CDirector of Public Prosecutions v Dummett

[2024] VCC 1912

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 24-01542
CR 24-01543

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

JUSTIN DUMMETT

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2024
DATE OF SENTENCE:	27 November 2024
CASE MAY BE CITED AS:	CDPP v Dummett
MEDIUM NEUTRAL CITATION:	[2024] VCC 1912

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Charges of possessing or controlling child abuse material obtained or accessed during a carriage service – related summary offences of failing to appear at court – offending whilst on bail – early plea of guilty – high moral culpability – Sex offender reporting obligations for 15 years.

Legislation Cited:     Crimes Act 1914; Sentencing Act 1991; Sex Offender Registration Act 2004.

Cases Cited:R v Asplund [2010] NSWCCA 316; R v Verdins (2007) 16 VR 269; Curle v R [2024] NSWCCA 117; Mertell v R [2022] ACTCA 69; Lazarus v R [2023] NSWCCA 214; Huggett v R [2021] NSWCCA 62.

Sentence:17 months’ imprisonment. Released after 11 months’ imprisonment upon entering into a recognizance release order.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr S. Dhanapala	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. Hocking	Victoria Legal Aid

HIS HONOUR:

Introduction

1Justin Dummett, in broad terms, I will sentence you to 17 months' imprisonment and release you from custody after serving 11 months' imprisonment.  However, I will credit your 250 days of pre-sentence detention as time served.

2You pleaded guilty to two charges of possessing or controlling child abuse material obtained or accessed using a carriage service.  There are two related summary charges.  The maximum penalty for each carriage service charge is 15 years' imprisonment and two years' imprisonment for each of the summary charges.

3The circumstances of your offending are set out in the ‘Summary of prosecution opening for plea’, which is Exhibit A.

Circumstances

4On 20 July 2022, the police searched your residence and seized your mobile phone.  You admitted ownership of the phone and the police quickly discovered the existence of child abuse material in it. Further investigation of the phone revealed 207 child abuse material files. These files contained only videos.  Exhibit A describes five examples of that material in paragraph 15. Your possession of this material constitutes Charge 1.

5You were charged and bailed to appear in the Magistrates' Court at Melbourne on 22 July 2022.  You failed to appear that day and a warrant for your arrest was issued.  The failure to appear constitutes Summary Charge 4.

6Somewhat surprisingly, the warrant to arrest was not executed until 23 May 2023.  You were again bailed to 30 June 2023 and failed to appear on that day.  A further warrant was issued.  Your failure to appear on 30 June 2023 constitutes Summary Charge 5.

7On 22 March 2024, the police came to your residence armed with the arrest warrant and a search warrant.  You helped the police to find another phone, gave them its PIN code, from which they discovered 320 child abuse material files.  They comprised 261 images and 49 videos. Examples of those images and videos are described in paragraph 20 of Exhibit A.  As with the first charge, apart from the examples, there is no classification of the material using standard classifications like the INTERPOL four-tier classification system.  I must infer the examples represent the nature of the whole, such that exposure of children's genital and anal regions predominate.  Nevertheless, even their descriptions are very offensive.  Some of the other materials are much worse.

8You were not interviewed after your first arrest and gave 'no comment' answers in the interview following your second arrest.

9You have remained in custody since your second arrest.  As of 26 November 2024, that amounts to 250 days of pre-sentence detention.

Criminal history

10Between 14 May 2008 and 15 September 2022, you have appeared in a criminal court twice for drug, driving and bail charges. On the driving charge you received a suspended sentence of imprisonment. The other charges were penalised by fines.

11It is not a history which, by itself, indicates the need for specific deterrence in the context of the present offending.

Personal

12You are 36. You have an older sister. You had a good upbringing. You were educated to Year 10 level. Then you became a plasterer after an apprenticeship.  You have Certificates II and III in civil construction.

13Despite being a plasterer, between 18 and 28, you worked in a printing factory as a machine hand or forklift driver. When 26 or 27, you started using methamphetamine. This was your first experience of illicit drugs.

14You left the printing factory.  Your employment was inconsistent until 2019 and from then to the start of the pandemic you worked as a book binder.  You lost that job due to the pandemic and have barely worked since.

15Your use of methylamphetamine increased to about a gram a week at the time of the 2024 offending. In part, your drug use saw you ceasing contact with your parents and sister. Resuming contact with them is your desire.

16While on remand, you have been working as a yard billet.  You have completed a course called 'Ice & Me'.

Psychologist

17Simon Candlish is a consultant psychologist.  At the request of your solicitors, he interviewed you on 17 and 30 October 2024.

18Mr Candlish diagnosed as suffering from a severe stimulant use disorder, which is in early remission.  After taking into account your persistence despite an initial sanction, the greater presence of male children in the images, and the nature of your response to child abuse material, you justify, in Mr Candlish's opinion, a diagnosis of a paedophilic disorder.  However, Mr Candlish added your deviant interests might well decline over time with appropriate treatment, case management support and abstinence from drug use.

19Based on the application of actuarial and structured professional judgment approaches, Mr Candlish considered you are a moderate-high risk of further similar sexual offending.  On the other hand, he considered you are a low risk for a contact sexual offence.

20At the time of your offending, you suffered from a stimulant use disorder and the paedophilic disorder. Your stimulant use disorder was severe, causing destabilisation, disinhibition and alienation from your family.  As I understand, Mr Candlish believed your paedophilic disorder developed out of your stimulant abuse, which served as a disinhibitor and destabiliser and impaired your capacity to manage your deviant interests and desist from such behaviour.

21Should you relapse into stimulant use, you are at risk of destabilisation and will be more disinhibited.  Ongoing substance abuse will lead to a sense of alienation, and these issues could impact on your risk.

22In prison, you have experienced some stability by being forced to detox and cease drug use.  You do not show any serious mental health issues related to depression or anxiety according to Mr Candlish.

23There are no aspects of your mental functioning which will impede your rehabilitation.

24Mr Candlish recommended various specific measures for you to maintain an offence-free lifestyle and a prosocial existence under headings of psychological intervention, lifestyle and mood, employment and risk management.

Discussion

Legislative provisions

25Sentencing for the Commonwealth offences is governed by the Crimes Act 1914. Apart from s 16A(1), s 17A(1), ss 19(5) and (6) and other provisions, there is s 16A(2). Sections 5(1) and (2) of the Sentencing Act 1991 are important for State offences.

Nature and circumstances of the offences

26As these cases go, there were not an inordinate number of videos and images.  As I said earlier, there was no classification of the child abuse material using the INTERPOL categorisation system or any other system. The examples in paragraphs 15 and 20 of Exhibit A reveal children between about three and 15, mainly males. Most of the examples of the videos and images depict the genitals or anal area.  Some, especially in paragraph 15, depict sexual activity between a child and an adult. One video, described in paragraph 15.4, depicts an apparent rape of a girl aged about 15.

27Compared with other cases, in terms of numbers, 207 and 320 videos and images are a relatively low combined figure. Moreover, the Director's counsel advised there was some duplication between the videos or images or both on your devices even though they were different devices.  He could not say as to the number of overlapping images or videos.  The fact there is the same child abuse material on both phones’ points to some continuity of offending between 2022 and 2024 despite each charge specifying single dates.

28Your offending in the second charge on the indictment occurred while you were ostensibly on bail for the offending on the first charge.  This is an aggravating factor, for a central aspect of an undertaking of bail is not to reoffend at all let alone in the same manner.

29There is no evidence of a commercial aspect to your possession.  There is no evidence you sent this material to anyone else.  How you came by this material is unknown. There is nothing to suggest you were more than a recipient of material produced by others.  There, again, if there was such evidence you may have been charged with other offences.

30By their very nature, offences involving child abuse material are serious.  This is partly reflected in the maximum penalties. As is common in these cases, the children in the videos and images cannot be identified.  Accordingly, there are no victim impact statements.  However, the law presumes harm to those children in those circumstances. In the video depicting the apparent rape of a female aged about 15, the presumption is of very serious harm.

31The first charge of failing to answer bail occurred within days of your charging.  I agree with your counsel's submission this offence does not deserve imprisonment.  The second instance is more serious.  You missed the first time, but no excuse is offered for the second.

Guilty plea

32You indicated an intention to plead guilty at a committal mention hearing on
6 September 2024.  In terms of timing, I consider the indication was given at the earliest reasonable opportunity in relation to the 2023 offending but not the 2022 offending.  You did not answer your bail, and it took time for you to be
re-arrested.

33Irrespective of the strength of the prosecution's case, your pleas benefit the criminal justice system by avoiding a jury trial.  Given the circumstances described in Exhibit A, the prosecution's case against you appears strong.  However, sometimes trials are held where the prosecution case is very strong but the accused seeks to avoid the inevitable by pleading not guilty.  Very occasionally an unexpected verdict is delivered.

34Trials take time even in the case of offending of your kind.  Even short trials are liable to disruption. My impression is since the pandemic, jurors are more conscious of their health and the effect of their ill-health on others. This may lead to the discharge of a juror or even the entire jury. It may mean a delay in the conduct of the trial while awaiting a juror's return to reasonable health.

35Your guilty pleas relieve witnesses from the need to give evidence.  Although in your case, the witnesses were members of a police force and it may be supposed giving evidence in a trial was not a foreign experience. Nevertheless, it would involve some stress for them.

36In your interview with Mr Candlish, you spoke of the harm to the children because the videos and images were taken against their will.[1]  This realisation is hardly an expression of genuine remorse.

[1] At [33].

Deterrence

37General deterrence or the deterring of other persons from committing these or similar offences is a paramount factor in the sentencing of the child abuse material offences. These offences potentially inflict great harm on the victims and are hard to detect.[2]  Both factors point to the need to deter others from this kind of offending, achieved through my sentences on you.

[2] R v Asplund [2010] NSWCCA 316 at [50].

38Specific deterrence or deterring you from committing the same or similar offences again is an important sentencing factor.  In light of Mr Candlish's view, I am not seeking to deter you from contact offences but rather from offences relating to child abuse material. You were not deterred by the fact of your original arrest, charging and being bailed. Your stability in gaol is of limited value because of the restrictive nature of imprisonment. Specific deterrence for you is mainly aimed at the time when you are in the community. It remains an important sentencing factor.

39The nature of your child abuse material offences requires my sentences to demonstrate a denunciation of that offending.  It could not be otherwise given the nature of the material.

40Generally speaking, a sentence of imprisonment for child abuse material offences is warranted.  Through your counsel, you accept this proposition.

Moral culpability

41Your childhood was unremarkable. There was no exposure to family violence directed at you or others.  There was no excessive drinking.  There was no drug-taking. Your schooling was uneventful. Your descent into drug-taking is unexplained by your earlier life.

42You do not rely on any of the principles stated in R v Verdins.[3]  The diagnosis of you suffering from a paedophilic disorder does not engage principle 1. Your moral culpability is high.

[3] (2007) 16 VR 269.

Character

43You were 35 and 36 when you committed the child abuse material offences.  The nature of your criminal record means you cannot rely upon your good character to mitigate the penalties.

Prospects of rehabilitation

44Your risk of reoffending in the same manner is placed by Mr Candlish in the medium-high category.  Although he does not describe the categories, I would understand this category represents a very significant risk of similar reoffending.  In order to reduce the risk, you need to achieve certain things. Avoiding drug use is something you could not do until taken into custody. Whether your abstinence in custody will see the end of your drug-taking is unknown. You have the capacity to gain employment. Whether you do so is linked to you ceasing drug taking. I do not know whether you can re-engage with your parents and sister.  While in custody, you have not contacted them and they have not contacted you. Whether you can form friendships with people without criminal tendencies is unknown. You have done so in the past.  Your plans for the future are positive.

45Your deviancy has not been treated. Mr Candlish recommended psychological interventions. They involve your drug addiction and your deviant sexual behaviour. Mr Candlish does not say how long these approaches would take to achieve a positive outcome.

46My sentences today should deter you from future like offending.  Before these charges, you had never been imprisoned.  You have spent 250 days in custody and will spend about three months longer.  Whether you now fully understand the effect of your offending on the children in the videos and images, you must now understand possessing child abuse material is seriously punished by the law.

47This last consideration causes me to have more confidence in your prospects of rehabilitation, which I consider are marginally positive.

Cumulation or concurrency

48I have already noted ss 19(5) and (6) of the Crimes Act 1914. The former speaks of cumulation of sentences, the latter moderates cumulation to achieve the sentences of appropriate severity.

Recognizance release order

49You seek, and the Director does not oppose, that I release you from custody on a recognizance release order. However, in order to release you forthwith from custody, I must be satisfied there exists exceptional circumstances justifying that step.  In your case, the lack of exceptional circumstances is not an impediment because of your pre-sentence detention.  However, the period of pre-sentence detention is insufficient.

Comparable cases

50In relation to the child abuse material offences, the Director prepared a summary of comparable cases from New South Wales and the ACT.[4]  In some of those cases, the child abuse material was categorised.  This did not happen in your case.  Instead, the prosecution gave examples of what were depicted in videos and images.

[4] Curle v R [2024] NSWCCA 117; Mertell v R [2022] ACTCA 69; Lazarus v R [2023] NSWCCA 214; Huggett v R [2021] NSWCCA 62.

Sentence

51On Charge 1, I sentence you to eight months' imprisonment.

52On Charge 2, I sentence you to 15 months' imprisonment.

53On Summary Charge 4, I fine you $250.

54On Summary Charge 5, I sentence you to seven days' imprisonment.  As with sentences of imprisonment for State offences, this sentence commences today.

55The sentence on Charge 1 starts today.  On 27 January 2025, the sentence on Charge 2 starts.

56You are to be released after serving 11 months of the term of imprisonment upon entering into a recognizance in the sum of $500 to comply with these conditions:

(a)   to be of good behaviour for two years;

(b)   to be subject to the supervision of a probation officer for two years;

(c)   to obey all reasonable directions of the probation officer;

(d)   not to travel interstate or overseas without the written permission of the probation officer;

(e)   to undertake such treatment or rehabilitation programmes as the probation officer reasonably directs;

(f)    to report to the Dandenong Community Corrections Service by 4 pm within two clear working days of your release from custody;

(g)   to report to, and receive visits from, the probation officer; and

(h)   to notify the probation officer of any change of address or employment within two clear days after the change.

57I declare your 250 days of pre-sentence detention, which excludes today, as time served under my sentences today.

58I will refer the fine to Fines Victoria for collection.

Section 6AAA

59Absent your guilty plea to the second summary charge, I would have sentenced you to 10 days' imprisonment on that charge.

60For the child abuse material charges, in the absence of your guilty pleas, I would have sentenced to 23 months' imprisonment and directed your release after serving 15 months' imprisonment.

Sex offender registration

61The two carriage charges are class 2 offences under the Sex Offender Registration Act 2004. You will need to comply with the reporting obligations for 15 years.

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