CDirector of Public Prosecutions v Baird

[2024] VCC 827

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-01028

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

GRAHAM BAIRD

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2024
DATE OF SENTENCE:	4 June 2024
CASE MAY BE CITED AS:	CDPP v Baird
MEDIUM NEUTRAL CITATION:	[2024] VCC 827

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Using a carriage service to procure a person believed to be under the age of 16 for sexual activity - prior convictions for indecent assault.
Legislation Cited: s474.27 Criminal Code Act 1995 (Cth); s46(1A) Sex Offenders Registration Act 2004 (Vic);
Cases Cited: Hurt & Ors v The Queen [2024] HCA 8; R v Ibbs (1987) 163 CLR 447; Bugmy v The Queen [2013] CLR 571; R vDelzotto (2022) 298 A Crim R 483; DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360; R v RHMcL (2003) CLR 452, 477; DPP vSwingler [2017] VSCA 305. R v Verdins [2007] VSCA 102 [32];
Sentence: State sentence four months concurrently and Commonwealth sentence is three years and ten months, and the
non-parole period on the Commonwealth matters is 24 months.
PSD: 546 Days

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr M. Stanton	Mr B. Cullen Commonwealth Director of Public Prosecutions
For the Accused	Mr P. Murphy	Warren Graham & Murphy

1HIS HONOUR:

2This plea was conducted at the Latrobe Valley sitting of the County Court at Morwell on 26 March 2024.  Mr Baird pleaded guilty to four charges in the Commonwealth indictment dated 21/07/23.

3Mr Baird was born in November 1989, he was 33 at the time of the offending, and he is 34 now.  Mr Stanton appeared on behalf of the Director, as he does today, Mr Peters appeared on behalf of Mr Baird, and Mr Murphy appears today remotely.

4Mr Peters accepted that the facts as detailed by Mr Stanton in the amended prosecution opening, which was tendered as Exhibit A, are the matters and facts upon which I am to base this sentence. 

5Charges 1 and 2 are both charges under the Commonwealth Code s474.26(3), using a carriage service to procure a person believed to be under the age of 16 for sexual activity, for which the maximum penalty is 15 years imprisonment. There is also a mandatory minimum head sentence pursuant to s6AAB of the Crimes Act of four years.  The relevant crime comes under item 28, and Mr Baird becomes a candidate for such mandatory minimum sentence because of his four prior convictions for indecent assault, pursuant to s16AAA(1)(b).  Those are the convictions which were recorded at the Latrobe Magistrates' Court on 2 July 2010, which were four counts of indecent act in the presence of a child under the age of 16.

6It is important to note that Mr Baird was also placed at that time upon the reporting requirements of SORA for life. Hence, this meets the Commonwealth definition of a child sexual offence, sub-paragraph (b) being a State registerable child sex offence.

7The offending in regard to Charges 1 and 2 involve Mr Baird using his own phone and email number to make contact by way of those facilities. The background to this offending and its detection came about by way of information received from overseas on approximately 14 June 2022.  As a result of that information, a warrant was issued, and analysis ultimately was made of the phone and email operations of Mr Baird.  Both of the alleged offences occurred on 1 February 2022 in the same conversation conducted on the Skype facility whereby Mr Baird communicated with a person known as 'brianreynolds14', allegedly a 14-year-old male in the United States of America.

8Annexure A, which was tendered by the prosecution, has a transcription of the conversation encompassing both Charges 1 and 2, which is detailed on that day from 8.59 through to 9.38.  The first charge involved a conversation in regard to sexual matters for a period of 30 minutes with the person, brianreynolds14, involving advice from Reynolds that a girlfriend of his, who was aged 16, was to attend at his premises and engage in sex with him, which Mr Baird could observe by live call.

9The same conversation encompasses Charge 2, in a latter part of the conversation, in regard to the penis of Reynolds' young brother, who was alleged to be 11.  There was a conversation as to the sucking of such penis, and it also involved the sending of a photo of a pubescent erect penis, if I can put it that way, and Mr Baird sent a photo of his penis as part of the conversation.

10As a result of what I have indicated, the information which comes from overseas and appears to be these days very important to the operation of the Federal Police in this sphere, Mr Baird was arrested, by way of warrant, on 21 July 1922 and bailed.  He was subsequently arrested and remanded on 6 December 2022 after investigations were made as to his phone Skype conversations et cetera, which resulted in, as I have said, Annexure A being produced.

11The third charge is pursuant to s46(1A) of the SORA Act.  It is a charge of failing to report, for which a maximum penalty imposed under the State Act is five years imprisonment. Mr Baird was under such SORA obligations since the earlier offending and conviction in the Magistrates' Court, and the particular fail to report in this case related to the obtaining of a new email address and a new Skype name, which he failed to report within seven days of obtaining such, which was on 8 August 2019.  It is noted that the Skype username was used in regard to both the Charge 1 and 2 offending, and also that insofar as the email address, he registered with his full name and address.

12Charge 3 is also a SORA charge under s47(2) with a maximum penalty of five years imprisonment, and comes about as a result of the execution of the warrant whereby the police found a phone in his top drawer.  This charge relates to providing false information under the SORA Act, in regard to such phone, he had advised that it was cancelled in December 2021.  In fact, that was wrong, and it remained active and in his name for the following four months.

13The PSD at the plea was 476 days, and it has been agreed that as of today, the PSD is 546 days.

14The prior offences as to Mr Baird go back to New South Wales in 2009.  First offending occurred in June 2009 in Hay, and involved possession of drug equipment, for which he received a fine of $250.  Subsequently, at Murray Bridge in December 2009, he had a conviction for an offence of unlawfully on premises, for which he got a bond.  Thereafter, he has had a lengthy history in Victoria, starting in April 2008 with a number of drug charges for which he received a community-based order without conviction.  Then in December 2008, he was fined for failing to comply with that community corrections order. He then he received his first, and indeed most lengthy period of gaol in his life, in July 2010, which involve the convictions for the four indecent acts, together with a charge of trafficking cannabis, being in possession of a weapon and recklessly cause injury. In regard to all of the charges apart from the indecent matters, he received a total effective sentence of 180 days imprisonment, of which all but 38 days was suspended.

15In regard to the four indecent act charges, to which I will refer in due course, they were adjourned and ultimately, three months later, dismissed by the same Court.  On the same date 29/10/10, he was convicted of theft and assault and received a suspended sentence.  In 2021, he was sentenced to 91 days imprisonment and a CCO of 18 months for assault emergency worker.  Then finally, in October 22, again at the Latrobe Courts, you were convicted for subsequent offences for failing an oral fluid test, a firearms charge and a charge of intimidation of police, he received a community corrections order of 12 months, such offences are not prior offences.

16I make it very clear to you, Mr Baird, the reciting of those priors is not so that I do anything about them.  You have been sentenced in such respect, and there is nothing further to do here.  It is just, in fact, to analyse in this particular matter a certain submission made by the prosecution, which I will come to, but I assure you that I am not here to sentence you again on those charges.

17Insofar as matters of law determining this sentence, I accept the prosecution submission that an aggregate sentence in regard to Charges 1 and 2 is not possible.  I also accept the principles, as detailed to the Court, as set out in Hurt & Ors v The Queen [2024] HCA 8, that the manner in which, I am to interpret s16AAA is to be the same approach, as was set out in that case in regard to s16AAB, which sets a yardstick which the Court synthesises in its discretion as to an appropriate sentence. Doing so, and noting the intent of Parliament to increase the appropriate terms of imprisonment for this type of offence, I also accept that the operation of s16AAC, insofar of any possible reduction, should occur only after a determination of an undiscounted head sentence, without taking into account the impact of the plea of guilty.

18The prosecution submission as to sentence was Exhibit B.  At [2] and [28], Mr Stanton submitted that this was a matter for which a gaol sentence only was appropriate, with cumulation.  At [28], the submission was that such sentence would involve at least the minimum head sentence.  At [7], the sentence also required the non-parole period detailed in s19AB(1), and at [39], the submission was that this was a particularly serious offence.  I, of course, accept that is inherently so given not only the intent of Parliament, but the maximum penalty proscribed.

19With all offences, however, as set out by the High Court in
R v Ibbs (1987) 163 CLR 447, [452], the determination insofar as this offence, albeit it’s inherent seriousness, is of course where it sits on the scale of heinousness. Mr Peters submitted that the assessment of the offending should take one to the bottom end of such offending and, on the basis of such submission, submitted that there should be a reduction in the minimum head sentence to three years. He submitted that that was appropriate, based upon all the circumstances put at the plea.

20I then come to the objective criminality.  In assessing the objective criminality insofar as the first two charges are concerned, I take into account the following:

(1) the conversations themselves are, accepting their sexual nature, in my view, relatively tame in degree;

(2) such conversations, as I have already indicated, involved a quite short period, being some 39 minutes.  I say that by way of relativity compared to the types of cases that come before this Court;

(3) thirdly, Charges 1 and 2 encompass the same time and event by way of the conversation and make up parts of the same conversation;

(4) fourthly, one can, of course, not be sure of the age of brianreynolds14,   or indeed if he is real, albeit I accept that these pleas do accept the reality of the element set out in sub-s(1)(c);

(5) fifthly, as to the sexual activity engaged, such involves verbal conversations as to Charge 1, being the discussion of the anticipated sexual activity of the 14-year-old recipient with his alleged 16-year-old girlfriend, albeit in the discussion there is a mutual exchange of photos of penises, in Baird's case, apparently, a flaccid one, and in the other, a photo of, not necessarily the recipient but a pre-pubescent boy with an erect penis.  As to Charge 2, such is introduced by the recipient and accompanied again in such verbal conversation by a photo of a naked pre-pubescent boy with an erect penis and with the offender sending allegedly a photo of himself, this time with an erect penis.

21I accept that the intent of Parliament is to protect foreign children from exploitation by Australian nationals.  However, assessing all of those objective factors, I find in regard to both Charges 1 and 2 the objective criminality to be relatively low.

22In Mr Peters' plea, tendered as Exhibit 2 was the forensic report of Christine Kennedy, a provisional psychologist.  Mr Baird clearly has had a difficult upbringing, involving assaults of all forms and foster care as detailed in the report, no doubt leading to his antisocial personality disorder and history of anxiety and depression.

23Clearly, Bugmy is applicable, being the High Court decision [2013] CLR 571; 592-3 [37]. The applicability of Bugmy certainly, in my view, reflects the violent offences in his background.  I find there is, no connection whatsoever in regard to these offences – that is, these offences of a sexual nature. The principles of Bugmy, of course, apply generally in mitigation.  As I said, there is no evidence to connect his background by way of Bugmy principles to the two charges of sexual offending here. However I would speculate, which I stress is speculation and not taken into account in this sentence, is that given his history, as I understand it, the assaults upon Mr Baird had no doubt a strong role to play.

24His family is now stable, and he is well supported by his partner and father.  He has limited contact with his two daughters, who are now aged 13 and 14.  He is a chef by occupation.  He has been drug-addicted in the past and hopes to reform.  He also has anger issues, as indicated in his priors.  He is assessed in Exhibit 2 as having a high risk for sexual reoffending and recidivism.  Given his record, which I will come to again shortly, one notes the recommended protective factors detailed at p6 of the report. Pursuant to s16A(2AAA), I note that such protective factors are very important and should be taken into account insofar as his rehabilitation is concerned.

25As to his priors, upon analysis, I do not find them as concerning as submitted by the prosecution in the prosecution submission at [18]. The only like activity is indeed the SORA initiating offences, as I have detailed, which are the four offences, which leads to the fact that there must in this case be a mandatory head sentence.  While I am unaware of the precise details of those charges, the sentence involved, albeit a conviction if that is correct, was adjourned for three months when the charges were then marked dismissed.  No doubt that is why Mr Baird had apparently instructed, apparently, solicitors to take action to remove him from the SORA requirements.

26Mr Baird’s other offences relate to his anger and antisocial personality. It is not, as it seems to me in assessing the appropriate sentence for Mr Baird, inappropriate for this Court to note, as I have already remarked, that at no stage, in what I do not see as a concerning background, has he received a sentence of over three months' imprisonment.

27In Mr Peters' plea, he referred firstly to the early plea, which I accept; being the delay involved in finalising the matter, while waiting for the Delzotto result, which was not determined until this March, involving a wait from August of last year to now, the Delzotto case being reported at (2022) 298 A Crim R 483.

28Mr Peters also referred to Verdins [2007] VSCA 102 [32], and I do not think there is any dispute that Verdins 5 and 6 are established on the evidence.  Mr Baird has a difficult personality, which presents, risks to him in prison, although, as best as one can see from the reports and submissions, he seems to have coped reasonably well in gaol so far.  I also, insofar as Charge 4 is concerned, the breach of SORA, false information, so-called, accept that that is a very valuable plea.

29I also note, as the prosecutor has submitted, that the consideration of an appropriate sentence must also bring into play by way of balance, the principles of general and specific deterrence, punishment and the need to protect the community. 

30Mr Baird, as set out by the High Court in Dalgliesh [2017] VSCA 360, is entitled as the joint judgment emphasised, in the administration of criminal justice to individual justice, the imposition of a just sentence upon the facts of your case and the delivery thereby of justice to you. I hope by this sentence such is effected.

31There is are a number of matters that I have to go through in this sentence, so I will not ask you to stand.

32In regard to Charges 1 and 2, you will be sentenced on each charge to three years' imprisonment; in regard to Charge 3, four months' imprisonment; and in Charge 4, two months' imprisonment.

33As to Charge 1, I have determined, pursuant to s19(6), for the reasons that I detailed concerning the objective culpability of this charge, that s19(5) of the Commonwealth Crimes Act should not apply in this instance and that the sentence on Charge 2 will commence six months after the sentence on Charge 1 and will otherwise run concurrently.  I should add the additional reasons for this being not only the principle of totality, but all the circumstances which have been considered, all the other matters put to me and of course the principles set out in 16A of the Crimes Act.  Insofar as the issue of totality, I take into account, as put to me by the prosecutor, the High Court case of R v RHMcL (2000) 203 CLR 452, 477 at [76]. I am aware from State experience as to standard sentences of the tension between sections such as this and the principle of totality, and I have taken all of those matters into account in my determination.

34Hence, in accord with Swingler [2017] VSCA 305, the sentences on Charges 3 and 4 will begin immediately, and the sentence on Charge 1 will therefore commence at the end of the State sentences, which will be, pursuant to the State sentences, four months. The sentence on Charge 2 will begin six months after the sentence on Charge 1 commences.

35For your benefit, Mr Baird, one cannot have a total effective sentence where you are dealing with Commonwealth and State charges, but for the purposes as set out in s16F, it is necessary for me to explain what this sentence means to you.  For your benefit, the total effective sentence that you will be sentenced to, pursuant to both the State and Commonwealth legislation, is a sentence of three years and 10 months.

36Pursuant to s19AB of the Commonwealth Crimes Act, I fix as the non-parole period for the Commonwealth offences the period of 24 months.  This, of course, takes into account the totality of your sentencing in this indictment and that prior to you beginning your Commonwealth sentence, you would have served four months' imprisonment.

37I declare 546 days that you have served to be served as part of this sentence and order that such be recorded in the records of the Court. Hence you have roughly 10 months to serve before being eligible for parole.

38OFFENDER:  Thank you, Your Honour.

39HIS HONOUR:  I cannot tell you, Mr Baird, whether you will get parole.  It used to be that a Judge's indication would mean that you would get parole at that time.  There are now other bodies.  But again, it seems to me, with your very limited priors in regard to these types of crimes and the totality of your circumstances, there is no reason why you should not get parole at the time I have proscribed.

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  The indication that the Parliament requires me also to tell you, Mr Baird, is what sentence you would have got had you not pleaded guilty.  This is particularly difficult as the plea of guilty only is already taken into account pursuant to the Commonwealth legislation 16AAC(2)(a). However, doing as best I can, I have told you that the head sentence that you will get in totality is three years and 10 months.  Had you not pleaded guilty, the sentence would have been a sentence of five years, being 60 months, with a non-parole period of 32 months.

42I am sorry for the complication.  Whenever, unfortunately, we come to sentence with indictments involving State and Commonwealth, it is quite difficult.  Mr Murphy will explain the essence of this sentence to you, and the impact, but as I said, the total effect of that is that you will have roughly another 10 months to serve before being eligible for parole.

43OFFENDER:  Yes, Your Honour.

44HIS HONOUR:  And the total effective sentence for you, including both State and Commonwealth matters, is three years and 10 months, and the
non-parole period on the Commonwealth matters of 24 months, and the 546 days is taken into account in total.  All right?

45OFFENDER:  Thank you, Your Honour.

46HIS HONOUR:  Yes.  Either Mr Stanton or Mr Murphy, any issues with any of that?

47MR STANTON:  And just lastly, the matter from 17 October 2022, the fail oral fluid matter, is of course, strictly speaking, a subsequent rather than a prior.

48HIS HONOUR:  Yes, that is the subsequent matter because it occurred three months after or something, did it not, the offending?

49MR STANTON:  Yes, Your Honour, just so that that is clear.  And just lastly, I should also just indicate to the Court that a forfeiture order has been consented to in relation to the mobile phone.

50HIS HONOUR:  Right.  So I do not need to make any such order?

51MR STANTON:  No, no, Your Honour does not, but I just indicate that to the Court.

52HIS HONOUR:  Yes.

53MR STANTON:  As the Court pleases.

54HIS HONOUR:  Well, thank you, Mr Stanton, for the assistance in regard to my first attempt at handling these new sections.

55MR STANTON:  As Your Honour pleases.

56HIS HONOUR:  Well, I should say the High Court's assistance too.

57MR STANTON:  As the Court pleases.

58HIS HONOUR:  Thank you, all right.  Well, Mr Murphy, you will talk, no doubt, by phone to Mr Baird?

59MR MURPHY:  Yes, I will, Your Honour, thank you.

60HIS HONOUR:  Thank you, all right.  Mr Baird can go down.

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