CDirector of Public Prosecutions v Davies (a pseudonym)
[2022] VCC 1395
•24 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| NATHAN DAVIES (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 July 2022 |
| DATE OF SENTENCE: | 24 August 2022 |
| CASE MAY BE CITED AS: | CDPP v Davies (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1395 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Use of a carriage service to transmit indecent communications to a person under 16 – use of a carriage service to solicit child abuse material – use of a carriage service to cause offence - failing to comply with reporting obligations – use of a carriage service to cause child abuse material to be transmitted to self – possessing or controlling child abuse material obtained or accessed using a carriage service – use of a carriage service to procure a person under 16 – Federal/State sentencing principles – mandatory minimum sentencing principles – reduction of mandatory minimum sentence – principle of totality complicated by presumption of cumulation – Verdins and Bugmy principles– guarded prospects of rehabilitation
Legislation Cited: Sex Offenders Registration Act 2004; Crimes Act 1914 (Cth); Sentencing Act 1991
Cases Cited:R v Delzotto [2022] NSWCCA 117; Bahar v R (2011) 45 WAR 100; R v Verdins (2007) 16 VR 102; Bugmy v R [2013] HCA 37; Worboyes v R [2021] VSCA 169; DPP v Swingler [2017] VSCA 305
Sentence: State: Total Effective Sentence 1 year and 3 months with no NPP
Federal: Total Effective Sentence 4 years imprisonment with NPP of 27 months
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Ms K. Breckweg with Mr P. Botros | Commonwealth Office of Public Prosecutions |
| For the Accused | Ms A. Wong | Victoria Legal Aid |
HIS HONOUR:
Introduction
1At the outset, Mr Davies[1], I propose to sentence you to a total sentence of five years and three months' imprisonment and set a non-parole period of twenty seven months’ on the Federal portion of my sentence. I will declare the 547 days of your pre-sentence detention as time already served under this sentence.
[1] A pseudonym
2You have pleaded guilty to:
(a) 10 charges of using a carriage service to transmit indecent communications to a person under 16;
(b) seven charges of using a carriage service to solicit child abuse material;
(c) two charges of using a carriage service to cause offence;
(d) single charges for each of failing to comply with reporting obligations, using a carriage service to cause child abuse material to be transmitted to yourself, possessing or controlling child abuse material obtained or accessed using a carriage service and using a carriage service to procure a person under 16.
3Also, you admit two other offences and request that they be taken into account when I sentence you on Charges 15 and 21.[2] Those offences are:
(a) possessing or controlling child abuse material obtained or accessed using a carriage service. This offence occurred on
6 November 2020; and(b) using a carriage service to solicit child abuse material. This offence occurred on 2 November 2020.
[2] See s16BA of the Crimes Act 1914 (Cth)
4The maximum penalties for the charges are:
(a) using a carriage service to transmit indecent communications to a person under 16 - 10 years’ imprisonment;
(b) failing to comply with reporting obligations - 10 years’ imprisonment;
(c) for each of the following offences - 15 years’ imprisonment: using a carriage service to solicit child abuse material; using a carriage service to cause child abuse material to be transmitted to yourself; possessing or controlling child abuse material obtained or accessed using a carriage service; and using a carriage service to procure a person under 16;
(d) using a carriage service to menace - three years’ imprisonment;
(e) using a carriage service to cause offence - three years’ imprisonment.
5Owing to the time when some of the offences were committed, Charges 16
to 20 on the indictment require a minimum head sentence of three years’ imprisonment, while Charges 21, 22, 23 and 24 require a minimum head sentence of four years’ imprisonment.
Circumstances
6The circumstances of each of the charges are set out in the document entitled, 'Summary of Prosecution Opening for Plea', which is Exhibit A. Your counsel agreed with the factual contents of the exhibit.
7Throughout my summary, generally I have avoided the crude language you used and translated your expressions into more acceptable language.
Sex Offenders Registration Act
8On 2 February 2019, you were convicted of offences, became a registrable offender and were subject to the reporting conditions under the Sex Offenders Registration Act 2004. This placed requirements upon you including reporting to the police of any contact with a child within 24 hours of the contact.
9Between 24 January 2020 and 7 November 2020, through Facebook Messenger, you contacted 43 children without reporting the fact of such contact to the police. For 18 of those children, you engaged in overtly sexualised chat and requested sexualised images of the children. These circumstances comprise Charge 2, failing to comply with reporting conditions. This is a rolled up charge, for many instances of contact are encompassed by the charge.
Complainant SM
10Between 29 January and 16 October 2020, using Facebook Messenger, you communicated with a 15 year-old female, complainant SM. The communications relating to Charge 3 are set out in paragraph 14 of Exhibit A, and those relating to Charge 4, in paragraph 15. I will not repeat them.
Complainant AE
11Between 24 January and 24 February 2020, you transmitted indecent communications with a 12 year old female, complainant AE. Instances of your communications appear in paragraph 17 of Exhibit A. This included you asking for an image of the girl. Once received, you wrote, 'sexy', and asked if she would date you. These circumstances constitute Charge 1.
Complainant CK
12Between 13 and 18 February 2020, you used a mobile phone to send and receive texts with Complainant CK, a female aged 15. The exchange included CK sending images of her breasts and exposed vagina and you sending an image of your erect penis. You promised to buy CK a teddy bear. These circumstances comprise Charge 5.
Complainant BI
13Between 18 and 20 February 2020, you sent indecent communications to Complainant BI, a 14 year old female. Instances of the communications are set out in paragraph 23 of Exhibit A. Again, to an image of BI, you said, 'sexy'. These circumstances constitute Charge 6.
Complainant JE
14Between 24 February and 15 March 2020, you solicited child abuse material from a 13 year old female, Complainant JE. You complimented her and requested explicit photographs of her and later photographs of her breasts and, 'stuff'. However, she sent you nothing. This constitutes Charge 7.
Complainant LS
15On 16 March 2020, you sent an image of your erect penis to Complainant LS, a 17 year old female. You also engaged in a video call that day, during which you requested nude images of LS; none was provided. You asked her for a photograph of her breasts. Again, it was not provided. This constitutes
Charge 8.Complainant JM
16On 18 March 2020, you communicated with Complainant JM, a 13 year old female. She sent you an image of herself, to which you responded: 'Ur sesxy'. This constitutes Charge 9.
Complainant MH
17Between 18 and 23 March 2020, you communicated with a 14 year old female, Complainant MH. You asked her for nude images and whether she wanted to see an image of your penis. She did not. You made comments about the size of your penis. This constitutes Charge 10.
Complainant ND
18On 2 April 2020, you used Facebook to communicate with a female, whose age is not known. She declined your offer to be a 'fuck buddy'. When she declined, you replied: 'I will rape you'. This constitutes Charge 11.
Charge 12
19On 5 April 2020, using Facebook Messenger, you contacted 11 users, believed to be adults. For each, you sent an 80 second video entitled, 'I worked out what started the coronavirus'. It showed an elderly male lubricating his penis with his saliva and then penetrating a chicken with his penis. This constitutes Charge 12.
Complainant KK
20On 4 May 2020, using Facebook again, you sent a 17 year-old female a video showing adult females exposing their breasts and performing sexual acts involving their breasts. The female is Complainant KK. This constitutes
Charge 13.Complainant NSEC
21Between 10 and 11 May 2020, using Facebook, you asked a 17 year-old female repeatedly for images of her breasts and suggested: 'Maybe you could get nude and video call me'. You also said: 'Can I get my dirty photos now'. This constitutes Charge 14.
22Returning to Charge 2, on 27 May 2020, members of the police force searched your home and seized a mobile phone and a laptop. You were interviewed. You said you were aware of your reporting obligations but they were too detailed for you to remember. You said you knew of your obligation to report contact with children immediately. You said you had not had any contact with children. You were charged with failing to comply with reporting conditions and reminded of those obligations.
Charge 15
23On 27 May 2020 the police analysed your OPPO mobile phone and found an image of a naked female standing in front of a mirror. The female has been identified as the 16 year-old complainant, AK. This image has been sent to you by another user. This constitutes Charge 15.
24Also on 27 May 2020, you possessed an image of the complainant, CK, on your Telstra ZTE mobile phone. It is an image of her, naked, and standing in front of a mirror. This offence is Item 1 in the s16BA schedule.
Complainant TB
25Using Facebook, on 17 October 2020, you asked Complainant TB, aged 13, for a picture of herself. She sent an image to which you responded, 'sexy', and then asked whether she cared about age. This constitutes Charge 16.
Complainant RS
26On 23 October 2020, using Facebook, you communicated with
Complainant RS, a 14 year-old female. You asked her whether she liked older men. She replied she did if they were cute and had a big penis. You sent an image of yourself, to which she said you were ugly. You retorted that you had a big penis. This constitutes Charge 17.Complainant AM
27Also on 23 October 2020, using Facebook, you communicated with Complainant AM, a 15 year old female. She sent you an image of her face to which you responded, 'sexy'. You asked her when she last had sexual intercourse and she replied, 'never'. You asked if she wanted to have intercourse with you and her reply was, 'I guess'. This constitutes Charge 18.
Complainant BB
28On 24 October 2020, using Facebook, you communicated with a 14 year old female, Complainant BB. During a video call you said, “U r cute..u single'. You asked if you and she could date. You asked for her phone number for, 'phone sex'. This constitutes Charge 19.
Complainant DW
29On 27 October 2020, using Facebook, you communicated with
Complainant DW, a 14 year old female. You asked her whether she wanted to engage in sexual intercourse. She replied, 'maybe' and asked for $50. You asked for her bra size. This constitutes Charge 20.Complainant MC
30Using Facebook, on 1 November 2020, you communicated with
Complainant MC, a 16 year old female. You asked to see her breasts. You asked if she liked, 'nudes'. You asked if she wanted to have sexual intercourse with you. This constitutes Charge 21.Complainant JT
31On 4 November 2020 you communicated with Complainant JT, a female aged 17. The communications between you and her are set out in paragraph 66 of Exhibit A. Twice, you asked for a picture of her. You asked to see her body. You express a wish for her to take her top off. The exchange ended with you writing, 'Will u let me play with ur tits and pussy in bed'. This constitutes
Charge 23.Complainant CS
32On 4 November 2020, Complainant CS was a 16 year old female. On that date you sent her an image of your erect penis and asked whether she wanted to suck it. When she replied, 'yes', you asked her to show you her breasts and bra. This constitutes Charge 24.
Complainant BK
33Between 1 and 4 November 2020, Complainant BK was a 15 year old female. Using Facebook, on 2 November, you and she discussed meeting. You suggested sexual intercourse, talking dirty, wearing a top which would enable you to see her breasts and asking, 'what will you do if I touch'. This constitutes Charge 22.
34On 2 November 2020, during a conversation with Complainant BK, you asked her, 'Can I touch ur tits…show me?'. This is the offence in item 2 of the s16BA schedule. I will take this offence into account when sentencing you on
Charge 22.Interview and search
35On 6 November 2020, you were again interviewed by members of the police force. Paragraph 77 of Exhibit A summarises some of your answers. Essentially, you sought to minimise the number and nature of your contact with children with your devices.
36On that day, your Telstra ZTE mobile phone was seized and analysed. It revealed an image of Complainant CK standing naked in front of a mirror and exposing her breasts. She sent this image to you on 18 February 2020. This matter is to be taken into account in sentencing you on Charge 15.
37On 13 November 2020, your home was searched again and six more mobile phones were found and seized.
38On 23 February 2021, you were arrested and charged. You have remained in custody since then. Excluding 24 August 2022, that is today, you have spent 547 days in custody.
Victim impact statement
39Of the many complainants, only one, AM, has made a victim impact statement, dated 16 July 2022. In a relatively short statement, she concludes:
'This has been lesson for me to learn and has taken a toll on me mentally and emotionally. This horrible situation has created trust issues pressure and anxiety and stress on me…'
Criminal history
40Between 4 May 2016 and 3 September 2021, you have appeared in a criminal court on eight occasions and have been found guilty or convicted of 65 charges.
41You have been sentenced to imprisonment twice with the longest period being 90 days.
42In this Court, on 1 February 2019, you were found guilty of three charges. Two of the charges were using a carriage service to menace and use a carriage service to groom for a sexual act. The sentences on those two charges were made under s20BY of the Crimes Act 1914. Without passing sentence, you were released for two years to undergo supervision and treatment. Committing the present offences while subject to this sentence must be reflected in the sentences I will impose.
43Your counsel tendered entries from the records of Justice Health between
16 November 2020 and 26 June 2021. Each entry relates to a time when you were in custody, whether at the Metropolitan Remand Centre, Port Phillip Prison or St Paul’s psycho-social unit. There is no information about what treatment you received under the 1 February 2019 order.
Personal Circumstances
44You are now 26. You were born in Mount Gambier[3] in South Australia. You are one of seven siblings with three older sisters and three younger half-brothers. One of your brothers died shortly after his birth. You were raised in the Victorian town of Benalla[4].
[3] A pseudonym
[4] A pseudonym
45In October 2014, your father died of asbestosis. Your mother lives in Echuca[5]. You are very close to her, speaking to her daily on the phone.
[5] A pseudonym
46Your father and your mother’s partners physically abused you. Your parents separated when you were young although they lived under the same roof for some time afterwards. You told Mr Cummins, the psychologist, you have been raped many times while living in the community. Although reporting these matters to your disability workers, from your perspective, they did not believe you.
47In 2008, you and your siblings were removed from your parents’ care. You lived in out of home residences until you were 17 when you were placed with your sister, Gemma[6]. When you reached 18, you returned to your family home. When you were about 20, you moved into supported accommodation in Shepparton[7]. Until your arrest and detention in custody, you lived in that accommodation.
[6] A pseudonym
[7] A pseudonym
48Your residence is continuously supervised. For many years, you have received a disability support pension.
49You attended primary and secondary schools in Benalla, Wangaratta[8] and Beechworth[9]. You told Mr Cummins you completed Year 12. He thought this might be VCAL. It appears you attended the Benalla Special School between 2003 and 2013.
[8] A pseudonym
[9] A pseudonym
50After leaving school, you worked in a supermarket, cleaning, a retail shop and a sheltered workshop. Mr Cummins noted you had not worked since 2018, while Dr Zergiotis believed you worked five days a week at a nursery in Shepparton until your remand.
51Since the age of 11, you have attempted suicide on numerous occasions:[10]
'…by trying to hang myself, by running in front of cars, trucks and trains and by trying to drown myself'.
[10] Report of Jeffrey Cummins dated 12 October 2021 at paragraph 22
52You have had two relationships. When 21, you formed a short-lived relationship with a woman you met online. Subsequently, you lived with another woman for 18 months. The relationship ended when the woman moved to Queensland. You have been single since about 23. You told Mr Cummins of 'being lonely and missing having a sexual partner and a close, personal relationship with someone who he felt he could love'[11]. These were the reasons behind you offending.
[11] Report of Jeffrey Cummins dated 12 October 2021 at paragraph 23
53Alcohol and cannabis, especially alcohol, have presented you with problems.
54Since February 2016, you have a guardian and administrator of your financial affairs.
55While on remand, you have completed a Safe Food Handling course and a Hazardous Waste course. You have obtained a White Card.
56Perhaps reflecting the restrictions due to the pandemic, no one has visited you while you have been in custody. However, you have had contact from your Disability Justice Co-ordinator, Denise Robson, while you have been in custody.
57Upon your release from custody, you wish to return to your supported accommodation in Shepparton. Although there is a suggestion you may look at Ballarat because of the greater range of services available there.
58In October 2020 the police applied for a prohibition order under the Sex Offenders Registration Act 2004. This application is due to be heard on
22 September 2022. Subject to the Magistrate agreeing, you are prepared to consent to an order with these conditions:(a) a prohibition on using an internet capable device, except for the direct purpose of employment, online banking and support services;
(b) to reside at an address reported pursuant to s17 of the Act; and
(c) a prohibition on using social media for any reason where, 'social media', for the purpose of this condition includes Facebook, Twitter, Snapchat and Tiktok
Psychologist
Loise Boin
59In 2016, a neuropsychologist, Loise Boin, assessed you as having a full scale intellectual quotient of 48, placing you in the category of persons with a moderate intellectual disability.
60Pausing there. In my years as a judicial officer, I have never encountered a person with an intelligence quotient as low as 48.
Case manager
61In a report dated 8 January 2018, and prepared for an upcoming hearing in the Magistrates’ Court, Ms Starick, a case manager in Disability Client Services, noted:
(a) your disability adversely affects all areas of daily living, requiring you to receive support and guidance;
(b) because of your underdeveloped communication and interpersonal skills, you are a risk to yourself and to the community;
(c) despite your reading, writing and numbers skills being at the
Grade 2 to 3 level, you speak clearly and engage very well in conversations. However, you do not react appropriately in challenging and emotionally charged environments. To those who do not know you, you can appear as abrasive and having a greater capacity.Jeffrey Cummins
62Jeffrey Cummins is a clinical and forensic psychologist. On
20 September 2021, he interviewed you at the request of your solicitors.63Using recognised assessment tools and the results of his interview with you,
Mr Cummins assessed you as at least a moderate-high risk of sexually
re-offending. This was the second highest of five categories of risk: low; low-moderate; moderate; moderate-high; and high.64Mr Cummins considered you were intellectually disabled and suffer from a Borderline Personality Disorder and a Major Depressive Disorder of moderate severity. He noted your overall IQ of 48, saying that would point to a moderate intellectual disability.
65Mr Cummins considered you are vulnerable, whether in custody or in the community. You require intensive offence specific treatment which you will not receive in the Marlborough unit of Port Phillip Prison. He also considered you need treatment to help you find an age appropriate sexual partner or partners.
Psychiatrist
Ria Zergiotis
66Ria Zergiotis is a consultant forensic psychiatrist. On 16 December 2021,
Dr Zergiotis interviewed you at the request of your solicitors. She had a considerable number of the earlier psychological and other reports.67Although noting the psychological diagnoses of others, Dr Zergiotis did not offer one of her own. She did not find any mood or psychotic disorder. Her view of your psychological state emerges from her recommendations for treatment.
68She recommended a referral to the Problem Behaviour Program conducted by Forensicare. If referred, it would assess your risk of re-offending and address the gaps, if any, in your current treatment. Dr Zergiotis noted your prescribed medicines.
69When you return to the community, Dr Zergiotis recommended a high level of support and supervision to reduce your risk of reoffending and maximise your overall level of psychosocial functioning.
70Finally, she noted prison is more onerous for you than someone without your complex needs. This is due to your intellectual disability and your vulnerability to stress and abuse even though you are in a special unit of Port Phillip Prison.
Renzella
71On 6 November 2020, you were arrested and retained in custody for other offences. On 3 September 2021, at the Magistrates’ Court, you were sentence to 90 days’ imprisonment on those charges. There is a period of your detention between 4 and 23 February 2021 related to those offences which was not consumed by the sentence. I will take that period into account in sentencing you.
Comparative Cases
72To assist my sentencing, the prosecution summarised the case of
R v Delzotto[12]. This case is helpful for its discussion of the proper approach to sentencing where mandatory minimum sentences are involved.[12] [2022] NSWCCA 117
Legal Considerations
73As is usually the case, s16A(2) of the Crimes Act 1914 is the starting point for sentencing of Commonwealth offences. On the other hand, Charge 2 contains a State offence whose sentencing is governed by the Victorian
Sentencing Act 1991.74Since each of the offences in Charges 16, 17, 18, 19 and 20 occurred on or after 23 June 2020, and you have been previously convicted of a, 'Commonwealth child sexual abuse offence', they each carry a mandatory minimum sentence of three years’ imprisonment.[13] Similarly, each of Charges 21, 22, 23 and 24 carry a mandatory minimum sentence of four years’ imprisonment.[14] Your previous 'Commonwealth child sexual abuse offence', was your conviction on 1 February 2019 for offences arising out of your use of carriage services.
[13] S 16AAB(2)
[14] S 16AAB(2)
75Pausing there. The Director’s counsel quoted from the Explanatory Memorandum to the Bill which introduced these mandatory minimum sentences. The criticism of courts in their sentencing is quite pointed:[15]
'Current sentences do not sufficiently recognise the harm suffered by victims of child sex offences. They also do not recognise that the market demand for, and commercialisation of, child abuse material often leads to further sexual abuse of children'.
[15] Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth), Explanatory Memorandum (House of Representatives) at [40]
76I have noted the helpful discussion of mandatory minimum sentences set out in the written submissions and the references to Bahar v R[16], and also as I have said, the case of Delzotto.
[16] (2011) 45 WAR 100
77These minimum periods of imprisonment can be reduced by up to 25 per cent where the circumstances outlined in s16AAC(2) and where:
(a) the offending falls at the lowest end of seriousness; and
(b) the available yardstick between three and 10 years’ imprisonment or four and 15 years’ imprisonment cannot allow full weight to be given to your plea of guilty without going below the mandatory minimum head sentence.
78Your counsel submits a reduction of 25 per cent is appropriate given your pleas of guilty and the circumstances in which they are made. The Director concedes the offending in Charges 16 to 24 could allow me to use s16AAC(2) to reduce the mandatory minimum sentence by up to 25 per cent. In the circumstances, I will reduce each of those minimum sentences by 25 per cent.
79If I sentence you to imprisonment on any of the charges occurring on or after
23 June 2020, then the sentences on those charges must be cumulative upon each other unless imposing a sentence in a different manner provides a sentence of appropriate severity in all the circumstances.80Again, in the circumstances of this case, I do not propose to make any of those sentences cumulative upon others except in relation to the sentence on
Charge 22.81If the total effective sentence for the Commonwealth charges exceed three years’ imprisonment, I must impose a non-parole period. If it is less, then I must make a recognisance release order.
82In sentencing on Charges 15 and 22, I am asked to take into account the circumstances concerning items 1 and 2 of the s16BA schedule. You have admitted your guilt in respect of them. The usual effect of taking into account these items is to increase the penalty otherwise appropriate for Charges 15
and 22.83Charges 1, 2, 3, 4, 7, 10, 14 and 22 are rolled up charges. Each charge includes more than one instance of the offence.
84In paragraphs 7 and 8 of her, 'Outline of Crown Submissions on Plea', the Director’s counsel set out a series of matters which a court would consider, where relevant, in sentencing for offences involving child abuse material and online child exploitation.
Discussion
85At the time of your offending you were 24. The offences involve 18 children. Their ages were between 12 and 17. The offences encompass the period between January and November 2020. There were difficulties where you live. Your access to the community in Shepparton and elsewhere was restricted by the pandemic.
Nature and Circumstances of the Offences
86The disparity between your age and those of your victims varied. As I said, you were 24 and their ages ranged from 12 to 17. Apart from your conduct being repeated, your counsel points out that the nature of the communication, including the language used, had the potential to corrupt these children. For example, in relation to Charge 3, you sent an image of your erect penis.
87Although some of the charges involve children exposing parts of their bodies, none of the images involve physical harm to them. There was no commercial aspect to your activities: you did not buy or sell these images. They were for your own use. The material remained in your devices for months.
88Although the victims were strangers, you made no attempt to disguise your identity. You used your own name. You acted alone and not as part of a group or network.
Culpability
89You explained to Mr Cummins, although being aware of the wrongfulness of your actions, you felt the need to relieve your loneliness through social isolation, boredom and the lack of an intimate partner.
Verdins
90Owing to your intellectual disability, your counsel relies upon five of the six propositions stated in R v Verdins[17], being propositions 1, 3, 4, 5 and 6. The Director agrees as to their applicability in your case.
[17] (2007) 16 VR 102
91Owing to the effects of your intellectual disability upon your judgment and decision-making capacity, I agree with the submission your moral culpability is reduced.
92For a sentence to affect the behaviour of like-minded persons, there must be some similarity between you and those potential offenders. Owing to the extent of your disability, few would identify with you. As a sentencing purpose, general deterrence is greatly reduced.
93The complexities in sentencing introduced by mandatory minimum sentences would be too much for you to understand. However, generally, the effect of such sentences is to lengthen the sentences for those offences. The detail is complex but the message is simple: if you offend in this way, the penalties will be very significant. I do not consider that message will be lost on you. However, your disability causes you difficulty in understanding the reasons behind these penalties. It causes you difficulty for you in accepting responsibility for what you have done and in understanding the effect of your actions on these victims. There should be some modification in the sentencing purpose of specific deterrence even though you were the subject of a sentencing disposition when you committed these offences.
94I accept the view of Dr Zergiotis that imprisonment will prove more onerous for you than it is for other persons without your disability. I say this even though you are in a specialised unit which caters for your disability. Being in this unit lessens the stress you feel by being in prison and lessens the abuse you would receive from other prisoners if you were elsewhere. I cannot say whether you will remain in this unit after sentencing. Her evidence is sufficient to raise propositions 5 and 6 as mitigating factors.
Bugmy
95Your counsel relied upon Bugmy v R[18] and cited paragraph 44 of the Court’s judgment and, in particular:
‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision.’
[18] [2013] HCA 37
96Although I accept the deprivation in your childhood was profound, its effect upon your offending is harder to discern. During your interview with Mr Cummins, he noted you had difficulty with perception, judgment and reasoning ability. However, he ascribed those weaknesses at least in considerable part to your disability. I presume the remainder can be ascribed to the effects of your upbringing. Accordingly, some effect must be given to it in sentencing.
97As the Court in Bugmy’s case noted, the purposes of sentencing may pull in different directions. A factor reducing moral culpability may increase the need to protect the community. So it is with you. My sentences must act to protect the community from you. In particular, to protect female children from the behaviour you have shown in these offences.
Imprisonment during COVID-19
98I have already noted you have received no visitors while in custody. I also note the frequency of lockdowns while you have been in the Marlborough Unit and the little time you are able to spend outside your cell. The support services have been delivered by phone or audio-visually. Overall, your period on remand has been more difficult than it would have been if there was no pandemic.
Guilty pleas
99You were charged on 23 February 2021. On 26 November 2021, at the fifth committal mention hearing, you entered pleas of guilty and were committed on the basis of the prosecution’s brief of evidence. In terms of the timing of your pleas, it is early in the process which starts with you being charged and ends with a trial.
100By pleading guilty to the charges, you have avoided a trial. You have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared upwards of 117 witnesses the burden of giving evidence in a trial. Giving evidence is not easy, especially for those who are young and have no experience of a trial environment. In your case, there are a significant number of child witnesses.
101At the present time, your pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[19], where the Court said:[20]
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[19] [2021] VSCA 169
[20] At paragraph 35
102The Court reiterated the point a few paragraphs further into its judgment:[21]
‘For these reasons, 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 than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’
[21] At paragraph 39
103I would treat your pleas of guilty as evidence of your remorse. Owing to your disability, you have difficulty in realising the wrongfulness of your actions. Despite that, there is an element of remorse present.
104Overall, your pleas of guilty require a very significant discount on the sentences I would have imposed in their absence.
Prospects of rehabilitation
105What is sometimes overlooked is the effect of a lengthy sentence of imprisonment. Sentencing principles require such a sentence. It is capable of deterring such future behaviour or causing you to try to rehabilitate yourself. Whether it is one or the other does not matter if the end result means the community gains protection. My sentence is far and away the largest sentence you have ever received. It should have that effect upon you.
106Mr Cummins assessed your risk of reoffending sexually in the moderate-high category. The proposed prohibition order, if made, will act to reduce or eliminate temptation.
107Mr Cummins used a recognised tool in reaching his assessment of your risk. I do not know whether it encompassed the factors outlined by the prosecution including reoffending after the 2019 penalties and after your interview with police members in May 2020.[22]
[22] See [40] of “Outline of Crown submissions on plea”.
108While serving your sentence I expect you will receive specific treatment. When you are ultimately released from custody you will receive considerable support, in part, tailored to address the issues raised by your offending.
109Overall, I would consider your prospects of rehabilitation are uncertain.
Totality
110In this case, the principle of totality is complicated by the existence of specific legislative requirements of mandatory minimum sentences and the presumption of cumulation. Never-the-less, it must be applied with those complications firmly in mind.
Commonwealth/State sentences
111In the DPP v Swingler[23], the court discussed sentencing where the indictment contained State and Commonwealth charges, as is the case here. The court said:[24]
‘How then should a judge, faced with a joint Commonwealth–State indictment of the kind filed in this case, go about sentencing an offender such as the respondent? Logically, there seem to be three possibilities, as follows:
1. The judge can simply sentence for each offence on the indictment, in the order in which each offence is listed. He or she can then differentiate between them by making orders as to cumulation or concurrency with regard to the State offences and orders as to commencement with regard to the Commonwealth offences. The sentencing judge adopted that approach in the present case but, as can be seen, it was not an unqualified success.
2. The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.
3. The judge can group all the Commonwealth offences together, and deal with them first. This potentially gives rise to the difficulty that State offences ordinarily operate from the date of sentence, as per s 17(1) of the Sentencing Act. They cannot, as a general proposition, be made to commence at the expiration of a Commonwealth sentence, subject only to s 16(4). That subsection is in the following terms:’
[23][2017] VSCA 305
[24] At paragraph 78
112I will not read out the terms because it is not applicable here. In my opinion the appropriate approach is that set out in Option (2). This involves sentencing you on the State charge first.
Sentence
113On Charge 2, a charge of failing to comply with reporting obligations, I sentence you to 15 months’ imprisonment.
114On Charge 1, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to 12 months' imprisonment.
115On Charge 3, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to 12 months’ imprisonment.
116On Charge 4, a charge of using a carriage service to solicit child abuse material, I sentence you to 12 months’ imprisonment.
117On Charge 5, a charge of using a carriage service to cause child abuse material to be transmitted to yourself, I sentence you to 12 months’ imprisonment.
118On Charge 6, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to six months’ imprisonment.
119On Charge 7, a charge of using a carriage service to solicit child abuse material, I sentence you to 12 months’ imprisonment.
120On Charge 8, a charge of using a carriage service to solicit child abuse material, I sentence you to 12 months’ imprisonment.
121On Charge 9, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to six months’ imprisonment.
122On Charge 10, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to 12 months’ imprisonment.
123On Charge 11, a charge of using a carriage service to menace, I sentence you to eight months’ imprisonment.
124On Charge 12, a charge of using a carriage service to cause offence, I sentence you to 12 months' imprisonment.
125On Charge 13, a charge of using a carriage service to cause offence, I sentence you to six months’ imprisonment.
126On Charge 14, a charge of using a carriage service to solicit child abuse material, I sentence you to 12 months’ imprisonment.
127On Charge 15, a charge of possessing or controlling child abuse material obtained or accessed using a carriage service. I sentence you to 12 months’ imprisonment.
128On Charge 16, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to 27 months’ imprisonment.
129On Charge 17, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to 27 months’ imprisonment.
130On Charge 18, a charge of using a carriage service to transmit indecent communications to a person 16, I sentence you to 27 months’ imprisonment.
131On Charge 19, a charge of using a carriage service to transmit indecent communications, I sentence you to 27 months’ imprisonment.
132On Charge 20, a charge of using a carriage service to transmit indecent communications to a person under 16, I sentence you to 27 months’ imprisonment.
133On Charge 21, a charge of using a carriage service to solicit child abuse material, I sentence you to 36 months’ imprisonment.
134On Charge 22, a charge of using a carriage service to procure a person under 16. I sentence you to 36 months’ imprisonment.
135On Charge 23, a charge of using a carriage service to solicit child abuse material, I sentence you to 36 months’ imprisonment.
136On Charge 24, a charge of using a carriage service to solicit child abuse material, I sentence you to 36 months’ imprisonment.
Cumulation
137The sentence on Charge 2 commences immediately. The sentence on
Charge 18 will commence at the expiration of the sentence on Charge 2. Twenty-one months of the sentence on Charge 22 will be served cumulatively upon the sentence on Charge 18. That is, the sentence on Charge 22 will commence after you have served 12 months of the sentence on Charge 18. The remaining sentences will be served concurrently upon themselves and concurrently upon the sentences on Charges 18 and 22. That is, each sentence will commence at the expiration of the sentence on Charge 2. The total effective sentence is 63 months’ imprisonment. The State Sentence is a straight sentence with no non-parole period. I will set a non-parole period of 27 months imprisonment on the Federal Sentence.Pre-sentence Detention
138I declare the 547 days of your pre-sentence detention (excluding today) is time served under my sentences.
Sex Offenders Registration Act
139Charges 1, 3, 4, 5, 6, 7, 8, 9, 10, 14, 16, 17, 18, 19, 20, 21, 22, 23 and 24 are Class 2 offences for the purposes of the Sex Offenders Registration Act 2004. You are a registrable offender and will be required to report for the rest of
your life.Section 6AAA
140Section 6AAA of the Victorian Sentencing Act 1991 applies to Charge 2 only. It does not apply to the Commonwealth offences. If you had not pleaded guilty to Charge 2 but had been found guilty after a trial, I would have sentenced you on that charge to 22 months’ imprisonment.
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