DPP v Chenhall [2020] VCC 2078

3 You admitted your prior convictions, which included, a charge of use a carriage service to transmit indecent communications to a child under 16 years. As a result of your conviction, you became subject to the Sex Offenders Registration Act 2004 for a period of eight years.

4 Tendered as Exhibit A and read aloud in court was the Prosecution Opening for Plea. In summary, an investigation into your conduct was initiated following receipt of a report from KiK to the Australian Federal Police (AFP). KiK is an online communication platform which involves peer-to-peer and group messaging. The report indicated that an Australian with the username "trent8889" had engaged in sexualised chat with the profile of a 15 year old female. Enquiries revealed that the email address connected to the KiK profile "trent8889" was Trent.Chenhall@gmail.com. This email address had been provided by you to police during your initial interview as a Registered Sex Offender held on 13 June 2017.

5 As a registered offender under the Sex Offenders Registration Act, you are required to notify Victoria Police of any relevant changes to your circumstances, including:

(c) any internet usernames, instant messaging usernames or chatroom usernames, or other usernames or identity used or intended to be used by you through the internet or other electronic communications; and

(d) any change in your personal details, including your phone number.

6 On 2 August 2019, police executed a warrant at your address in Blackburn. You were asked "Do you have any idea what this might be about?" by an investigator, to whom you replied "Yes. Same as last time". Seized pursuant to warrant were two Apple iPhones, a Hewlett Packard laptop, and five USB storage devices. During the search, you admitted to an investigator that there was sexually explicit material of girls under the age of 16 on your mobile phones.

7 You were arrested and taken to the Forest Hill Police Station where you were interviewed under caution. During the interview, you made substantial admissions. (See exhibit A paragraph 10)

8 At the end of the record of interview you were charged with one charge of possessing child exploitation material as a result of a video file located on your phones.

9 Subsequent analysis of the devices seized on 2 August 2019 revealed additional child abuse material on both of your Apple iPhones. Also located on the mobile phones were KiK conversations in which you had engaged in indecent communications with 17 persons that you believed to be under the age of 16 years.(Charge 1) On one occasion, you transmitted a child abuse image that you had obtained from a particular victim to a public KiK group chat.(Charge 4) Further analysis of your electronic devices revealed that you had not reported changes to your personal details and, therefore, had breached your reporting obligations under the Sex Offenders Registration Act.(Charge 2)

10 Contained in Exhibit A were extracts from exchanges between you and each of the 17 persons whom you believed were under the age of 16 years at the time of the communications. During these communications, you transmitted indecent communications to each of your victims. These communications generally involved you sending photographs and/or videos of your erect penis. In addition, you would often request photographs from the persons to whom you were communicating and, on occasions, your victims would send photographs purportedly of themselves corroborating their age - being under 16 years (see 8 Ava The Girl; 9 Nicole Smith; and 12 Taco)

11 Your communications would include statements like "I want you to suck my huge cock", "it's 9 inches babe ... you like it??", "what size are your tits babe?" On one occasion, you sent a video of your erect penis to a victim. During the video, you could be observed banging your penis multiple times against a benchtop and can be heard saying "pumping massive for you right now Ashley ... Ohh fuck!" You continued "I want to fuck you and your sister", "my cock is massive right now (any other photos of you babe???)".

12 The conduct that founds Charge 1 on the indictment is simply perverted.

13 On Charge 2, you failed to report internet usernames used by you, being "Trent Allawi/bad boy 8889" on the platform KiK, and "Pressuretodiamonds" on the platform Oasis.

14 In respect to Charge 3, on 21 June 2019 during a conversation between you and KiK user "Taco", you repeatedly requested Taco send you sexually explicit photographs and videos of herself. As a result of your persistent requests, you received:

(a) five images depicting a female approximately 12 years of age who was clothed (not classified as child pornography);

(b) nine images of the same female exposing her breasts (CAT 1);

(c) one image of the same female inserting a finger into her exposed vagina (CAT 2); and

(d) one video file of the same female exposing her breasts (CAT 1).

15 In respect to Charge 5, examination of your two mobile phones revealed child exploitation material in the form of videos and images. A manual categorisation, in accordance with the automated child exploitation material (CEM) categorisation scheme, showed:

(a) Category 1 CEM, depictions of children - no sexual activity 35 items;

(b) Category 2 CEM, solo masturbation by a child or sex acts between children 15 items;

(c) Category 3 CEM, non-penetrative sexual activity between children and adults 6 items; and

(d) Category 4 CEM, penetrative sexual activity between children and adults 2 items.

Making a total of some 58 images and /or videos

16 A representative sample of child abuse material located on your mobile phones can be described in the following way:

(i) video photograph files of a female (Taco) approximately 12 years of age exposing her breasts (CAT 1);

(ii) a video of two minutes depicting a naked female, approximately 14 years of age, washing her body in the shower (CAT 1);

(iii) photos depicting females aged between 10 and 14 years of age naked and in various poses exposing their breasts and genitals (CAT 1);

(iv) a video of 1 minute and 45 seconds depicting a female aged between seven and nine years with her legs open. The child spits saliva on her genital region before inserting an object into her vagina. The child continues to spit on her genitals before smacking and rubbing herself on the surface of her vagina and inserting a finger into her vagina (CAT 2);

(v) a video of 59 seconds depicting a naked female aged approximately 13 years performing a solo sex act with a sex toy (CAT 2);

(vi) a video of 56 seconds depicting male and female children approximately 12 to 13 years of age engaging in a sexual act where the boy is observed kissing the girl's exposed breasts (CAT 2);

(vii) a video of 1 minute and 40 seconds depicting a naked female approximately 13 years old performing a solo sex act masturbating with a hairbrush into her vagina (CAT 2);

(viii) a video of 57 seconds depicting two females aged between 9 and 12 years. One of the children is almost entirely naked. During the video, the children are kissing each other whilst one masturbates the other. One of the children then performs a sex act on the other child (CAT 3);

(ix) a video of 59 seconds depicting a female aged approximately eight years in a bedroom. The female child is shown lying on a bed looking upwards. An adult erect penis enters the frame and the child engages in fellatio (CAT 4).

17 Pursuant to the Serious Offender Provisions of the Sentencing Act 1991, Charges 3, 4 and 5 are sexual offences within the meaning of Part 2A. As you will be sentenced to a term of imprisonment in respect of each of those offences, you fall to be sentenced as a serious sexual offender in respect to Charge 5. Accordingly, I must regard protection of the community from you as the principal purpose for which sentence is imposed on you in respect to that charge.

18 You are the youngest of three children in your family. You grew up in Melbourne's northern suburbs. You told Mr Patrick Newton, psychologist, whose report dated 19 November 2020 is Exhibit 2, that your family enjoyed a good standard of living. Further, you told Mr Newton that your parents provided a generally nurturing environment for you. You described a persistent sense of difference from others, feeling excluded by your sisters and feeling distant from your father, who worked long hours. Mr Newton opined that your relationship with your mother was a particularly complex one, and this appears to have been contributed to, at least in part, by her unstable mental health; you reported to Mr Newton that your mother suffered from bipolar affective disorder. Your parents' relationship deteriorated over time, and they divorced when you were aged 19 years.

19 You attended Greenvale Primary School until the end of Grade 2. You informed Mr Newton that you experienced difficulties concentrating and focusing your attention. You attributed these difficulties to Attention-Deficit/‌Hyperactivity Disorder (ADHD), although you were not formally diagnosed with this disorder until adulthood. You told Mr Newton that you were ostracised and teased throughout your schooling. From Grade 3 until the completion of Year 12 you attended Overnewton Grammar School. During Years 7 to 12 you were suspended from school on seven occasions. You have not completed any post-secondary vocational training. Your work history has been confined to labouring jobs, particularly landscaping.

20 You have had two age-appropriate sexual relationships: one when you were aged 16, that continued for approximately four years, and another when you were aged 22, which lasted approximately 18 months. You reported to Mr Newton that the latter relationship broke down because of the combined effects of your drug use and your repeated sexual relations with other women.

21 You have an extensive engagement with online pornography, sexual chat and similar activities. You reported to Mr Newton that this typically occurred when you were under the influence of illicit drugs, including both cannabis and methyl‑amphetamine. From your early to mid-teens you accessed "mainstream" pornography. However, you progressed to increasingly divergent material in order to obtain arousal. Your interests progressed to encompass "bondage and discipline", and from these to include material depicting women in increasingly humiliating positions. When this was insufficient, you resorted to child abuse material to obtain arousal. Mr Newton comments that it was this behaviour that provided the context for the charge that was dealt with in 2017.

22 You described to Mr Newton a pattern of compulsive masturbation that included masturbating multiple times every day, and that you would neglect other activities to pursue your interest in pornography and engage in online chat around such topics. Your masturbation has been so intense that you have repeatedly developed penile abscesses.

23 You have an extensive history of substance abuse. You commenced drinking alcohol when aged 13. You developed into a heavy drinker, and this continued until you entered a residential detoxification program, DayHab. Your participation in this rehabilitation was prompted by your court appearance in 2017, and you had no offence-specific treatment as part of this program. Whilst at DayHab you remained abstinent from drugs. However, you instructed Mr Newton that in the context of loneliness you relapsed into drug abuse in 2018 and returned to compulsive masturbation and to searching the internet for material to facilitate your fantasies.

24 Diagnostically, you meet the DSM‑5 criteria for severe methamphetamine-use disorder and a severe cannabis-use disorder. However, Mr Newton reported these conditions are now in remission in a controlled environment.

25 You reported to Mr Newton that in your mid-twenties you had your first experience of depression, and you were prescribed Zoloft by your general practitioner, which you continue to take and believe to be helpful. You have consulted psychologists and psychiatrists, but in connection with your drug abuse, rather than in connection with your mental health problems. You have been diagnosed as suffering from adult ADHD and you are prescribed Ritalin.

26 For a period of approximately 14 months between August 2019 and October 2020 you were an inpatient client at Refocus Rehab, Melbourne. You were admitted for treatment for substance-abuse disorder and alcohol abuse (see Exhibit 4). This rehabilitation program was primarily directed towards your drug and alcohol abuse, and there were only limited aspects of this program directed to your offending conduct.

27 Mr Newton opined that there was no evidence that you suffered from any form of thought disorder or psychosis, that you were fully aware of the moral context of your actions, and that your intelligence was estimated to fall in the high end of the normal range.

28 Mr Newton undertook a risk assessment of you, using Static-99R and RSVP. You represent a high risk of recidivism of offences of the kind to which you have pleaded guilty.

29 Since April 2020 you have sought treatment from Mr Burrows, whose report dated 18 November 2020 is Exhibit 3. You have consulted Mr Burrows on 19 occasions. During these consultations, the factors which motivated your offending have been identified as you having dysfunctional sexual arousal patterns, unmet intimacy needs, and low self-esteem and feelings of inadequacy. You also have poor coping mechanisms in respect of your substance abuse. You reported to Mr Burrows a long history of engaging in paedophilic fantasies, and this included your offending behaviour. During treatment you initially demonstrated a limited understanding of the destructive impact of your conduct, but your understanding has improved over time.

30 Mr Burrows reported that relapse-prevention planning has been introduced to assist you in developing strategies to reduce your risk of re-offending and to improve your ability to regulate your behaviour. However, you present as a man with significant psychosexual issues.

31 A bundle of references became Exhibit 5 on the plea, and included a reference from your father, Mr Mark Chenhall, who gave evidence on your behalf on the plea. A further reference was authored by your father's present wife, Nicole Chenhall, as well as your former employer, Mowjo's Gardening Service, and a friend, Mr Dashiell Bourke, a psychiatric enrolled nurse.

32 Mr Bourke wrote that you have expressed genuine regret, guilt, and deep shame for your actions and your previous thoughts and feelings. He wrote that you are deeply distressed about your behaviour, and that you expressed to him that you would rather commit suicide than ever engage in your offending behaviour again.

33 Your previous employer, Mowjo's Gardening Service, for whom you have worked on and off for 10 years, noted that you resigned in April 2019 because you did not want to let your employer down. Your employer is familiar with your prior offending, your current charges, and your attempts at rehabilitation. Your employers wrote:

"He has grown as a human and now takes full responsibility for his actions, he is ashamed of what he has done but appears incredibly positive about his future."

34 Your employer has no issue with re-employing you in the future.

35 Your stepmother, Nicole Chenhall, writes of matters about which she has been informed in respect to your upbringing, but more importantly wrote as to the restrictions imposed on your family members and yourself due to the COVID restrictions whilst you were an inpatient at Refocus Rehab.

36 Your father wrote that you were proud of your progress in recovery, whilst ashamed of your past behaviour. Further, he wrote that you are upset and saddened by the fact of your offending and that you have developed a real empathy for your victim's pain.

37 As a result of the offending which resulted in the 2017 conviction you approached your father, saying to him "I need help." Your father has financed each of your rehabilitation programs, together with your treatment from Mr Burrows. Your father gave evidence in respect to your time at Refocus. You were not permitted any contact with the outside world for the first 28 days, and during the COVID‑19 pandemic you were not permitted visitors of any kind. There was a period when you were locked down in the house with 12 other patients for a period of two weeks, but you were permitted daily telephone calls and treatment by Mr Burrows and others by Zoom. Your father swore that you were committed to getting better, that you have taken full responsibility for your conduct, and that you do not blame others for your conduct.

38 Ms Shan of counsel, who appeared with Ms Dwyer of counsel on your behalf, referred to the extracts in support of Charge 1 and, in particular, extracts 11, 13 and 17, which she submitted were consistent with you communicating with persons who were not under the age of 16. She sought to emphasise the element in Charge 1, being your belief as to the persons with whom you were communicating being under the age of 16 in contrast to it being elemental in that charge, that the persons you communicated with were in fact under 16.

39 Further, Ms Shan emphasised your voluntary engagement in onerous treatment at the Refocus Alcohol and Drug Rehabilitation Program for a period of 14 months, which included restrictions on you resulting from the COVID-19 pandemic.

40 Likewise, Ms Shan emphasised your treatment with Mr Burrows and described participation in a sex offender treatment program as confronting.

41 Ms Shan submitted that in combination the inhouse rehabilitation at Refocus, together with the treatment by Mr Burrows, demonstrates that you are truly someone committed to change.

42 Ms Shan eschewed any reliance upon the principles set out in The Queen v Verdins,[1] in her written submissions. (Exhibit 1) She submitted that you do not want a sentencing benefit for being unwell, but rather you want to be well in all respects, to become someone that can be trusted to live within the community and someone of whom your father is proud.

43 Ms Shan acknowledged that the only appropriate sentence in all the circumstances was one of immediate imprisonment and emphasised that you will be subject to the restrictions placed upon all prisoners as a result of the COVID-19 pandemic.

44 Ms Shan submitted that you were entitled to the benefits of your early plea, being that it is some evidence of your remorse and that it has utilitarian benefit. However, Ms Shan further submitted that as you were pleading guilty during the COVID-19 pandemic, this fact required an unprecedented utilitarian benefit should be allowed to you. In support of this submission, she relied on the sentencing remarks of Croucher J in R v McNamara,[2] and the cases cited therein. Those cases are DPP v Bourke[3], the sentencing remarks of J Dixon J, and The Queen v Nolan,[4] the sentencing remarks of Taylor J.

45 Whilst it is plain from the reasoning of Croucher J in McNamara, and J Dixon J in the sentencing remarks in respect of Bourke, why extra weight was given to the issue of utilitarian benefit, it is not so clear to me why Taylor J gave extra weight to utilitarian value in Nolan.

46 Each of the authorities to which I was referred are sentencing remarks of Justices of the Supreme Court who were exercising their individual sentencing discretions in respect of persons charged with crimes including murder, reckless conduct endangering life and manslaughter. The matters which acted upon their Honours' sentencing discretions are not matters binding on me.

47 In the present circumstances, I can see no reason why, bearing in mind the history of this prosecution, that there is any greater utilitarian benefit flowing to you from your plea because it took place during the COVID-19 pandemic.

48 You were charged on 2 August 2019 with one charge of possessing child exploitation material, and thereafter further charges were laid against you. Negotiations followed the filing of the hand-up brief, which contained more charges than appear on the indictment. However, the matter resolved in the normal way with pleas of guilty being entered on 26 June 2020. To my mind, there is nothing out of the ordinary in this process. You will be given the benefit of the utilitarian value of your plea, but nothing extraordinary arises out of it having occurred during the COVID-19 pandemic.

49 Ms Shan acknowledged that the nature of your offending was grave. That Charge 1 involved you participating in indecent communication on 11 separate days over a period of approximately three months. However, she submitted that in respect of the possession of child pornography charge (as she described Charge 5), there is a relatively low number of images and videos. Further, she submitted, the majority of the videos and images are of the lowest category of seriousness.

50 Further, she submitted there was an overlap between charges 1,3,4 and 5.

51 Ultimately, Ms Shan submitted that in respect of the State offences, that a straight sentence could be imposed in respect of them, and that in respect of the Commonwealth offences, that an appropriate sentence fell within the range where a Recognisance Release Order could be made in respect of you.

52 Ms Holmes of counsel, who appeared on behalf of the Commonwealth Director of Public Prosecutions, submitted that in accordance with authority, namely R v De Leeuw,[5] that in respect to pornography offences, general deterrence is the primary sentencing consideration, that limited weight is given to an offender's prior good character, and that offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography. Further, offending involving child pornography is difficult to detect, given the anonymity provided by the internet, and that possession of child pornography material creates a market for the continued corruption and exploitation of children. Further, that possession of child pornography is not a victimless crime and that children are sexually abused in order to supply that market.

53 In respect to Charge 1, Ms Holmes noted that it was a rolled-up charge and she submitted that it represented a serious example of offending of its kind. She did so on the following bases:

(a) you requested the victim's age, sex and location at the outset of each conversation;

(b) you generally commented to the victims on their sexual appearance;

(d) you transmitted photos of your erect penis (24 in total) and videos of you holding or masturbating or thumping your penis on a benchtop (10 in total) to the victims whom you believed to be between the ages of 10 and 15 years; and

(e) none of the victims were identified by authorities.

54 In respect to Charge 2, Ms Holmes emphasised the importance of those subject to the provisions of the Sex Offenders Registration Act complying with their reporting conditions. Not to do so is to defeat the purpose of the legislation.

55 As to Charge 3, Ms Holmes made no specific submissions. However, she emphasised general sentencing principles in respect to offences of this kind. It must be noted that the child pornography transmitted to you only resulted from persistent importuning of "Taco".

56 As to Charge 4, Ms Holmes submitted that on the same day that you received images transmitted to you from "Taco", you shared one of those images on a KiK public chat group. The image depicted a 12 year old girl, exposing her breasts. Although you distributed only one image, it was published to a public group chat, and potentially will remain on the internet forever.

57 In respect to Charge 5, possession of child abuse material, it was conceded by the Crown that you did not possess this material for sale or profit. You did possess 58 videos and images which constituted child abuse material, and the material was classified as ranging between CEM1-4, although, the vast majority of images were CEM 1 or CEM 2.

58 Ms Holmes acknowledged the benefits which you must receive as a result of your plea of guilty, but placed emphasis upon general deterrence and, in your case, specific deterrence, as you constitute a high risk of re-offending in a similar way.

59 Despite the efforts that you have made in respect to your rehabilitation, I regard your prospects for rehabilitation as guarded.

60 Finally, Ms Holmes acknowledged that, I must take into account any sentence that you serve will be subject to the restrictions imposed upon all prisoners as a result of the COVID-19 pandemic.

61 Mr Chenhall, you spent approximately 14 months in residential rehabilitation, principally in respect to your abuse of methylamphetamine and alcohol. The conditions under which you underwent rehabilitative treatment were stringent, and I must take this into account in arriving at an appropriate sentence in your case.

62 You entered your plea at an early stage in the proceedings and you are entitled to the benefit that flows to you from that plea, being that it is some evidence of your remorse and that it has utilitarian benefit. You have undertaken 19 sessions of a sex offender treatment program conducted by Mr Burrows, during which you have gained some insight into the consequences of your conduct on your victims. You express a commitment to rehabilitation.

63 However, you have been assessed by Mr Patrick Newton, psychologist, as being at high risk of re-offending and, protection of the community from you is the principal purpose for sentencing you in respect to Charge 5.

64 You have significant psychosexual issues. Upon release from prison, you will require intensive treatment. You are fortunate to have support, both emotional and financial, from your father, and work to go to upon your release.

65 However, I regard your offending as serious examples of offending of the kind. Your significant psychosexual issues are longstanding and your prospects for rehabilitation are guarded at best, despite your endeavours to rehabilitate yourself.

66 You are an appropriate vehicle for the application of the principles of general deterrence and specific deterrence. Your conduct must be publicly denounced, and you must be justly punished. In my opinion protection of the community must play a significant role in arriving at an appropriate sentence in your case.

67 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.

68 In respect to Charge 5, you are convicted and sentenced to two years' imprisonment.

69 In respect to Charge 2, you are convicted and sentenced to 12 months' imprisonment.

70 I order that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 5. This results in a total effective sentence of two and a half years' imprisonment and I fix a period of 18 months' imprisonment as a period of imprisonment that you must serve before you will become eligible for parole on the state offences.

71 In respect to the Commonwealth offences, I sentence you as follows.

72 On Charge 1, you are convicted and sentenced to 2½ years' imprisonment.

73 On Charge 3, you are convicted and sentenced to 2½ years' imprisonment.

74 On Charge 4, you are convicted and sentenced to 12 months' imprisonment.

75 I order that the sentence imposed on Charge 1 commence 6 months prior to the expiration of the non-parole period set on the State charges. I order that the sentence imposed on Charge 3 commence 12 months prior to the expiration of the sentence imposed on Charge 1. I order that the sentence imposed on Charge 4 commence six months prior to the expiration of the sentence imposed on Charge 3.

76 The result in respect of the Commonwealth offences is a total effective sentence of four years and six months. I fix a non-parole period of three years' imprisonment, which I order to commence six months prior to the expiration of the non-parole period fixed for the State offences.

77 The effect of these sentences is to arrive at an overall total effective sentence of five years and six months' imprisonment with a non-parole period of four years' imprisonment.

78 I declare that in respect to Charge 5 you are sentenced as a serious sexual offender and I direct that the fact of you being so sentenced is to be entered in the records of the court.

79 Something that I did not do, counsel, for which I apologise. I have calculated pre-sentence detention as 16 days, not including today, is that correct?

81 I declare that you have spent 16 days by way of pre-sentence detention not including today.

82 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty I would have sentenced you to eight years' imprisonment with a non-parole period of six years' imprisonment.

83 Per force of the provisions of the Sex Offenders Registration Act, you are registrable for life.

84 Mr Chenhall, do you have with you the documents in respect to the Sex Offender Registration Act?

86 HIS HONOUR: Is there a prison officer present in the room with you?

88 HIS HONOUR: Are you able to summon a prison officer?

90 HIS HONOUR: Would you be so kind as to do so?

91 OFFENDER: The judge told me to summon a prison officer.

92 PRISON OFFICER: Yes, judge. Hello, Your Honour?

93 HIS HONOUR: Yes, madam prison officer. Forwarded to your records department yesterday were documents in respect of Mr Chenhall that related to the provisions of the Sex Offender Registration Act and they were to be present with him in the room when he was sentenced. A prison officer almost 40 minutes ago was sent away to obtain those documents for Mr Chenhall's signature. Could you ascertain where those documents are please?

94 PRISON OFFICER: Yes, Your Honour, I'll ask now.

97 MS HOLMES: Your Honour, I think there was some confusion because as Your Honour came on the Bench the prison officer was saying, 'What paperwork, I don't know anything about paperwork?' And then that's when Your Honour came on the Bench. So I don't think anyone went to look for it.

98 HIS HONOUR: Well, we could be here all day then. We'll see what happens. Now whilst we're waiting for that, were either counsel able to find an error in my maths?

101 HIS HONOUR: Thank you very much. While we're waiting, there was an application made on behalf of the Crown in respect to the forfeiting of the two Apple iPhones and I make that order.

103 HIS HONOUR: If I could seek the assistance of counsel. I have another prisoner to sentence. He's going to be in that same room as Mr Chenhall. Now the documents we're waiting upon, on their face, must be signed in the presence of the associate and then once they're sent to me I sign them. But more importantly, Mr Chenhall gets a copy of his signed document to retain in his personal records. Now I can check fire for a further 10 minutes but after that it becomes increasingly difficult for me because I'll lose the link to the prison at 12 o'clock sharp. What does counsel say to the proposition that if the documents are not with Mr Chenhall by 11.30, that they be signed in the absence of my associate or in my absence?

104 MS HOLMES: With respect, Your Honour, perhaps if Your Honour proceeds immediately to doing the other sentence and Mr Chenhall waits outside the room, if possible, if the prison officers will allow that. So that after the conclusion of the other sentence, if the paperwork's been found, that can be done in the presence of Your Honour's associate.

105 HIS HONOUR: I've been told that's probably going to be inviting difficulties, but I'll just recheck that. I beg your pardon. I've misunderstood what I was told, as is my habit. Another judge needs this room. So once Mr Chenhall's out of it, he's out of it. So we'll check fire until - yes?

106 MS HOLMES: Perhaps, Your Honour, given that the only requirement is for it to be done in the presence of Your Honour's associate, once the paperwork is found perhaps Your Honour's associate and Mr Chenhall could simply have a link while he signs it. Cause I'm not optimistic that they'll find it today, just from my knowledge of how these things have worked in the past.

107 HIS HONOUR: Yes, well in the past, knock on wood, it's been as smooth as silk.

109 HIS HONOUR: The documents have been on the table and they've been ready to be signed. So look, I'll just - bear with me until half past. If nothing has happened at that stage then what will happen is that we'll endeavour to have them signed in another form.

111 HIS HONOUR: Are you content with that Ms Dwyer?

113 HIS HONOUR: Mr Chenhall, have you heard what's passed between myself and counsel?

115 HIS HONOUR: It works like this, and this isn't meant as a backhander. You're no stranger to this process, and by that I mean the documents that are being provided - well, are to be provided to you are documents notifying you of your obligations under the Sex Offender Registration Act for you to sign. It's simply an acknowledgement by you of receipt of the documents. It's formalised by normally being done in the presence of my associate and whilst we can observe you signing it on the television screen we meet that qualification. But what I'm doing is eating up another judge's time and also eating up time in respect of another man who is awaiting his sentence.

116 Now in some respects what we're waiting on is a very procedural mater, but it is an important procedural matter. So I think - well, Mr Chenhall, what I propose to do is to complete these proceedings and then make a reconnection with the prison in order for the signing of those documents and I won't hold up counsel or you any longer. So I'll stand down till the next matter. And I want to thank counsel for their assistance in this matter.

120 HIS HONOUR: Right, Mr Chenhall, can you hear and see me?

122 HIS HONOUR: Right, did they provide you with a pen?

127 OFFENDER: They're chasing one up, Your Honour. Thank you.

128 HIS HONOUR: Thanks, Mr Chenhall. Is the prison officer still in the room?

130 HIS HONOUR: All right. Well, you're going to have to do half the work. If you go to the back page you'll see "H - Acknowledgment".

132 HIS HONOUR: Would you be so kind as to sign that for me.

134 HIS HONOUR: All right. Now what you need to do is to give that to prison officer and tell them that it's to be forwarded back to my associate, that is a scanned copy and you're to retain the hardcopy that you've signed for your own records. Do you understand?

136 HIS HONOUR: All right. Thanks very much for that.

[1] [2007] VSCA 102; [2007] 16 VR 269 (???)

[2] [2020] VSC 705 at [170]

[3] [2020] VSC 130

[4] [2020] VSC 416

[5] [2015] NSWCCA 183 at [72]