DPP v Spokes [2025] VCC 830

49M(1) of the Crimes Act 1958

321M of the Crimes Act 1958 and Supply drug of dependence to a child contrary to s.71B(1) of the Drugs, Poisons and Controlled Substances Act 1981.

Encourage a Child under the age of 16 to be Involved in Sexual Activity

Encouraging a child under the age of 16 to engage in or be involved in sexual activity, contrary to s 49K(1) of the Crimes Act 1958

Sexual Assault of a Child under the age of 16 (touching on breasts and legs - Rolled up) 27-28 April 2024

49D(1) of the Crimes Act 1958

(rolled up into child contact and play station username)

S46(1) Sex Offenders Registration Act 2004

Use optical surveillance device to record private activity 27-28 April 2024

1. The offending involves sexualised grooming and contact offending against a 14-year-old child, as well as breaches of protective statutory requirements that arise from previous sexual offences you have committed.
2. You are a severely compromised individual, born with an intellectual disability that has all but eroded your ability to function properly in the world. Your life has been punctuated by interpersonal conflict, offending (sometimes, such as here, sexually) and inevitable contact with the criminal justice system. You have a very poor history of complying with any orders designed to curb and manage your behaviour.
3. There are a number of mandatory statutory considerations in this exercise, not least of all, it is a standard sentence[1] (Charge 4), and you are a serious sexual offender.[2]
4. What is put in mitigation is:

(a) This is an early plea of guilty with real human savings and utilitarian benefit.

(b) Your intellectual disability (and the supports available to you) is important.

(c) The application of the limbs of Verdins[3] that mitigates sentence.

1. Your Counsel urges me to sentence you to a combination sentence involving a term of imprisonment followed by a tailored CCO (ideally with a Justice Plan).
2. The Crown submit that given the serious nature of the offending and your prior criminal history, a sentence involving a head sentence and a non-parole period would ordinarily be within the range but they make an important concession here, that a combination sentence with a Justice Plan may be open in the unique facts of this case.
3. I indicated that if you were to plead guilty to the above charges, dependent on your suitability for a CCO/Justice Plan, I would impose a combination sentence.[4] You did plead guilty on 12 December 2024. You were assessed as unsuitable for a CCO, but you did not seek to change your plea.
4. The matter was adjourned to February for further plea. The CCO assessment process was incomplete. Although you were unsuitable, there was no Justice Plan provided. The matter was adjourned to 17 June to allow for such a plan to be prepared and allow for the CCO assessor to review your suitability. Again, you were found unsuitable.
5. Given your intellectual disability and the fact that it does not appear that you have previously participated in an intensive rehabilitation program for sexual offenders, the Crown submit that a combined sentence of imprisonment with a Justice Plan would be within range at this point in time.
6. The Crown conceded that time served would be a sufficient for the custodial component of a combination sentence, but moreover presumably saw the benefit, as I do, in having a certainty of a release date, and the guarantees of treatment available under a Justice Plan that you appear to be suitable for and keen to engage in.
7. Although you are not suitable for a CCO, and that does concern me greatly, it is not determinative of the outcome.
8. I am going to sentence you to a term of imprisonment of 16 months, combined with a community corrections order (with a Justice Plan component of two years). You will also be the subject of Judicial Monitoring.

Introduction to offending, offenders and the complainant [5]

1. You were 28 years old and living in Yeoman Street in Melton. You were not working, and you were supported by the DSP and NDIS.
2. On 15 June 2023, you were convicted of charges of sexual penetration of a child under 16, sexual assault of a child under 16 and supply drug of dependence to a child. You were sentenced to a term of imprisonment.
3. You were put on the Sex Offenders Register and ordered to report to the Chief Commissioner of Police under the Sex Offenders Registration Act (SORA) for life.
4. As part of your reporting obligations, you participated in an annual interview conducted by police. The interview took place on 16 April 2024, in the presence of two independent people, at Melton. During this interview, your obligations were explained in full, and they included:

(a) You must report any contact with a child under 18 years within 24 hours, including physical contact and electronic communication.

(b) to report any internet account/social media usernames.

1. You signed an acknowledgement of reporting obligations on 17 April 2024. There is no suggestion that you misunderstood your obligations.
2. The complainant was aged 14 and in the care of the Department of Families, Fairness and Housing (DHFH) and resided at supported residential accommodation in Ballarat. She was a child and very obviously a child - even to you.
3. You spent a lot of time with your cousin. He lived at Hyacinth Grove in Wendouree. He was not working and was supported by the DSP and NDIS.

1. You were with your cousin on Friday, 26 April 2024. On that afternoon, you boarded a Melbourne train at Ballarat. You and your cousin were headed to his home in Melton.
2. The complainant boarded at the same time, and she sat in the same carriage near you and your cousin. You struck up a conversation with her and asked her for her phone number. She gave you her phone number and added you on Snapchat.
3. During that train trip, she told you that she was 14.
4. You and your cousin got off at Melton. Almost immediately afterwards, you began messaging the complainant from your mobile. You gave her your number under the name 'Daniel Epworth' and then you sent messages intended to flatter her and flirt with her, with the intention of engaging in sexual acts with her. You told her the following, which is related to proving Charge 1 - grooming child under 16 for sexual conduct

(a) 'I don't know if you noticed but I like you

(b) OK you're gorgeous looking

(c) What would you say if I asked you out

(d) Will you be my gf

(e) ???

(f) I will treat you like a real lady should be treated

(g) I was checking you out and your bum the hole time'.

1. The complainant was responding briefly with 'OK' or 'IDK' '(I don't know'). She thought it was creepy. She continued her trip to Melbourne CBD.
2. The next day, Saturday 27 April 2024, at about lunchtime, she was taking the train back to Ballarat and posted on her Snapchat story, 'Who wants to hang out?' You responded, messaging her again. You asked her where she was and asked her to come to your house. You gave her an address and a Google link map, but before she got to Melton, you had the presence of mind to say 'don't come over now' because your support workers were there.
3. At 4.04pm you again asked her to let you know if she came to Melton, and that you had a jumper for her. You sent her emojis and love hearts. The complainant met you and your cousin at Melton train station at about 6.30 pm, where you travelled to Ballarat.
4. You all then went to a fish and chip shop in Kline Street. You met your uncle, Gavin Anderson, at the shop.
5. Your uncle was concerned about the complainant being in the company of you and your cousin. She appeared to him to be only about 12 years old. Anderson took a photo of the complainant on his phone. You falsely told him her name was 'Stacey'. Anderson told you and your cousin that he was concerned they were hanging out with a young girl.
6. Anderson paid $150 for your iPad and left. You used that money to buy cannabis. You, the complainant and your cousin travelled by train to Wendouree and walked to your cousin's unit.
7. When you arrived at the house, you were in the living room. At the time, the complainant removed her skirt as it was uncomfortable, but was wearing tights and a long jumper.
8. Your cousin put Pornhub on his PlayStation, which was playing in the living room.
9. He went upstairs to have a shower, leaving the complainant with you. You kept asking the complainant to smoke cannabis from a bong, but she said no. Charge 2 - attempted supply of a drug to a child
10. While your cousin was in the shower, the complainant went to the toilet downstairs, and you followed her, opened the door and took videos and/or photos of her on the toilet using your Samsung phone. She told you to 'get the fuck out'. (Related summary Charge 9 - use optical surveillance device)
11. Later, when your cousin came downstairs, they both told you to delete the photos from your phone. The complainant wanted you to delete them in front of her so she could check that it had been done. She saw you delete the images.
12. You began asking the complainant to engage in various sexual acts with you. You asked her to kiss you and dance for you, and to get naked. The complainant did not want to and did not feel comfortable. You also asked her to have sex, but she did not want to. You kept on telling her to take her clothes off and 'fuck you'. (Charge 3- encourage a child under 16 to engage in sexual activity)
13. You were trying to get her to sit on your lap and kept touching her. You touched her breast. You also touched her bottom and between her legs. You were trying to get your hand between her legs. You tried to slide your hand under and she said 'don't you fucking dare'. (Charge 4 - sexual assault of a child under 16)
14. At some point in the evening, black zip ties were placed on the complainant's wrists like handcuffs. They were later cut off. You, the complainant and your cousin played Strip poker using a pack of cards.
15. The complainant went upstairs to your cousin's room, and you followed her in. You tried to get her to have sex with you, but she would not.
16. Ultimately, you went into the spare bedroom upstairs, and the complainant and your cousin were in your cousin's room.
17. The complainant then engaged in sexual intercourse with your cousin.[6]

1. When Anderson got home, he decided to call the police about the complainant. He called Triple 0 and provided your name, your cousins and the complainant's first name. He provided your cousin's address.
2. At about 12.30 am on Sunday morning, police received the call. At 2.05 am, they attended your cousin's address for a welfare check on the complainant, who had been listed as missing.
3. Your cousin opened the door. You were still in the spare bedroom upstairs. The complainant was in the upstairs room and wearing a long Everlast jumper and no pants. Her skirt was on the couch downstairs.
4. Police asked you how you knew the complainant, and you said she was your sister. He then said you were like an older brother, but were not a blood relative.[7]
5. Police observed bongs and the smell of cannabis, but no cannabis itself.
6. They took the complainant back to her residential accommodation at about 2.30 am.
7. At 2.12 pm, you sent a message saying '[My cousin] wants to know if you're ok'.
8. The same day, CAFS worker Lauren Baldwin started her shift at the complainant's residence. The complainant told her that her glasses got broken 'while she was getting fucked last night'. She would not say any more about it.
9. At about 4.30 pm, Detective Berry came to the residence and spoke to the complainant. The complainant showed her phone to Berry, and Berry took photographs of your messages.
10. Later that evening, at about 10:00 pm, Baldwin overheard the complainant speaking with your cousin on speaker phone.
11. You did not report this contact with the complainant between 26-27 April 2024 within 24 hours as required under the Sex Offender Registration Act. (Charge 5 - fail to comply with reporting obligations)
12. On 1 May 2024, the complainant made a statement by way of VARE.

1. On 2 May 2024, police officers executed search warrants at the home of you and your cousin.
2. You were arrested at your house in Melton. You had a Nokia phone, which was seized. You gave the police the PIN, and it was later downloaded.
3. Another warrant was executed at Hyacinth Grove. Photographs were taken. Scissors were observed on the floor by your cousin's bed.
4. You mentioned to police that cable ties had been used and pornography had been played on the PlayStation. On 9 May 2024, police returned to Hyacinth Grove to execute a further warrant.
5. A search was conducted of the garbage bins on the property, where they found zip-ties, which had been cut, wrapped in a large beige towel. They were photographed.
6. The PlayStation was seized. Your cousins account on the console was PIN protected, so police were unable to access it.
7. Your cousin's iPhone was seized and downloaded, and it showed searches for 'how to play strip poker' and the like.
8. The complainant was asked by police to make a further VARE, and on Monday, 17 June 2024, at her residence, she made a second VARE.
9. Your PlayStation was seized and downloaded. The PlayStation had two separate user accounts. One was in the name of Daniel Spokes, which had been reported to police. But the other account under 'boxy-brick63' had not been reported to police. Both accounts were logged in at the time police attended.
10. An analysis of the PlayStation accounts shows that both accounts searched for and accessed the same genre of disturbing pornographic material, as did your mobile phone. These accounts search for young female and rape-themed pornography. The prosecution alleges the same person is using both accounts - namely, you. (Charge 5 - fail to comply with reporting obligations)

1. You were arrested and taken to Ballarat police station, and participated in a record of interview under caution with an independent person.
2. You agreed to being present at your cousin's house with the complainant but denied any offending. Your account changed at times of when and how you met the complainant and the circumstances.
3. You said:

(a) you and your cousin met your uncle at the fish and chip shop, just then they went back to Wendouree (Q163-167)

(b) you bought half a bag of choof (Q154-158)

(c) then you and your cousin went to his place to have a mix (Q168-170)

(d) you had few cones then your cousin went for a walk, and came back with a girl (Q183)

(e) later you said the three of them went to the fish and chip shop to buy more choof, this was the second time (Q612-613)

(f) you did nothing to the underage girl, because you were in your room smoking bongs (Q221)

(g) your cousin was playing strip poker with her when you was upstairs, using a pack of cards (Q226,553)

(h) she had no pants on, she and your cousin were both naked (Q230,266)

(i) you told her she's a little girl, to put her clothes on and pull her head in (Q231-234)

(j) you had told police 'she's young enough to be like a little sister' (Q241)

(k) you said it was your bong and bowl of choof (Q255-6)

(l) you offered it to her when she arrived, and she said no (Q258-260,303-305)

(m) they were watching porn on your cousins PlayStation (Q264)

(n) you did go to slap her once because she was being smart- but you just said you were but you didn't do it (Q328-329)

(o) she told you she was 18 on the train (Q306)

(p) you denied having her contact details, saying it was your cousin who got her number on the train (Q273-276)

(q) you denied communicating with her after you met her on the train, as you did not have her number (Q287-288)

(r) you denied sending the messages on Friday and said your cousin must have used your phone (Q453-491)

(s) although you did send the last one about the workers being there (Q495)

(t) the message sent on Sunday must have been your cousin because you gave him her number (Q536)

(u) you then explained that your cousin asked for her number but put it in your phone as his phone was dead, and then deleted it (Q571-2)

(v) you denied taking photographs of her and asked the police to check your phone (Q313-318)

(w) you denied asking her to cuddle and kiss her (Q320)

(x) you denied putting your hand between her legs (Q325)

(y) you knew you had to report within 24 hours any contact with a child (Q360,381)

(z) you didn't report the contact as the police officer said he was going to (Q347-8)

(aa) you know that you have to report if you change your email or PlayStation account (Q352)

1. None of that account, Mr Spokes, is particularly truthful. As one can see, you are well capable of deceit and deflection of responsibility.

1. This matter has had a reasonably long history that I have set out in very brief terms:

Offending of sexual penetration of a child under 16, sexual assault of a child under 16 and supplying a drug of dependence to a child.

DPP v SPOKES [2024] VCC 1068

Two MC sentences of imprisonment imposed wholly concurrent with County Court sentence.

Released from custody with no conditions.

With a specific release date to work to, substantial planning went into preparing for SPOKES release (including supported independent living, and NDIS supports).

Meets complainant for first time at train station, Ballarat

Meets up with the complainant and they attend Ballarat and then onto Wendouree.

SPOKES at large for only 32 days.

ANDERSON calls police saying a girl was with 2 known sex offenders. Police attend [Spoke's cousins] address, locating him and SPOKES and the complainant. No offences are disclosed by the complainant to police.

SPOKES arrested and remanded into custody.

PSD commences

[Spoke's cousin] is arrested and remanded into custody.

Defence indicate to the Crown that SPOKES wished to seek a sentence indication on the basis of certain (but not all) charges.

Crown respond with a counter-offer for the purposes of the sentence indication. SPOKES subsequently instructs he wanted to proceed with an indication on the basis of the counter-offer.

1. Offences committed against children, particularly sexual acts, can only be regarded as serious within the criminal legislative framework.
2. The sexual assault charge alone carries a maximum penalty of 10 years (rolled up). It is also a standard sentence charge of 4 years. You have pleaded guilty to attempting to supply a drug to a child (something for which you have a prior conviction as well), and you encouraged her to engage in sexual activity and breached your SORA obligations.
3. In assessing the general gravity of the offending, the court must have regard for the fact that sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. The legislative scheme means that a child under 16 cannot consent. This prohibition has the dual purpose of protecting the child from harm that can come from premature sexual activity and deterring adults like you, who would contemplate having sexual activity with someone under the age of 16. This prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent (even if that was the case here).[8]
4. Your Counsel says the following about the offending.
5. The offences against the complainant all occur within a 36-hour period from when you met the complainant until Sunday, 28 April 2024, when police found you and the complainant at an address in Wendouree.
6. It is acknowledged by her age and her being in out of home care, that she was a vulnerable complainant. There was no evidence that she was cognitively impaired to you.
7. In assessing the objective gravity of the offence, it is submitted that these factors are relevant:

(a) The words or conduct that form the basis of this charge are particularised as the content of the Snapchat messages on 26 April 2024.

(b) The conduct is limited.

(c) The conduct does not contain threats, violence or abuse.

(d) The communication does suggest a further meet up, even though it does not eventuate in the way that was suggested by you.

Attempted supply of a drug of dependence to a child (Charge 2)

(e) The drug is cannabis.

(f) The offer was not accepted by the complainant.

(g) The conduct is limited in duration, occurring on one night at one location.

(h) There is no evidence that the conduct was pre-planned. The offer to share cannabis is not discussed with the complainant by Snapchat prior to meeting up, and is not used as a way of convincing the complainant to meet up.

Encouraging a child to engage in sexual activity, and sexual assault of a child under 16 (Charges 3 and 4)

(i) The conduct does not contain threats, violence or abuse. The conduct did not cause physical pain or injury.

(j) The sexual touching on the breasts occurred over the complainant's clothes and is not alleged to be of a long duration.

(k) The sexual touching on the complainant's bottom and between her legs was forcefully rejected; and it is not alleged to be of long duration, and the touching was not skin-to-skin, the complainant was still wearing tights and a jumper.

(l) As the complainant continued to refuse your requests for sexual activity, you desisted and removed yourself to an upstairs room.

(m) That offending occurred in plain view, with you allegedly opening the door and entering the toilet. While confronting the complainant, it meant that the images were not made in secret by concealing the device.

(n) They were deleted upon request.

(o) This is an order designed to curb your use of devices and monitor your association with young people, which is dangerous for reasons that must be obvious to you, Mr Spokes. You deliberately and purposively breached these obligations.

(p) He is not charged as a co-accused, but he is present with you when most of the conduct the subject of these charges occurs. It is not alleged by the Crown that you were involved in the commission of any of the offences with him.

(q) The factors below relate to your cousins conduct alone, and ought to be put aside when considering your conduct (which is a submission that I accept) :

(i) The address in Wendouree where the complainant, you and your cousin are located is the latter's house; and

(ii) He temporarily placed zip ties on the complainant's hands (conduct which you deny, and are not charged with); and

(iii) He was the one who put on pornography within the view of a child; and

(iv) He had sex with the complainant in his upstairs room.

1. I have received no victim impact statement from the victim herself, although I can readily infer the harm done to her. The presumption of harm to children being prematurely exposed to sexual activity that I alluded to earlier is dealt with comprehensively in Clarkson.[9]
2. I have received a victim impact statement from the victim's father.[10] I have been careful in the way I approached his very articulate, informative and moving statement, as it appears to be the totality of crimes and violations visited upon his young daughter, not all of which are your doing.
3. He informs the Court that his daughter suffers from a complex disability profile that means that she has trouble navigating the world. She was a happy child until the offending. She is now traumatised, damaged and experiences severe emotional distress. She is embarrassed and humiliated at being the subject of a matter involving the Police. She is involved in increasingly

risk-taking behaviour and both fears and distrusts others. She self-harms. Her eating is restricted. She abuses substances. She has been unable to return to school. Her road to recovery will be long and arduous. He laments the way in which those who were responsible for her care had failed her.

1. You were 28 at the time of the offending and are 28 now. You were born with an intellectual disability, which has effectively defined your life.
2. You have been assessed by different experts as having a full-scale IQ of 58 or somewhere between 61-69.

1. I was provided with a large amount of material, all of which has been exhibited in this case.
2. Your personal circumstances are tragic.
3. The consensus[11] appears that you were eligible for disability services as early as 2008.
4. You have a diagnosis of mild intellectual disability. This is most apparent in the domain of executive functioning, particularly judgement and

self-management. 5. You have significant learning, emotional and behavioural difficulties. One only needs to spend a moment in Court with you to understand just how profound that is. You were educated in the special school system and have not managed employment. You have had recurrent contact with the criminal justice system and have been reliant on a network of disability supports, including accommodation and behaviour support, case management, guardianship and administration. 6. You meet the diagnosis of ADHD and the diagnostic criteria for antisocial personality disorder, likely manifesting in prominent traits of borderline personality disorder, which also reflect your moral attitudes towards offending, which are not merely standard features of your intellectual disability. 7. You exhibit significant behavioural disturbance, with recurrent serious attempts at self-harm, disorganised behaviour, and as a result, have been considered by correctional staff as warranting placement in management units or places of restricted regimes. This is likely to reflect an adjustment disorder with mixed disturbances of emotions and conduct. Your conduct in prison involves repeated and serious efforts at self-harm and speaks of your total lack of emotional regulation. 8. You have been granted a generous NDIS package, which is necessary to support you outside of prison.

1. You completed school to the age of 15 or so at a special school in Bendigo.
2. You have never worked. You have received the Disability Support Pension (DSP).
3. You are, as I said, a participant in the NDIS, and prior to remand, NDIS had housed you in specialist disability accommodation in Melton, where you had access to a 24/7 care team and were provided with a range of services, with significant monetary value.

1. You have an unhappy history of using cannabis (and it seems offering it to children), although it does not appear to be as causative of your offending as your compromised intellectual functioning does.

1. You admit a prior criminal history of 17 pages between 2014 to 2023. You have prior convictions for drug offences, weapons offences, violent offences, threats to kill, breaches of intervention order, breaches of bail, sexual offences, and breaches of CCOs.
2. You have been given the benefit, it seems, of every non-custodial disposition that the criminal justice system has to offer. You do not appear to have ever complied with one of them. It is a history, in fact, which is notable for its breach of orders.
3. You have been imprisoned for short terms before, usually measured in single figures of months. You have had multiple CCOs. You even had a Justice Plan in 2018.
4. As I said, as recently as June 2023, you were sentenced for sexual penetration of a child (course of conduct), sexual assault of a child under 16 and supply drug to that child. Judge Hassan sentenced you to one year and eight months' imprisonment, with a non-parole period of 318 days, meaning you were eligible for release immediately. I will have exhibited her Honour's reasons to these reasons, and I have had full regard to them.
5. You were regrettably not granted parole or any form of supervised release for that matter. You have not received any offence-specific treatment as a sentenced prisoner and had no mandatory offence-specific treatment upon release.
6. In the absence of a Parole Board or court-mandated offence-specific treatment, your treatment needs fell to the NDIS. You had one session with a psychologist through the NDIS plan prior to release, and one session after, but were soon returned to custody. You lasted a spectacular 32 days in the community before you committed this offence.
7. If you were to be returned into the community under a CCO/Justice Plan or a Parole Order, it is likely you would still have to return to specialist NDIS accommodation with extensive supports. Ms Ferlazzo today very helpfully indicated it would take around two months for specialist accommodation to be located for you.
8. I had you assessed for a CCO, twice in fact. Once in January 2025[12] and again in April[13] (after the provision of the Justice Plan report). The Office of Corrections (OOC) reports are both thorough and considered, but they consistently see you as unsuitable for CCOs, citing your inability to properly accept responsibility for offending, and extensive and troubling prior criminal history, your failure to complete CCOs in the past, and being a high risk of

re-offending, lack of other protective factors other than the NDIS, responsivity issues because of your intellectual disability, and the risk that you pose to staff. The assessment did not change. 9. I am very mindful of the concerns raised by the Office of Corrections, although I note what Mr Vuu has said on your behalf, that perhaps an in-person assessment might have yielded different results, and perhaps revisiting the issue of suitability once the Justice Plan disability overview report was provided might have been beneficial. 10. I did have you assessed for a Justice Plan.[14] The disability overview report and Justice Plan[15] are also thorough and thoughtful. The author saw you in person and concluded that there is perhaps some hope for you. 11. The report suggests that while you have led a complex and difficult life, you are perhaps not beyond saving, and there are actually resources and programs that can be applied to assist you so that you can live an offence-free life in the community. 12. It is suggested you do two things:

(a) Consent to having a Disability Justice Coordinator at the Department, and agree to any treatment or services organised through that service; and

(b) Consent to a referral to a Forensic Disability Clinical Service for assessment, and then participate in any suitable programs.

1. I am told that you are amenable to these things.
2. I am persuaded by this point at [7] and [8] of the submissions[16]:

Limitations aside for the time being, the report fails to recognise the purpose that a CCO has to offer in the context of this sentencing exercise. The instrument of the CCO has the role of enabling Mr Spokes to be supervised by Corrections, and to receive the specialised assistance of DFFH (for disability supports and offender behaviour programs) all the while supported by a generous provision of specialist disability accommodation and around-the-clock support workers through the NDIS.

The role of the actual Corrections officer in this special context is to organise and participate in supervision appointments only - with the actual rehabilitation work to be done by specialised services. Yet in this limited context, the writer suggests 'this service is not specialised in this [managing Mr Spokes's complex needs]... as a result the services available under a community-based disposition are deemed insufficient to adequately address Mr Spokes's risks.' The writer when saying this cannot be saying that the services provided through DFFH and the NDIS are insufficient, what is suggested is that Corrections does not have the capacity to supervise Mr Spokes while he undergoes a Corrections order. In my submission, this conclusion cannot be accepted.

1. The specialist services on offer under the auspices of a Justice Plan are attractive:[17]

In his psychological assessment (21 November 2024), psychologist Mr Cummins highlighted his concerns that during his interview with him, Mr Spokes appeared to display very limited insight into the seriousness of his current offending and the consequences associated with this. He further emphasised that Mr Spokes has not been offered or engaged in any offence-specific treatment targeting his offences, in custody and when released into the community in 2024. [He] recommends that this be considered as a treatment requirement and court condition, and that Mr Spokes should be directed to engage in this treatment. Mr Cummins also highlighted that this treatment should be delivered in a format that best meets Mr Spokes' disability needs.

The Forensic Disability Clinical Services (FDCS) is a State-wide disability forensic service that provides time limited treatment and support for people with a disability who display a high risk of anti-social behaviour and who are involved, or at risk of being involved, with the criminal justice system. [I pause there - you answer this description.] Mr Spokes' diagnosis of an intellectual disability as well as ADHD, mental health diagnosis and a lifetime of trauma impacts on his ability to process information to identify and seek the most appropriate support for behavioural change. He has also engaged in no offence-specific treatment. FDCS provides a range of specialised programs specifically tailored to a person's disability requirements. FDCS can first complete an assessment of Mr Spokes to determine his criminogenic needs and identify treatment readiness and suitability for programs.

1. These recommendations, which you agree with and consent to, represent a commendable commitment by the State to offer you tailored services to assist you in your reform and reduce the risk of reoffending. It is an offer of support that you must embrace.

1. Mr Cummins, who assessed you for the purposes of his first County Court plea in June 2023 and again for this sentence indication hearing, opines that:[18]

Assuming he pleads guilty to the charges on these indictments, Mr Spokes's risk of sexual offending has increased to 'well above average risk', corresponding to level IV-b.

'In my opinion, his various mental health conditions now render him with an ongoing level of impairment in terms of his perception, judgment and reasoning ability.'

'It is imperative that Mr Spokes be directed to participate in offence-specific treatment. He ideally requires one-on-one offence-specific treatment which could be customised to his mild intellectual disability and his mood management problems.'

From the 2023 report, referring to previous sexual offending:

'In my opinion, there was a causal link between Mr Spokes' offending and him suffering from a mild intellectual disability, a borderline personality disorder, an anti-social personality disorder and an adjustment disorder. The overall effect of these various mental health conditions was that he was impulsive, had impaired executive functioning and was processing information including the consequences of his behaviour at an adolescent level rather than an age appropriate level.'

'he will be a more psychologically vulnerable person within the prison environment.'

'his overall mental health and associated level of coping would deteriorate the further time he spends in custody.'

1. Though your risk profile remains the same, not only is the NDIS available now, but the structure of a Justice Plan which has merit. The sentence that I am about to impose has the considerable benefit of time certainty of release, not just for the NDIS but also for the Justice Plan. This is a genuine effort to see the previous situation not repeated, where you are not paroled, released without any scaffolding or supervision (any at all, let alone sufficient), which creates in my view an intolerable risk.

1. You have indicated an intention to plead guilty early, and you will receive the full benefit of that plea.
2. Your plea demonstrates a willingness to facilitate the course of justice and an acceptance of responsibility, and this is particularly valuable as the victim did not have to give evidence.
3. Remorse is nuanced in this case. I suspect notions of insight and contrition are obscured to a large degree by your cognitive limitation, as you claim at various points not to have committed the offences, before recanting and describing some of exactly what you did.

1. It was submitted that you were suffering a 'mental disorder or abnormality' or 'impaired mental functioning' in the way that those terms are understood in R v Verdins.
2. All six limbs are relied on in your case.
3. By way of necessary evidentiary foundation, the extensive materials I have already mentioned all point to the fact that you have at least a very significantly reduced cognitive function that is permanent and will never change.
4. The Crown noted that when her Honour Judge Hassan sentenced you, she found all of the limbs were enlivened.[19]
5. It is accepted that your moral culpability is reduced to some extent by reason of intellectual disability. Your understanding of the prohibition on engaging in sexual activity with underage girls is superficial, and you might not fully understand the wrongfulness of doing so. But it is clear that you understand that it is wrong and against the law to do so. That much is clear from the fact that you told the victim not to come to your home when your workers were there, along with other lies and mistruths you told to the police.
6. It is conceded that general and specific deterrence would be moderated, but it is submitted that deterrence and community protection are still important, and I agree. The risk of re-offending is high, and you offended within a month or so of being released from her Honour Judge Hassan's sentence.
7. The extent, if any, of the application of limbs 5 and 6 has been clarified more recently. In 2023, her Honour Judge Hassan found that all limbs were enlivened, as I said. You were being held in a protective therapeutic unit for a period of time, and in the report of Mr Cummins, the most recent one, was that you were feeling settled. That has changed once again. You are now back at the MRC under medical supervision after episodes of self-harm, distress and other health concerns.
8. I am prepared to find that limbs 5 and 6 are still enlivened, given the sheer number of incidents of self-harm and other behaviour you have engaged in whilst in custody, both now and in the past.
9. I note that while your intellectual disability in many ways mitigates the sentence I impose, there is a real aspect of your make-up that means protection of the community is a sentencing factor.

1. Current sentencing factors are but one factor I need to take into account.[20]
2. Accepting or acknowledging the limitation of comparable cases, I was provided with a number of cases, such as:

(a) Moore v The King [2022] VSCA 233.

(b) Rezai v The Queen [2020] VSCA 106.

(c) DPP v Bruzzese [2019] VCC 1784.

(d) DPP v Bradley [2022] VCC 1334.

1. I have also had regard to those decisions as well as the case collections by the Judicial College and sentencing statistics[21] in an effort to inform myself of current sentencing practices.[22]
2. Sentences of other courts are not binding, but merely historical statements of what happened in the past[23], and they do not represent the outer limits of my discretion.

1. Charge 4 (sexual assault of a child under 16) is a standard sentence offence, carrying a standard (but not mandatory) sentence of four years.
2. It was contended here that the offending is less than mid-range for offences of this kind, which I tend to agree with.
3. The standard sentence is a legislative guidepost. It is a guidepost, unlike the maximum penalty.
4. The period specified as the standard is 'the sentence for an offence which, taking into account only the objective factors ... of that offence, is in the middle ... range of seriousness'.[24]
5. I must give reasons for imposing the sentence, and any non-parole period fixed under the Act shorter than that which is specified in s11A(4), (which is now redundant given the sentence that I am going to impose) and state how the sentence imposed relates to the standard.[25] The Court is required to identify the facts, matters and circumstances bearing upon its judgment as to the appropriate sentence.
6. I emphasise it is just one of many factors that I am required to consider. It does not represent a starting point from which I add or subtract depending on various factors of aggravation or mitigation, as the case may be.

1. Once you receive a sentence of imprisonment for Charges 1, 3 and 4, you will fall to be sentenced as a 'serious offender' on the remainder.[26]
2. In sentencing a 'serious offender' for a 'sexual offence', I must have regard to the protection of the community as a principal sentencing purpose.[27]
3. This does not mean other sentencing purposes are excluded. Other sentencing purposes are still applicable and operative. The legislative intent is that the prison term is long enough to protect the community from the risk posed by you, but how long that is depends on the assessment of your risk of re-offending and other considerations. If it is considered that the risk of offending is low, the protection of the community will weigh less heavily than it would otherwise if it were assessed as high.
4. In this case, the Crown does not submit that in order to achieve community protection, a sentence longer than that which is proportionate should be imposed.
5. But in all the circumstances of this case, the protection of the community would be best served by facilitating your rehabilitation if that can be fostered. Your reform (if possible) would be best achieved by making you eligible for a return to the community under 'controlled supervision'. I agree that the community has its best chance of being protected this way, and I will impose what I have said, which I consider to temper and deal with this consideration.

Synthesis of sentencing objectives, considerations

1. Given the gravity of the offending in this case, denunciation, general deterrence and punishment are important.[28]
2. The mitigating matters that I have dealt with at some length, together with the application of principles of parsimony and totality, operate to moderate the length of the sentence that I impose.
3. Having regard to your prospects, I still need to give weight to specific deterrence, but I can still fashion a sentence that fosters whatever prospects you have for reclamation.
4. Prospects for reform mean that you will need very targeted mental health services and treatment in the community, to increase your wellbeing, stabilise you and decrease your risk of reoffending.
5. Whatever prospects you enjoy, they will be enhanced by the provision of the NDIS services and the Justice Plan.
6. As French CJ said in Hogan v Hinch,[29] 'Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest'.[30] It is in that regard that I have had regard to the statutory emphasis on community protection.

1. I am mindful of the significance in this case of the application of the principle that requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved.

1. After carefully considering the matter, balancing and weighing all of the relevant sentencing considerations, I have decided to convict you and sentence you to, as I said, a combination sentence. This provides a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together as is contemplated in Boulton.[31]
2. It appears that I can denounce your conduct, punish you, deter others as well as foster conditions that will assist your reform by imposing such an order. I consider the community is best protected by your reform, and reform has the greatest prospects if it is present in the community with tailored treatment. The concession made by the Crown that this course is open to me is not one made out of pity for you, but rather is one made acknowledging the forensic reality in your case and the necessity to attempt to place some kind of structure and scaffolding upon you upon your release.
3. I will sentence you to 16 months' imprisonment[32], followed by release on a two year CCO with a Justice Plan.[33]
4. You have already served 411 days (or just short of 14 months of the custodial portion of that sentence already). If our maths is correct, your release date would be approximately 2 September 2025.
5. Every community corrections order, including this one, has core conditions:

(a) You must not commit another offence punishable by imprisonment.

(b) You must comply with any obligations.

(c) You must report to, or receive visits from, the Secretary during the period of the order.

(d) You must report to Melton Community Correctional Services within two days of commencing.

(e) You must notify the Secretary of any change of address or employment within two working days after the change.

(f) You must not leave the state of Victoria without permission.

(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give, in order for you to comply.

1. In addition to those conditions, the special condition is that:

(a) You must comply with the conditions of the Justice Plan as recommended, that Justice Plan having been dated 7 April 2025..

(b) I will order that judicial monitoring take place at 9.30 am two months after your release; that will be on 5 November 2025. That can be done via video link.

1. Mr Spokes, I can only make such an order, if you consent to it being made. Do you consent to it being made?
2. OFFENDER: Yes.
3. HIS HONOUR: You need to understand if you breach this order in any way by committing another offence, or not complying with any part of the order, you will be brought back before me, charged with breaching the order and resentenced.
4. The offence of breaching a CCO itself carries penalties up to three months' imprisonment. So if you breach the order, you come back to court and you would be sentenced for the breach, but you would also be resentenced by me for these offences again. If I were you, I would not put yourself in that position.

1. I declare that he is a 'serious offender' for the purposes of Charges 1, 2 and 4 which will be noted in the records.

1. Charges 1, 3 and 4 are all Class 2 Registerable offences. The SORA registration is for life.

1. But for his plea of guilty I would have imposed three years and 10 months and set a non-parole period of two years and six months.

[2] When sentencing for charges 1,3 and 4, given the sentence previously imposed by Judge Hasan.

[3] R v Verdins [2007] VSCA 102

[4] s207 of the Criminal Procedure Act 2009 (Vic) allows me to state a type of disposition.

[5] Taken from Exhibit A: Summary of Prosecution Opening for Sentence Indication Hearing dated 15 November 2024.

[6] This is led for context only. You bear no responsibility for his offending.

[7] This is the third in a series of misleading things you had said or done. You are well capable of dishonesty, understanding nature of actions and wrongness. Prepared to be untruthful about things, including in ROI.

[8] Clarkson [2011] VSCA 157.

[9] [2011] VSCA 157.

[10] Exhibit B: Victim Impact Statement of Complainant's father.

[11] And I have used the convenient conclusion in Dr Sullivan's report here as a guide at [45] and following, see Exhibit 12: Psychological report Mr Cummins 21 November 2024.

[12] Exhibit 13: Extended CCO assessment report dated 24 January 2025.

[13] Exhibit 15: Extended CCO assessment report dated 22 April 2025.

[14] Exhibit 14: Justice plan and overview report 7 April 2025.

[15] Exhibit 14: Justice plan and overview report 7 April 2025.

[16] Exhibit 2: Supplementary outline of submissions for CCO dated 5 June 2025.

[17] See Part 2 of Exhibit 14: Justice plan and overview report 7 April 2025.

[18] Exhibit 8: Psychological Report Mr Cummins dated 13 June 2023

[19] Exhibit D: Sentence of Judge Hassan DPP v SPOKES [2024] 2024 VCC 1068, [55]-[58].

[20] DPP v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428.

[21] JCV at 3.4.4 Court of Appeal overview - focussing on those cases dealing with sexual assault of a child under 16 after the introduction of the standard sentence regime.

[22] JCV 3.8 Court of Appeal and County Court decisions

[23] See DPP v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428, [83].

[24] Sentencing Act 1991 (Vic) s.5A(3).

[25] Sentencing Act 1991 s.5B(5).

[26] Sentencing Act 1991 (Vic) Part 2A and Schedule 1, cl. 1(a)(i) and cl. 1(a)(ii), s. 6B(2), 6C.

[27] Sentencing Act 1991 (Vic) s.6D(a) 9usually cumulation).

[28] DPP v Frank (a pseudonym) [2021] VSCA 163, [73] (Emerton JA).

[29] (2011) 243 CLR 506.

[30] Hogan v Hinch (2011) 243 CLR 506, [32].

[31] Boulton v The Queen (2014) VR 308.

[32] The order complies with s.44(1) of the Sentencing Act 1991 as the custodial part of the combination sentence being determined after time served has been deducted. Younger v The Queen [2017] VSCA 199. Meaning you are likely to be released in September 2025.

[33] Sentencing Act 1991 (Vic) ss 80 & 44. See also s 40.