HIS HONOUR: The offender David Michael Forrest was committed for sentence to this Court in respect of seven offences in respect of which he was then arraigned in this Court on an indictment presented on behalf of the Commonwealth Director of Public Prosecutions and he requires a matter to be taken into account pursuant to the provisions of the New South Wales Crimes (Sentencing Procedure) Act 1999 in respect of the seventh count in the indictment.
This is a prosecution by the Commonwealth Director of Public Prosecutions and six of the offences with which I am concerned for sentencing purposes are Commonwealth offences. But count 7 in the indictment is an offence contrary to the New South Wales Crimes Act and thus it transpires that the matter on the Form 1 presented in this matter is a matter to be dealt with in accordance with New South Wales law.
The offences for which the offender is for sentence today relate to, in respect of count 1, an offence of use carriage service to transmit indecent material to a person under the age of 16 years.
Count 1 is concerned with an offence committed as particularised by the Crown in its indictment between the 2 July and 26 July 2014. That offence carries a maximum penalty of seven years.
Count 2 is an offence expressed in identical terms to count 1 but is concerned with an offence committed between the 9 August and 27 August 2014, thus has the same maximum penalty.
Count 3 is an offence of use carriage service to transmit child pornography material. This is an offence which carries a maximum penalty of 15 years imprisonment and was committed by the offender between 24 September and 7 January 2015. In my view it is the most serious of the offences with which I am concerned, both by reference to its maximum penalty, the period of time over which the offending occurred and the characteristics of the offending.
Count 4 is an offence expressed in identical terms to counts one and two, thus carries a maximum penalty of seven years imprisonment and is concerned with conduct on or about 27 October 2014.
Count 5 is an offence of use carriage service to transmit indecent material to a person under the age of 16 years, as with counts 1, 2 and 4. It was committed on or about 14 November 2014 and, as is self-evident, carries the same maximum penalty as those other counts to which I have referred.
Count 6 is an offence of use carriage service to procure a person under the age of 16 years for sexual activity. It is an offence committed between 12 January 2015 and 14 January 2015 and it carries a maximum penalty of 15 years imprisonment, although it is an offence committed under a different provision than that relevant to count 3.
Count 7 is an offence of possess child abuse material contrary to the relevant provision in the New South Wales Crimes Act. It carries a maximum penalty of ten years' imprisonment and the matter on the Form 1 is an offence of disseminating child abuse material which is intimately tied up with the circumstances of the offending in count 7. If dealt with on indictment that offence carries a maximum penalty of ten years' imprisonment and was committed on 12 January 2015 or thereabouts.
In sentencing the prisoner I am required to sentence the prisoner in relation to the Commonwealth matters in accordance with Pt 1B Crimes Act 1914 (Cth). As I have pointed out in relation to count 7, taking into account the matter on the Form 1, I am required to sentence the offender in accordance with the requirements of the Crimes (Sentencing Procedure) Act 1999.
The prisoner appears before me having been born on 8 June 1982. As I would best calculate his age at the present time he is 34 years of age to turn 35 in June of this year. At the time of his arrest he was living with his parents in Drummoyne and he has no prior criminal convictions.
This is a difficult and to some extent complicated matter with no criticism of the parties. In the submissions they have prepared for the Court, particularly the written submissions, there is a dizzying array of matters for the Court to take into account and principles to be applied in the context of the evidence available.
There is, however, one authority which was not referred to, as I remember it, at least directly in the submissions available to me, that to my mind has significance in the sentencing of this particular offender. That is the decision of the High Court in Markarian v The Queen [2005] HCA 25. It is also reported at (2006) 228 CLR 357.
In that judgment the High Court of Australia had to consider the appropriateness of a sentencing regime that gave particular weight to particular increments and decrements as they are described by using what is sometimes described, or had been described, as the "two stage" approach to sentencing.
The High Court in the judgment of the majority including McHugh J, who gave separate reasons, struck down the approach to sentencing that had been favoured by the Court of Criminal Appeal the subject, of course, of the appeal. Particular emphasis being placed in the judgment of the majority upon the reasoning of the High Court of Australia in the decision of Wong v DPP (Cth) [2001] HCA 64, which struck down a decision of the New South Wales Court of Criminal Appeal asserting the power of Courts in New South Wales to follow "guidelines" for the sentencing of Federal offenders. I do not wish to quote the judgment of Markarian in detail but the judgment of McHugh J is most illustrative of the complexity of the sentencing process and the difficulties faced in considering all of the relevant matters that go into the sentencing of particular offenders. I particularly refer to in his judgment [50] - [56] and the criticisms made by his Honour, consistent with the reasoning of the majority, although they did not go into this in as much detail of attempts, to approach the assessment of objective criminality without regard to matters that might, on one view of it, be "personal circumstances" of the offender, but which are very intimately connected to the circumstances in which offences have been committed. These matters may be relevant to the assessment of the objective gravity of the criminality of the offender sometimes expressed in recent judgments as the "moral culpability" of the offender.
I have been very much assisted by the very detailed submissions of the Crown in respect of matters of technical detail, but as I will demonstrate shortly in my assessment of the evidence, some of the submissions of the Crown about the relevance of the "personal circumstances" of the offender have not fully appreciated or do not correctly state the relationship of the evidence before me to the assessment of the offender's criminality.
To deal with the facts of the matters with which I am concerned it is to be pointed out from the outset that the offending that I am concerned with occurred over a substantial period of time. That is between 2 July 2014 and the arrest of the offender on 14 January 2015. In fact, counts 6 and 7 as they are described in the facts in considerable detail, which I need not reiterate in full, demonstrate the circumstances in which the offender became ultimately the accused or prisoner in these proceedings.
Investigators became aware of the identity of the offender in the sense of the online identity the offender had used on occasions in January 2015 and by engaging the offender on 12 January 2015 with an assumed identity, or online identity, known as "Aiden Little" in the course of committing the offence that constitutes count 6, the offender came to be arrested on 14 January 2015. Then the offender made arrangements to meet the person "Aiden Little" in the expectation that the person he was meeting was a 14 year old boy. The arrest of the offender on 14 January 2015 at Parramatta led the police to execute a search warrant at the residence of his parents where he also lived and there, in the course of the execution of the search warrant, material was recovered from an iPad and a computer which led to the discovery of offences reflected in count 7 and in the Form 1, and also the offences committed earlier in 2014. That is, breaches of the Commonwealth law set out in count 1 to 5.
So far as count 6 is concerned, the offence of the use carriage service to procure a person under 16 years of age for sexual activity, the offender asserted that he was a 23 year old male and discussed sexual activity with the online identity. He forwarded a photograph of his penis and sent a video to the online identity which was a police man assuming the online identity. The provenance of the video is not made clear to me in the facts, although it does demonstrate sexual activity and the offender made arrangements to meet the person who he believed he was communicating with and sought a photograph of that person's penis.
The execution of the search warrant led the police, in respect of count 1 after examination of chat logs on the prisoner's iPad, to discover that between 2 July 2014 and 26 July 2014 the prisoner had chat communication via a social network application using his online identity (captain or capt͟ forrest) and between those dates communicating with two online identities (teen97͟ ET) and (hornyteen234). One of the other online identities identified himself as a 15 year old male from Australia of whom the prisoner made indecent requests or suggestions. As to the other online identity the offender was informed that person was a 14 year old male from the United Kingdom and indecent suggestions were made in relation to that person by the prisoner.
The investigation of the iPad as I would understand it led to the identification of communications giving rise to count 2. These were chat communications via a social networking application with two identities (brahn69) and braydn͟ 12) and those identities respectively identified themselves as the 15 year old male from Sydney and the other identity described himself as the 13 year old male from Australia, to whom the prisoner made indecent suggestions.
Count 3, an offence that carries a maximum penalty of 15 years imprisonment, related to communications by the offender over the period of time between 24 September 2014 and 7 January 2015 with others using another online identity associated with the prisoner (Ausbarge). The offender using this identify conversed with ten different users and the facts set out the circumstances of a number of these communications during which, for example, between 6 October 2014 and 30 October 2014 the offender conversed with 41 different users on the same social networking application and disseminated numerous links to child abuse material. In November 2014, he communicated with 24 different users on the same social networking application and disseminated numerous links to child abuse material. Between 15 December 2014 and 29 December 2015 using the same identity he conversed with seven different users through the same social networking application where he disseminated "numerous links to child abuse material." Further between 1 January 2015 and 7 January 2015 he had a "number of chat communications" on the same social networking application and conversed with six different users and he disseminated "numerous links to child abuse material."
Count 4 is an offence committed by the offender on 27 October 2014 relating to the transmission of indecent material and, using the identity Ausbarge, he communicated with an identity known as (HDK6969) who stated he was 13 years of age. The offender again misstated his age saying that he was a 23 year old male and made indecent suggestions to the other identity. I should point out in respect of the identities that are referred to other than the police identity, there is no evidence to establish that the other identity was in fact a 13 year old person or a 14 year old person or a 15 year old person. But as I understand it, the prosecution proceeds on the basis that the offender, that is the prisoner at relevant times, understood that the other identify was a person under the age of 16 years.
With regard to count 5, the use of a carriage service to transmit indecent material to a person under 16 years of age the offender on 14 November 2014, again using the Ausbarge identity, communicated with a person whose online identity was "Timothy All". This person identified himself as a 14 year old male from Australia. The offender made an indecent suggestion and requested a video of this person. The offender sent this person four links to child abuse material.
As to the child abuse material in count 7 the police investigated or undertook examination of his Apple iPhone as well as his iPad. In relation to the iPhone there was found a great deal of child abuse material classified under what is called the Child Exploitation Tracking Scheme (CETS) scale. This is an almost codified scale of assessment of child abuse material from category 1 through to category 7. For relevant purposes in this sentencing exercise I am concerned with categories 1 to 5. Category 1 is depiction of children with no sexual activity but which would cause offence to a reasonable adult. Category 2 is non-penetrative sexual activity between children or solo masturbation by a child. Category 3 is non-penetrative sexual activity between children and adults. Category 4 is penetrative sexual activity involving children or both children and adults. Category 5 is sadism or bestiality.
In respect of the items that were downloaded from the iPhone of the offender there were 199 video files, the majority of which fell within the category 4 material under the CETS scale. That is 117 out of 199 videos. Category 2 material amounted to 60 videos. Category 5 material amounted to 11 videos.
In relation to the iPad the images were again within categories 1 to 5. Out of a total of 499 images on the iPad the facts describe these as "images", as 195 images which were category 1, 199 images were category 4 and there were 10 category 5 images. The other images were either category 2 or category 3.
The scheduled offence, as it is called, the matter on the Form 1, the "dissemination of child abuse material" matter, involves the offender on 12 January 2015 sending a 30-second video to the assumed identity which constituted child abuse material deemed to be category 4. I will not go into the description but it involved a male child approximately eight to 12 years of age lying on top of an adult engaged in sexual activity.
The Crown in presenting the material to the Court provided images from the material that was retrieved in the investigation, or a cross-section of that material, and it is obviously quite confronting. I made some comments earlier about the character of the material in a general sense or a theoretical sense as well as a particular sense. The idea is well accepted by the courts, as is reflected in some of the superior court judgments to which I was referred, that each of the images represents a particular victim. The matter that always strikes me about it, whether it be a video of a particular disgraceful event involving a child or a still image, is that we see when we are forced to look at these images is a person in circumstances of exploitation for a limited or frozen moment in time. What happens to that child both before the filming and after the filming is really, to be frank, too terrible to contemplate. The offender should be properly ashamed and disgusted in himself, as should anybody who involves themselves in the storing or dissemination or the viewing of the type of material that falls within the various categories that are set out in the CETS scale.
With regard to the defence material there was no oral evidence called but I had a body of material which included a pre-sentence report which I required the Crown to serve on the Court even though it was contained within the defence bundle. The pre-sentence reports prepared by Community Corrections are always to be provided to the Court by the Crown. In that regard the pre-sentence report is a detailed report annexed to which is, as is usually the case in matters relating to child abuse material or child sexual assault, a psychological report prepared by psychologists associated with the Department of Corrections.
The pre-sentence report contains material which is also reflected in the material that has been submitted by the offender's counsel. To reflect upon some of the history of the offender in the context of noting from the report that the author of the Community Corrections report has undertaken a very wide-ranging series of interviews and examinations of material relating to the offender.
The offender is the youngest of three children. He has lived his entire life, for reasons which will become apparent, with his parents. However, his arrest in relation to this matter has "estranged" him from his older sister and her family. His older sister not unreasonably being very concerned about the welfare of her children given what the facts in this case reveal.
The Community Corrections report notes that from birth the offender experienced "complex physical and emotional developmental problems". He was, for example, born with extra digits which had to be surgically removed. He had a number of physical limitations both in terms of his ability to walk and his ability to see from an early age. His speech development was delayed and she reflects upon diagnoses over the years of attention deficit hyperactivity disorder, when he was ten years of age, mental disability or impairment from an early age, more details of that appear in other reports that I have, and various difficulties both in his education, his social interactions and his relationship with others. There is a neuropsychological assessment examined by Community Corrections, which was conducted in 2000, which stated that Mr Forrest's,
"general thinking and reasoning abilities exceed only those of 2% of adults his age. As a consequence, Mr Forrest can be expected to experience significant difficulty in keeping up with his peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities."
I should point out by reference to that particular quote that the material of a more contemporaneous nature assessing the offender reflects that general situation has continued up until the present time.
His parents have obviously endeavoured to provide him with as good an education as could be provided in the circumstances, and there are details of a history of him being educated at particular schools, no doubt at great expense to his parents. But throughout his education he has been in special classes and had to be given many indulgences in order to complete that education that he has achieved. Reading and writing have created difficulties for him throughout his life although he obviously has no particular difficulty in operating a computer such as a laptop or an iPad or an iPhone for that matter.
Whilst he has had some TAFE training he was not particularly successful at that because of his intellectual disabilities and limitations, and there is reference to him going to a 'special school' to learn seafaring skills. He has worked in employments largely associated with work on the harbour or the waterways of Sydney. I should point out that I understand his father is a tug master and thus is in a position to provide some assistance in that regard.
The offender at the time of his arrest was doing some work as a water taxi driver and whilst it is to be fairly said the evidence reveals that he has acquired some qualifications in that regard, in order to obtain those formal qualifications he has clearly been granted many indulgences and has been fortunate to obtain such employment as he has had.
In the context of some submissions made by the Crown in its oral submissions, much of his employment has not really been what I would regard as "legitimate" employment. It would appear to be either pro bono or voluntary occupations he has undertaken without pay, or alternatively, positions provided for him that have been organised through the goodwill of his father and those connected with his father.
Insofar as the assessment of him in the context of his mental health and risk of sexual offending in the future and the like, there is reference to reports from his current psychiatrist which I will quote directly in due course, and there is also reference to the assessment by the corrective services psychologist. He was assessed by that psychologist in circumstances where the psychologist had access to psychiatric, psychological and neuropsychological reports.
He was assessed using what is called the Static 99R Actuarial Risk Assessment. In relation to that particular instrument, there are limitations in its reliability in making predictions. Various aspects of his background are taken into account in using that particular actuarial "tool". Limitations include dynamic risk factors such as "sexual self-regulation" are not assessed, but the psychologist formed the view, based upon the review of the information in reports and the like, that matters that may have contributed to the offences included "deficits in intimacy, general social rejection, problem solving deficits due to his developmental problems" and the like.
The review concluded that the offender was in the "moderate to high risk range for risk of sexual offending" although these were based upon static risk factors, not dynamic risk factors. The dynamic risk factors that were identified that I have just set out a moment ago are matters that clearly might heighten the risk of further offending.
In respect of sexual offender programs through Corrective Services, there is a requirement of a sentence of at least two years to allow time for administration and assessment. I take that to be whilst in custody. The psychologist expressed the opinion that the prisoner's "cognitive ability" suggests that he would most likely be suitable for the "Self-Regulation Program: Sexual Offenders", which is available at the Long Bay complex, being a program for men convicted of sexual offences with identified cognitive impairments. If he did not receive a custodial sentence he would be referred to the sexual offender program in the community. The SRP:SO program is not available in the community. Regardless of whichever program he undertook, the prisoner would be,
"eligible for specifically-tailored individual risk management and treatment from the Forensic Psychology Service in Surry Hills or through an appropriate experience and qualified private practitioner".
Although it is not referred to in this particular report, I am aware from having read in the last three or four months at least four or five reports of offenders of this type that one of the limitations in relation to the Static 99R actuarial tool is that it is not designed to assess online offenders. It has to be modified for that particular purpose.
Coming back to the defence bundle, the offender has produced a reference from his mother which I have taken into account in relation to his background. She reflects upon his social isolation and the many difficulties he has had because of his intellectual limitations. It would appear that he was educated, as I have earlier indicated, at expensive schools to try and give him some better opportunity in life. He was a student at Trinity Grammar at one stage and I understood from one of the histories that I had available to me that he was also at another private school. She refers to him attending "CSEA School" to obtain his Coxswain Certificate or ticket to pursue his dream of following in his father's footsteps.
He has been vulnerable throughout his life to illnesses. He presents in her reference as a person younger than his years. She reflects upon a history of his experiences in custody, about which there is other evidence of being assaulted, sexually and physically, and being otherwise bullied whilst in custody after his arrest in relation to the current matters. She said that he has been affected by the character of his "home arrest" or "detention" which has arisen from the character of his bail conditions. I have taken into account the bail conditions to which his counsel referred me, including bail conditions that require him to be in the company of a responsible adult, initially his parents and now including a friend, when away from the family home.
The offender, as the Crown has pointed out in the material that it has provided to the Court, was in custody - bail refused as I understand it, or unable to raise bail - for a period of time after his arrest, which I am required to also take into account. It was in that period of time, having never previously been in custody, the offender was sexually and physically assaulted.
Obviously, with his intellectual limitation and his physical limitations, he would be a person in custody vulnerable to exploitation and abuse. But of course this is ironic as would be self-evident to anyone who has seen the material that have been forced to view, or anybody who has any understanding of people that are involved themselves particularly in the storage and dissemination of child abuse material. Because the people that we view in these images are themselves exploited and abused, sometimes in more extreme fashion than anything that could happen to the offender in custody.
With regard to the medical and psychological material, I have a report dated 5 September 2016 from a consultant forensic psychologist, Stephen J Woods, I have a report from a treating psychiatrist, Dr Kneebone, and I also have a report from a treating counsellor, particularly a sexual offender counsellor, Dr Edward Robinson, who is a clinical psychologist, who has undertaken clinical sessions with the offender from November 2016 through till 8 March 2017.
If I could start with Mr Woods' report if I may, because that provides in compendium form the greatest detail about matters relating to the offender's condition over a lengthy period of time. He notes from neuropsychological assessment, and that is from the age of 5 years, consistent findings of intellectual functioning to be either in the borderline to extremely low range. The most recent test results that he refers to reveal his level of cognitive function to be in the bottom 0.5% of the population.
With regard to the developmental history of the offender, the psychologist writes of the offender's "complex clinical history" the details of which I need not repeat, some of them I have already provided. There were delays in developmental and speech milestones and he had a number of physical problems both in terms of his body functions and in relation to matters concerning his capacity for movement and the like.
Mr Woods reflects upon the offender's diagnosis of ADHD at the age of 10. Neuropsychological assessment at that time placed his cognitive function within the "borderline range". In 2000 he was assessed by a clinical psychologist and neuropsychologist, Ms Staples, as having difficulty in picking up on social cues and anticipating the consequences of behaviour.
Mr Woods was of the view that this particular finding was particularly relevant in considering the nature of his offending in the matters with which I am now concerned. There has been a diagnosis of the offender fitting within the Autism Spectrum Disorder, but that does not appear to be a unanimous view of those that have assessed him.
There has been regular assessment of the offender's cognitive functioning. As I have pointed out earlier his assessment has varied between the borderline to extremely low range. The footnote in Mr Woods' report points out that the borderline range equals to the bottom 6.7% of the population, the extremely low range equals to the bottom 2.2% of the population. Mr Woods' testing in respect of full-scale IQ was in the "very low range" as he describes it, that is "a percentile of 0.5", I take it for persons of the offender's age.
The history given by the offender to this psychologist reflected upon the manner in which the offender was able to get qualifications, greatly aided in the process, and the fact that such employment as he has had from time to time in many respects has not been true "employment". The offender presented to the psychologist in something of a distressed state and reflected upon symptoms consistent with significant anxiety.
So far as the diagnosis by Mr Woods was concerned, he diagnosed "mild intellectual impairment", and "persistent depressive disorder". He felt the offender was fit to be tried. He reflected upon the offender's "vulnerability" due to his "intellectual impairment" and "poor social skills" and notes that the offender was deeply "traumatised" by his experiences in custody.
So far as treatment is concerned he believes the offender would benefit from one-on-one therapy or small group-based sexual offender intervention programs. Any intervention initiated would need to "specifically cater for (his) low level of cognitive function compounded by symptoms of ADD as well as his social immaturity".
He did not accept that Mr Forrest suffered from Autism Spectrum Disorder although he has some symptoms of the condition. He noted the offender had a "complex clinical history" arising from his many "difficulties (as) a socially isolated and immature individual". He is now particularly aware of the "unacceptability" of his offending behaviour and the experience of being in custody the psychologist felt was a "deterrent protecting against reoffending". But his continuing social isolation and cognitive difficulties have the potential to increase his long-term risk.
Dr Kneebone in his report notes the background that I have largely summarised, including previous diagnosis and the like, and treatment he received prior to his arrest in relation to the current offending, the character of his developmental history and the like. He reflected upon previous testing of a psychometric nature of his intelligence and the like, and of certain aspects of his current presentation, depressed mood, et cetera.
With regard to specific questions put to him, he noted that the medical conditions of the offender as they existed as at the time of his arrest have been exacerbated during 2015 and 2016. There have been situations of suicide ideation and self-harming behaviour. The offender was admitted to a psychiatric unit at Concord Hospital for patient management of his then depressed mood. He was assessed last on 10 January as having a major depressive disorder continuing of at least moderate severity. His ADHD and his intellectual disability were "chronic" and "enduring" persistent conditions.
He reflected upon the offender's understanding of the character of his conduct. When asked the particular question whether the offender had conditions which may have contributed to the offending behaviour, the psychologist said this:
"Mr Forrest's neurodevelopmental disorders and poor social skills give rise to significant impairments of his ability to pick up on social cues or make social inference and anticipate the consequences of his behaviour.
Furthermore, his low self-esteem renders Mr Forrest susceptible to pursuing avenues of gaining acceptance or validation from others, even if such methods involve deviant social activity.
His cognitive and social difficulties are thought to contribute to his confusion about his sexual identity and his continual psychological denial."
The psychiatrist was in agreement with the assessment of Associate Professor Woods that Mr Forrest would be at very "great psychological and physical risk if required to serve a period of incarceration", particularly in light of his history of custody, and that he should be engaged in counselling and continuing treatment.
He said, so far as the prospects of rehabilitation were concerned, that the absence of a history of psychopathy, apart from what was reflected in the offending, or prior sexual offences, having regard also to the character of the offending and his family support, reflected that his "risk to the community" can be appropriately managed with assertive community-based treatment. Although he noted the need for other treatment of the offender for chronic conditions.
The report of Dr Robinson reflects upon a number of matters. He speaks of the treatment he provided to the offender and the methods that he has undertaken to try and get the prisoner to address his offending behaviour. He noted that the offender felt "deep shame and regret about his offending". He was of the view that there was not appropriate treatment in custody. Whilst there is "Sexual Offender" treatment available in custody, he noted also that the prisoner's,
"deeply traumatising experience while in custody leaves him filled with terror, and I anticipate that he would not feel safe enough to benefit from the treatment on offer. His identified intellectual impairment may restrict the effectiveness of the standard treatment program in gaol".
He was of the opinion that the most effective treatment for the prisoner would be a,
"Corrective Services program offered within the community for offenders with special needs (addressing his mild intellectual impairment, ADD (sic) and depression."
So far as the relevance of his intellectual impairment to his offending conduct, he said that he was not sufficiently expert to make a determination regarding his particular type of intellectual impairment, but made some observations about the circumstances reflected in the report of Associate Professor Woods.
He noted the attitude of the offender to his offending in the course of the treatment that was offered and he said in relation to his prospects of rehabilitation that established "Risk Assessment measures are not validated for internet-base sex offences" and he expressed the view that they "should not be used to assess risk of re-offence and potential for rehabilitation", a matter that I understood to be generally acknowledged if not necessarily in those terms. He believes that obtaining employment and undertaking courses and treatment such as Dr Robinson had provided for him would assist in his rehabilitation. The offender, he noted, had a long term positive relationship with his psychiatrist, Dr Kneebone, and this would assist in the treatment of his depression, thus he expressed views that there were mechanisms for assisting the offender in his rehabilitation.
The materials in those reports I have gone into in some detail because one of the critical issues in the sentencing of this offender, putting aside the many technical matters otherwise required to be taken into account, is the relevance of the prisoner's various conditions to an assessment both of the objective seriousness of the offending, as well as other aspects of the sentencing process.
There are two particular authorities to which I wish to refer in the context of dealing with that material. One is the decision of Muldrock v R [2011] HCA 39. Muldrock v R was a matter coming from the Court of criminal appeal where the Crown had appealed against the inadequacy of a sentence or sentences imposed upon a man who was "mentally retarded" involved in "homosexual sexual abuse", that is, the sexual abuse of a nine-year-old boy. The offences to which he pleaded of course are quite different from the matters with which I am concerned in a number of ways. Each carried each a maximum penalty of 25 years' imprisonment with a standard non-parole period of 15 years.
My former learned colleague, his Honour Judge Black QC, at Lismore sentenced him to a total of nine years' imprisonment. The offender had been in custody for three months at the time of the sentencing hearing. He backdated the sentence to give credit for the period on remand, but fixed a non-parole period of 96 days which, in effect, permitted the immediate release of the offender. That sentence was struck down by the Court of Criminal Appeal and in due course the High Court of Australia not only remitted the matter back to the Court of Criminal Appeal, where it was then reconsidered in light of the High Court's judgment, but also struck down what had been considered the conventional wisdom in respect of the relevance of standard non‑parole periods in the sentencing of offenders as set out in the 2004 decision of the NSWCCA of R v Way.
What is important about that judgment, or at least relevant to this matter, is the discussion by the Court of the character of the offender's "intellectual disability". That appellant, although described in the opening paragraph as "mentally retarded", was in fact assessed by a psychologist as having a "mild intellectual disability", as is this offender. His mental disability was different in character than this offender's, but it would appear this offender appears to be in much the same cognitive functioning range.
Their Honours cited (at [50]) what was and is understood to be conventional wisdom in relation to the assessment of "sub‑average intellectual functioning", particularly the disarmingly misleading observation that a person has "mild intellectual disability", the extent to which a mild intellectual disability can distort perceptions, understanding, consideration of consequences of conduct and the like is discussed within the judgment of Muldrock and the sources cited.
His Honour Judge Black had determined that the appellant's intellectual disability was "significant." In my view, that word "significant" is appropriate here. Their Honours went on to note by reference to his Honour's determination, which had been expressed, as I understand it, speedily with not a great opportunity to develop the matters with which he was concerned, by reference to a conclusion reached ultimately by the sentencing judge: that little or no weight should be given to "general deterrence." Their Honours cited, for example, the judgment of Young CJ in the Victoria judgment of Mooney from 1981 where his Honour said:
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offence is not an appropriate medium for making an example to others."
Mr Muldrock was very much a case of that type. A person of average or even sub-average intelligence having sex with a nine year old boy at the age that Mr Muldrock was would fill reasonable minds with revulsion and would obviously require "condign punishment". Primarily because of the considerable weight in those circumstances that would be given to "general deterrence" and no doubt also to "personal deterrence."
In the decision of Mooney, Lush J who also delivered a judgment discussed the "significance of general deterrence". He pointed out that it,
"in a particular case will, however, at least usually be related to the kindred concept of retributional punishment in which is involved an element of instinctive appreciation of the appropriateness of this sentence to the case. The sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
The Full Bench of the High Court went on to say at [54]:
"The principle is well recognised. It applies in sentencing offenders suffering from mental illness and those with an intellectual handicap. The question will often arise as to the causal relation if any between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason as an ordinary person might as to the wrongfulness of the conduct, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
Of course, the character of the disability of this offender is to be seen as different from that appellant. But one only needs to go back to, for example, the assessment of the matter by Dr Kneebone, particularly, in the context of dealing with the issue of "causal relationship", to see the character of the causal connection and the way in which his inherent characteristics have contributed to his offending on this occasion. Likewise, the analysis of Associate Professor Woods to which I earlier referred.
In the context of dealing with these principles to which I have been referring I come back to a judgment that was not only cited in passing, the spirit of which is to some extent reflected in a Victorian judgment that the Crown cited. That is, in fact, a decision relating to Commonwealth sentencing, DPP (Cth) v De La Rosa [2010] NSW 194. This is a judgment often, it seems to me, overlooked by the Commonwealth not in relation to the area that I am concerned with now but in relation to the very careful analysis the then Chief Judge of the Common Law Division, of the Supreme Court of New South Wales, McClellan J, gave to the categorisation of offending in respect of the importation of cocaine into Australia. His Honour, however, at [177-178] by reference not only to New South Wales authority but authorities from interstate, including Victoria and Western Australia, summarised what I understand to be the principles to be applied in dealing with a person suffering from a mental illness, an intellectual handicap or "other mental problems". They were summarised as follows:
"Where the state of a person's mental health contributes to the commission of the offence in a material way the offender's moral culpability may be reduced consequently the need to denounce the crime may be reduced with the reduction in the sentence...it may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed...it may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for the person the length of the prison term or the conditions under which it is served may be reduced...it may reduce or eliminate the significance for specific deterrence...conversely it may be that because of the person's mental illness (sic) they present more of a danger to the community and those circumstances considerations for specific deterrence may result in an increased sentence."
His Honour went on to say at [178]:
"I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they be relevant to the sentencing process. The circumstances may indicate where an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general and specific deterrence."
I am of the view in relation to this particular offender, having regard to the character of the offending and having regard to the evidence available to me both from the material presented by the defence but also although in somewhat in an interpretive form the material from Community Corrections that the mental capacity of the offender has contributed to the commission of the offences in a material way. The offender's moral culpability may be thus reduced. He is an inappropriate vehicle for the "message" of general deterrence. There is no doubt in light of his previous experience that a custodial sentence will weigh more heavily upon him. Of course, I go back to something I said a little while ago, the irony of him being bullied and sexually abused in custody when he was prepared to disseminate material which involved the humiliation and sexual abuse and physical abuse of children would not be lost on the offender. But the reality is in the sentencing of offenders that Judges and Magistrates are doing their best every day to serve the community in this regard are not sentencing someone on the basis that it is expected that they will suffer some dreadful extra curial punishment whilst in custody such as being killed, being sexually assaulted or otherwise attacked or assaulted in circumstances where these particular people have absolutely no capacity to defend themselves.
This brings me back to the way the case was conducted by the parties and the particular matters I am required to have regard to, for example by reference to the legislative framework under which the particular offences arise.
Firstly, in respect of the Commonwealth offending I am required to sentence the offender in accordance with Pt 1B of the Commonwealth Crimes Act. I note, as I have noted on every occasion I have ever sentenced a Commonwealth offender over 17 years, although s 16A has changed occasionally over that period of time, that in sentencing the offender I am required to determine, or impose a sentence or make an order, that is "of a severity appropriate in all the circumstances of the offence".
I am also required to have regard to the matters that are relevant and appropriate to consider under s 16A(2), these include the nature and circumstances of the offending, other offences that are required or permitted to be taken into account and, if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character, that course of conduct. I must point out in relation to subpara (c) of the subsection there is some ambiguity in that wording as there appears under the relevant provision. It is clear that each of the Commonwealth offences with which I am concerned forms part of a "course of conduct" but each offence must receive an appropriate sentence.
There are many victims in this matter, I appreciate that. The authorities to which I was referred both by the Crown and the defence note the fact that I am not dealing, particularly with the dissemination or possession of child abuse material matter, with "victims of crime". But every image presents a horrifying picture of a victim.
In relation to s.16A(2)(f) I am required to have regard to the degree to which an offender has shown contrition in various ways. If the offender has pleaded guilty of that fact, I am required to have regard to the deterrent effect that any sentence will have on the prisoner and others. In other words, general deterrence where that is appropriate. I have to ensure adequate punishment, have regard to the character, antecedents, cultural background and the like of the prisoner, his prospects of rehabilitation, amongst the matters that arise under that provision.
With regard to the nature and character of the offending there is little that could be said to disagree with, or to take issue with, in the very helpful assessment of this matter in the Crown's written submissions. I have set out the facts in relation to the matter. I have made some observations about particularly the character of the child abuse material and the material that is relevant to the matter on the Form 1.
The facts of the matter are that in respect of the child abuse material it must be fairly said that reasonable people would be filled with revulsion at having to consider that material, as sentencing officers themselves are themselves filled with disgust. But the sentencing of offenders is required to be undertaken in a calm and rational manner, not as a mechanism for revenge or venting one's personal spleen or disgust or revulsion at particular conduct. In relation to the submissions of the Crown, much is made about the weight to be given to general deterrence and I have noted particularly what appears at [21]-[29] of the Crown's helpful submissions.
It would be fair to say particularly in relation to the cases that I have read, which include the cases cited by the Crown such Asplund, the case of Collier, a Western Australian case from 2007, and the case Booth, a 2009 New South Wales Court of Criminal Appeal case, that each of those decisions, discuss the treatment of offenders, particularly those involved in the dissemination or possession of child material and child pornography, and are concerned with offenders of a maturity and cognition quite different and separate from this particular offender.
If I may just separate the offences disclosed in count 3, the most serious, in my view, of the Commonwealth offences, and count 7 from the other offending for the moment and refer to authorities which are cited by the parties but require some particular examination. These are the decisions respectively of, from New South Wales, Minehan v R [2010] NSWCCA 140, De Leeuw [2015] NSWCCA 183 and Porte [2015] NSWCCA 174. I reflect upon what those judgments say about the appropriate approach to sentencing offenders concerned with the type of offending that I have referred to, particularly found in count 3, count 7 and the matter on the Form.
Johnson J figures prominently in both De Leeuw and Porte. Porte was decided on 2 July 2015, De Leeuw was decided on 10 July 2015, in both cases Johnson J in his usual erudite manner reflected upon the principles.
Perhaps the best judgment to cite for my purposes is the judgment of Johnson J, in the last judgment in time, that is the judgment of De Leeuw, particularly at [70]-[72].
At [70] he identified the principles that emerge from Porte, particularly in the context of Porte being a case where the sentencing judge was required to sentence under Commonwealth and State laws, and the principles that relate to the sentencing of offenders in respect of offences of this particular character, where both legislative regimes are in play. I am mindful of the matters he particularly identifies, such as general sentencing principles concerning child pornography offences which have emerged from decisions of intermediate and appellate courts throughout Australia that have placed emphasis on the paramount importance of general deterrence and denunciation, and he notes again at para (e) the fact that general deterrence and denunciation will, if I could use my less elegant expression, "trump" attempts made at counselling and treatment in aid of rehabilitation. He notes the need to give proper consideration to concurrency and totality and the inappropriate use of Intensive Correction Orders in cases of appropriate disposition by the imposition of, what was described in one of the Western Australian cases, I believe it was Collier, "an immediate term" of full-time custody.
I was taken to Porte particularly in the context of his Honour's observations about the inherent leniency of a sentence other than full-time custody particularly in the case of, for example, the fixing of ICOs.
His Honour then in that judgment at [72] set out the various principles in terms of general sentencing practice that arise in relation to "child pornography offences" from the appellate courts "throughout Australia" and amongst other things the various factors that are required to be taken into account in assessing the objective gravity of the offending such as, of course, the content of the material, the number of items or images possessed, whether the material is for the purpose of sale or further distribution, whether an offender will profit, the number of children depicted and victimised, the length of time in which the material was being possessed. He referred again to the greater weight to be given to general deterrence, the "primary sentencing consideration", the pernicious character of child pornography, the fact that it can be committed on an international level and can become increasingly prevalent with the advent of technological means such as transmission of materials through the internet, the difficulty in detecting offenders, the market of the corruption and exploitation of children and the paramount need to protect children which, of course, clearly must be taken into account. The relevant passage in relation to the intrinsic leniency in the use of other than full time custody such as in New South Wales with the intensive correction order, appears at [98] and is referred to in Porte at [129], to which the Crown took me.
I have had regard to those decisions and some of the other decisions cited by the Crown, many of them summarised in the helpful summation of the principles by Johnson J in the two particular decisions I referred to from 2015. It is to be noted though those judgments and other judgments I have been referred to the analysis of the CETS scale, the evidence of which is before me in this particular matter.
The important thing to draw, however, from the principles that are summarised by his Honour and other judges is very much the significance of "general deterrence" in the sentencing exercise where it is appropriate to make an example of people who involve themselves in this pernicious trade or activity. This is where the matters that I referred to that flow from Muldrock and De La Rosa and other cases such as Hemsley, Engert and the like come to bear in the ultimate determination that I have made at this point as to the disposal of this particular matter.
The Crown's submissions, to stay with the material it provided, dealt with the technical aspects of sentencing under Commonwealth legislation and the requirement to impose terms of imprisonment in circumstances where all other appropriate considerations have been had and appropriate ways of structuring terms of imprisonment if they are to be imposed. Those matters are obviously reflected ultimately in the orders made by the Court.
The matter that I alluded to earlier in the context of the helpful Crown submissions which I need to pause to observe at this particular matter is that in its helpful analysis, the Crown has sought to isolate matters that I have referred to in the evidence presented by the prisoner, and also available from the defence case, as being, as I understood the Crown's submissions, "personal circumstances". It was submitted that they needed to be seen as being separate and apart from the assessment of the objective facts. Whilst I make no professional criticism of those particular submissions made they seem to me not to be in accord with that analysis of the way in which judges are required to take into account all relevant matters reflected in the judgment of Markarian to which I referred in the early part of my judgment. Nor does the Crown's analysis accord with the relevance of the material available in this case as discussed in decisions such as Muldrock and the particular principles summarised in De La Rosa.
I accept as a fact, of course, that the sentencing of offenders to terms of imprisonment where they have disabilities or physical and/or mental conditions is one that also requires to take into account that it is the responsibility of the Corrective Services authorities to provide appropriate care, protection and treatment for prisoners. Many conditions can be adequately managed by the authorities without the need for mitigating the sentence that would otherwise be appropriate. It would only be in relatively rare cases that the so called "Smith" principle is invoked. Smith was one of the early AIDS cases from South Australia, followed in New South Wales by Bailey with which I had some connection. In Smith the South Australian Full Bench, (see '(1987) 44SASR 587 at 589) held that:
"While the health of an offender is relevant to the type and length of any sanction imposed generally speaking it will only be a factor tending to mitigate punishment when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender by reason of ill health or whether it is a serious risk that imprisonment will have a grave adverse effect on the offender's health."
Both parties brought, as I understood it, this authority to my attention in different ways. The defence submitted the Crown had misunderstood the authority. The prisoner's physical and mental condition is not one that of itself presents "serious risk" to his health in a direct sense. In fact, on one analysis of it the principle in Smith and Bailey and the like, it has little connection with this case. But this particular prisoner's conditions present particular consideration more by reference to the analysis of McClellan J in the decision of De La Rosa to which I earlier referred.
The Crown in its written submissions took me to what were claimed to be "comparative" cases. I do not need to cite all of those. I have had regard to those supposed "comparative" cases. Many of them are entirely uncomparative or of little relevance. Those that involve sentences imposd upon people who pleaded not guilty, for example, by and large can be substantially ignored. No contrition, no discount for the plea, no insight, as a rule.
In this particular matter I hasten to say by reference to the relevant matters I am required to have regard to under State and Federal law, the issue of contrition does not in a sense squarely rise. The prisoner has expressed regret for his conduct which I note. But the intellectual impairment of the prisoner is one that in my view makes it difficult for him to have a full appreciation, through no fault of his own, of the character of the meaningful contrition as it may be capable of being expressed or demonstrated by a person of average intelligence.
So far, however, as the comparative cases have been taken into account I also note the analysis in the decision of Porte which to my mind seems more extensive than the cases cited by the Crown (appearing at [152]-[154]). I am mindful of what the Crown has said about the capacity, pursuant to the High Court judgment in Hili and Jones, to have regard to "comparative cases across jurisdictions". But again every case it is fairly to be said is to be treated individually as the High Court itself recognised in Hili and Jones. One must be very careful in placing too much weight on a particular case or cases.
In Porte the treatment of that Crown appeal, it being upheld of course, provides some assistance, some guidance, in considering at least the appropriate penalty to be imposed on an offender such as this offender for offending that related to the possession of either child pornography or child abuse material, which is of course only part of the offending behaviour of the prisoner. I have had regard to it, and De Leeuw, the case which I earlier referred, as well in this regard.
I am required in respect of the State offences to have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I note in this regard that I have concluded by reason of the prisoner's impairment and cognitive deficiencies and other related matters that I should not, notwithstanding the character of the offending, give significant weight to the issue of general deterrence, nor do I believe I am required both in the context of both Federal and State sentencing to give much weight ultimately to personal deterrence in the context of the experiences of the prisoner in custody to which I have referred and the recognition at least to this point by the prisoner of the character of his offending.
I am mindful of the assessment in this regard of the Department of Community Corrections or the Corrective Services Department of the New South Wales Government concerning his risk of offending in the future. There are limitations upon the statistical or actuarial tool that was used. I have noted that earlier. But I also acknowledge that the prisoner is a person who is at "risk" and his conduct will need to be very, very carefully supervised in order to ensure that he does not take advantage of any access to the internet, particularly to take up the types of activity that are reflected in the offending with which I am concerned.
The sentencing of the offender pursuant to New South Wales legislation also requires me to have regard to s 21A of that Act as it relates to count 7 and the matter on the Form 1. In that regard the offending with which I am concerned does not have in my view any of the "aggravating factors" that are identified in s 21A(2).
There are, however, quite a number of mitigating factors that arise for consideration in respect of the State offending. In my view the offending was not part of planned or organised criminal activity. The prisoner did not have any record of previous convictions. Although there are of course limitations to his capacity to develop good character. In the context of his upbringing and his attempts at employment, his attempts at education, and his absence of criminal activity before the middle of 2014 I have concluded that he was a person of good character, although at the time of committing the State offence I appreciate he was unconvicted in respect of the Commonwealth offending.
I cannot conclude that he is unlikely to reoffend. The complexity of circumstances as I say requires considerable work by others, but with that assistance there is a capacity for him not to reoffend. I am mindful of what he claims, and what other people observe, to be the salutary experience of him being brutalised in custody.
With the professional assistance of others and the continuing support of his family, which is undoubted, I believe he has good prospects of rehabilitation. I have dealt with the issue of remorse. His plea of guilty is to be taken into account, as is required under Commonwealth legislation.
In respect of his pleas of guilty, I am prepared to accord him in respect of each offence a discount of 25% for facilitating the course of justice and for the plea's utilitarian value in respect of count 7. I appreciate there was some delay in entering the pleas, he was at large for nearly a year before the matters were dealt with in the Local Court to be committed for sentence to this Court.
The delay in this matter being disposed of is inexcusable. Why it has taken a year for the matter to be dealt with by a judge I do not know. It is a matter, in my view, of shame for the justice system to have offenders appearing for sentence two years after they have been charged.
Of course, during that two year period the offender has undertaken some limited counselling, particularly in the last four or five months, which I have taken into account, and he has also been subject to those restrictive conditions upon his liberty. Effectively a form of house arrest, as his bail conditions made clear, which I have also taken into account in my disposal of the matter.
I had written submissions from counsel for the accused, and very helpful oral submissions which supplemented those written submissions. His counsel's written submissions reflected upon the significance of his intellectual disability, particularly in the context of the weight to be given to general deterrence which I have already taken into account. The issue of his risk in custody I have already referred to in some detail.
I accept the submission that he is a poor candidate for the "vehicle (of) general deterrence" for the reasons advanced by his counsel. I have taken into account the other matters referred to in those written submissions. The oral submissions in a sense have added texture to the essential points made in the written submissions. I accept the submission made that the expert evidence essentially spoke in "one voice" and the only aspect of the submissions of the defence that I found some difficulty with was the reliance upon Cartwright as illustrating any matter that warranted consideration here.
One of the consequences of the judgment in Markarian was that in assessing the competing considerations, multitude in this particular case, in the fixing of the appropriate sentence is that any "discounts" that might be accorded to an offender that would be recognised in 'mathematical' terms are limited really under current sentencing practice to the discount for either facilitating the course of justice and/or the utilitarian benefit of the plea of guilty, and any discounts accorded for cooperation in assisting the authorities to prosecute others etc, which does not arise.
In taking into account the matter on the Form 1, I have had regard to the guideline judgment of the Court of Criminal Appeal from 2002. I need not cite its principles beyond saying that the matter on the Form 1 is so intimately bound up with the character of the principal offence that it seems to me that no substantial greater weight should be placed upon retribution and deterrence by reason of the appearance of that matter in this case on the Form 1.
Just to finish by reference to the helpful Crown oral submissions, many of which I have obviously taken into account in my conclusions in this matter, the Crown pointed to the fact that the prisoner's past background of employment, his ability to operate a computer, his ability to participate in chat sessions to transmit and/or disseminate material are reflected upon capacities that may be seen to sever the "causal link" between his disabilities and the offending.
Whilst I accept that there is evidence of each of those matters, the matters that were identified by the Crown reflect aspects of the personal circumstances of the offender which are not, to my mind, decisive. For example, the offender's history of employment not only is sporadic but has characteristics of nepotism rather than achievement on the part of the prisoner. The capacity of the prisoner to operate a laptop or an iPad or a mobile phone and gain access to the internet and communicate in that way does not deal directly or even adequately with the way in which his disability has informed the interests that the offender had in participating in the conduct that fills reasonable people with such revulsion.
I have taken some considerable time to go through the material and try to relate it to the particular matters the Court is required to have regard to in a case such as this, not only the principles that I have reflected upon such as those summarised in De Leeuw, but also by reference to the principles again helpfully identified by the Crown that are required to be considered in sentencing in circumstances such as I am confronted with, that is, a number of offences, both Commonwealth and State, giving proper regard to the totality of the criminality in accordance with, for example, the decision of Pearce v R (1998) 194 CLR 610 particularly at [45], picking up from where the High Court had discussed the issue of totality of criminality in the judgment of Mill v R, (1988) 166 CLR 59.
I have also had regard to the decision of the Court of Criminal Appeal in Zamagias [2002] NSWCCA 17. The judgment of Howie J adopted by Johnson J in the later 2005 decision of Douar, where their Honours reflected upon the proper approach to considering the imposition of terms of imprisonment. I must say, in the context of both the Commonwealth legislation pursuant to s 17A of the Crimes Act and the New South Wales legislation to which I have referred, particularly s 5, that in respect of practically all of the offences with which I am concerned, the threshold has been passed requiring the imposition of terms of imprisonment in respect of each of the offences. The final structuring of the sentencing of the offender, however, will not occur today.
It seems to me in the structuring of the offender's orders, for example in respect of count 1, bearing in mind it is the first offence in time, having regard to the fact that at that time the prisoner was not a "unconvicted offender" as he was, for example, at the time of committing count 7, I might impose an order other than a custodial sentence. But I would do so for the other matters. However, I have concluded ultimately that the total term of imprisonment that I will impose in relation to this matter will not exceed two years' imprisonment, primarily for the reasons that I have identified that impact upon the weight to be given to personal and general deterrence as is usually demanded by the authorities that I have cited.
Thus, in those circumstances, what I have concluded, accepting the inherent leniency of an order other than full-time custody in a case such as this, that I should adjourn the matter for the offender to be assessed as to his suitability for service of any term of imprisonment by way of intensive correction order.
The orders I will thus make - although, as I say, the actual structuring of the sentencing will be a matter of some considerable complexity given the number of offences and obviously giving appropriate weight to the issue of totality of sentencing - will be in accordance with the usual practice in this Court pursuant to the relevant State legislation which deals with matters for which a person may be assessed for an alternative to full-time custody.
Can you stand up, please, Mr Forrest. The informal order I make at this early stage will be in the following terms. In respect of each offence you are convicted. I have considered, both in respect of the State legislation and the Commonwealth legislation that no penalty other than imprisonment is appropriate. However, I have concluded that the total sentence to be imposed will be for a period of no more than two years. I wish to make it very clear to you, had you been a person of what I would regard as of average maturity, even perhaps below average maturity and intelligence, you could have expected a sentence no less than four years, having regard to the comparative sentences which were brought to my attention, not just by the Crown but by the authorities to which I have referred that have examined aspects of your criminal conduct or criminal conduct of your type.
You are to be referred for assessment as to your suitability for an intensive correction order as a means of serving the sentence. I order the preparation of an assessment report. I will continue your bail until the date fixed for the assessment to be undertaken. Just take a seat, thanks very much. However, I indicate of course that the matter will need to be closely reconsidered should you not be suitable for an intensive correction order.
I will adjourn the matter until 26 May 2017.
Mr Forrest, I will require you to report to the Community Corrections Office at Burwood by 5pm next Monday, do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: That's 10 April, to facilitate the preparation of the report, and I direct Community Corrections to prepare an intensive correction order assessment report on or before 26 May 2017. I should point out, at the risk of straining the patience of everybody sitting in Court, what I meant to do but neglected to do in the context of treating the Community Corrections Service report note the assessment of the officer, and I'll read that onto the record and include it in the appropriate place at my remarks:
"Mr Forrest has a long history of attention, learning and social interaction deficits. His ability to reason, concentrate, memorise and process information is limited. Protective factors include good family support, good psychiatric and psychological care. It is noted also that Mr Forrest does not have any prior criminal history. His time on remand in custody appears to have been salutary. Despite his intellectual disability he has expressed what appears to be genuine remorse and understanding of the implications of his offending behaviour."
I meant to read that earlier, but I neglected to do so.
Now, Madam Crown, is there anything else from you that I need to do at this particular point of time?
WESTGARTH: Not at this point, your Honour.
HIS HONOUR: Thank you very much for your help. And what about you, sir, anything else from you?
VIZINTIN: No, your Honour.
ADJOURNED TO FRIDAY 26 MAY 2017
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Decision last updated: 06 September 2017