DPP v Amari (a pseudonym) [2021] VCC 1406 (9 September 2021)


IN THE COUNTY COURT OF VICTORIA	Revised Not Restricted Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN AMARI (a pseudonym)

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2021
DATE OF SENTENCE:	9 September 2021
CASE MAY BE CITED AS:	DPP v Amari (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1406

Subject: CRIMINAL LAW – Sentence
Catchwords: Sexual penetration of child under 16 years old – production of child abuse material – youth offender – standard sentence provision - deportation due to automatically failing character test pursuant to s501(6)(e) of Migration Act 1958 – failing to comply with bail conditions – persistent nature of offending
Legislation Cited: Migration Act 1958; Sentencing Act 1991; s5, s 11; Criminal Procedure Act 2009; s145
Cases Cited: Worboyes v The Queen [2021] VSCA 169, R v Wyley [2009] VSCA 17, Azzopardi v The Queen [2011] VSCA 372, R v Mills (1998) 4 VR 235, Verdins; Buckley; Vo [2007] VSCA 102; (2007) 16 VR 269
Sentence: Total effective sentence of five years’ and three months’ imprisonment with a non-parole period of three years imprisonment.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Martin	Director of Public Prosecutions

For the Accused	Mr B. O’Sullivan (Plea) Ms J. Hession (Sentence)	Tony Hannebery Lawyers

1 Martin Amari^[1] on 7 September 2021, you pleaded guilty at the County Court of Victoria sitting at Melbourne to following charges:

2 For Charges 1, 2, 4, 5, 6, 7, 8, 11, 12 and 13, each of those charges carries a maximum sentence of 15 years imprisonment and each of those charges are the subject of the standard sentencing regime. The standard sentence for that charge is six years imprisonment.

3 You also consented to related summary charges being heard at the time of your plea and pursuant to s145 of the Criminal Procedure Act, the following related summary charges were before this court and you pleaded guilty to each of them.

4 Each of the related summary charges has a maximum penalty of three months' imprisonment.

5 You have admitted a prior criminal history for offences at the Melbourne Magistrates' Court on 9 December 2020. The offences were offending whilst on bail, robbery, obtaining property by deception and possession of prohibited weapon.

6 At the time of your offending for Charges 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, you were serving a Community Correction Order for that offending. You have no criminal history for sex offences.

7 At this stage, you have spent 209 days in pre-sentence detention, not including today.

8 Your offending occurred between 1 January 2020 and 21 January 2021. At the time of your offending you were 19 and 20 years of age. You turn 21 on 20 November of this year.

9 Charges 1, 5, 8, and 10, your victim Amy Fenner was aged between 13 and 14 years old at the time of your offending. Charges 4, 6, 7, 9, 11, 12, and 13, your victim Alyssa Lennon was 14 years at the time of offending, and Charges 2 and 3, your victim Brooke Derrick was14 years old at the time of your offending. Your victims, Amy Fenner and Alyssa Lennon knew one another but Brooke Derrick did not.

10 The prosecutor filed and read an Amended Summary of Prosecution Opening for Plea dated 2 September 2021. It was Exhibit “A” on the plea.

11 Charge 1 is referred to as the first incident. In the period between January and March 2020, you contacted Amy Fenner via Snapchat using your account names ‘sadcunt’ and ‘ygkananova’. Amy Fenner lied to you about her age, saying she was 15 years old. You lied to her about your age, saying you were 17 years old. Amy Fenner knew you as Marty^[5]. You made an arrangement to pick up Amy Fenner from her home. You were driving a red Mazda and in company with an unknown male and two other females. You all smoked marijuana together. The two females were then dropped off in Greensborough.

12 You then drove to your brother's place in Chirnside Park. You went into the house and retrieved a set of keys to another car and you drove to a nearby park. Amy Fenner was in the back seat of that car. You got into the back seat with Amy Fenner and locked the car doors. You asked Amy Fenner to, 'Suck my dick.' Amy Fenner performed oral sex on you. You then removed her pants and attempted to penetrate her vagina with your penis. Amy Fenner told you she was a virgin. You said, 'Not anymore,' and proceeded to penetrate her vagina with your penis. You then got Amy Fenner to perform oral sex on you again. At that time, Amy Fenner was 13 years of age and you were 19 years of age.

13 These events are the basis for the rolled-up charge of sexual penetration of a child under 16 years. After this offending, you contacted Amy Fenner on Snapchat but her father answered the call and abused you. You blocked her from your account.

14 Charges 2 and 3 is referred to as incident two. In August 2020, you added Brooke Derrick to Snapchat using the account ‘sadcunt’. You have told Brooke Derrick that you were 17 years old and your name was Marty^[6]. On 28 August 2020, you arranged for Brooke Derrick and her friend who I will refer to as Madeleine Foy^[7], to hang out at a party in Chirnside Park. You arranged an Ola ride to take them to an address in Chirnside Park . This address was occupied by a friend of yours who I will refer to as Safwah^[8]. You supplied the girls with cigarettes, alcohol and weed, and spent time in Safwah's bedroom.

15 You made a number of sexual approaches to Brooke Derrick. Ultimately, you convinced her to go into the bathroom with you. You locked the bathroom door. Brooke Derrick rebuffed your advances. You directed her into a corner and had her up against the wall of the bathroom. You tried to kiss her a few times and she told you no and then you told her that she could either leave or give you a head job and everything will be fine. Brooke Derrick then told you that she was not interested and that you were not respecting her body. You told her, 'After I do all this for you. I got you an Uber, I got you this and that and this is how you repay me.' Brooke Derrick then asked the accused, 'If I do this, will you let me go and be with my friend?' Her friend was still in the bedroom. You replied, 'Yes.' You then undid your pants and kissed Brooke Derrick. You pushed her head down onto your penis and she performed oral sex on you. That is the charge of sexual penetration of a child under 16.

16 As Brooke Derrick was performing oral sex on you, you grabbed her breasts and bottom and then you grabbed her throat and choked her and she found it hard to breath. Brooke Derrick states that the ‘chokes weren't, like, that, like, strong besides one.' She describes there was one choke where she could not breath and she removed your hands from her throat. That is the common law charge of assault.

17 You ejaculated on the floor of the bathroom. You then removed Brooke's jumper and bra and asked her to get into the shower and she refused. You told her, 'Give me a kiss and you can leave.' You threatened Brooke that she would be bashed if she told anyone about the offending. Brooke Derrick and Madeleine Foy then left the premises when Brooke was released from the bathroom.

18 On the way home, Brooke Derrick told Madeleine Foy what you had done to her. Brooke Derrick at that time was 13 years of age and you were 19. At the time of this offending, you were on bail for other unrelated offending which is Summary Charge 3.

19 Charges 4 and 5 on the indictment is part of incident three. Alyssa Lennon was an acquaintance of Fikri Toma^[9]. They communicated by Snapchat. Toma is now a 21-year-old and you knew him. Alyssa Lennon, Amy Fenner, Toma and yourself met at the Eltham train station on 26 and 27 December 2020. You drove a white Commodore with all on board to Alyssa's residence. You and Toma supplied the whiskey and beer. You told Alyssa Lennon you were 18 years old. Alyssa Lennon told Toma and you that she was 14 years old. Amy Fenner went into Alyssa Lennon’s bedroom and had laid on the bed after having some drinks. Amy Fenner told you that she was 14 years old and you said that you were 17 years old. Toma left the room. Alyssa Lennon came into the bedroom and you had penal/vaginal sex with her whilst Amy Fenner was on the bed. Alyssa Lennon does not recall this event. Amy Fenner says she heard the event as she was on the bed beside you. That is the Charge 4 of sexual penetration with a child under 16.

20 Alyssa Lennon then left the room. You then got on top of Amy Fenner and removed her pants and had penal/vaginal sex with her for about five minutes. You did not wear a condom when you had sex with Amy Fenner. That was Charge 5, sexual penetration of a child under 16.

21 At the time of these offences, both girls were 14 years old and you were 20 years old. You had been placed on a CCO for other offending on 9 December 2020.

22 For Charges 6, 7, 8, 9, and 10, they are part of incident four. On or about
28 December 2020, you and Toma met Alyssa Lennon and Amy Fenner again at the Eltham train station. You again drove the four of you back to Alyssa's place. You provided weed and alcohol to the girls. The four of you went into Alyssa's bedroom. Alyssa performed oral sex on you. You then had penal/vaginal sex with Alyssa in front of Toma and Amy. That is part of the rolled-up Charge 6, sexual penetration of a child under 16.

23 Toma then had penal/vaginal sex with Amy Fenner on the bed. Amy then left the bedroom and went to Alyssa’s mother's bedroom and cried. Alyssa and Amy drank more alcohol in the mother's bedroom. You asked Alyssa and Amy to come back into Alyssa's bedroom. When the girls came back into the bedroom, Alyssa performed oral sex on you again. That is Charge 7, sexual penetration of a child under 16.

24 Amy Fenner performed oral sex on Toma. Whilst these sex acts were going on, you and Toma filmed the girls performing oral sex on each of you. They are Charges 9 and 10, involving a child in the production of child abuse material.

25 You and Toma then 'swapped' the girls. Amy Fenner performed oral sex on you, that is Charge 8, sexual penetration of a child under 16, while Alyssa Lennon performed oral sex on Toma. You did not wear a condom when you were having sex with Amy Fenner. At the time of these offences, both girls were 14 years old and you were 20 years old.

26 Charge 11 is incident number five. In January 2021, you and Toma drove to Alyssa's house and picked her up. Alyssa got into the back seat of your Commodore. At some stage, you stopped the car and both Toma and you got into the back seat with Alyssa. Alyssa was sitting in the middle of the two of you. You removed your pants and pushed her head down towards your penis and she performed oral sex on you. You ejaculated but she is not sure where you did that. That is Charge 11, sexual penetration of a child under 16. Toma then had Alyssa perform oral sex on him in your presence.

27 Charge 12 is incident number six. Again in January 2021, you arranged to meet Alyssa via Snapchat. You picked her up in your white Commodore at Eltham Village Shopping Centre. Alyssa again, got into the back seat of your car. You drove to the same area as the previous occasion in incident five. You got into the back seat of the car. You removed Alyssa's clothing and got on top of her and had penal/vaginal sex with her. You then had Alyssa sit on top of you, facing away from you, and continued to have penal/vaginal sex with her. You pushed Alyssa off and ejaculated outside of the car. On that occasion, you did not wear a condom whilst you were having sex with Alyssa. That is Charge 12, sexual penetration of a child under 16.

28 Charge 13 is incident seven. On 20 January 2021, you arranged to pick up Alyssa Lennon and Amy Fenner. You drove both of them, in your white Commodore, to an address in Chirnside Park. There, you met Safwah at this address. You supplied whiskey and weed. The four of you smoked the weed using a bong in Safwah's bedroom. You had penal/vaginal sex with Alyssa in front of Safwah. That is Charge 13, sexual penetration of a child under 16.

29 Safwah then penetrated Alyssa's mouth with his penis, so at the same time, the both of you were penetrating Alyssa Lennon. Amy Fenner witnessed this sexual offending. You did not wear a condom. Safwah did not wear a condom. Amy Fenner rang her brother and asked to be picked up.

30 You were on bail for your offending against Brooke Derrick from the period of 9 October 2020 onwards.

31 On 10 September 2020 at 7.30 am, a search warrant was executed at your home at in Croydon Hills. You were arrested and the mobile phones belonging to your mother and your brother were seized after you denied owning your own mobile phone.

32 You were then conveyed to the Police Station where you participated in the record of interview, during which you denied knowing Brooke Derrick or having any contact with her. You stated your Snapchat account did have the name ‘sadcunt’ but it had been hacked. You denied being in Chirnside Park when the incident was alleged to have occurred because you were at home in compliance with your curfew. You denied having or being known by the name Marty. You denied knowing Safwah or his address in Chirnside Park . You denied kissing or engaging in oral sex with Brooke Derrick and denied you ejaculated after the oral sex.

33 Following your interview, you were then released, pending further inquiries. The investigators obtained from Brooke Derrick a copy of the Snapchat messages she had exchanged with you on 29 August 2020. The Snapchat username for you was ‘sadcunt’ and the chat depicted a photograph of you and a street view in Chirnside Park.

34 On 17 September 2020, a search warrant was executed at Safwah's address in Chirnside Park and Safwah's mobile phone was seized and malice of his mobile phone revealed multiple videos and photos showing Safwah and you together. Call charge records conducted on Safwah's mobile phone also revealed an extensive call and text history between you and Mr Safwah.

35 The property was forensically examined and a latent fingerprint belonging to you was located on the glass outside the right panel of the shower screen in the bathroom. Inquiries also revealed that it was Safwah who made the Ola booking on 28 August 2020 for the complainant, Brooke Derrick, using his mobile phone. The payment details for the booking listed credit cards in the names of both you and Safwah.

36 On 3 October 2020, Brooke Derrick viewed a photo board and identified you as the person she had been in the bathroom with on 28 August 2020. Your image was placed number 8 on that photo board. On 6 October 2020, you were charged in relation to the offending against Brooke Derrick and remanded into custody.

37 On 9 October 2020, you were released on bail with one of the conditions that you reside at your home address in Warrandyte and that you were subject to a curfew between the hours of 9 pm and 6 am.

38 On 16 February 2021 at about 6 am, a search warrant was executed at your home address in Warrandtye in relation to Amy Fenner and Alyssa Lennon’s offending. You were not present at this time which was in breach of your bail conditions set on 9 October 2020, that is Summary Charge 32, failing to comply with a curfew. You subsequently returned to the address at 10 to seven that day where you were arrested and your white Commodore was seized.

39 On the same day, a search warrant was executed again at Safwah's address in Chirnside Park and Safwah was arrested. Ultimately, Safwah denied the allegations and stated Amy Fenner and Alyssa Lennon had never attended his address.

40 Following your arrest on 16 February 2021, you were conveyed to the Police Station where you participated in a record of interview and you provided, as is your right, a no comment response to those questions. Following that interview, you were remanded in custody. You have spent 209 days in pre-sentence detention, including this day.

41 In this case, Victim Impact Statements have been filed and were read. The Victim Impact Statement prepared by Alyssa Lennon was read out by the prosecutor and it was Exhibit “B” on the plea. Alyssa says she now is very anxious and describes herself as paranoid because you know where she lives. Her family have moved house. She states she cannot be alone at any time. She says she has an STI. Alyssa says her mother gave up her employment to look after her, such is her mental health. Alyssa has a mental health worker. Alyssa says she stays in her room most of the day and feels broken. She just wants her old life back, as she described it. She has stopped going to school. I cannot overestimate that your offending has had a profound and adverse effect on Alyssa.

42 The other Victim Impact Statement was prepared by Brooke Derrick’s mother and this was Exhibit “C” on the plea. Brooke had told her mother of the fear that she had felt, both for herself and her friend Madeleine Foy while she was in the bathroom with you. Brooke has expressed to her mother the shame and the guilt that she had felt and the fact that she had been threatened by your offending. Brooke has now relocated to another state to live with her father and commence with her recovery. That means that now Brooke no longer lives with her mother and brother due to these offences. I have no doubt your offending against Brooke, which occurred on one occasion, has had an immense impact on her.

43 You are 20 years of age, soon to be 21 in November 2021. You are the second eldest with one older brother, one younger brother and two younger sisters. I note your eldest sister is approximately the age of the three girls that you have offended against.

44 You grew up in Iraq in a time of what is described as the Iraq war which commenced in 2003. You report that you had witnessed the beheading of two of your friends whilst on your way home from school. Your parents conducted a retail business in Iraq when you lived there. The security situation for your family deteriorated so your parents and family fled to Turkey in 2010 and 2012. In 2015, your family was granted a refugee status and came to Australia. You undertook language study and completed year 10 schooling here. You worked for your brother as a house painter. You have tickets for a white card and a traffic control license. You are a talented junior soccer player. You had the opportunity to try out for Melbourne City FC development squad. You aspired to be a professional soccer player.

45 You have been in custody for these offences since 16 February 2021. You have been in protection since 3 March 2021. You are currently in Hopkins Correction Centre. Your work is making custom license plates. You have access to Zoom communications with your family members.

46 You have been assessed by Carla Ferrari, a forensic psychologist, for the purposes of this sentence in process. Her report was dated 16 July 2021 and is Exhibit 2 on the plea. She reports that you have an arranged marriage with a family friend in Iraq. You have had psychological sessions with Christine Harding in 2020 until your incarceration in February 2021. You have been referred to Forensicare whilst on remand but have declined any further help from them. You confirmed your use of cannabis and alcohol to Ms Ferrari in the course of your offending period over one year. You told Ms Ferrari that you thought your victims were 18 years old. You maintain that belief in the face of your plea and the fact that each girl told you otherwise.

47 Ms Ferrari assess you as suffering from extremely severe symptoms of depression and anxiety. She also assesses you suffering from PTSD due to your childhood experiences in Iraq. Ms Ferrari assesses you to be a moderate to high risk of future sexual offending if you do not receive formal intervention. In Ms Ferrari's opinion, you need treatment for your depression/anxiety whilst in custody in the form of a mental health plan or other similar assistance.

48 You have done a number of courses whilst being in custody. The certificates for those courses were part of Exhibit 3. Your sister-in-law in her letter to the court stated that you are a positive influence on her children. She further states you have employment and housing support when you are released from custody. That was Exhibit 4 in the plea.

49 The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.

50 I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. I am required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for the sentences at the time.

51 I have considered the statistics and current sentencing practices. I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. The current sentencing practices are but one of the factors I have to take into account when fixing your sentence.

52 The maximum sentence for these charges on the indictment is 15 years imprisonment pursuant to s5A and s5B of the Sentencing Act. These charges are also subject to the standard sentencing provisions. The standard sentence for these offences is six years imprisonment. The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16 years. The maximum sentence and the standard sentence are to be taken into account as legislative guideposts in the sentencing process.

53 In s5B(3)(b), Parliament enacted that standard sentencing divisions that are not intended to affect the approach to sentencing notice instinctive synthesis. Champion J in the case of R v Brown^[10] set out that the standard sentence is not to take the predominant role in sentencing and is just one of the factors to take into account. It follows that the standard sentence does not assume a dominant role in the determination of the sentences for these charges.

54 The standard sentence prescribed by Parliament for the offences is simply one of the relevant sentencing factors to which the court must have regard, along with the other sentencing factors identified which are required to be taken into account in s5(2) of the Sentencing Act. Further, so far as consideration of current sentencing practices are concerned, s5B(2)(b) requires a court, when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.

55 Mr O'Sullivan, counsel on your behalf submitted in the strongest terms that the appropriate sentence for all of your offending was detention in the Youth Justice Centre. For reasons that follow, I assess your offending and the persistent nature of it renders such a disposition as out of the range of a just sentence. Your offending is simply too serious.

56 You have pleaded guilty to this charge. Your plea of guilty was indicted at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.

57 Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.

58 Your plea obviates the necessity for your victims Alyssa Lennon, Amy Fenner and Brooke Derrick to relive and to give evidence about your offending. I accept you know that, by pleading guilty, none of your victims have to come to court and give evidence, which spares each of them from that confronting experience.

59 You have also pleaded guilty to these serious charges in the course of the COVID-19 pandemic. The Court of Appeal in the case of Worboyes v The Crown reported at [2021] VSCA 169 stated:

'For these reasons [which they had set out] we consider that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence at another time. Although a sentencing judge need not quantify the extent of any discount, he/she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'

60 You had prior convictions for some matters but you had no sexual prior convictions. You are to be sentenced as a person with them. A young offender is defined as being a person under the age of 21 at the time of the sentence in the Sentencing Act. You are that person. I accept that you are a youthful offender. At the time of the offending you were 19 and 20 years of age. You are a youthful offender. It is a principle of sentencing law that when a young offender, such as yourself, is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote the offender's rehabilitation. This approach serves the interests of the individual offender and the community as a whole.

(1) Youth of an offender, particularly a first offender, which you are not quite but you are close to, should be a primary consideration of a sentencing court where the matter properly arises.

(2) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as you, the offender.

(3) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the fact of his past criminality. The benchmark for what is serious as to justify an adult prison may be quite high in the case of a youthful offender and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.

62 That last proposition in particular is a general principle expressed in s5(4) of the Sentencing Act. In more recent times, the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wyley^[12], President Maxwell said as follows:

'Mills [referring to the case I have just quoted from] constantly reminds sentencing courts and this court on appeal that there is a great public benefit in the rehabilitation of an offender and in the maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders, nor is there any one correct answer as to how the balance is to be struck between that consideration and other which may point towards a period or a longer period of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as excluding the principles of Mills, but simply as instances of those principles as to how those principles are to be applied.'

63 As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general terms may have a particularly important part to play. The present case is of that kind. In the circumstances of this kind, it is so prevalent that general deterrence is to be seen to add particular importance, but again, the role of general deterrence will vary with the circumstances of the case.

64 In offending such as sexual offending against 13 and 14 year old girls calls for a measure of general deterrence. These issues were recently considered in Azzopardi v The Queen^[13] where Redlich JA, as he then was, and Coghlan JA and Macaulay JA agreed with him, said as follows:

'The general proposition which flows from these authorities is that where the degree of criminality of the offence is requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus. The weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases, there will be corresponding reduction in the mitigating effects of the offender's youth, but only the circumstances of the greatest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.'

65 The offence of sexual penetration of a child under 16 years of age is, by definition, a serious offence. The seriousness of your offending is indicated by the following factors:

(d) You offended against three separate underaged victims over seven separate incidents.

(e) Except for the first incident, your offending occurred whilst on bail or whilst you were serving a Community Correction Order.

(g) You did not use a condom during sexual intercourse. This increased the risk of pregnancy or transmission of sexually transmitted infections. There is no evidence that that occurred in this case.

(i) There was a level of planning and brazen behaviour on your behalf behind all of this offending.

66 Your counsel submitted that limbs 5 and 6 of Verdins^[14] principles have application in your case. I accept the mental health diagnosis made by Ms Ferrari does support the proposition that the sentence will weigh more heavily upon you than a person of normal mental health. Further, I accept there is a risk that imprisonment could have the adverse effect on your mental health and these are factors tending to mitigate your punishment.

67 You are currently a permanent resident of Australia. Your conviction and sentence of imprisonment will affect your visa status as you will be deemed to have failed the character test under the Migration Act. The result of that is your visa will be cancelled and you will become an unlawful non-citizen. You face the prospect of detention in a detention centre on your release from prison. You also face the prospect of deportation from Australia. The possibility of a deportation affects you in two ways:

(a) the uncertainty that, at the end of your sentence, you will be uprooted and separated from your family here in Australia and returned to Iraq, your country of origin, and

68 I take these additional hardships in respect to deportation into account when fixing your sentence.

69 I assess your prospects of rehabilitation as fair. I note Ms Ferrari's opinion that you are a moderate to high risk of future sexual offending without formal intervention. You are young and enjoy strong family support, you have a limited criminal history and a good work ethic. I assess your offending at the mid-range for this type of offending. I have accumulated that amount of the punishment that reflects the offending against each of the victims and moderated the cumulation so as not to impose a crushing sentence upon you. To do otherwise would offend the sentencing principle of totality.

70 The provisions of s11 of the Sentencing Act set out, in a standard sentencing case such as this, that a non-parole period is at least 60 per cent of the total sentence. In this case, due to the particular and unusual circumstances of the offending and the matters relevant to you more particularly personally, I am going to impose a non-parole period which is slightly less than 60 per cent of the head sentence.

71 Due to your age, the serious sexual offender provisions of the Sentencing Act do not apply in your case. You are just shy of under 21 years old.

72 The circumstances of your offence and your personal circumstances do not admit of any just sentence other than a term of imprisonment with a non-parole period. The sentencing principles of general and specific deterrence, just punishment, denunciation of your offending and the protection of the community dictate that the only appropriate sentence is imprisonment. Hopefully, you will be granted parole at an early time so that the Adult Parole Board can assist you with your rehabilitation.

73 Due to your offending, you will be placed on the Sex Offenders Register for life.

76 That is a total effective sentence of five years and three months. I fix a non-parole period of three years.

77 But for your plea of guilty, I would have sentenced you to seven years and three months with a five-year non-parole period. I declare you have served 209 days pre-sentence detention, not including today, and that you are on the Sex Offenders Register for life.

78 HIS HONOUR: Can I ask counsel to check the cumulation to make sure the total effective sentence is correct. I just want to check, Madam Prosecutor, whilst you're doing that, was the Victim Impact Statement of Ms Gannon^[15] signed?

79 MS MARTIN: It was, Your Honour, and it's been E-Lodged and I'll formally tender that Victim Impact Statement.

81 MS MARTIN: Yes, Your Honour. Your Honour, I've checked Your Honour also cumulation and they arrive at the sentence.

88 HIS HONOUR: Thank you. Thank you, Madam Prosecutor, for your assistance.
Ms Hession, thank you for your assistance today but could you pass on my thanks to Mr O'Sullivan for his assistance in this case.

92 HIS HONOUR: Certainly. No, we'll make that available. The learned prosecutor will leave the court. The only person who'll be in the court will be my tipstaff to facilitate the link. Thank you.