitable, to attend for treatment for sex offender programs or any other programs to reduce

re-offending, as directed. 

64In addition, I will make it a special condition.  I will hear about the wording of this, but it will be to the effect that you continue to attend for counselling and treatment from Ms Vicky Prior, or her nominee, as directed by Ms Prior.  So, she is contemplating the need for an additional 12 months of counselling, so it is arrived at in two ways.  I am giving a residual discretion to the Community Corrections crowd to give you directions to attend for treatment, but I am making a specific condition that you continue with this counselling with Ms Prior, or her nominee.  For instance, if she went out of the game, then she would be nominating someone to replace her.  And I suppose if it gets to a point where she says you have done what you need to do, you no longer need to attend, well she will give you that direction.  But that is just so there is no doubt about it.  That is what that is all about. 

65So much then for the mandatory terms and the conditions.  You breach any of those, you breach this order.  And as I say, there are lots of people to whom these conditions, even the mandatory ones, would be a bridge too far.  They should not be for you.  But you have not had these orders before and there will be, I am sure, a level of inconvenience.  There is meant to be.  They are not meant to be easy.  They are punitive, quite aside from the unpaid community work, there is an aspect of punishment in being on this sort of order.  Unpaid work will be a nuisance for you.  It is meant to be, it is a punishment. 

66The best advice I can give you, so we can avoid seeing each other again, is treat the Community Corrections officer decently.  Treat them honestly.  Form a relationship with them, because you are going to have a relationship with them for two and a half years and it is much better if it is a good relationship.  They can assist you, they can give you directions to try and assist any sort of issues in your life, in terms of treatment and the like, but if you play games with them, they will find out. 

67If there is some particular reason why you cannot turn up for treatment, for unpaid work, for supervision, tell them and tell them in advance, if possible.  No doubt they would re-schedule.  Even if something springs up on an emergency setting, do not just leave people waiting.  I guarantee you, that is the surest way to find your way in breach of this order.  They will not be silly about it if you have got a good reason for not being to attend or for not having attended, and you can document it, well of course they will treat that sensibly.  But if you do not, if you do what so many people try to do, that is to not turn up for your obligations and then try and invent some reason after the event, you will be found out and they will breach you. 

68So many people lose contact with their Community Corrections officer.  They move address, they move their job, you are not going to do that.  I mean, you know that you have got these obligations.  You cannot just get up and leave Victoria, I am afraid, it is as simple as that.  I am not saying they will stop you from dong that, but as long as you actually get permission to leave and no doubt they will give permission if there is a good reason for you to be going.  Whether it is by way of work or by way holiday. 

69Well, in terms of the treatment and rehabilitation, as I say, I cannot know exactly what they are going to ask you to do, but what I do know is, whatever they say, that is what you have got to do.

70

What happens then if you breach this order?  Because you need to know that and I am sure it has been explained, but if you breach any of these mandatory terms, if you breach any of these conditions, then you breach this order.  Now what happens here is, it is not a matter of being brought back to the Magistrates' Court, you are brought back to this court.  And not just to this court, in this court, we, as judges, we place people on these orders and we deal with our own breaches.  So if it is breached, there will be a knock on that door.  You will be sitting down in the dock.  There will be a knock on the door, in through the door will come a judge, it will be me and I will be carrying every note that I have made, in terms of what I have been told and why I did what I did, including

a note of this explanation that I am giving you, because the very last thing I want is to find a person sitting in the dock, facing a breach and saying, "I didn't know what could happen if I breached this order."  You will know, because I am telling you. 

71Now I cannot tell you precisely what would happen if you breach it, because of course the obligation of a judge is to sit and to listen to submissions made on your behalf.  I would need to make an assessment as to the nature of the breach, is it a breach by offence, is it a breach by non-compliance, have you thumbed your nose at the order, have you tried very hard to comply with it, has there been some technical sort of hiccup?  Well of course I would need to have some understanding as to the essential character of the breach, so I cannot give you any sort of answer to the exact exercise of my discretion in that sort of setting, of course I cannot. 

72

Work on this theory though, there are only three options open to a court in the Commonwealth domain, either to find a breach proven and to impose a financial penalty, not exceeding ten penalty units, it is about $1,800, I think, or take no action.  Well you should treat that as highly unlikely, or revoke the order and

re-sentence and that is really the option that you should have in your mind as being the most likely sort of outcome if you breach this order.  And if that occurs, you are back in that position, sitting in the dock, as you would have been yesterday, coming to court not knowing whether you would be going home or not and you probably had that same feeling even today, coming to court today. 

73

Well, you never need to come back to this court ever again, unless you breach this order.  You never need to be sitting in that dock with the same sense of uncertainty, unless you breach this order.  But they are the options open to

a court and work on the theory that the most commonly exercised option by a court upon a breach, is to revoke the order and to re-sentence and you would be wise to work on the theory that that would likely result in an immediate term of imprisonment for you to serve.  All right?

74

There is a particular danger for you and it probably represents the greatest danger of your committing offences, I imagine.  I am going to shortly tell you about your obligations under the Sex Offenders Registration Act and they are significant and any failure to comply with any of those conditions, if it is in the course of my order, that would constitute a criminal offence, punishable by

a term of imprisonment.  So you need to understand very clearly what those obligations are and follow them to the letter, because if you do not, you will be committing an offence under that Act, which if it is occurring in the next two and a half years, will breach my order.

FINE

75Anyway, they are the mandatory terms and conditions of the order.  In addition to the community corrections order, I intend to convict you and fine you the sum of $10,000.  I have taken into account your financial circumstances.

76Now, Mr Chadwick, I have spent a fair bit of time going through all of that.  Do you want to go down and see if your client understands what I am proposing and he consents to the order, please.

77MR CHADWICK:  Yes, I'll do that, Your Honour.  May I be excused from the Bar table?

78HIS HONOUR:  Yes, of course, yes. 

79MR CHADWICK:  Thank you for the opportunity, Your Honour.  My client understands those terms.  He consents to those terms.

80HIS HONOUR:  Yes.

81MR CHADWICK:  With regard to the monetary penalty.

82HIS HONOUR:  Yes.

83MR CHADWICK:  My client seeks a stay of four months.

84HIS HONOUR:  Yes.  Yes, I will grant a stay of four months on the payment of the fine. 

85Well look, just let me look at the order.  I will hand it down so you can both look at it, run your eyes over it, to make sure that I have got the right conditions.  Look, I will hand that down.  Just run your eyes over it.  Just forgive me for the way it appears on the - it seems a casual way for this to be entered on the system.  It is just the system - what it does, it is "accessing child porn", is the way it is described, "using carriage service" and that is - my associate has got no control over that, so if you have a look anyway at the document and see if it fits the bill, each of you, if you would. 

86MR CHADWICK:  Yes, I see it.  I take Your Honour's point.

87HIS HONOUR:  All right.  I will have that go down for your client to sign.  You go down as well, Mr Chadwick, if you would, if you want to, or you do not - - -

88MR CHADWICK:  I will send my instructor down.

89HIS HONOUR:  Sure.

90MR CHADWICK:  Yes. 

91HIS HONOUR:  All right.      

92Mr Butcher, can you just stand up please.  Do you confirm then that you are consenting to entry into this community correction order?

93OFFENDER:  Yes.

94HIS HONOUR:  All right.  And you understand the effect and the conditions of this order?

95OFFENDER:  Yes.

96HIS HONOUR:  And you have signed this document, signifying your consent, is that so?

97OFFENDER:  Yes.

98HIS HONOUR:  All right.  I will have a copy of that - or a couple of copies run off for the parties and for you as well.  Grab a seat then please. 

SEX OFFENDER REGISTRATION ACT 2004

99In addition, you have been sentenced in relation to a charge that is a registrable offence under the Sex Offenders Registration Act 2004. I have no discretion in this area. The fact is your being sentenced activates those provisions, whatever I might think of them.

100Pursuant to s.34 of the Sex Offenders Registration Act 2004, you must comply and continue to comply with your reporting obligations imposed under that Act for an eight year period.

101I am going to have handed to you shortly a document that explains the terms of that Act and the conditions which will apply to you.  There are many conditions and they include the reporting of your personal details to the Chief Commissioner of Police for an eight year period.  Your obligations under that act also involve some prohibitions, including one, a prohibition upon your gaining any employment in any child-related activity, which is very widely defined indeed under that Act. 

102The point I am making is, you are going to need to familiarise yourself with those provisions very carefully, as a breach of them can constitute a serious criminal offence and as I have said already, an offence of breaching the conditions would breach the terms of your release, would breach this community corrections order.  So it is a lengthy document.  I am not expecting you are going to sit there and study it now.  Your head is probably in a spin, but you will see what I mean when you get this document.  It is too detailed for you to sit there and to digest now.  This is simply your signing to acknowledge receipt of these explanations and you will need to familiarise yourself with them in due course.   

103They are treated very seriously by those who administer the scheme.  Failure to report details to Victoria Police, I have seen incredibly technical breaches that have found their way back to court by way of criminal offences being laid.  For instance, I had one person who had failed to report getting a fresh tattoo and he received a tattoo, I think, of a - I am not suggesting you are going to do this, but the name of a child had been tattooed on his arm in the period when he was on one of these reporting obligations, he did not report it and he was charged with a breach of the Act.  And I have seen other very technical breaches as well. 

104So the best way of avoiding that, familiarise yourself with all this detail and if you have got any doubts, ask your counsel.  You have got an excellent legal team who act for you and they will give you, no doubt, all sorts of advice, but the main thing is, read it and understand it.  And then comply with your obligations.  It is a - I am not saying it is an easy business, but it is what you have to do in the next eight years and the starting point is your requirement to do it, I think within the next seven days.  That is what you have got to do. 

105So, anyway, look, I will have that come down.  Mr Chadwick, you have seen these.  I am not suggesting he is going to sit there and read it all, but he will need to do it in his own time, I am simply getting him to acknowledge receipt of these reporting conditions.  So I will sign that.  Your instructor can go down with my associate, if you like, because it is a matter for you and we will have that acknowledgment signed, if you like.   

106All right, so Mr Butcher, do you acknowledge that you have signed that document relating to the Sex Offenders Registration Act and your obligations?

107OFFENDER:  Yes.

108HIS HONOUR:  Yes, all right. 

109All right, well that almost completes the matter then.         

6AAA

110

I think I probably am required to make a s.6AAA declaration here, not as a result of my having imposed of a community corrections order, that would not trigger the obligation, but as a result of the imposition of a fine exceeding ten penalty units, I think I probably do.  I hope I have made clear to you that you have received a benefit by virtue of your guilty plea.  Had you been found guilty following a contested hearing, make no mistake, I would have sent you straight to prison.  There would have been no question of that.  I would have imposed a term of three and a half years' imprisonment and I would have fixed

a non-parole period of two years.  That declaration is entered into the records of the court.

111I have already announced that I will grant a stay of four months.  Let me just see if there is anything else I have overlooked.  Mr Darby, forgive me - - -

112MR DARBY:  Your Honour, just - - -

113HIS HONOUR:  Yes.

114

MR DARBY:  Just briefly.  No order required, but just to put on the record,

Mr Butcher has consented to the retention and distraction of the black laptop.

115HIS HONOUR:  Yes.  Yes, all right.  I thought he had.  All right, well, sorry to ask this question, Mr Darby.

116MR DARBY:  No, that's all right.

117HIS HONOUR:  I do not need to ask it when I impose a fine on the State, I just impose a fine.  I think I am required to enter in the details of the informant agency details, in terms of the fine being payable to a certain person, is that right, or is it the - - -

118MR DARBY:  That happens in the Magistrates' Court, Your Honour. 

119HIS HONOUR:  Who is it payable to?  What do I - - -

120MR DARBY:  To - well the AFP - yes, Australian Federal Police are the relevant agency, so it would be them. 

121HIS HONOUR:  All right, well I will - - -

122MR DARBY:  If it is payable.  Otherwise - I mean, my understanding was that in this court, it's all done through the Registry.  They actually - - -

123HIS HONOUR:  Yes, well they won't let us into the - the computer won't, anyway, but anyway, is it payable - - -

124MR DARBY:  I can - well the Australian Federal Police are the agency.

125HIS HONOUR:  All right.  And in terms of the address?

126MR DARBY:  I don't - - -

127HIS HONOUR:  Well you make that - can you make that available - - -

128MR DARBY:  I can email - - -

129HIS HONOUR:  Yes, email that through to my associate.  All right, in any event, that s.6AAA declaration is to be entered in the records of the court. 

130Are there any other matters that I need to deal with at all, or not? 

131MR DARBY:  No, Your Honour. 

132MR CHADWICK:  No. 

133HIS HONOUR:  Mr Chadwick, have I - - -

134MR CHADWICK:  No, there's no ancillary or other matters. 

135HIS HONOUR:  Yes, all right.  All right, well thanks very much each of you for your efforts.  I am sorry that I have gone into the lunch break so significantly, but - all right, well, that completes the matter then, Mr Butcher.  And I have imposed this community corrections order, in combination with a monetary penalty.  It is a sizeable monetary penalty.  I have not sent you to prison, I have not imposed a term of imprisonment and held it in suspense, I have judged that it is open to me to deal with you in the way that I have, that is despite the Crown's submission as to the need for a term of imprisonment to be imposed. 

136So, what you need to do is, you need to comply with this order, it is pretty straightforward.  I do not want to see you again.  If I do not, it will mean that the order is the right order, it seems to me.  An order for two and a half years, compliance for two and a half years, treatment for a portion of that.  That would provide the tick, as far as I am concerned, to this order being the appropriate exercise of my discretion.  I think it is, or I would not be doing it.  The Crown think it is not.  Well, there you are.  But if you comply with it, then it will clearly be the correct order, it seems to me. 

137In any event, do not put yourself or your family in the position of not complying, because if you do, we will be reconvening the court and we will see each other again.  I do not want to see you again.  And you probably are sick of the sight of my face.  So, anyway, hopefully I will not see you again.  Hopefully you will comply with this order.  Hopefully the Department of Health and Human Services will make some judgments that will permit your return to the family home, subject, of course, to their being satisfied as to the absence of risk in such a setting, but anyway, I hope not to see you in the future. 

138Yes, all right, well 10.30 tomorrow then please.

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