The Queen v Watterson
[2019] VCC 675
•14 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-02462
| THE QUEEN |
| v |
| PATRICK CASSIAN WATTERSON |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATES OF HEARING: | 9 May 2019 |
| DATE OF SENTENCE: | 14 May 2019 |
| CASE MAY BE CITED AS: | The Queen v Watterson |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 675 |
REASONS FOR SENTENCE
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Subject: use carriage service to cause transmission of child pornography, use carriage service to transmit indecent communication (both CWTH); possess child abuse material (State); 19-21 years of age at time of offending; very small number of images; counselling has commenced; full co-operation; earliest guilty plea.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Monagle (For Plea) Ms G. James (For Sentence) | Commonwealth Director of Public Prosecutions |
| For the Offender | Mr Hughan (For Plea) Ms M. McDonald (For Sentence) | Stary Norton Halphen |
HIS HONOUR:
1
Patrick Watterson, you have pleaded guilty to one charge of use of
a carriage service to cause transmission of child pornography (to yourself), one charge of using a carriage service to transmit an indecent communication as well as one State charge of possession of child abuse material. The offending involves a relatively limited time frame and a very small amount of images. The maximum penalties are 15 years' imprisonment for the first charge, 7 years' imprisonment for the second Commonwealth charge and ten years' imprisonment for the State charge.
2 You have no criminal history at all and nothing pending. You are 21 years of age now (and at the time of the last offence) but were only 19 to 20 years old at the time of the initial offending.
3
The matter was opened to me last Thursday by the prosecutor,
Ms Monagle in accordance with a five page amended written plea opening, dated 3 April 2019. That document was marked as
Exhibit A on the plea.
4 Your counsel Mr Hughan made plain that with the exception of a couple of very minor matters, that this was an agreed factual statement. In the circumstances whether you received 8 images of the girl described as Ariel or 13 or 14 asserted in the summary and based on your interview admissions is neither here nor there. It would not make one jot of difference by way of sentence and that is because each number is very low indeed. But I will act on the lower number, that is the number that was ultimately seized from the locked section of your phone. I accept also that you were 19 years of age at the commencement of the offending. That error was corrected in the reading of the opening by the prosecutor the other day. As the summary then is really not in dispute, there is no need at all for me to restate the full sentencing facts in these reasons. I will not stray beyond, what is essentially the agreed summary. I still should say something though.
Facts
5 Very briefly stated, you were chatting online to someone you thought was a 13 or 14 year old girl named Ariel. You believed she lived in Brisbane with her sister. As is so often the case when dealing with people on the internet, things are not always what they seem. You were not to know it but Ariel and indeed her older sister Jessica in fact did not exist. They were transmissions made by a perverted 25 year old man named Hayden Elstob who was using those personas, no doubt for his own deviant purposes. You thought you were “chatting” to 13 or 14 year old Ariel about sexual matters. This was in May 2017. She, though we know it was not she, it was Elstob, had added you on Facebook. Photographs were exchanged. “She” asked to see photos of your chest and genitals and you obliged and “she”, that is Ariel at least in your mind, sent you what purported to be photographs of her, being a variety of naked photographs of a young girl. As I say, I work on the lower number as discussed at the outset of the plea. “She” also sent you a small number of photos of naked 7 and 8 year old boys and girls. You also sent Ariel a video of you masturbating in a room with your younger sister sleeping in the background. That was sent in response to a request that ‘you do sexual stuff’ with your sister and film it and send it. They, Ariel and Jessica, though of course it was Elstob had requested that you babysit someone else’s child and perform sexual acts. At least you didn’t do that though of course sending the video of your masturbatory act in the presence of your sleeping sister was quite bad enough actually. As your counsel puts it, there was essentially a bartering of images. Charge 2 relates to that 30 second video of your masturbating in your sister’s presence and that video was actually received by Elstob on 5 May 2017 and was at a later point located on his device. Thankfully your sister was not identifiable in that footage. Finally there is the very small number of images of child pornography found upon execution of the warrant on 2 August 2018. There is therefore the obvious relationship between those images and the first charge where those and a small number of other images were transmitted. Of course Charge 1 and 3 are different offences and the possession was much later, in August 2018.
6 The arrest took place on 2 August and you were then interviewed and you made full admissions. You really could not have been more helpful and your admissions founded Charge 1 and largely founded the second charge on the indictment.
7 You have pleaded guilty at the earliest opportunity and have spent no time in custody.
In Mitigation
8 Your counsel Mr Hughan had prepared some detailed written submissions and conducted his customarily excellent and thorough plea on your behalf. He took me to your background and he made some submissions as to the level of the seriousness of the offending and how it might be characterised.
9 He relied upon a number of matters in mitigation including:
· Your early guilty plea;
· The presence of genuine remorse or contrition;
· Your high level of co-operation with the police;
· Your complete lack of any past or subsequent criminal offending;
· Your youth and the high importance of rehabilitation in such a setting;
· He made submissions as to your prospects of rehabilitation,
· He placed before me a report from Mr Burrows who had been treating you as well as a report from a consultant psychologist, Mr Newton.
10 Whilst conceding that this was serious offending, he argued that you should not be imprisoned and that a suitably conditioned CCO could achieve the various purposes of sentencing. His secondary submission was that if a prison term was required for the Commonwealth matters that it should be the subject of an immediate release on a Recognizance Release Order. Failing that he submitted that you should be exposed to the shortest period in prison as was possible in all the circumstances of the case.
11 Mr Hughan took me to some recent cases in this area including one in which in fact I had actually passed sentence in a matter of Dingli [2018] VCC 963.
Prosecution
12 The prosecutor Ms Monagle also made submissions as to sentence speaking to a filed written outline that was marked as Exhibit B on the plea. There really was nothing controversial in that document as it went to many matters of plainly established principle in this area. So, I see no need to work my way through each and every submission that she made or that is contained within that document. Those submissions included reference to a couple of so called comparable cases of Hutchinson [2018] VSCA 153 as well as a case of Cook [2018] TASCCA 20, though having read those cases, plainly they were not on all fours, nor was it suggested they were by the way, by the prosecutor. The prosecutor to some extent questioned the extent of contrition or remorse in this case and hence the prospects of rehabilitation and the weight to be given to specific deterrence and those submissions flowed from close examination of the expert reports filed on the plea. The prosecutor, the other day at least, made a submission, I think an erroneous one really, that an aggregate sentence was not available in a Federal sentencing exercise. I have raised that directly with the prosecutor who is here this morning, Ms James and she confirms what I believe to be the position that it is, as long as the State regime is picked up by the Judiciary Act and the circumstances that would permit an aggregate sentence to be imposed apply in the Federal sphere.
13 The prosecutor submitted on behalf of the Commonwealth Director of Public Prosecutions that your offending demanded a term of imprisonment. However, the Commonwealth Director fell short of calling for an immediate term to be served by you.
Background
14 I turn only briefly to your background. It is a background you describe to the expert in these terms: “My childhood wasn’t the best but it wasn’t the worst either”. I am sure you are right there. Whatever may be said of your background, it does not greatly explain this offending and you are still to some extent holding back from any acknowledgement of any attraction sexually to underage girls despite your proven conduct. That is a concern held both by the prosecution but also of course by the experts.
15 Your background is set out in quite some detail in the report of Mr Newton that is marked as Exhibit 2 and also in your counsel’s excellent written submissions that were marked as Exhibit 1. It is also contained in some of the references actually placed before me which are marked as Exhibit 4 as a bundle of references. I accept the family and personal background that has been placed before me and I just do not see the need to restate it all now in my reasons.
16 Just very briefly though, I will say something. You are now 21 years of age, born on 17 July 1997. You were one of four children, the oldest of the four, and your parents separated when you were about 10 years of age. Your mother re-partnered and that first re-partnering was not pleasant for you or for your brother actually, with some verbal and physical abuse at the hands of your mother’s then new partner. Your mother moved to protect you and your brother and terminated that relationship. She has since re-partnered and indeed remarried and is in a stable relationship with your stepfather.
17 There were some very difficult times with your father, for you at least, after separation. You were young and you were unsurprisingly torn as to where to live. You remained with your father and with your grandfather as well at one point. It was not an easy decision and as the references attest, it was then a very difficult thing for you then to make what was obviously the very wise decision that you took at one point as a young boy to return to your mother. So there were undoubtedly things that you were exposed to that you should not have been exposed to. It is regrettable that you were. Troubling things for a boy of that age with your father for instance asking you directly as a young boy if you were actually deserting him. Well of course you were not. What you were doing is you were returning to life with your mother, a more appropriate life as a child than you were being exposed to in your father’s care.
18 Schooling was difficult for you with some level of bullying by your peers and some difficulty establishing friendships and also a number of moves of school but it seemingly picked up towards the end of your schooling. You passed year 11. There were then two failed attempts at an automotive apprenticeship. You have had a relatively patchy work history. Your most recent job was as a tyre-fitter. You enjoyed that work. You had been doing it for some 6 or so months prior to the arrest but then lost that job owing to the time necessary to attend to these legal matters. There has only been, as I read it, one long term intimate partner and that relationship failed some time in 2017. You have been pretty much deserted by your circle of friends which is most regrettable actually. Unsurprisingly, you feel isolated and depressed by your lot in life. You have had to leave home as a condition of bail. Your life has been on hold really as you wait for the axe to fall.
19
Your response to counselling has not been a triumph to date but at least you are going. You have found it challenging and there have been only quite limited gains. You are viewed as being very immature and you describe to
Mr Newton being very lonely and isolated at the time of this offending. I have read the bundle of character references again since the day of the plea. Indeed I have read all the material placed before me and the character references are important. They make plain that you are far more than just the person who has committed these undoubtedly serious offences. There is much more to you than that with qualities commented on favourably by the many who have known you throughout your life. You have made meaningful and positive contributions and of course I take that into account.
Guilty plea
20 I turn then to the various other matters that have been raised in mitigation.
21
Firstly, your guilty plea. You have pleaded guilty and you have done that at the earliest stage in the proceeding and that is clearly very important. Earlier still of course you had made very full admissions indeed, admissions that in fact were relied upon entirely to found Charge 1. There was not, as is sometimes the position, a chat log available here. You provided the details which found that charge. You have consented also to the disposal of two phones. Returning to your admissions made to the police, well making admissions is always of importance but is more so here owing to the clear importance of the admissions that you made. They were highly valuable admissions in relation to Charge 1 and are deserving of extra and demonstrable recognition in my sentence. Now it is not a case of your seeking out the police and volunteering information in such a setting as that. That is not what happened here. Of course the police attended with a warrant. That warrant named Ariel and so you were confronted on that day with these allegations but what you then did is you provided very complete information in relation to your conduct including information which the AFP were not possessed of. That is very important. See the cases of Ellis and also Sharman [2017] VSCA 241. They were also important admissions that you made in relation to Charge 2. I find then that you
have co-operated with the Australian Federal Police. No doubt your world (and for that matter, your mother’s and stepfather’s world) collapsed when the AFP came knocking with that warrant on that day in August of last year. You could have exercised your rights. You could have made a no comment interview. Enough people do exactly that. Instead what you chose to do is to tell the truth. You really could not have done more and I take that into account and you then followed that up with the earliest of guilty plea’s.
22 Your early plea and your high level of co-operation are all very significant matters in mitigation. You have taken early responsibility for your offending. There is a utilitarian benefit in pleading guilty in the way that you have. Witnesses have been spared the experience of coming to this court. The community has been saved the cost, the time and the effort associated with the conduct of a contested criminal hearing. So, I must reward you for facilitating the course of justice in the way that you have.
23 I can tell you I would have imposed a far more significant sentence upon you, had you been found guilty following a trial and I will disclose to you the dimensions of that discount towards the end of these reasons.
Contrition
24 What then of contrition or remorse? Some pretty serious question marks are flagged in the report of Mr Newton as to the extent of acknowledgement and the level of your insight and hence then the extent of remorse. However I have your early guilty plea. I have the earlier full admissions and utterances in the police interview which I do take as signifying remorse or contrition in your case. As to your plea, a guilty plea is usually indicative of at least some contrition or remorse but not always so. I have a sense from the experts of the difficulty that you encounter in confronting your reasons for offending and admitting such aberrant or deviant sexual attraction. That is hardly surprising. It must be difficult for you to confront as a 21 year old. So, there is still some level of minimisation of your conduct.
25 However I am not left with any sense at all of your revelling in this offending. None. Additionally there are other strong indications of contrition or remorse contained in the references from various family members, including your mother and your uncle, and from friends of the family. They also comment on a strong sense of shame.
26 Ultimately then I am prepared to find the existence of genuine contrition or remorse in this case, and I take that into account in your favour. You are a work in progress as I said in the course of the plea with much treatment lying ahead but at least you are heading and have been heading in the right direction.
Rehabilitation and youth
27 I move now then to consider your prospects of rehabilitation. Those prospects are surely intimately bound up with your youth at the time of the offending and still now today. Also with the outcome of ongoing counselling and treatment. You were 19, almost 20 when the offending commenced. You have no prior convictions at all. I give that weight of course but it is not uncommon in this sort of case. I have your early guilty plea, your very high level of co-operation and the presence of what I find to be genuine remorse in this case. I have the written references containing a body of character evidence and speaking as they do of the contributions that you have made in the past. You were so very young at the time of the offending, obviously immature, and still so, and socially isolated at the time and now. Your youth is of great significance. I cannot lose sight of it and I do not. I take into account those principles as set out in cases such as Mills and Azzopardi. Young people are more prone to error. They are not fully developed. They can make very poor decisions indeed without necessarily considering the consequences. They are more prone to successful rehabilitation because they are young and they are less set in their ways. They are also more vulnerable to the corruptive influences which abound in adult prisons. The law generally treats youth as involving some reduction in culpability and in generally leading to some moderation of the purposes of sentencing including the need to deter and to punish. There is, for good reason, generally a much stronger focus on rehabilitation and less weight to be given to punishment. The benchmark then for sending a youthful first offender to prison is a high one indeed as it should be.
28 Having said all of that though, the weight to be given to youth varies from case to case. Enough young first offenders are sent to prison. Sometimes there is no choice. Of course the more serious the crimes the less weight can be given to youth and to rehabilitation. I do not lose sight of your youth at any stage but it is only one matter that I must consider and these are unmistakably serious crimes ordinarily rewarded with sizable immediate prison terms owing to amongst other things, the high importance of general deterrence. Your counsel pointed to the reports of the experts and to the steps that you have taken already with Mr Burrows. Now, those reports were not entirely positive, he made that plain, but what they commented on was the setting of the offending and likely explanations for it and the urgency of your obtaining treatment and how critical that was to reduce your future risk of re-offending. I cannot ignore the risk assessment in Mr Newton’s report. You present with a significant enough risk of re-offending. The risk was viewed as moderate and the factors explaining that level of risk are the many problems in your interpersonal adjustment arising from what would appear to be a disturbed early life, but that risk would likely substantially reduce with appropriate mental health and further offence specific treatment.
29 Your conduct has been exposed now to your family as it was on the day of the warrant being executed and since. So, your family now know what you have done and they are supportive of you which is as it should be actually. Your mother, stepfather and brother attended upon the plea, both the other day and again today and of course that is a positive. So, you have family support. You have at least made some progress already in counselling. There is much work to do in the future as the experts suggest but your attendance is surely a positive not a negative.
30 I am confident that the process of your being arrested, of being charged and then being brought before the court for the first time, as well as serving the sentence that I will soon pronounce, will also to a degree, serve to deter you into the future. So we have here treatment on foot and some relatively small steps taken already. It is always hard to make this call from up here as to a person’s future prospects. I do not recall Mr Hughan advancing any particular adjective to describe those future prospects. The fact is one has to be guarded in the circumstances of this case given the expert materials placed before me but at this stage I am certainly prepared to find that you have quite reasonable prospects of rehabilitation. Ongoing treatment is obviously critical.
Mr Burrows and Mr Newton
31 I have mentioned already in some detail the reports of Mr Burrows and Mr Newton. I have read them again since the plea and I make plain that I take into account the reports of those two experts. I accept the opinions contained within those reports. I am not going to transfer slabs of that material from those reports into these reasons. What is the point in my doing that? These reasons are going to be long enough already. The reports are not relied upon by your counsel as establishing any of the principles from the well-known case of Verdins but they are still of great use to the Court. You are very immature with limited awareness of interpersonal relationships. You have poor social skills and have made limited progress towards the treatment goals. You had and still, it would appear, have limited insight into the consequences of your acts but at least your insight is being developed. You denied any sexual gratification which is hard to accept actually. Indeed I am not satisfied of that at all and nor it would seem are the experts. You have developed a mild reactive depression. You are not surprisingly very worried about the outcome of this matter.
32 Your personality adjustment at some point in your life fell by the wayside with concepts of interpersonal intimacy gleaned from that very worst of places, the internet. Your personality traits have what are described as prominent features of a borderline personality disorder. You seemingly have only limited understanding of normal sexual development of young women and there is still a level of distortion at play. You probably still struggle to understand why you did what you did. Your preparedness to expose your sister in this conduct is problematic, to say the least. Mr Newton comments upon that fact. Intervention is critical Mr Newton says and your risk of recidivism is higher than the ‘typical offender’ charged with online offending. Plainly, whether you admit it or not, you must have experienced some sexual response to the purportedly underage individual you ‘met’ online. Your ongoing treatment requires, it would seem on the materials, some consideration given to group based therapy.
33 You have at least engaged in this counselling. You are making efforts. Many do not so I do not want to get caught up in the negatives that exist within those reports.
Principles
34 I turn now to some of the general principles at play in this sort of matter. Your counsel’s written submissions in paragraph 3 addressed some of the matters that he relied upon in an assessment of the level of seriousness of the offending. I am not going to set them all out, they are in his written document, they were plainly sensible submissions and I accept those matters raised. Make no mistake, he conceded the offending was very serious and he was right to make that concession. He was also right to be concerned about Charge 2 and that conduct. He focussed on the various matters that perhaps, as he put, set this case apart from so many others. It was a very small volume of images with only a handful of category 1 images. The images of the younger children were not kept for very long at all. There was no commercial setting, no suggestion of any profit though unlike many cases, you were actually involved in producing the footage that portrayed your sister. Now, that is not child pornography of course and it is covered by Charge 2. That was serious offending as he conceded. There was plainly a breach of trust at play there. If there is a positive to be found, it is that at least you resisted the requests flowing from Mr Elstob under the persona of Ariel for more damaging material and your sister, as I say, is not identifiable in that footage.
35 The principles for sentencing in relation to these matters are just not in doubt. Some are referred to in the prosecution written submissions and in some of the cases to which I have been referred by both parties or for that matter in the footnotes in the prosecution written sentencing submissions. Our highest court, the Court of Appeal in this State, has frequently commented on the seriousness of child pornography offences or, for that matter, offences where the internet is being used to connect up with underage people in a sexual setting or to transmit indecent communications. See for instance the recent case, as recent as April of this year, of McNiece 2019 VSCA 78. There is a strong public interest in protecting children. The authorities make clear that child pornography is not some victimless crime. The images depict real children being exploited and the images exist as a result of the market for such images. You were one of that vast number making up that market. This sort of conduct is clearly prevalent. So too your use of the internet to engage in the communications with a person you thought was 13 or 14 years old. You were not just viewing or possessing images, as serious as that would be; you were engaged in a sexually laced discussion and sending and receiving images. Charge 2 involved you sending out into cyberspace an image of you masturbating in the presence of your sister who was herself a child. It was extraordinary and warped conduct indeed and must be roundly denounced. It was terrible conduct.
36 It is clear from the various authorities to which I have been referred, that the problem of child pornography is a significant problem not just here but internationally and that is because the internet knows no boundaries. The easy availability of pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount sentencing consideration.
37 The authorities make plain that past good conduct is to be given lesser weight than is often the case. That is because it is commonplace to have offenders with no criminal history. It is still obviously relevant to my task and I take into account your lack of any criminal history. I cannot just ignore that fact.
38 In the Commonwealth exercise, I take into account the matters that are set out within the relevant provisions of the Crimes Act, in particular s.16A(2). In the State exercise I take into account the various matters contained within s.5 of the Sentencing Act. So, it is a different Act in play there of course. General deterrence is plainly very important in whichever charge I am considering. So too denunciation. I must give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. Rehabilitation is especially important here given your age and your lack of any criminal history and your engagement to this point in treatment.
39 I have to pay and do pay due regard to the principles of totality of sentence.
40 I take into account all the materials that have been placed before me and the submissions made by both counsel. As you will be aware, I have not descended in these reasons to a close examination of the many character references that have been placed before me and marked as Exhibit 4 but I have read them all again and I do take them into account.
41 I am required to impose sentences that are of a severity appropriate to all the circumstances of the given offence. That is to say really that in each case, my sentence must be proportionate. Whether dealing with the two Commonwealth offences or the State charge, prison is a disposition of last resort. And, if I am going to actually confine you, prison is my only option as you are now too old to be sent to a Youth Justice Centre.
42 Whether dealing with the Commonwealth offences or for that matter the State charge, consistency of sentencing is also an important consideration. I must and I do pay due regard to current sentencing practices. But it is only one matter not a controlling factor.
43 I have looked at the various cases that I have been referred to and I must say they are of no great assistance to me. They are examples of other sentences being imposed on other offenders for other crimes. That is all. There is no such thing as one appropriate sentence. I was the judge in one of those other cases. The facts are not on all fours in any of the cases. None of those outcomes in any of those other cases says anything at all about the required outcome in this case, your case. Those other sentences that have been passed upon other offenders for other crimes are not in some way precedents and they do not compel any particular outcome here. There are many differences, some in your favour, some not in your favour. The sentencing decisions of judges of this court, they do not provide any particular matters of principle. The principles are as I have said not seriously in dispute in this area. And what I have to do and not lose sight of is not sentence as a statistician or by rote. I have to pass an appropriate sentence in your case. For your crimes. Taking into account the mitigatory matters in this case.
44 The Court of Appeal, in a decision of Garside [2016] VSCA 2016 made plain that it is clear from the various authorities that they examined in that 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 would ordinarily be expected for such offending."
Here the offending captured by Charges 1 and 3 was at a low level for the reasons advanced by your counsel. That must be so given the very small number of images. Please do not misunderstand me: I am not saying it was not serious conduct, plainly it was serious as Mr Hughan concedes. But you do not have a large collection of images and the ones that you did have are at the lowest level. There was no financial gain or commerciality. Of concern is your conduct in Charge 1 where you were engaging in this sexually laced communication with someone you actually thought to be a 13 or 14 year old girl and you were bartering images with such a person. Receiving child pornography from a person you thought was 13 or 14, some images you thought of her, but some also of younger children. So the number of images though always an important consideration is not the only consideration for the court. Charge 2 is plainly very serious and that is so even though it has the lesser maximum penalty. There is just no question about that. It was a grave step to do what you did in the presence of your sister and then to transmit it.
Charge 1 and 2
45 I have had you assessed for your suitability for a community corrections order. I should mark that assessment report as Exhibit C on the plea. I did not ask you directly, Ms McDonald or Ms James, did anyone have any submissions to make in terms of that report at all or not?
46 MS McDONALD: No, Your Honour.
47 HIS HONOUR: No, all right. So, I will have that marked as Exhibit C on the plea.
EXHIBIT C - Community corrections order assessment (on the plea).
48 You have been assessed as suitable for such an order which is entirely unsurprising but I have told you that my calling for that report must not give you any comfort or in any way lead you or for that matter your family to the view that this would all end well for you today. I have read and I do take into account that assessment report.
49 So then, I move to pass sentence in this case. Your counsel argues that you can be released onto a CCO on all of these charges and not receive a prison term. I regret to say I just do not agree with that submission. There is just no doubt in my mind that I must impose a sizeable enough term of imprisonment on the Commonwealth charges. Anything less would not pay adequate regard to the various purposes of sentencing and that is so despite the many matters in mitigation including your youth, which I regard as very important to my task.
Sentence on Charge 1 and 2
50
On the Commonwealth charges, that is Charge 1 and 2, I believe then that I can pass an aggregate prison term. Section 9 of the State Act permits that and is picked up in the Federal sphere by the Judiciary Act and there is the relationship between the two offences that meets the description in s.9 of the State Act. So, in relation to Charge 1 and 2, I think I will have you remain seated throughout this actually, you are convicted and sentenced to
an aggregate of 14 months' imprisonment. Now, that is not the end of my task.
51 The question then is to what extent if any you should serve that term of imprisonment before being released into the community. Mr Hughan argued that it is open to release you immediately, that is today. The Director seemed not to cavil with that suggestion but of course I am not bound by any submission in that respect. What I have to do is exercise my own sentencing discretion.
52
Sending you to prison would undoubtedly interrupt the treatment that you are currently engaged in and would in no way make you a better person but that is regrettably sometimes unavoidable. I have sent enough young first offenders to prison and I have done so owing to the gravity of the offending. Sometimes, as I said in the course of the plea, regrettably, a court is left with no choice. Is that outcome then unavoidable here? The issue for me then, is whether a
non-immediate prison sentence can adequately meet all of the needs of sentencing in this case.
53 My view is that to interrupt your counselling at this point is not desirable. It would not actually enhance your rehabilitation at all to do that and may ultimately not serve to protect the community at all. It may well be counterproductive to send you to prison here and now. It seems to me that the better approach to foster your rehabilitation and hence to reduce the risk of re-offence and to actually enhance community protection is to fix upon an outcome which encourages and if needs be compels your continued treatment in the community. 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.
Recognizance Release Order
54 So on Charges 1 and 2, as I say, I am going to impose that aggregate term of 14 months' imprisonment. 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 $2,000, to comply with the following conditions. Now, I am going to raise these conditions just provisionally at this stage and I will get some guidance from the parties.
·The first of the conditions that I have in mind is that you be of good behaviour for a period of two years following your release on this recognisance;
·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 years;
·
Three, 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.
55 So, they are the conditions I am proposing to attach to the order that provides for your immediate release today but, as I say, I will settle the precise terms in one moment with the parties.
56 I am going to place you on a community corrections order in relation to the State offence and I will deal with that shortly. The same considerations that I have mentioned lead to that outcome in the State exercise. I do not have available to me any ability to pass a suspended sentence for the State offence. Confinement on that charge is not warranted as I believe a suitably conditioned CCO can actually meet all the needs of sentencing. See s.5(4C) of the Sentencing Act
Effect of Recognizance Release Order
57 Back then to the Commonwealth matters. I am obliged to explain to you the effect of this order. Before doing so I will just make though the enquiry of the parties in terms of the release conditions. Do either of you see any difficulties with the mooted conditions at all? No?
58 MS JAMES: No, Your Honour.
59 HIS HONOUR: All right, thank you. Well, you are probably sitting up there in a bit of a blur today and you have probably come to court not knowing if you will be going home or where you will be going today. Will you be going to prison or returning from where you came? Well, you will be leaving this court under your own steam. But I need to explain the terms in which you are leaving this court. It is very important that you understand them. So, back then to the Commonwealth matters, I will deal with the State matter in a moment. I am obliged, as a matter of law to explain to you the effect of this order. So, this is on Charges 1 and 2. You will be released today. So, I am imposing, as I say a 14-month term of imprisonment. But you will be released today from this Federal sentence, upon entering what is referred to as a recognizance. You have probably never heard that word before. What is a recognizance? It is your promise; and the promise that you will be making to this court by signing this document today. It is a promise in the sum of $2,000, to be of good behaviour for the period of two years, with those other conditions, which I will mention, which will be actually attached to the order. You should think of it as a suspended sentence. That is what it is. So, you have 14 months' imprisonment and that 14 months is dangling over your head for the next 2 years and you can bring it crashing down upon you.
60 Should you commit any further offences in that two year period, should you not be of good behaviour, should you fail to comply with those conditions that I have attached that exist on that document, you would breach this order. And you would then be liable to forfeit the sum of $2,000. Well, that is bad enough but far more importantly, you would then be liable to be brought back to court upon this breach. It would be this court and it would be in front of me. So, you probably do not need me to tell you this but let me tell you anyway. You really do not want to see me again. You really do not.
61 Come back before me in breach and the court can vary or extend the order, the court can take no action, the court can impose a fine, or, and listen carefully, the court can revoke the order and order that you serve the period of imprisonment that remains to be served. Now, here of course, that would be the full term of 14 months as you are not serving any of it immediately.
62 If I see you again, and I hope that I do not, then I would be obliged to consider all of the options listed in s.20A(5)(c) of the Commonwealth Crimes Act, but let me give you a tip, you would be best to work on the theory that if you come back before me in breach, you will be ordered to serve the term of imprisonment held in suspense. So 14 months in an adult prison would likely come crashing down upon your head. Please do not put yourself or your family in that position.
63 I am obliged I think as a matter of law to tell you that you have the power yourself to apply for variation of the order that I am pronouncing, but I add as I usually do, that it is currently very difficult to think of any circumstance at all that could or would lead to a successful variation application.
Community Corrections Order
64 On the State charge, I am going to convict you and release you upon a community corrections order for that same period. So a two year CCO. I can only do that if you consent, so listen carefully. I will ask you in a few minutes whether you actually do consent to this order.
65 Listen carefully as I list the terms and the conditions of the order. There will be some differences with the Commonwealth conditions. This State order gives me the ability to impose some unpaid work. I cannot order that on the Commonwealth RRO.
Mandatory terms
66 These orders have a set of mandatory terms.
67 Now, there is a document that has been signed by you indicating you understand generally, the terms of a community corrections order and you consent to it. But I want to descend to a bit more information and I want to make sure I am getting your informed consent. I do not ever want anyone who enters one of these orders to come back in front of me down the track and breach and say, 'I didn't know what I was signing up for and I didn't know what could happen if I breached it' and I never will because I always go into this level of detail. But I go into it here because you are a total stranger to the criminal courts. You have not had these orders before. You have no experience of them and I want to make sure you understand what they actually involve and how they can be breached.
68 Firstly, these orders, community corrections orders, they have a set of mandatory terms, they apply to everyone who gets them, whether it is you or anyone else. Anyone who sits there who gets one of them, there are mandatory terms that apply to every person who enters an order. The first of them is a pretty obvious one. You must not commit another offence for which you could be imprisoned in the time that the order is enforced. So, for the next two years you stay out of trouble. You do not commit any offence that could be subject to a term of imprisonment and these days virtually every offence is punishable by a term of imprisonment.
69 To give you an example, I am not suggesting it is going to have any application in your life, it is just to explain what I have just said. If you went into a newsagent and stole a Freddo Frog, I do not know what it is worth. It might be worth 30 cents or something, I do not know. I do not think there is any magistrate in their right mind who would send a person to prison for theft of a Freddo Frog but a charge of theft, even of a small item like that, that is punishable by a term of imprisonment. So, stay out of trouble. If you do not, you breach the order. You have to turn up for any attendance under the order, totally unaffected by alcohol or drugs. That should not be an issue at all and you have to have a photograph taken for record keeping purposes.
70 You must report to and receive visits from the community corrections officer and you must attend within two clear working days of the order commencing. Let me just look at the assessment report. I do not think there was a time arranged there by the looks of it but in any event that is what you had to do. You have to attend within two clear workings days of today's date and that is at the Frankston community correction services at the Nepean Highway, Frankston. The address and all of these terms are on the document. You will get a copy of it. So, you have got to report to, and you have got to receive visits from the Secretary. You must report to them within two clear workings days. You must let them know within two clear workings days of any change of address or job, all right? And you must not leave Victoria without first getting permission to do so from the Community Corrections Office and you must obey all their lawful instructions. So they are the mandatory terms that apply to every person who gets one of these orders. They apply to you. Breach any of those, you breach this order.
Tailored Conditions CCO
71 Then there are what I will describe as tailored conditions that apply - they are the conditions that I can tailor, both to your needs, but also to the various purposes of sentencing, including denunciation, community protection, deterrence, punishment, and rehabilitation.
· Well, you will be required to do some unpaid work. I am going to keep it at a very modest level. You must perform 150 hours of unpaid community work over the period of the order. That is over two years, all right? It is not a lot, but it is unmistakably an aspect of punishment involved in that condition.
·You will be under the supervision of a community corrections officer for the entirety of this order.
·There are treatment and rehabilitation conditions. There will be a mental health assessment and treatment condition. It is longer than that on the document and do not be concerned when you see reference to treatment in a hospital or a residential facility. There is no suggestion of that being warranted at this point. But you must undergo any mental health assessment and treatment as directed by the Regional Manager.
·You must also participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager. So that is pretty much a residual condition that gives them the power to give you directions to attend whatever program they say you should attend.
·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. So that condition, broadly replicates the condition that is already attached to the recognisance release order.
Special Conditions
72 There is one special condition that I am going to attach to this order and I am doing so because I just do not want any gap in your treatment. I am imposing a special condition to avoid that eventuality. You must continue to attend for counselling and treatment from Mr Burrows or his nominee, for such period and at such frequency, as is directed by Mr Burrows or his nominee.
73 Now as you will understand, Corrections also have a residual discretion to give you directions to attend for treatment. I am making a specific condition that you must continue with this counselling with Mr Burrows, or his nominee. If it gets to a point in the period of the order where he believes you have done what you need to do, or that it is better that you head to a different form of counselling, or that treatment has been successfully completed, and that you no longer need to attend for treatment, well he would give you that direction. I do not by the way, see that last scenario as being likely to occur. But given his report and the opinions expressed in it as well as Mr Newton’s report, it seems far likelier that he might nominate group counselling or therapy as being more effective and give you that direction to attend under the auspices of a program conducted at Corrections. But I do not want you to be leaving court thinking you are just going to discontinue the treatment with Mr Burrows. You cannot. You will attend for as long and as often as he says you attend.
74 But as I say, there is a real possibility and I am providing for that possibility that Mr Burrows might give a direction that you attend for group therapy. Therefore, that would be a nominee. So Corrections and Mr Burrows will work hand in hand I think, in attending to this treatment condition.
75 These various treatment measures provided under both the Commonwealth sentence and the State sentence, are directed at enhancing your prospects of rehabilitation, of reducing your risk of future offending and hence protecting the community. Breach them at your own peril.
76 All right, you have never had a community corrections order before. You have never been to court before and you will not really have an understanding as to how often these matters are breached and how easily they can be breached. You need to understand the reality of your position. If you breach any of the mandatory terms, then you will be back at this court. If you breach any of the conditions, again you will be back at this court.
77 These orders are breached by very many that I deal with. People who consent to the orders, as no doubt you will, they are happy to get them, they are relieved sometimes to get them and then they leave court and time and time again and I have seen people not give priority to these orders, all right? Do not fall into that trap for heaven's sake. If you leave court thinking this case is finished, you will be making a disastrous mistake because it is not. That is the whole purpose of these orders. I am sentencing you in the way that I am, and these sentences persist for two years from today's date with very detailed conditions. Detailed conditions that focus on your rehabilitation, but also necessarily then would tend to protect the community as well.
78 Something as simple as committing a very minor offence can bring it all crashing down. No reason for me to think that is going to occur. Any repetition of the conduct of course would inevitably breach the order. Failure to advise of change of address, something as simple as that. It is amazing how many people do not communicate adequately with their community corrections officer and when they do not, they fall out of contact, they get breached. So keep the person, whoever it is who is supervising this order, keep them updated.
79 If there is some inability to turn up for unpaid work, let them know there and then, even if it is on the day, get on the phone, ring them, because time and time again, I have seen people just not bother, not bother to communicate, rack up unacceptable absences and then try and justify it after the event. It never works. It just never works. Do not put yourself in that position. They will not be silly about it, I mean if they are trying to schedule an attendance, whether it is unpaid work or supervision or treatment and rehabilitation, if there is some particular issue with your being able to attend on that particular day, let them know, they will re-schedule it. Even if something arises very late in the piece, let them know. It is always better to let them know. But if you do not, you will breach this order, I can assure you.
80 I do not know what they are going to ask you to do, or where they are going to ask you to work. What I do know is it is not optional, you just do it. It is not meant to be fun. It will not be fun. It is not meant to be easy, it is not. It will be no doubt inconvenient. It is meant to be. It is part of the punishment. Just do it and get it done. But as I say, I am not providing for an enormous number of hours. It is 150 hours over two years. My strong advice to you is to get it done and dusted. Do it as early in the order as you are permitted to do and get that behind you.
81 No doubt in terms of supervision, if things are going well on the order and they have a person who is communicating and engaging openly, then they would probably drop back the extent of supervision under the order. It is a two way street here and the best advice I can give to you, someone who knows nothing about these orders, is do not view your Corrections officer with suspicion or concern. Try and form some actual meaningful relationship with that person,
82 So you have really got to communicate with them. As I say, I have seen every manner of these orders being breached by people who do not turn up, even at the time of the induction. They do not turn up at work. They do not turn up at supervision. They do not turn up for assessment and treatment. They move address. They do not let the Community Corrections officer know where they have gone. I have seen every breach under the sun. I hope I see nothing like that from you.
83 There is also, obviously the need for you to attend for the specialised Offender Assessment Treatment Service. There will be a Sex Offender Program you will have to do. I will be confident of that and you will need to do it. It will not be easy. You may not want to go. You may doubt that you should be going. But as I say, these are not optional things. I have given very powerful residual conditions here, that permit your Community Corrections officer to select the program that you have to attend and you have to attend.
84 All right, so that is a long explanation. What I have not discussed with you are the ramifications of breaching the community corrections order. I have in relation to the Federal sentence. Well if you breach this community corrections order in any way, either by breaching the mandatory terms, or by breaching the conditions, then you will breach the community corrections order. If you do that, that itself is a criminal offence. It is punishable by - I think it is a three month term of imprisonment, that is bad enough. But it is much worse than that of course because if you breach the community corrections order, you are back in front of me, back in this court, you will be sitting in the dock.
85 So in the years that lie ahead, both in considering the need to comply with the Federal sentence and the community corrections order, what I suggest you do is turn your mind to how you felt today, coming to court, or the other day for that matter. Not knowing where you would be going. Probably having a sneaking suspicion that you would wind up in an adult prison. I do not think you have got the slightest idea what going to an adult prison would be like for one such as you. Use your imagination, think the worse and then double it for someone in your position.
86 Well as I say, think about that uncertainty in your life, if at any stage your resolve on these orders is wavering, think about how you felt coming to court today and the other day. Do you want to put yourself back in that position? Do you want to have your family back in that position? Well the answer is pretty obvious. So do not let the passage of time remove that sense because that is what you have to turn your mind back to. Comply with these orders or else. That is what it amounts to.
87 In terms of the community corrections orders, if you breach it, well it is exactly the same position as the Commonwealth matter in this sense; I cannot tell you today exactly what I would do if you breach this order. What I can tell you is I have an obligation to come onto the Bench and to conduct an assessment of the nature of the breach and then to consider what the appropriate course of action is. But I can tell you this. The most common action taken by a Judge in this court, when an order is breached, is that the order is cancelled. If the order is cancelled, then you would have then a resentencing exercise in relation to the offence for which you were placed on that order. That is possession of child abuse material.
88 So work on the theory that if you breach these orders, this community corrections order, that you will be looking down the barrel at a significant term of imprisonment. Of course if you breach the Commonwealth matter, you know what you are looking down the barrel at, it is fourteen months. We have got that there and that is what is likely to be brought down upon your head. So you can avoid that and you can avoid it simply by complying with these orders.
Sex Offenders Registration Act 2004
89 Now I am going to tell you about some obligations that you have under the Sex Offenders Registration Act, and they are very significant obligations and the reason I am mentioning those is that any failure to comply with any of those obligations, if it occurred in the next two years, would itself constitute a criminal offence punishable by a term of imprisonment. It would breach all of these orders that I have imposed. So you need to understand very clearly what those obligations are and I will explain some of them, but there will be a long list of them on a piece of paper I am going to give you. Do not come back before me and say that you were not aware of this risk. It seems to me it is probably the greatest risk of you breaching this order by offence, that is by not complying strictly with your obligations under the Sex Offender Registration Act.
90 So do not come back saying I have not warned you. I am warning you about that right now. I will come back to that in a moment but let me first deal with the orders. So neither of you have got any concerns about the nature of the conditions on the recognisance release order and do you both have a note of the conditions or tailored conditions that I am planning in relation to the community corrections order? I think they have been provided as well. There are no issues about those at all?
91 MS McDONALD: No issues, Your Honour.
92 HIS HONOUR: All right, I have spent a long, long time going through it all. Ms McDonald can you just go down and see your client and make sure he understands what he is dealing with and let me know whether he is providing informed consent in relation to these matters please.
93 MS McDONALD: Yes, Your Honour.
94 HIS HONOUR: Yes.
95 MS JAMES: Your Honour very briefly, if I could, I apologise. I think I may have slightly misled you earlier on the matter of aggregate penalty. It is a bit of complex area. Do you want me to - - -
96 HIS HONOUR: Hold on. Is this - I have got Ms McDonald - - -
97 MS JAMES: Yes, apologies, I can - - -
98 HIS HONOUR: - - - down the back. You are not going to spring it on me that I do not have available aggregates are you or not?
99 MS JAMES: No, so I - it would appear that Ms Monagle's submissions at the plea were correct in the circumstances of this case.
100 HIS HONOUR: Why?
101 MS JAMES: Just in the sentencing manual, it does mention an aggregate should not be imposed where the indictment only contains a small number of counts, or where they vary in their seriousness. So I just raise that with Your Honour, but it is available under the Act.
102 HIS HONOUR: That is a matter of discretion though.
103 MS JAMES: Yes.
104 HIS HONOUR: She was saying as a matter of law I could not and I - and that is what I did not accept.
105 MS JAMES: No. Yes, it does appear to be available under the Judiciary Act. I just wanted to raise that with Your Honour.
106 HIS HONOUR: Yes. All sorts of things are said about whether an aggregate's advisable or not and the Court of Appeal have waxed and waned on that topic, but I do not think there is any reason why I cannot impose an aggregate here.
107 MS JAMES: Thank you Your Honour. I will not take it any further.
108 HIS HONOUR: Sorry, I have probably interrupted your discussion with your client, Ms McDonald. Are you satisfied that you - - -
109 MS McDONALD: Could I just very quickly return, Your Honour?
110 HIS HONOUR: Yes, yes.
111 MS McDONALD: Thank you.
112 HIS HONOUR: Of course, yes. Yes.
113 MS McDONALD: Yes, Your Honour, my client is offering his informed consent to those orders.
114 HIS HONOUR: All right. Ms James, you prepare the recognisance release order do you?
115 MS JAMES: Yes, I have got a copy.
116 HIS HONOUR: Has that been prepared?
117 MS JAMES: Yes, Your Honour I have a copy for your associate. Thank you.
118 HIS HONOUR: I will just check that. All right, I will have that order go down and also the - I am having the - the address that is remaining on the orders.
119 I am having the address that is remaining on the order is the - at this stage the Sommerville address, which is the bailed address at this stage. So, if there is any later change of address he will need to communicate that in accordance with the order.
120 MS McDONALD: Thank you, Your Honour.
121 HIS HONOUR: I mean, I do not know whether that is going to produce, potentially it might, interest from the Department of Health and Human Services. I have got no idea. So, he will need to consider that. It seems to me it would be very wise to discuss all that with his family and for that matter whichever the case officer was at that organisation before he actually takes that step I think.
122 MS McDONALD: Yes, Your Honour.
123 HIS HONOUR: But whether he does or does not do that, he is going to need to advise, if he moves address. But at the moment it is [redacted], I think, yes.
124 MS McDONALD: Sommerville, yes, Your Honour.
125 HIS HONOUR: Yes, I will have those orders come down. I am not sure if you have seen the recognisance release order that has been prepared Ms McDonald and I will have each of you look at the draft - or the community corrections order and see if it fits the bill and mirrors my stated intention. Have a look at those documents and I will have them taken down and signed.
126 Do they seem in order or not?
127 MS McDONALD: Yes, Your Honour.
128 MS JAMES: Thank you, Your Honour.
129 HIS HONOUR: I will have them taken down. You go down as well if you would like Ms McDonald and - - -
130 MS McDONALD: Thank you, Your Honour.
131 HIS HONOUR: I am just looking at that document. The recognisance that you have prepared that has been signed, it refers to - I mean I am only dealing with the two Commonwealth matters - - -
132 MS JAMES: Yes, apologies, Your Honour, it should only include the Commonwealth charges.
133 HIS HONOUR: So, it should be using a carriage service to cause child pornography to be transmitted to himself - - -
134 MS JAMES: Yes.
135 HIS HONOUR: - - - and use carriage service to transmit indecent communications to a person the offender believes to be under 16 years of age. Now, the other - then there is reference to - - -
136 MS JAMES: Yes, apologies Your Honour, they have been included by error, that is - it should just be Charges 1 and 2.
137 HIS HONOUR: So, I delete item 3 - - -
138 MS JAMES: Yes, Your Honour.
139 HIS HONOUR: I mean it is a State matter but I am dealing with a State matter by way of a different - - -
140 MS JAMES: Yes, so just solely the Commonwealth charges should be on the recognisance.
141 HIS HONOUR: And then there is transmit child pornography material using a carriage service - well, that is already - - -
142 MS JAMES: Yes, that appears to be included by error unfortunately, Your Honour, by my instructor.
143 HIS HONOUR: That is picked up. Well, I will simply delete those unless there is some reason for me to prepare a fresh order, I will do that myself.
144 MS JAMES: Yes, I think it should be fine to just cross them out on the order, Your Honour, thank you.
145 HIS HONOUR: Mr Watterson, I will get you to stand up if I could. Are you prepared then to consent to this community corrections order that I am dealing with here?
146 OFFENDER: Yes, I am, Your Honour.
147 HIS HONOUR: All right, and you have signed that order saying I understand the effect and the conditions of this order and consent to it being made?
148 OFFENDER: Yes, Your Honour.
149 HIS HONOUR: Yes. That is the State matter and, secondly, in relation to the Commonwealth matter you are prepared to enter that promise or recognisance and that is the 14-month term of imprisonment is essentially suspended. It is over your head for the next two years subject to you complying with those various conditions. Are you prepared to enter that promise?
150 OFFENDER: Yes, I am, Your Honour.
151 HIS HONOUR: And, again, you have signed that document here today.
152 OFFENDER: Yes, I have.
153 HIS HONOUR: All right. You will get a copy of each of those orders. Have a seat then for a moment. Thank you. There are a couple of final matters and the first is a matter of real importance that I alluded to a short time ago.
Sex Offenders Registration Act 2004
154 You have been sentenced in relation to three charges that are registrable offences under an Act known as the Sex Offenders Registration Act 2004. Pursuant to the provisions of an Act, in particular s.34 of that Act, you must comply and continue to comply with your reporting obligations and various obligations under that Act for the rest of your life. I have no discretion at all in relation to your lifetime registration.
155 I am going to have handed to you shortly a document that explains the many conditions and obligations that you will have under that Act. It details your reporting requirements. There are also a number of prohibitions, including the prohibition upon your gaining any employment in any child-related activity. That is very widely defined under this Act. It will even pick up unpaid and voluntary work. It would pick up any type of service or activity in connection with children. That is what is prohibited and it is a very detailed list of matters.
156 You are really going to need to familiarise yourself with these provisions;
157 It is as I say, and you will know what I am talking about when you get the document, it is a lengthy document. It would be just impossible for you to sit there now and to study it now and to fully understand it now. So, I am going to have you sign a form to acknowledge receipt of these materials but then what you will need to do is you will need to familiarise yourself with these details and do it swiftly. Speak to your legal team about, both today and at any later stage if you have any doubts. If you have any doubts as to whether the Act applies in a particular setting, it is far, far better to raise those doubts and get some guidance from your lawyers. And I raise that because I have seen people charged with breaching their obligations under this Act in extremely technical ways. Do not be one of those people because as I say if you breach your obligations under this Act, the Sex Offenders Registration Act, in the next two years, that is a criminal offence. It is punishable by imprisonment. It would therefore breach both of those orders that you have just entered, both the community corrections order and the Federal sentence and it would expose you to the risk of being resentenced by me.
158 Now, Ms McDonald, you will have seen these documents before. They are very lengthy. I am not expecting he is going to sit there now and read it all now, he will not but he will need to do that in his own time and he will need to do it carefully. What I am just getting him to do at the moment is to acknowledge receipt of these reporting conditions. So, I will have that document come down now with my associate and if you would be good enough to go down with her and have him sign the acknowledgement portion, thank you.
159 MS McDONALD: Yes, thank you, Your Honour.
160
HIS HONOUR: Your client has signed that document then anyway,
Ms McDonald. When you get the chance, as I say, and do it sooner rather than later, you need to really read through that material. There are some alarming aspects of it for one such as you. I am not necessarily sure that one of your age is actually the target of this particular legislation but as I say I have no discretion. If I had a discretion I would probably exercise it for a lesser period actually but I cannot. You will see for instance that you must report to the, and I am not going to try and embrace all of these or give you a full description of your obligations, the document sets it out. But you must report to the police within seven days and there is a number there and then you have got various details that you need to provide and you need to update if there are particular events that are occurring you need to let them know within a certain time frame, sometimes within 24 hours, sometimes within seven days.
161 Any contact with a child or living at any premises with a child for instance would require you to actually provide detail within 24 hours. So, again, I say it is not just a matter of you moving home. The Department of Human Services might have something to say about that, maybe they would not. I do not know. They might be comforted by the existence of the conditions that will be in play with the community corrections order but if you simply moved home and made no report, then you would be living in premises where there are children living and that would breach you on this particular aspect and bring you back in front of me in breach of all these orders.
162 So, I do not mean to depress you by you taking you to this but I simply do not want you to breach my orders by breaching these conditions. And there are, as you will see, there are requirements to advise and notification in terms of interstate travel and overseas travel and the like. You need to read it very carefully and as I say you have got a very good legal team. Get advice if you need any advice at any stage. Let me just see if there is anything else I need to deal with. You will get a copy of that as well as the other orders of course.
Section 6AAA
163 I have told you that I have taken into account your guilty plea and I have. Had you been found guilty following a trial, it would have been a very, very different setting for me. It would have been a very different disposition. Presumably I would not have had the high level of cooperation that I have marked out so demonstrably in my reasons. I would not have an early guilty plea indicative of genuine contrition. It would have been a very different setting and had you run a trial and been found guilty of these matters I would have sentenced you immediately to prison, no question about that. Indeed I would have sentenced you to prison with a total effective sentence of 2 ½ years. I would have had a release mechanism with release by way of RRO after serving a period of 18 months. So, that declaration is to be entered into the records of the court.
164 Well, the job is ahead of you in relation to these orders. As I say it would be a big mistake to treat this case, to breathe a sigh of relief and to leave this court and think the case is over. It is not. No doubt you will breathe a sigh of relief that it is over without you at this point spending a day in custody. But that can easily change into the future if you breach the order. All I can really advise you to do at this stage, is to buckle down on this order and to get on with it, to communicate appropriately with the community corrections officer, to do your best and to acknowledge the issues in terms of treatment. You are just going to have to discuss what has occurred in a forthright fashion to get the best that you can out of the treatment. It has been a harrowing experience, as your mother says, for all of you really. I am sure that is so and there is an aspect of you feeling a bit sort of desolate and ashamed and isolated in your present position and that is understandable but what you are going to have to do is try and put your life together again. You can do that. You are still a very young man and there is no reason to think that you cannot live a very useful and contributing life. This is a, it is a bit more than a blip obviously, it has been more than that in your life obviously since you were charged.
165 You would have had the worry of the outcome here. Well you have got the outcome now. You are not going immediately to prison. You can avoid that and what you need to do is to get back into the workforce it seems to me, re-join the community, re-join a useful sort of career or trade, get on with your life and get on with the treatment. But as I say, you do all those things and engage honestly in the treatment phase of the orders and there is no reason to think that you will not be a fully contributing member of the community, someone who might be able to look back on these events maybe in a decade from now and shake your head in disbelief.
166 But anyway, that is a matter for you. I hope you can look back in that respect. I hope I do not see you in the next few years in breach of this order. For if I do, you really better look out. Any other matters I need to deal with at all or not?
167 MS JAMES: Nothing further, Your Honour.
168 HIS HONOUR: Well, I think that then completes the matter so I will leave the Bench shortly and once I have left then your client can come out of the dock. I probably should have these reasons and I think I better provide them to Mr Burrows actually in the circumstances. I am requiring him to continue to see your client unless he directs otherwise. So, I will provide these reasons to Mr Burrows in the circumstances. No other matters?
169 MS McDONALD: No, Your Honour.
170 HIS HONOUR: Let me just see, is there anything in the reservelist. So, that completes the matter then. So, I think 9 o'clock tomorrow then, thank you.
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