The Queen v Dingli
[2018] VCC 963
•25 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00397
| THE QUEEN |
| v |
| MATTHEW JAMES DINGLI |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | 20 June 2018 |
| DATE OF SENTENCE: | 25 June 2018 |
| CASE MAY BE CITED AS: | The Queen v Dingli |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 963 |
REASONS FOR SENTENCE---
Subject: Solicit child pornography (CWTH); possess child abuse material (State) Very small number of images; counselling.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Barnes | Commonwealth Director of Public Prosecutions |
| For the Offender | Ms Mykytowycz | Galbally and O'Bryan |
HIS HONOUR:
1
Matthew James Dingli, you have pleaded guilty to one charge of use of
a carriage service to solicit child pornography material (a Commonwealth matter), and one State charge of possession of child abuse material. The Commonwealth charge relates to conduct on a single date in July of last year, the State charge to your possession of 50 images spread across two devices on the day of the police execution of a warrant on 13 September 2017. The maximum penalties are 15 years' imprisonment for the Federal charge and ten years imprisonment for the State charge.
2 You have no criminal history at all and nothing subsequent. You are 30 years of age now, but were 29 at the time of the offending.
3
The matter was opened to me last Wednesday 20 June by the prosecutor,
Ms Barnes, and it was opened in accordance with a five page written plea opening. That was dated 22 May 2018. That document was marked as
Exhibit A on the plea.
4 Your counsel, Ms Mykytowycz, told me that this was an agreed statement. In those circumstances, I really see no particular need to fully restate the facts in this case. I will not go beyond the agreed summary and that document of course, will remain available on the court file.
5 Very briefly stated, another investigation targeted a man named Mitchell and that man's use of Craigslist to distribute child abuse material. His devices were seized and when they were analysed, chat exchanges between you and he were uncovered. They had taken place on 8 July 2017. You were responding to his advertisement, and that advertisement was unmistakably perverted and deviant. There is no question about that.
6
The conversation, that is, the chat, is set out in full in the opening and I see no need to repeat it. Again, it was plainly deviant in both directions. It is accepted that you were asking him to provide child pornography, and he in due course did. Following on from the chance discovery of that chat material on Mitchell’s devices, you were then investigated and arrested. The arrest took place on
13 September 2017.
7 There was a field interview and then the full police interview. Now, you did make a number of admissions, but even making allowances for the unannounced arrival of the police and the shock that that must have produced, I believe you were less than fully frank with the police. You told police for instance that you were not sexually attracted to children or images of children, and that the images were the first you had viewed; that is, the ones that you had solicited. You said there were no other images on the devices, and in that you plainly provided an incomplete account, as the 50 images referred to in the summary were found on two of your devices, and they comprise the State charge to which you have pleaded guilty.
8
The classification of those images is set out in the opening with a further description of what they actually depicted set out in the Crown sentencing submissions. I have seen no need to view those images or the very few that you solicited. They were unmistakably child pornography. Unfortunately, though admitting your guilt by your guilty plea, you will not provide any explanation to your counsel, to your treating psychologist, or consultant psychologist, or to this Court, as to how, when, and why you sourced those 50 images, though I suppose the why is obvious enough, given the report of
Mr Newton, who likewise, was deprived of your explanation, and obviously concerned by that fact.
9 You were nonetheless, co-operative with the Australian Federal Police and you made a number of admissions upon interview, and I have to take that into account in your favour; I cannot just ignore that. You have spent no time in custody and you pleaded guilty at the earliest opportunity.
10 Your counsel, Ms Mykytowycz, conducted her customarily excellent plea on your behalf, and really, she said all that could be said on your behalf. She had also prepared some very detailed written submissions. Really, she could not have done more on your behalf. She relied upon a number of matters in mitigation, principally they were:
· Your early guilty plea;
· The presence of some contrition;
· Your co-operation with the police;
· Your complete lack of any past or subsequent criminal offending;
· She took me to your background, one of stability on the family front, on the schooling front, and on the work front, with contribution to the community over and above, with strong and consistent efforts in a local football club.
· Additionally, she placed before me the two reports from experts dealing with your treatment and containing a risk assessment. One was a treater, Dr Barth, one a consultant, Mr Newton.
11 She conceded that there were some issues concerning your lack of frankness or full disclosure, which were troubling. It troubled the experts to some degree as each commented on that aspect but she reminded the court that these were still early days in terms of your treatment which was at a formative stage.
12 She was arguing that you had reasonable if not good prospects of rehabilitation with a moderate risk of re-offence, which would likely lower in the face of continued counselling. She argued that treatment was what was critical here, and that prison would be counterproductive to you, and as a result, also to the broader community. As to the offending, Ms Mykytowycz argued that in each case, it was a low level example of the offence for the reasons set out in the written submissions and expanded upon in the course of her oral submissions.
13 Her submissions as to the low level of the offence, really should not be misunderstood by you or anyone else. She was making a submission as to where these offences sat on the spectrum of offence seriousness. She was not suggesting for one moment that this was not serious criminal offending. Plainly, it was, given the nature of the conduct and the maximum penalties at play, and what our highest State Court, the Court of Appeal, has said time and time again, as to the gravity of this style of offending.
14 Indeed, you will recall your own counsel was conceding the inevitability of a term of imprisonment on the Federal matter, but arguing for your immediate release onto a recognizance release order, as well as release onto a community corrections order on the State matter. She took me to some of the cases in this area and worked her way through some of the so-called comparable cases provided by the Crown.
Prosecution
15 The prosecutor, Ms Barnes, also made submissions as to sentence. They were very detailed and there were written submissions, and they were marked as part of Exhibit B. I see no particular need to work my way through those sentencing submissions; there was very little contained within them which was in any way controversial at all. Those submissions set out a variety of the very clearly established sentencing principles for this style of offending.
16 She placed before the Court a chart of comparable cases, marked as part of that same Exhibit B, and the cases themselves. The prosecutor questioned the extent of contrition in this case, and suggested that there has to be some concern raised by the expert, Mr Newton, as to your lack of account in relation to the 50 images. It was obvious that you were still, to some extent, minimising your conduct, she argued. Ms Barnes submitted on behalf of the Commonwealth Director of Public Prosecutions that your offending, both the State and Federal offences, demanded an immediate term of imprisonment; that you actually had to be sent to prison.
Background
17 I turn to your background. Your family background is not the subject of any dispute at all, and so again, I see no particular need to set it out in full. It does not explain this offending in any way. It is set out in detail in Mr Newton’s report, also in your counsel’s excellent written submissions, also to some extent in some of the references placed before me.
18 You know what your background has been, and most people who sit down in that Dock where you sit, they could only dream of having your background. It has been an excellent one. To summarise and do it very broadly, I do not think I need to descend to the particulars. You have had loving parents, a close supportive family, stable home life in early childhood and adolescence, no issues in schooling, movement from a good school into a trade, completion of an apprenticeship and then full employment.
19 You have had engagement in a church community, engagement and contribution in a sporting club. You are married. You had no issues with drugs or alcohol, no mental health issues, no significant health issues at all, other than perhaps an ACL injury that blighted your football. So there is nothing in any of that background that explains why you are sitting where you are sitting here today.
20 You were born in September 1987. You are now 30 years of age. As I have said, you are married and you have a two month old daughter. Your wife is supportive of you. Of course, you have no past appearances before any court at all.
21 You were one of 4 children, as I have said, brought up in a stable and happy family unit. The whole family, including your wife, are obviously decent, and law-abiding people, and they are, I am sure to a person, shocked and dismayed by your conduct. I can say that with confidence, as I have references from your mother and father, and from two of your siblings, and all of those siblings and various partners were present in Court last Wednesday, and obviously dismayed by the putting of the charges, hearing your guilty plea, and then the summary being read.
22 Even though they knew of your guilt, it was still a confronting thing I am sure, for them to hear the detail read aloud, of your enthusiastic and perverted exchange with Mitchell. It was probably as difficult as I suspect it was, for you to have them hear of your precise conduct and to see your plea. It is plain that you have excellent family support, and that is as it should be, notwithstanding the crimes that you have committed.
23 Your mother, your father, your wife, your sister and one of your brothers, have all written very strong personal references; they have been marked as a bundle, Exhibit 4 on the plea. There were also references from a family friend and a priest within that same bundle. I take them all into account. I see no point descending to the detail of those references in these, my reasons.
24 I made plain last week, that there were a few aspects that I would not act on, one being the suggestion that the family not be punished for loving and supporting you, and the second, of your conduct being a lapse of judgement. It was plainly, far more than that. As to the first point, well sentencing unavoidably always has an impact on people other than the direct offender. It almost always impacts upon family members; upon husbands, or wives, or children, or other relatives.
25 A court cannot take that sort of thing into account, other than in the most exceptional of cases, and this is not one of those cases. Those references though, are nonetheless powerful. You are very fortunate to have such support, and those references speak of aspects of your life other than this sad chapter, and what they say is uniformly positive. They also speak of your response to this serious offending.
26 You have attended some nine sessions with Dr Barth. He has written a report. You have also been seen by Mr Newton, a consultant. I will come back to the reports in a little more detail, on a number of occasions in the course of these reasons, as there are some concerns raised in those materials.
27 But I cannot just focus on those issues and ignore the efforts that you actually have made. Whatever you may say as to the lack of any attraction or arousal sexually to the imagery, it is plain that you have some level of deviancy there. Mr Newton says as much, and he is an expert. You were not just chasing down a massage on Craigslist, not in the chats that are placed before me, in any event. The advertisement was unmistakably perverted and you were the person responding to the advertisement of someone who was after interaction with a likeminded perverted friend.
28 You played that role of having deviant tendencies, as you actually had them. It was no play-acting; you asked for images, he sent them. You had the other 50 images at the time of your arrest on two devices. So it is inescapable that there was, for whatever reason, some sense of either sexual gratification or sexual interest or arousal at play, behind your soliciting or possessing this material. I am satisfied of that beyond reasonable doubt.
Guilty plea
29 I turn then to consider the various matters raised in mitigation by your counsel Ms Mykytowycz, and the first of those, is your guilty plea; that is important.
30
You have pleaded guilty, and you have done that at the earliest stage. You
co-operated with the Australian Federal Police. The fact of your early plea and your level of co-operation, they are all matters in mitigation. You have taken early responsibility for your offending, and not everyone does that; 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, and the community has been saved the time, cost, and the effort, that is associated with the conduct of a contested criminal hearing, either a committal hearing in the Magistrates' Court, or a trial up in this court.
31 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 in these ways. I make clear to you that I would have imposed a far more significant sentence upon you, had you been found guilty following a trial.
Contrition
32 I move now to the issue of contrition. You have pleaded guilty, and as I have said, you have done that at the earliest stage. A guilty plea is usually indicative of at least some contrition or remorse. But it is not always the position though. Now, I have the concerning aspect of your non-disclosure in relation to the 50 images found on the two devices, and still, plainly some level of minimisation of your conduct and evasiveness with Mr Newton.
33 Mr Newton comments on the difficulties thrown up in terms of assessing your candour and your acceptance of responsibility. Again though, I do not want to overplay this or get too caught up in it. I must say that I have not the slightest sense of your revelling in this offending or trying to justify it, as sometimes is the position. I think it is far more likely that you do actually regret the offending, and that you are struggling to understand why it was that you committed it; why you had the feelings that you had. It would be no easy business for one such as you, admitting the deviancy. It would be very confronting for you to make that admission. I do note the references in the expert materials, it is pretty common for it to come out in stages in the course of treatment.
34 It seems to me at least, that there are other indications of contrition contained in the references from your family members, from your wife, and in the two expert reports. So I am prepared to find the existence of a level of contrition in this case, and I take that into account in your favour. No doubt, there is more work to be had in this area, and no doubt, it is still to some extent, clouded by your distorted insight. But that insight is, it would appear, developing in the course of treatment.
Rehabilitation
35 I move now then to consider your prospects of rehabilitation. I am not sure your counsel, Ms Mykytowycz, actually applied an adjective to describe your prospects, but I believe she was implying that you had reasonable to good prospects of rehabilitation, and that they very much hinged upon continuing treatment. She relied upon the efforts that you have made to date with Dr Barth. She was suggesting that Dr Barth's report, and Mr Newton's report, provided a basis for some optimism here. The risk was viewed as moderate, but that would likely reduce with further counselling; counselling that was obviously needed, she argued, and which had made some progress already, though was still at quite an early or formative stage.
36 The ongoing counselling with Dr Barth cannot be viewed in a negative fashion. It is surely a positive. This is now conduct that is out in the open; there are still some disclosures you need to make, but perhaps they will come in time. I hope they will. Your family now knows of your offending, and they support you. Your wife has actually been involved in some of the treatment sessions, as I understand, from Dr Barth's report. You have never troubled a court before which I am afraid is not that unusual in this sort of matter.
37 You have an excellent work history. I would expect that one way or the other, whatever the sentence imposed, however long you must go to prison for, you will be required to do the sexual offenders program, and to continue with counselling. I have no reason to doubt the claim that you need further counselling, you obviously do, and no reason to doubt the claim, that future counselling is likely to reduce your risk. Nor do I have any reason to doubt the claim that interruption of counselling would not assist in your rehabilitation.
38 If only sentencing was all about you and your needs, but of course, it is far more complex than that. You know that. There are many other purposes of sentencing, and I am afraid you have jumped in right down at the deep end, offending in this manner, committing crimes which ordinarily, are subject to significant terms of actual imprisonment.
39 I take into account the reports of those two experts. I see no need to go much further into them in great detail. I have read them again, indeed, over the weekend just gone. I have read Ms Mykytowycz's submissions, which extract the salient points from those reports. Perhaps I was getting too caught up in your lack of full disclosure to the experts. As I have said, your counselling is undoubtedly of mitigation here. You are engaged in it, and you are making headway, and already there are some gains in terms of correcting the warped mindset, that would previously not have permitted you to recognise that those in the images are actual victims.
40 I am confident that the process of being arrested, of being charged, then being brought before the court, as well as serving the sentence that I will soon pronounce, will also to a degree, serve to deter you into the future. You have engaged in this counselling that I have spoken of. I am puzzled and concerned that you will not take up Dr Barth’s advice, and desist in viewing any pornography. I am told you are down to viewing such material once or twice a week. That is highly unusual, if I might say so. I know that this is adult pornography, there is nothing unlawful there. But I would think that surely, it must provide some risk of moving to a site, or being directed to a site, with child pornographic images, or some slant in that direction, given your past interest, and the way you have obviously in the past moved from adult pornography to other sorts of material.
41 Mr Newton is concerned by your not acting on Dr Barth’s strong recommendations in this regard, and so am I. It seems to me that you must desist altogether. What you need to do is to get to the bottom of the true issues, which caused your interests in child pornography, and I do not see your continued viewing of adult pornography as in any way assisting you in that respect.
42 As I have said, you have evident strong family support, and that of course, is a big positive. I am prepared to accept that you do have pretty decent prospects of rehabilitation, and that you have taken some steps already along that path, with the nine sessions of counselling and it would appear, a developing insight into the seriousness of your conduct. There is much work ahead for you. You have made good progress in understanding the grossly distorted manner in which you minimised your behaviour. The trouble of course is, that you are still to a degree, minimising your behaviour in relation to the State charge.
43 It is said in the reports that you are unable to discuss how that material came to be in your possession; so says Dr Barth. Mr Newton says that you could provide no explanation for how you had obtained those images. The fact is of course, that is your choice. You must know how you obtained the images, I am satisfied of that beyond reasonable doubt. Mr Newton says you were evasive when asked about your arousal to the images in your possession. Mr Newton says the deviant nature of the material generated in the chat session is clearly profoundly problematic; they are his words. That, combined with the fact of your possessing the images on the two devices all points to he says, diverse and multifaceted sexually deviant offence supporting cognitions. He says there is the suggestion of significant sexual deviance here.
44 Mr Newton comments on the impact of your unwillingness to discuss the State charge collection of images on the assessment of your candour and acceptance of responsibility. Your insight, according to Dr Barth, is relatively limited. Your coping and communication skills are still developing. But you are still at a relatively formative stage of gaining insight into your offending, and instituting positive changes in your life, and I cannot ignore that fact. Nor the fact that there is anything unusual as to your reticence or reluctance to discuss these matters. There is nothing unusual about that.
45 You will need to actively and more honestly engage in treatment in the future but at least you have been engaged in treatment already. So I am of the view that you have quite decent prospects of rehabilitation.
Principles
46 I turn then to some of the principles at play in dealing with offenders such as you. Your counsel identified some matters that suggested, she argued, that the offending was at a low level. For instance, the single day transaction of the soliciting, the lack of concealment of identity, and the lack of evidence of any ongoing contact with Mitchell. As to the child abuse material, the State matter, she made submissions as to the relatively small number of images, the high percentage of category one images, the absence of any connection to the production of the images, or any suggestion of possession for sale or distribution. Also, the lack of evidence as to how long you had possessed the images; that last submission I must say, has an odd ring to it, as you are making the decision not to disclose that detail. That is your choice and a poor one in my view. But nonetheless, it is your choice.
47 All of those other submissions are undoubtedly correct. It is a small number of images, and 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 or distribution in any way. Those are not mitigatory matters. Simply, those features of aggravation that are present in some cases are absent here. That does not transform this into minor offending. It is not. You solicited some material, and possessed the other material. You had no idea to what extent, if any, the person you were chatting with was directly engaged in producing images. The conduct you have pleaded guilty to is serious enough conduct in its own right, as is conceded.
48 You seemingly did not see the children in the material you possessed as being victims. Well, they were. You made 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 actually being abused in the way they are in this country and other countries. From Dr Barth’s report, you seem to have developed some insight into that concept, and that is a plus.
49 General deterrence is the paramount consideration for these sorts of matters. That is accepted to be the position by Ms Mykytowycz. This court is required to send a strong, loud, and a very clear message, about the seriousness of this sort of offending to like-minded offenders out in the community. There are, I regret to say, many like-minded offenders. This is a prevalent crime.
50 The internet has changed our world forever; it can be used to connect up people with deviant attitudes with the click of a button. This style 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, a market inhabited by people such as you, who for whatever reason, wish to solicit, or access, or possess this perverted type of material. People like you actually drive the production of this material. Those portrayed in the images, they are not actors, they are victims. You have a child. Your siblings have children. Get this into your head. The people in these photographs, they exist; they are actual living, breathing, suffering children. That is what they are. They are innocent. They are helpless victims. They are children being sexually abused, and debauched, for no other reason than to provide the images of that act of abuse.
51 It is clear from the various authorities to which I have been referred, that the problem of child pornography is a significant and international problem. The prevalence and the ready availability of pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount sentencing consideration.
52 It is clear that given the prevalence of this style of offending and the paramountcy of general deterrence, that past good conduct is to be afforded or given lesser weight than is often the case. It is still obviously relevant to my task.
53 Now I have in discussing the matters in mitigation raised by your counsel, done so without referring back to the specific statutory provisions within s.16A(2) of the Crimes Act 1914 (Cth). Or for that matter, the Sentencing Act for the State matter.
54 I take into account the relevant matters contained in that non-exhaustive list as had been identified in Ms Mykytowycz's plea, and in the submissions made by the prosecutor.
55 I am required to impose sentences that are of a severity appropriate to all the circumstances of the given offence. Whether dealing with the State or the Federal matter, my sentence must be proportionate and in each case, prison is a disposition of last resort. It always is.
56 Consistency of sentencing is an important consideration in both the State and the Federal sphere. I must pay regard to current sentencing practices in the State matter, but they are also of relevance in the Federal exercise.
57 I have looked at the various cases that I have been referred to, including of course, the table of so-called yard stick or comparable cases. I have said before and I suspect I will say again; that the use of other cases, even comparable cases, has inherent and obvious limitations. That is because when all is said and done, I have to pass an appropriate sentence in your case. There are no two cases that are ever the same. No two crimes are ever the same. No two offenders are ever the same. I was not greatly assisted by the process.
58 Ms Barnes had the chart of cases and the actual cases themselves, and even from the chart, instantly. It was apparent that one of the cases had an accused actually taking, as in producing, the images. One had a sentence imposed with a lesser maximum at play, one with a disposition not even open to this Court (being an intensive corrections order) and none of them from memory, relating to soliciting. Now the selection was at least sensibly based on people who had been dealt with no prior appearances before courts, a guilty plea, and with a small numbers of images.
59 Ms Mykytowycz rose to the challenge of that chart, and was in the process of descending into greater detail, taking me to the final detail of the actual cases. I intervened at one point, pretty early on actually. None of the cases were actually being raised as containing matters of principle, though of course, all of them do; some of them significant statements of principle. The principles are far more important than the outcome in those cases. Ms Mykytowycz was plainly going into the finer detail of those cases, in an endeavour to distinguish your case from this case or that case.
60 The unspoken slant of that style of advocacy is to the effect that these other offenders were somehow worse than you, and yet received a particular sentencing outcome, and that hence, you should do better than those others by way of sentence. It is an argument that is based on arithmetic and the equivalency of outcome. But it is not valid. That is not what a judge must do. Whatever the Court of Appeal may say as to the worth of this process of trawling through other cases, as a judge in the firing line, I might say, it is often of very little value at all.
61 I did not need to look at other cases to know that the number of photographs possessed here was low, relative to many other cases. That does not make the offence a minor crime. It is not. Those five decisions represent no more than the sentencing discretion exercised by another court or judge, in relation to another offender. Different crimes, differing conduct, different personal circumstances, and by the way, there is never any one correct sentence. Another judge may have passed different sentences in relation to those other cases, and would not necessarily have been wrong. These other sentences imposed on other offenders, are in no way sentencing precedents to be followed by this court.
62
As is plain from the Crown’s written submissions, including the many footnotes within, there have been many decisions published by our Court of Appeal
(and other Courts of Appeal of other states), dealing with the seriousness of this sort of crime and the relevant sentencing principles at play. The trend over the last few years, I believe, discloses that the Court of Appeal of this State has seemingly tightened up the circumstances in which a non-custodial disposition, as in, a non-immediate term of imprisonment, should be imposed for this sort of offending. Occasionally courts either in this State or in New South Wales, have taken it just a little bit further, and have spoken of the "need" for an immediate term, other than in cases where “exceptional circumstances” are found to exist.
63 One has to be very careful about that sort of thing. There is no exceptional circumstances test set out in the Act itself, or that should be imported into the Commonwealth Crimes Act or the State Sentencing Act. What I have to do, is to exercise my discretion in your case, bearing in mind always, that prison is a disposition of last resort.
64 Now the case of Garside [2016] VSCA 74, to which you heard reference last Wednesday, drew together much of the case law and the principles to be derived from the case law. That is far more significant than looking at other sentences imposed on other occasions. It is the principles that are important.
65 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 as I have said, prior good character is generally to be given less weight. None of that is in any way in dispute.
66 The Court of Appeal, in that same decision, dealt with the task of assessing 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 in the exercise. I have already dealt with these concepts in assessing the relative gravity of your crimes. The Court of Appeal went on to say that it is clear from the authorities that they had examined in their decision, that access to child pornography is regarded as very serious, morally depraved conduct that is harmful to children. They said at paragraph 62, that:
"The authorities speak with one voice, that a term of immediate imprisonment would ordinarily be expected for such offending."
67 They set down no broader principle in terms of any need to establish exceptional circumstances to avoid such an outcome. That is because each case must be decided according to its own circumstances. That is the beauty of individualised justice, and the potential disadvantage or pitfall of a fixed and mandatory approach, which is gathering quite some momentum in this State at least. One size does not fit all. Courts have a discretion to exercise, and whatever may be said from time to time, judges exercise it mighty carefully.
68 Each counsel suggested that, to quote them, the "Starting point" in a case such as this was a prison term. I do not agree. That style of language no doubt based on the Garside notion of what is "Ordinarily expected", itself imports or introduces into the exercise some style of burden on an accused, to oust themselves from that "default" position. There is no default position. There is no starting point, other than a judge coming on to the Bench, acting judicially, and exercising faithfully, his or her sentencing discretion in the given case, which is what I have done.
Charge 1
69 I have taken into account all of the submissions and materials placed before me. I have had you assessed for your suitability for a community corrections order, and that has been marked as Exhibit C on the matter. But even as I called for that report, I told you that you must take no comfort from the Court calling for that report; that you may still be sent immediately to prison. I meant what I said. You have been assessed as suitable for such an order. Well, I am not in the least surprised by that. I do take into account that assessment report. But it does not provide the answer to my task.
70 So, then I move to pass sentence in this case. First in relation to Charge 1 on the indictment. I will have you remain seated, I think.
71 There is no doubt in my mind that I must impose a term of imprisonment on the Commonwealth charge. Anything less would not pay adequate regard to the various purposes of sentencing, as is conceded by your counsel. Your conduct leaves me with no choice at all, I am afraid.
72
On the Commonwealth charge, that is Charge 1, a charge of using a carriage service to solicit child pornography, you are convicted and sentenced to
15 months' imprisonment. Now, that of course is not the end of my task.
73 The question then for me is how much of that sentence you should serve before being released into the community. Your counsel argues that it is open to release you immediately. Ms Barnes submits otherwise; the Director argues that you must serve a period in prison. I am not bound by either submission. Ultimately, of course, I have got to exercise my own sentencing discretion.
74
In your case, sending you to prison immediately would interrupt the treatment that you are engaged in. Sometimes, that is unavoidable owing to the gravity of the offence. Is it unavoidable here? The issue for me then, is whether a
non-immediate sentence can adequately meet all of the needs of sentencing in this case. The Commonwealth Director of Public Prosecutions says that such an outcome is not open, that you must be sent to prison to serve a term.
75 Well, there has hardly been a flood of Director's Appeals to the Court of Appeal, arguing against the inadequacy, or leniency of my sentences in the eight years that I have been a judge. Indeed at last count, there have been none brought by either the Commonwealth Director of Public Prosecutions, or the State Director of Public Prosecutions. Maybe this will be the first , I do not know. In that same period, there have been enough appeals brought by those I have sentenced, arguing as to the excessive nature of sentences that I have imposed. Enough of those have succeeded. I do not ignore any of the submissions placed before me by either party. I do not ignore the submissions made on behalf of the Commonwealth Director. I just do not accept it.
76 It seems to me, at least, that the best approach to community protection is to encourage, permit, and mandate your continued treatment in the community. I believe that the combined effect of the two dispositions I intend to impose, can actually give adequate weight to the various purposes of sentencing at play in this case. I believe, therefore, that I do have an alternative to the imposition of an immediate term of imprisonment upon you, and I believe that the orders that I will shortly pronounce can satisfy the various needs of sentencing, including punishment, specific and general deterrence, denunciation, and rehabilitation.
77 Let me tell you, I do not think you will need me to tell you this; you will gauge it from the nature of the reasons that I have provided. It has been a very close run thing for you. By the very barest of margins, I can tell you, and from time to time, the sentence imposed had a different ending for you. But having reviewed all of the materials, not just over the weekend, but in the early hours this morning, by the very barest of margins, I believe that I can deal with you without imposing an immediate prison term upon you.
RRO
78 So on Charge 1, I am going to impose a term of 15 months imprisonment as I have said, and pursuant to s.20 (1)(b) of the Crimes Act 1914 (Cth), I propose to order that you be released from this Commonwealth sentence forthwith, that is, immediately upon giving security in the sum of $5,000, to comply with the following conditions. I will raise these provisionally at this stage. You can both listen to them, Ms Barnes and Ms Mykytowycz, and perhaps after I deal with the State matter, there may be some suggestions as to the wording of the special conditions and what are actually required. But at this stage, as I say, it is a 15 month term of imprisonment with release forthwith, on the condition that:
·One, that you be of good behaviour for a period of two and half years following your release on this recognizance;
·Two, that you be under the supervision of the Deputy Commissioner Community Correctional services, and the Sex Offender Management, or his or her nominee, for two and a half years;
·Three, that you are to attend, undertake, and complete the sex offenders program within two and a half years;
·
Four, that you are to attend for assessment and if assessed as suitable, treatment for sex offender programs, or programs to reduce
re-offending, as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee.
79 As I say, there might be some discussion about the precise wording, but that is what I had in mind. They are the conditions I am proposing to attach to the order that provides for your immediate release.
80 I am going to place you on a community corrections order, in relation to the State offence. It will be of the same duration, and with some additional conditions. I will deal with that shortly.
Effect of Recognizance Release Order
81 Back to the recognizance release order. I am obliged to explain to you the effect of this order, and you should think of it as a suspended sentence. That is what it is. I no longer have such a disposition available to me in State sentencing exercise.
82 You will be released today from this Federal sentence, upon entering that recognizance. Recognizance is a long word, it is not one that is used very often in the community. It is a promise, it is your promise; the promise that you will be making by signing the document today, a promise in the sum of $5,000, to be of good behaviour for the period of two and a half years, with those other conditions, which will be attached to the order.
83 Should you commit any further offences in that two and a half year period, should you not be of good behaviour, should you fail to comply with those conditions as existing on the document as explained to you, you would have breached my order. You will then be liable to forfeit the sum of $5,000. Far more significantly though, you will be liable to be brought back before this court in breach. Before me, not another judge.
84 Now a court in such a setting has a variety of options to consider. Amongst those options are the following: A court can vary or extend the order, the court can take no action, the court can impose a fine, or and you really need to listen very carefully to this option, as it is the most likely option; the court can revoke the order, and then order that you serve the period of imprisonment that remains to be served. Here of course, that will be the full term.
85 Of course, I would consider all of those options listed in s.20A(5) (c) of the Commonwealth Crimes Act, if you come back before me in breach. But work on the theory of the high likelihood, that if you breach this recognizance release order, you will be ordered to serve the term of imprisonment held in suspense, being 15 months, every day of it.
86 I believe I also need to tell you that you have the power yourself to apply for variation of the order that I am pronouncing, but I add that it is currently very difficult to think of any circumstance at all that could or would lead to a successful variation application.
87 Now, let me just deal with the form of the wording. I am not sure if you had a chance to make a note of those. Perhaps I will run off a copy of at least the proposed conditions. I know that there are sometimes in these areas, the ability to direct reporting to a community correction services and the like, and replicate the conditions that attach to a community corrections order. Well, there are going to be those mandatory conditions anyway. So I do not see any need to have those duplicated. Does anyone have any comment?
88 MS BARNES: Not from me, Your Honour.
89 MS MYKYTOWYCZ: Not from me either, Your Honour.
90 HIS HONOUR: So those conditions appear to each of you to be appropriate and valid conditions in the order?
91 MS BARNES: Yes, Your Honour.
92 HIS HONOUR: All right. Back then to the - just excuse me. I will just read them again. Back then to that recognizance release order. It is essentially a suspended sentence as I have told you. I will explain the terms of it, the conditions, they are provisional but the parties have looked at those and confirmed that they are appropriate to be in the documents.
93 So it is a promise in the sum of $5000. You do not need to lodge that. You will lodge that if you are stupid enough to breach this order. You have to be of good behaviour for two and half a years. You have got to comply with the conditions that you will see on the document. You are under the supervision of the Deputy Commissioner of Community Correctional Services and Sex Offender Management for two and a half years. You attend, you undertake, you complete the sex offenders program within two and a half years, and you attend for assessment, and if assessed as suitable, you attend for treatment, for sex offender programs or programs, to reduce reoffending, as directed by the Deputy Commissioner of Community Correctional Services and Sex Offender Management, or his or her nominee.
94 So they are not options, they are conditions that are attached to this order.
95 As 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 in Garside, as to what "ordinarily" flows by way of sentencing outcome from the commission of this style of crime. But again, what I have got to do, is sentence the individual offender for the individual crime. I am not of the view that this last resort in terms of the need to have you go immediately to prison, has been reached here.
96 This does not strike me as being an ordinary case. It is a soliciting on a single day, with a tiny number of images obtained, and I have the steps that you have already undertaken to engage with Dr Barth, and the potential for damage commented upon by Mr Newton, should that process actually be interrupted, as it would be by a term of imprisonment. So I believe the community is best served by your continuing to engage in the way that you currently are with that treatment. An immediate term of imprisonment, might actually produce a disengagement from counselling and treatment, it might damage your prospects, whilst at the same time, thereby increasing your future risk. That sort of thing is likely to be counterproductive in the long-term to the community.
Community Corrections Order
97 Moving now to the State matter, it would make no sense having done what I have done in relation to the Commonwealth matter, therefore, to impose a prison term on the State matter. Again, it is a disposition of last resort. Again, I have taken into account what I have to take into account, and the relevant provisions of the Sentencing Act in terms of sentencing purposes. I believe that it is open to me to convict you and to release you on a relatively lengthy community corrections order. I can have regard, it seems to me, to the joint effect of these two sentencing orders. I have the recognizance release order with 15 months over your head for the next two and a half years on the Commonwealth matter. On the State charge, I am going to impose a community corrections order for the same period, that is, for two and a half years. That is with conviction, obviously enough.
98 So listen carefully as I list the mandatory terms and in the tailored conditions, as they will differ to some extent from the Commonwealth conditions. This order gives me the ability to impose some unpaid work and I shall. That is, unmistakeably, a punitive condition and it is deserving in this case. On the charge of possession of the child abuse material, I intend to convict you and sentence you to a two and a half year community corrections order. Now I can only do this if you consent, so listen carefully, and I will ask you in a little time from now, whether you consent to this order. I understand that the mandatory conditions have been explained to you broadly. But I am still obliged to go into them.
Mandatory terms
99 These orders have a set of mandatory terms. They apply to every person who is placed on such an order. You are being placed on one, so they will apply to you.
100 The first of those is you must not commit another offence for which you could be imprisoned during the time that the order is enforced. That means what it says. Any offence committed by you in the next two and half years that is punishable by imprisonment will breach this order, and virtually every offence is punishable by imprisonment. There is no reason for me to think that in areas other than what we are dealing with here, that there is any likelihood of your offending. But just to illustrate it, just so there is no mistake about this, and again, I am not suggesting you are going to do this. But if you went into a milk bar and stole a copy of the Herald Sun, I do not know what it is worth. It costs whatever it costs, it is not worth much, nor does it cost much. I do not think any Magistrate in their right mind would send a person to prison for committing that sort of theft. But a theft even of something tiny like that, would breach this order. So the issue is the commission of any offence that could be punished by a term of imprisonment. So if you put yourself in that position, you breach this order.
101 You have to comply with your obligations under regulation 17 of the Sentencing Regulations; that relates to turning up on time, and totally unaffected by alcohol or drugs. Well, that will not be a problem for you.
102 You have to report to and receive visits from the Secretary, the Secretary will be represented by a community corrections officer. You must report to the community corrections centre within two clear working days of the order starting and in your case, that is in Cranbourne, and the address is on the document. All of this is on the document by the way.
103 You have got to let them know within 2 clear working days of any change of address or job.
104 You are not allowed to leave Victoria without first getting permission to do so from your community corrections officer.
105 You must obey all lawful instructions from and directions of your community corrections officer.
106 So they are the mandatory terms. You breach any of those, you breach this order. Now in terms of leaving Victoria, I am not suggesting they would impede you or stop you, if there is some particular reason, if you have got a holiday or something like that. I am sure you would just need ask, and you would get permission. If you just get up and leave, you would breach the order. So do not put yourself in that position. So they are the mandatory terms.
Conditions
107 What about the conditions then? These are the conditions that I can tailor, both to your needs, and to the various other purposes of sentencing, including deterrence, punishment, and rehabilitation, amongst others. Well, you are going to do some unpaid work. There is going to be a lot of it. It will be inconvenient. You will wish that you were not doing it. But it permits you to stay in the community.
·You must perform 500 hours of unpaid community work over two and a half years.
·You will be under supervision of a community corrections officer for the full period of this order, that is for the two and a half years.
·
There are treatment and rehabilitation conditions. You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager. Specifically, you must attend for assessment and participate in the Specialised Offender Assessment and Treatment services, or any other programs or treatment to reduce
re-offending, as directed by Corrections. That condition, broadly replicates the condition that is attached to the recognisance release order, I am sure you will understand that.
Special Conditions
108 In addition, I will make a special condition to this order. I will hear from both counsel as to the wording of this. But it will be to the effect that you must continue to attend for counselling and treatment from Dr Barth or his nominee, for such period and at such frequency, as is directed by Dr Barth or his nominee. So let me repeat that. You must continue to attend for counselling and treatment from Dr Barth or his nominee, for such period and at such frequency, as is directed by Dr Barth, or his nominee.
109 They also, as you understand though from the preceding condition, have a residual discretion to give you directions to attend for treatment, this is Corrections. So I am making a specific condition that you must continue with this counselling with Dr Barth, or his nominee. Now, if he retired or moved State, then he would be nominating someone to replace him. If it gets to a point in the period of the order where he believes you have done what you need to do, that treatment has been successfully completed, and that you no longer need to attend for treatment, he would give you that direction. I do not by the way, see that as likely to occur. But of course, even if it did, Corrections may disagree and Corrections are then free to give you their own direction to attend some form of counselling or treatment under the residual discretion I have provided to them.
110 In addition, do not lose sight of the fact that you have your obligation under the Commonwealth matter, the recognizance release order, in relation to completion of the sex offenders program. All of these measures are directed at reduction of risk of future offending. They are not optional, there for you to pick or choose from. You disregard them at your own peril.
111 Now do either of you see any difficulties in terms of the wording of that special condition at all, or not?
112 MS BARNES: I do not, Your Honour.
113 MS MYKYTOWYCZ: I do not, Your Honour.
114 HIS HONOUR: Well, your head is probably in a bit of a spin, and I am sure your family's heads are spinning. But I want to explain all of this in a bit more detail.
115 MS MYKYTOWYCZ: Your Honour, may I interpose just for a moment?
116 HIS HONOUR: Yes.
117 MS MYKYTOWYCZ: In light of that last condition, does Your Honour or will Your Honour be seeking to add the additional condition that any of the hours satisfactory completed would then - - -
118 HIS HONOUR: No, he is doing the 500 hours. So that does not get reduced in terms of attendance upon counselling or other treatment. He is to do the 500 hours of unpaid work. But thank you for raising it. I should have made it plain. In addition, Ms Barnes, because I am suspending the entirety of the term, I do not need to fix a commencement date, do I?
119 MS BARNES: No, that is right, Your Honour.
120 HIS HONOUR: All right, thank you. What I have got to do though is now explain. I have explained the Commonwealth sentence, Mr Dingley. I have got to explain now the State one. I think you know what it all involves. You have got that community corrections order for two and a half years. I do not know what they will be telling you to do in terms of unpaid work, I do not know where they will be telling you to go, or the frequency of it. What I can tell you though, is whatever they tell you to do, you do. It is not, as I say, it is not optional. Likewise, in terms of the directions they give you in terms of programs or treatment to reduce re-offending, there will be the obvious aspect of the sex offender program, that they will no doubt embrace. But they can give you other directions as well. Again, I do not know what they will be. But what you must do is you must comply.
121 I do not want anyone who I place on one of these orders, coming back down the track in breach, and saying I did not know what could happen if I breached this order, and I never will, I do not think, because I explain these orders in some detail, as I am doing now.
122 Do not put yourself or your family in the position of breaching this order. All right, just do not. I am not going anywhere for quite some time. I will be here if you breach the order, in through the door, would come me. I will bring the book that I made all the notes of in relation to the excellent plea conducted by your counsel, I will bring all of the exhibits. I will bring a copy of these reasons. I will view and listen to the tape of the sentencing remarks, including what I am saying to you right now. So do not put yourself in that position, because if you breach this community corrections order, by committing any offence punishable by imprisonment or by failing to abide with any of the other conditions that I have spelled out, or any of the terms. Indeed, I think the Commonwealth order is probably broader still. That is breached if you are not of good behaviour or you breach any of the other conditions.
123
Now, there is a particular danger for you and it probably represents the greatest danger of your committing offences. I am going to shortly tell you about your obligations under the Sex Offenders Registration Act, and they are significant. Any failure to comply with any of those conditions, if it is in the course of my orders, would itself constitute a criminal offence, punishable by
a term of imprisonment. So you need to understand very clearly what those obligations are, you need to follow them to the letter, because if you do not, you will be committing an offence under that State Act, which as I say, if it occurred in the next two and a half years, will breach both of these orders. Do not come back and say you were not aware of this risk. I am making you aware of it right now. You have been warned.
124 What you need to do is settle in for the long-term journey of rehabilitation provided by this order. There is punishment obviously enough, that much is plain. Not just by the unpaid work, but by the duration of the order. But there is treatment, both pursuant to this order and the Commonwealth one. You need to engage in treatment. In relation to the community corrections order, you have got to get down to Cranbourne within the next two clear working days. I am not sure if they specified an appointment time. I do not think they have, but within two days of today.
125 You will have a community corrections officer appointed. Hopefully, you will have that same person for the next two and a half years. Start that process in the way that you should. You are there to engage with that person, you are there to get assistance in a lot of these areas, because I am pretty confident you do not really understand why you have done what you have done, and one of the purposes of this order is to explore that, through treatment. So treat the person who is appointed as your community corrections officer, with respect. If they are giving you directions, honour them. If they are telling you to turn up for a treatment at a particular time and place, do so. Or for supervision, do so. Or for unpaid work, do so.
126 Now might always be something that blows up late in the piece, or there might be something that causes difficulty in terms of attending for attendance under the order. If there is, get on the phone, and speak to them. It is amazing how many people I see, who breach these orders, just by not communicating with their community corrections officer. Most of the people I place on these orders as I have said, could only dream of having the sort of life and stability you have had. It should not be a problem for you, to be turning up at a time, when you are told to turn up at a time.
127 You have not got drug and alcohol issues. You have not got mental health issues, you have been holding down solid employment for your whole working life. It should not be a problem. But as I say, things can blow up. If for instance, you are scheduled to attend for unpaid work and there is some family emergency or something like that, and these things can arise, get on the phone. Do not just leave it for later, because you leave it for later, it is at your peril. They will not be silly about it, if you have got a good reason for not turning up, and you can document and provide documentary evidence. Of course they will not treat that as a breach. But if you do, as so many people I see do, that is just falling into the step of ignoring directions, then you will see me again, I guarantee that. That should not occur with someone like you.
128 You have the opportunity of avoiding serving any term of imprisonment in relation to this matter, or the Commonwealth matter, just by complying with these orders that I am imposing. In terms of this one, the community corrections order, if you breach it in any of the ways that I have described, you will be brought back to this court. When your brought back in breach of a community corrections order, the court has likewise, got a large number of powers to consider, and what a judge has to do, is to exercise his or her discretion at the time of that breach proceeding. So I cannot tell you exactly what I would do if you breached this order. What I am required to do is to act judicially and to hear the submissions that are made, to make an assessment of the nature of the breach, and the nature of your performance on the order more generally.
129 But really, you need to have no mistake in your mind about this. You are being given an opportunity here. An opportunity that the Commonwealth Director says should not be provided to you. Well I am doing what I am doing, not because it is being asked for, but because I believe it is the appropriate disposition in this case, having considered all these matters with, I can tell you, some level of anxiety over the weekend.
130 But you come back in breach and you should work on the theory firstly, the breach of this order itself is a criminal offence, punishable by a three month term of imprisonment. A court in that setting, one of the most commonly exercised powers is to cancel the order, and then to re-sentence. Work on the theory that if you find yourself in that position, you will be sent to prison. Of course, that would be in terms of me re-sentencing you on the state matter, in terms of the breach in relation to the Commonwealth matter, in the event of me revoking the order, it is 15 months. So that is what you are looking at if you are foolish enough to breach these various orders.
131 Firstly, the revocation of the Commonwealth matter with your service then of 15 months there. But in addition of course, such sentence as is imposed in the state matter, with a level of cumulation. Work on the theory that you will get a term of imprisonment with a non-parole period. Do not put yourself in that position. You would not have known the other day whether you would be going to prison. You would not have known when you were at the wedding on Friday, whether you were going to prison on Monday. You would not have known as you came to court today, nor would any of your family, and as I say, this has been a close-run thing for you. But I have made the decision that I have made.
132 What I have also seen, and I will give you the benefit of this experience, that many people who are placed on these orders are happy, if not very relieved to be placed on them. You will be, I am sure. But that relief sometimes evaporates when they get back out in the community. It should not, because it is amazing how people who have been so relieved to avoid terms of imprisonment, who are prepared to then consent then by their own conduct, place themselves back in the Dock, and expose themselves almost to the certainty of being sent to prison, when they need not have. You should not place yourself in that position. All right, let me just consider whether I have adequately explained that, I think I have. Ms Mykytowycz, do you want to go down and speak to your client about the community corrections order please and see if he is consenting.
133 MS MYKYTOWYCZ: I can indicate that he consents to that order, Your Honour.
134
HIS HONOUR: All right. Come out of the Dock,
Mr Dingley. Come down and have a seat just behind your counsel and I will have these documents brought out for signature. Have a look at the CCO too, each of you, if you would and make sure it mirrors my stated intention please. Does that accord with my stated intention?
135 MS MYKYTOWYCZ: Yes, Your Honour.
136 MS BARNES: Yes, Your Honour.
137 HIS HONOUR: I will have those documents signed then if I could. The CCO and the recognizance release order and we will get copies of those for all of you. Mr Dingley, if you just stand up please. Do you then confirm that you have signed firstly, the Commonwealth recognisance release order, with those various conditions that I spoke of?
138 OFFENDER: Yes.
139 HIS HONOUR: Do you understand the effect of that promise that you are making?
140 OFFENDER: I do.
141 HIS HONOUR: Secondly the community corrections order, do you confirm that you have signed the community corrections order? Firstly, you have signed it?
142 OFFENDER: Yes.
143 HIS HONOUR: You consent to entry onto that order?
144 OFFENDER: Yes.
145 HIS HONOUR: All right, and you understand the effect of that?
146 OFFENDER: Yes.
147 HIS HONOUR: Do not place yourself in breach of these orders. As I say, it has exposed you to a real risk of an immediate term of imprisonment. It exposed you and your family members, all of them to significant stress obviously over the period since you have been charged, and particularly in the last week or so. You should not be coming to court with any expectation of any further leniency, do you understand?
148 OFFENDER: Yes.
149 HIS HONOUR: All right. Well, you have signed that. I will have it copied. Grab a seat then for a moment.
SEX OFFENDER REGISTRATION ACT 2004
150 You have been sentenced in relation to charges that are registrable offences under the Sex Offenders Registration Act 2004. That is the State Act that applies in this case.
151 Pursuant 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 a 15 year period.
152 I am going to have handed to you shortly a document that explains the terms of that Act. It explains the very many conditions which will apply to you. There are very many conditions and they include the need for you to report - what needs to be reported and it is set out in the document, to the Chief Commissioner of Police for a 15 year period. Your obligations under that Act also involve a number of prohibitions, including of course, a prohibition upon your gaining any employment in any child-related activity, which is very widely defined under the Act and would pick up unpaid work. It would pick up anything done in a religious organisation. It would be picking up also recreational things, such as work around a football club. You really have got to be very careful in this respect. Any type of service or activity in connection with children, includes a commercial, a recreational, or cultural, or a sporting basis. It is a very detailed list of matters.
153 You must, and I cannot emphasise this enough, you must familiarise yourself with those provisions; you have got to do it very carefully. As I have said, a breach of them can constitute a serious criminal offence and as I have said already, an offence of breaching any of the conditions would breach the terms of your release on the recognisance release order, and also the community corrections order, if you did it in the next two and a half years. I have seen people who have committed very technical breaches, and they are given no leeway by those who administer these scheme. For instance, I had someone before me who had put a tattoo of a new son's name onto his forearm, and had not reported the details of that act in the annual review, in fact, not in the annual review. It had to be done I think, within seven days, and they were brought back in breach. So that is how technically these things can be viewed by those who administer the scheme.
154 As you will see on p.2, your requirements are very significant. Familiarise yourself with them. Look at the references to the documents, and look at the need to report any change in any personal details very carefully. You have got obligations to do some things within 24 hours, some things within seven days. For instance, I am not suggesting you are going to do this, but that picks up that breach that was brought before me by this other person. The addition of any tattoo, including the removal of any tattoo; that sort of thing has to be reported within seven days. You will need also under the terms of this, your obligation to report the names, the ages, the residential addresses, and the telephone numbers of any children with whom you have contact. All right.
155 Again, you now need to spend a lot of time reading this document. It is a lengthy document. I am not expecting you are going to sit there and study it now. It is too detailed for you to sit there and to digest now. I am going to have you to simply acknowledging receipt of these materials, and then you will then need to familiarise yourself in due course.
156 They are treated seriously by those who job it is to administer the scheme. I have seen some quite technical breaches. The best way of avoiding that is to familiarise yourself with all this detail. If you have got any doubts, ask your legal team. You have got an excellent legal team who act for you and they will no doubt give you, if you ask, advice on this topic. The main thing is it is your responsibility. Read it very carefully, and understand it and then comply. If you do not, and your lack of compliance is in the next two and a half years, we will meet again, and our meeting will likely have, a far less happy ending for you and your family.
157 Ms Mykytowycz , you have seen these documents. They are very lengthy, he is not going to sit there and read it all now, but he will need to do it in his own time. I am getting him to acknowledge receipt of these reporting conditions. So I will have that come down.
158 MS MYKYTOWYCZ: Yes, Your Honour.
159 HIS HONOUR: And have that acknowledgement signed by your client and witnessed by associate. Ms Mykytowycz, your client has signed that acknowledgement, is that so?
160 MS MYKYTOWYCZ: Yes.
161 HIS HONOUR: Yes, all right. Thank you.
Section 6AAA
162 I am required also to make what is referred to as a s.6AAA declaration here. That is to tell you the level of discount that you have received by virtue of pleading guilty as you have. Had you been found guilty following a trial with a jury empanelled, there would have simply been no question of avoiding an immediate term of imprisonment or you getting a community corrections order. You would have been sent immediately to prison, no question about that.
163 On the Commonwealth matter, I would have imposed a term of three and a half years' imprisonment. Your overall custodial liability would have increased owing to the need to cumulate some of the State sentence. That would have been achieved by the fixing of the commencement date of the Commonwealth sentence. Those joint orders would have produced a sentence, taking effect as a four year term with a non-parole period of two and a half years. That declaration is to be entered into the records of the court.
164 Let me just see if there are any other matters. Ms Barnes, have I said and done what I need to do in terms of the legislative requirements?
165 MS BARNES: You have, Your Honour.
166
HIS HONOUR: All right. Nothing else I need to deal with? No.
Ms Mykytowycz? No. Well, that completes the matter then. I am sorry to have taken so long in pronouncing those reasons. Let me just see if there is anything else. Yes, all right. Well, that completes the matter then. So hopefully, we will never meet again. Thank you.
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