CDirector of Public Prosecutions v Dooley

[2024] VCC 1165

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01172

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

AARON DOOLEY

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF SENTENCE:	27 August 2024
CASE MAY BE CITED AS:	CDPP v Dooley
MEDIUM NEUTRAL CITATION:	[2024] VCC 1165

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords: Use carriage service to access child abuse material contrary to s474.22(1) of the Criminal Code (Cth) (2 charges) – fail to comply with reporting obligations pursuant to s46(1A) of the Sex Offenders Registration Act 2004 (Vic) (3 charges) – use carriage service to cause child abuse material to be transmitted to self contrary to s474.22(1) of the Criminal Code (Cth) – possess child abuse material obtained or accessed using a carriage service contrary to s474.22A(1) of the Criminal Code (Cth) (2 charges) – pleas of guilty

Legislation Cited:     Criminal Code Act (Cth), s474.22(1), s474.22A(1); Sex Offenders Registration Act 2004 (Vic), s46(1A)

Cases Cited:Hurt v The King [2024] HCA 8; R v Ibbs (1987) 163 CLR 447; DPP v Watson [2016] VSCA 75; De Leeuw (2015) NSWCCA 183; Veen v The Queen (No 2) (1988) 164 CLR 465; Berichon v The Queen [2013] VSCA 319; Worboyes [2021] VSCA 169; Brown v The Queen [2020] VSCA 212; Curle v The King (2024) NSWCCA 117; Hasan v The Queen [2010] VSCA 352; McL v R (2000) CLR 452; Gordon v The Queen [2013] VSCA 343; DPP v Dalgliesh [2017] VSCA 360

Sentence:Total effective period of imprisonment for all offences of eight years with a non-parole period of six years.   

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms O. Go	Office of Public Prosecutions
For the Accused	Ms L. Bull	Kate Freshwater

HIS HONOUR: 

1On 15 July in the County Court sitting at Bendigo, Mr Dooley pleaded guilty to eight charges on Commonwealth Indictment dated 7 September 2022. 

2Five of the charges were Commonwealth charges, being Charges 1 and 2, accessing child abuse material from July 20 to November 21, which are a breach of s474.22(1) of the Criminal Code 1995, for which the maximum sentence imposed is 15 years.

3Charge 4, use a carriage service to transmit child abuse material during the same period mentioned above, which is an offence against 474.22(1), which has the same maximum penalty.

4Charges 7 and 8 on 10 November, possess child abuse material obtained through using a carriage service which is contrary to s474.22(A1).  The possession in Charge 7 took place on 10 November and Charge 8 on 28 May 2020.  The maximum sentence imposed for such offences is 15 years.

5Mr Dooley also pleaded guilty to three Victorian charges of failing to comply with obligations under the Sex Offenders Registration Act, Charge 3, fail to report change of address; Charge 5, fail to provide appropriate particulars as to Mega username and email address; and Charge 6, fail to report change of phone number.  The maximum sentence imposed under Victorian legislation for such offences is five years.

6Mr Dooley admitted his priors and has served pre‑sentence, prior to the date of the plea, 978 days.

7It was agreed by the parties that given the plea to five category 2 offences, the Sex Offenders Registration Act will apply to make Mr Dooley's reporting requirements under the Act to now be life, and we have today had Mr Dooley sign that document, which will be witnessed by my associate.

8On the plea, Ms Go appeared on behalf of the Commonwealth Director of Public Prosecutions and Ms Bull appeared on behalf of Mr Dooley.   Exhibit A was tendered by the prosecution being the prosecution summary and the facts therein were accepted by Ms Bull, as the facts upon which I am to sentence Mr Dooley.

9Exhibit B was tendered by the prosecution, being the prosecution submission on sentence.  In oral submission the prosecution spoke to such and submitted that:

(a), only an immediate term of imprisonment on each charge is appropriate, given their seriousness;

(b), while not suggesting to the Court a precise sentence, the prosecutor submitted that a total effective sentence as to the Commonwealth charges would exceed three years in regard to each charge.  Hence a non-parole period would be required pursuant to s19AB(1);

(c), the Court in regard to Charges 1, 2, 4 and 7, given the seriousness of the criminality would not impose a sentence below the prescribed minimum head sentence.

10I accept the principles as detailed by the High Court in Hurt v The King[1], 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 s16AA and s16B, which sets a yardstick which the Court synthesises in its discretion as to the appropriate sentence.  Doing so and noting the intent of Parliament to increase terms of imprisonment for this type of offence, I also accept that the operation of s.16AAC, insofar as any possible reduction, should occur only after a determination of an undisclosed head sentence, without taking into account the impact of the plea of guilty or any cooperation.

[1] [2024] HCA 8

11On the plea, Ms Bull tendered:

Exhibit 1, defence submissions dated 20 April 2023;

Exhibit 2, report of the clinical psychologist, Damien Menahan dated
29 May 2018, clearly prepared at the time of Mr Dooley's last plea for similar behaviour in Burney, Tasmania on 1 August 2018; and

Exhibit 3, a report of clinical psychologist Carla Lechner dated 1 September 2022, again obviously prepared for these proceedings but delayed awaiting the decision of the High Court in Hurt v The King.

12Ms Bull, on behalf of Mr Dooley, accepted that imprisonment was appropriate given the role of general deterrence in regard to these offences and the inherent seriousness reflected in the maximum penalties.  However, she submitted a longer than normal parole period should be passed on the basis of Verdins principles and the objective seriousness of the crimes.  Ms Bull submitted that a head sentence period less than four years is possible on the Commonwealth Charges 1, 2, 4 and 7.  I of course accept the inherent seriousness of the Commonwealth offences given not only the intent of Parliament, but the maximum penalties prescribed.

13With all offences however, as set out by the High Court in R v Ibbs[2].  The determination insofar as these offences, albeit their inherent seriousness, is of course where they sit on the scale of heinousness.  Ms Bull submitted that the assessment of the offending should take one to the bottom end of such offending, and submitted that there should be a reduction in the minimum head sentence to three years.  She submitted that such was appropriate based upon all the circumstances put at the plea, in particular the uncertainty as to the details of the offending in Charges 2 and 7, the limited amount of files in regard to Charge 8, and the totality of their context which was referred to in paragraph 4 of the defence submissions, being in particular:

(a), the nature and content of the files;

(b), the number of files;

(c), the limited number of children thereby victimised; and

(d), in regard to Charges 3 and 8, that such material was possessed by Mr Dooley, respectively for two months and one day, in regard to the files downloaded in Charge 1 for four months, as to the material downloaded in regard to Charge 2, two months and one day, in regard to Charge 7. 

[2] [1987] 163 CLR 447 at 452

Objective seriousness

14It is necessary to assess the objective seriousness of the offending.  As to the Serious Sex Offenders Registration Act charges, they appear to me to be run of the mill offending in this regard and the court, mindful of the need for a sentence which reflects general and specific deterrence, given the public good rendered by the Scheme.  I note the reductions in the offending periods made to the indictment by way of an amendment today with my permission.

Commonwealth charges

15I consider, albeit factually different charges, the laying of Charges 1, 2, 4 and 7, while a matter for the Director, in fact produced an overcharged indictment which therefore requires a degree of cumulation to comply with the principles of parsimony and totality.

2), As to the individual Commonwealth charges:

(a), each is inherently serious given the sentence imposed by Parliament;

(b), the charges relate to the downloading of materials from two sources Torrens and Mega New Zealand links;

(c), Charge 1, as a result of the investigation involves for each device some 17,130 files. Clearly such is a large volume and is characterised as comprising 15 per cent category 1 on the Interpol Baseline Scale, with the balance being category 2.  Such system described in Annexure B to Exhibit A.  I have no experience of that Scale but for my purpose I must say that the Ambol Scale is of far more assistance.  The scale used indicates that while the CAM in this situation is serious, the majority concerns children who are 13 years old or over;

(d), As to Charge 2, the court has not been given details as to the number of files.  The sample descriptions provided appear quite similar to the use of the Ambol or Copine Scales with which I am familiar, and are given in paragraph 9 from investigators assessing nine of the files relevant to Charge 2;

(e), as to Charge 4, this relates to the use of a carriage service which caused the CAM to be transmitted and downloaded in Charge 1.  That is, from both the Torrens and the Mega New Zealand links.  The file numbers are indeed those detailed in Charge 1 and as I have already remarked, not detailed in Charge 2;

(f), as to Charge 7, this is a charge as to the possession of the files detailed in Charges 1 and 2 when Mr Dooley was arrested on 10 November 2021.  Again, there is a representative sampling of four such devices which appears to be more akin to Anvil and relates to some six, seven or eight images as to the three devices analysed.  Further analysis presented at the plea postulated that the analysis would demonstrate that, of all the images on the actual hard drives, 20 per cent would be of interest, hence the 76,440 files forecast referred to at paragraph 20.  Considering the standard this Court must adhere to, forecasts of that type I find do not suffice as relevant proof.  In total one can therefore conclude that the downloaded materials in regard to this charge include a large number of files, at least 15,255, which when analysed, contained 20 per cent pre-pubescent CAM and 80 per cent child (that is 13-18) CAM which encompasses a wide range of depravity.  In regard to this charge, I cannot conclude further than that;

(g), as to Charge 8, there is a total of 1781 images/videos involved in this possession charge.  Strangely this is Charge 8 on the indictment, albeit it was the first in time.  The charge is clearly a separate event occurring in Tasmania on 28 May 2020 when a warrant was served on Mr Dooley's parents' home, where he was living.  In this instance there were four devices analysed, again in what appears to be the Anvil Scale.  The vast majority were category 1 which involved no actual sexual activity, that is 99 per cent: there were four category 4 which involved child/adult activity and there were two category 6 which involved animated activity. 

Clearly, as detailed in DPP v Watson[3], the fact that the material is predominantly at level 1 did not materially diminish the objective gravity of the offending and as was said in De Leeuw[4] the fact that the images fell only within categories 1 and 2 was of limited assistance to the respondent.  Clearly, such is not mitigatory, however, given the scales adopted they are relevant to place the offending at its correct level.  Hence, pursuant to the authority of the Court of Appeal all such charges are serious, however, in this instance the charge does not involve more serious depravity but for 1 per cent of the material.

[3] (2016) VSCA 75

[4] 215 NSWCCA 183 at 140

Prior offences

16Mr Dooley, in detailing your priors I make it clear to you this Court has nothing to do with such sentences.  Those matters are over.  However, your priors are relevant to how you are sentenced in regard to these charges in the following manner, as said by the High Court in Veen v The Queen[5]:

The first is that antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.

[5] (No 2) [1988] 164 CLR 465 at 447

17On that page, the Court went on to say that such priors are relevant to show:

… whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence, a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case.

18I also refer to the case of Berichon v The Queen[6].

[6] (2013) VSCA 319 at 44

19Mr Dooley, you have the following relevant priors.

20In the Burney Supreme Court on 18 February 2016, you were convicted of possessing, accessing and distributing child abuse material in 2014, for which you were given 10 months gaol and placed on a six months suspended good behaviour bond for three years.  You were also placed on the Sex Offenders Registration Act in that State for 10 years.

21In the Devenport CPS on 19 April 2018 you were convicted of having on
7 December 2017 breached your reporting obligations on three occasions.

22Finally, on 1 August 2018 in the Burney Supreme Court, you were convicted of two charges of, in November 2016 possessing and accessing child exploitation material and breaching the suspended sentence, when the six months was reimposed and you were sentenced to two years' gaol with a minimum of 14 months, and the period of the Sex Offenders Registration Act reporting was increased to 15 years.

23Plea of Ms Bull

24Verdins 1 and 2 – This submission was based on the depressive order of which Mr Dooley suffers.  It is noted that Mr Dooley has no sexual priors before 2014.  It is not perhaps insignificant that the breakup of his marriage and cessation of contact with his children occurred in 2013.  The diagnosis as to persistent depressive disorder, avoidant personality disorder was made at p6 of Ms Lechner's report.  Ms Lechner reported that it was unclear what were the factors which contributed to this offending, but she expressed the feeling that the depression suffered by Mr Dooley, combined with the marriage breakup and the loss of his children, may have contributed.

25Given the evidence before the Court, I am not satisfied that such submission passes the strict scrutiny that Verdins requires and in this regard I refer to Brown v The Queen[7], which prescribes that such application should be rigorously scrutinised.  Analysing the evidence in such a way, I am not satisfied that such depressive condition impacted on Mr Dooley's cognitive capacity or behaviour to the extent that I should hold that such reduced his moral culpability for these crimes.  Given such findings, I do not consider principle 2 of Verdins activated either.

[7] (2020) VSCA 212 at 6

26Ms Bull submitted that by his plea, Mr Dooley recognised the seriousness of the offending and such plea was utilitarian, which I accept.  I also accept that the delay and time on remand which has been such that the principles of Worboyes v The Queen[8] should be accepted in the sense of such principles accelerating the amelioration of the sentences brought about by the plea.

[8] (2021) VSCA 169 at 339

27Delay itself must be taken into account given that Mr Dooley has now been on remand for some 978 days.  A portion of such delay has been caused by the time involved in awaiting the decision of R v Delzotto[9] which added additional time by way of delay from at least August of last year.

[9] (2022) 298 A CrimR 483

Prospects of rehabilitation

28It is necessary for this Court to consider this aspect specifically pursuant to s16A(2AAA).  I find Mr Dooley has never availed himself or sought any assistance for his paedophilic disorder.  It is clear that he needs treatment for same[10] and Ms Lechner's opinion that without it, his risk of reoffending is high.  Such is confirmed by Exhibit 2, the report of Mr Menahan at paragraphs

[10] See report of Ms Lechner Exhibit 2 at para 2

29-31. 

29I note the submission of the prosecution in this regard at paragraphs 23-26 and the case referred to of Curle v The King[11]. 

[11] (2024) NSWCCA 117 at para 52

30I also note both Mr Menahan at paragraph 20 and Ms Lechner at paragraph 2 agree as to Mr Dooley's high risk of reoffending without treatment.  Given his priors and age, I am very guarded as to Mr Dooley's ability to overcome such paedophilic disorder, even with such treatment.  In this regard, I note he was released from his last sentence for this type of offence on 3 March 2020, and Charge 8 occurred on 28 May 2020.

31I am satisfied that the sentence I am to impose appropriately balances the need to consider Mr Dooley's rehabilitation and to protect the community.

32In this sentence one has of course the yardsticks as detailed in Hasan v The Queen[12] as to the maximum penalty prescribed by Parliament, in giving an indication of where the most serious examples of offending stand.  And a further yardstick as to the mandatory head sentence as to where the yardstick is, to the least worst category as detailed in Hurt, such assessment being made without taking into account s16A(2)(g) or (h).  Then one goes to the subjective factors put in the plea as I have detailed, together with the factors in s16A. 

[12] (2010) VSCA 352 at 44

33Given my sentence it will be obvious that I have rejected the submission of Ms Bull detailed at [23], however, the principles of totality and cumulation have operated so as to reduce the Parliamentary intention of severity with the passing of s19(5).  The reason for this being not only the principles of totality and parsimony, but all the circumstances which I have considered, all matters put to me, and the principles set out in 16A.

34Insofar as the principle of totality is concerned I take into account, as was put to me by the prosecution, the words of Brennan J in the High Court in McL v The Queen[13].  I am aware from State sentencing experiences as to standard sentencing of the tension between provisions such as this and the principle of totality.[14]   Mr Dooley, as set out by the High Court in DPP v Dalgliesh[15], you are entitled to a just sentence in the administration of the criminal justice system, whereby individual justice is delivered to you by the imposition of a just sentence upon the facts of your case.  I hope by this sentence such is effected.

[13] (2000) CLR 452 at 476-477, (75-76)

[14] Redlick JA in Gordon v The Queen (2010) VSCA 343 at 74

[15] (2017) VSCA 360

35As I said, normally I would ask you to stand now, but you may remain seated.  You will be sentenced as follows:

36(a), on Charge 7, a period of imprisonment of six years, such sentence to begin on the 27/11/24.

37(b), on Charge 8, a period of imprisonment of four and a half years, such sentence to begin on 27/05/27.

38(c), on Charges 1, 2 and 4, a period of imprisonment of four and a half years in regard to each charge, such sentence on Charge 1 to begin on 27/8/27, as to Charge 2 on the 27/11/27 and as to Charge 4 on the 27/2/28.

39I order that Charge 7 be the head sentence and that upon such sentence be imposed by way of cumulation, and upon each other, one year of the sentence in regard to Charge 8 and three months of the sentence in regard to each of Charges 1, 2 and 4, making a total effective sentence of seven years and nine months.

40Pursuant to s19(6) of the Crimes Act, I am satisfied that in imposing the above sentences, they are of the severity necessary and appropriate in all the circumstances of this case.  As such, the requirement of sub-section 5 does not apply based on the matters that I have detailed and of course the principle of totality.  I note that I have already detailed the reasons for such satisfaction and I further order pursuant to s19(7)(b) that these reasons be entered in the Records of the Court.

41Insofar as the three SORA charges, I sentence you to a period of three months on each charge, to be served concurrently.  In accord with R v Swingler[16], such sentence will begin immediately and the Commonwealth sentences will therefore begin three months from today.

[16] (2017) VSCA 305

42For your edification the total effective sentence imposed for the Commonwealth offences is therefore seven years and nine months, and you will begin serving that sentence three months from this date, making a total effective period of imprisonment for you of eight years.

43I order that the period that you must serve in regard to the Commonwealth offences before being eligible for parole is six years.  Again, for your edification, you will serve a period of six years and three months before being eligible for parole.

44Pursuant to the provisions of s6AAA of the Sentencing Act (Vic), on the basis of such applying to Commonwealth charges, I indicate that had you not pleaded guilty, the total effective sentence that would have been imposed upon you for all sentences is one of 10 and a half years. Given that this relates to only one factor, that is your plea of guilty, I am unable to take such declaration any further.

45Pursuant to s12 of the Sentencing Act I declare that 1,021 days that you have served be deemed as service of this sentence and such declaration be recorded in the Records of this Court.

46Do I need to clarify anything from either counsel?

47COUNSEL:  No, Your Honour.

48HIS HONOUR:  Ms Bull, would you require the chance to talk to your client in court after I leave the Bench?

49MS BULL:  Thank you, Your Honour, no, we will book a video call with him to discuss ‑ ‑ ‑

50HIS HONOUR:  You'll do a video call?  All right.

51MS BULL:  Thank you, Your Honour.

52MS GO:  Your Honour, may I have like a minute to confer with my instructor?

53HIS HONOUR:  Sure.

54MS GO:  There might be a couple of matters that we need to clarify.

55HIS HONOUR:  Mr Dooley, while we just have the opportunity can I just say to you, you just cannot be involved in this material.

56OFFENDER:  Yeah.

57HIS HONOUR:  Whatever your tendencies are, you have got to stop it, because all you end up doing is getting sentences like this.  That's not going to assist you much in enjoying your life.  So I would recommend that you undertake treatment for your paedophilia in prison as soon as you can, it's very important that you do that but irrespective of that treatment, the fact is you have just got to make sure that you do not use devices to download this type of material.  Otherwise, the consequences are going to continue to be severe, as they are in this case.

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR:  Yes, thank you.

60‑ ‑ ‑