CDirector of Public Prosecutions v Elms
[2023] VCC 1938
•18 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00799, CR 22-02155
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DAMIEN ELMS |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATES OF HEARINGS: | 18 July 2023; 10 October 2023 | |
DATE OF SENTENCE: | 18 October 2023 | |
CASE MAY BE CITED AS: | CDPP v Elms | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1938 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence – Plea of Guilty – Using a Carriage Service to Groom a Person Under 16 Years of Age – Using a Carriage Service to Procure a Person Under 16 Years of Age or Believed to be Under 16 Years of Age for Sexual Activity – Sexual Assault of a Child Under the Age of 16 – ‘Grooming’ – Contacted Victims through Social Media and Online Games |
| Legislation Cited: | Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Bail Act 1977 (Vic) Sentencing Act 1991 (Vic). |
| Cases Cited: | Gifford v R [2016] NSWCCA 302; Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269; DPP (Vic) and DPP (Cth) v Swingler [2017] VSCA 305. |
| Sentence: | Imprisonment for 19 months, non-parole period of 12 months (State); imprisonment for 23 months, followed by recognizance release for 2 years and 9 months (Commonwealth). |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr J. Barr | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr S. Cooper | Doogue + George Lawyers |
HER HONOUR:
Introduction
1Damien Elms, you have pleaded guilty to:
(a) One charge of using a carriage service to groom a person under 16 years of age which carries a maximum penalty of 12 years' imprisonment;[1]
(b) Three charges of using a carriage service to procure a person under 16 years of age or believed to be under 16 years of age for sexual activity relating to three separate victims. (Because of a legislative change that came into effect on 23 June 2020, the first of these charges, Charge 2, carries the maximum penalty of 12 years' imprisonment, while the latter two, Charges 3 and 4, each carry a maximum penalty of 15 years' imprisonment);[2] and
(c) Three charges of sexual assault of a child under the age of 16, each charge attracting a maximum penalty of 10 years' imprisonment.[3] This charge attracts the State standard sentence provisions, the standard sentence for each of these charges being four years' imprisonment.
[1]Criminal Code Act 1995 (Cth) sch 1 s 474.27(1) (‘Criminal Code’).
[2]Ibid. s 474.26(1).
[3]Crimes Act 1958 (Vic) s 49D(1).
2You have also agreed to have uplifted and pleaded guilty to the related summary offences of committing an indictable offence while on bail and contravening a conduct condition of bail, each charge carrying a maximum penalty of three months' imprisonment or 30 penalty units.[4] I note that the second of these is a rolled-up charge encompassing four events.
[4]Bail Act 1977 (Vic) ss 30A(1), 30B.
Facts giving rise to the offending
3A summary of prosecution opening dated 13 July 2023 was tendered on your plea and marked Exhibit A. That opening is attached to and forms part of these reasons. I will refer to parts of it in summary form here.
Background
4On 25 November 2020, a search warrant was executed at your address. A number of devices were seized, including an iPhone found in your bedroom. Police gained access to various applications on the phone, including the social media applications ‘Snapchat’ and ‘Discord’. These platforms allow users to make video and voice calls and send photographs and messages to other users. Snapchat messages are deleted by default on the message being viewed or after a certain period of time. Discord can be used as a link to certain video games. Some portions of the chats on these platforms were tendered as annexure A-C on the prosecution opening.
5A review of your Snapchat activity revealed sexualised communications with the child complainants who I will call DM, BH and BRH. You were charged in relation to that offending on 8 October 2021 and granted conditional bail on the same date. While still on bail on 21 May 2022, you were charged with additional sexual offending in relation to a fourth child complainant JS, which included both online procuring and contact offending. Both sets of offending were dealt with on the ultimate plea indictment.
Charge 1 – Groom Child under 16 years of age
6Turning first to Charge 1, in relation to DM, grooming a child under 16 years of age. The offending giving rise to this charge occurred between about 12 December 2017 and 1 August 2019. At the time of the offending the complainant DM was between 12 and 14 years of age.
7Evidence produced from the Discord application shows that you and DM exchanged some thousands of messages, through which you attempted to build trust with him, including your telling him that he is ‘amazing’ and that you ‘miss’ him. You also spoke via voice calls and interacted on the video game Fortnite.
8You would tell DM about your life and work, discuss playing video games and ask him on numerous occasions to meet or video call. You would buy him in-game currency on Fortnite, called ‘V-Bucks’, by sending him your card details and stating a specified amount he could spend. At times, requesting favours in exchange. For example, DM recalls that on the first occasion you provided him money, you asked him to show his face on his webcam. Around that time, you had also asked to see DM shirtless, he refused.
9On numerous occasions when DM refused to take your phone calls, video calls, or accept your gifts, you would threaten to kill yourself, telling him that you were, 'done with your life'.
10An extract of the communications was provided in annexure A to the prosecution opening.
11I note that DM told you on 1 August 2019 that he was 16, though he was actually 13 at the time; this event concludes the period of this charge.
Charge 2 – Procuring a child under 16 years of age
12The offending the subject of Charge 2, took place during the period 16 November 2018 to 19 November 2019. The complainant, BH, lives in the United States and was aged between 13 and 14 years of age at the time of your offending.
13On 16 November 2018, you said, 'You look amazing' to BH, commencing the charge period. You would go on to frequently flatter and compliment the child, calling him 'amazing and ‘hot' and stating that you 'care about him so much'. You often asked if he would send pics, including shirtless pics and you offered him money for the pictures. You also asked for a video of him talking dirty and stripping. You told BH that you were 17 years old.
14You suggested meeting with BH saying that you would go to America and meet in a hotel and that you would pay him $2,000 to stay in the hotel with you.
15You discussed the child's penis and whether it was 'a good size'. The chats were increasingly sexual in content, including you saying, 'I know you're horny and I love you and I wish I could suck you dry'. Between 17 and 19 November 2019, you and BH discussed him sending you a sexual video. You proposed meeting with him.
16Annexure B contains an extract of these conversations.
Charge 3 – Procuring a child under 16 years of age
17The offending the subject of Charge 3 took place between 24 October 2020 and 18 November 2020. BRH was 13 years old at the time.
18You sent the message: ‘u look amazing on insta’ on 24 October 2020 to BRH through Snapchat commencing the charge period.
19During your conversations you discussed taking BRH shopping, going to New South Wales to meet him, getting an apartment for the two of you to stay in and hiring an Airbnb. You would tell the child that he is amazing and he could trust you, before asking for ‘pics’ and increasingly making the conversation sexual. You state for example that you would not force the child to, 'suck your dick', unless he wanted to. You also suggested that he is saving his virginity for when you get an Airbnb for which you would pay him $500.
20It is at this point between the conduct giving rise to Charges 3 and 4, that you were apprehended, charged and bailed.
Charge 4 – Procuring a child under 16 years of age
21Between 21 February 2022 and 21 May 2022, the complainant, the subject of Charges 4 to 7, JS, was a child aged 12. JS's friends, ZM and JL were aged 12 and 13 and were witnesses to your offending.
22Around 21 February 2022, JS received a friend request from you on Snapchat. He did not know you. Between about 21 February 2022 and 21 May 2022, you communicated with him using both Snapchat and text messages. You would ask him if he wanted 'free money'. You asked him to travel to Melbourne to meet with you. You said you would make bookings for hotels and pick up JS and his friends. You would then transfer him money in exchange for sexual acts. You first told JS that you were 18, then 22, then 25 and then 30. You had asked JS for his age when you first added him on social media; he told you he was 12.
Charge 5 – Sexual assault of a child under 16
23On 15 May 2022, you rented a hotel room at the Quest. When JS and his friends first arrived you told them that they could not go in yet because you did not say they were going to be children. I infer this is a reference to hotel staff not knowing there were children staying in your room. You then returned to give them a key. CCTV footage shows you checking in and the two children coming in afterwards.
24You gave the children alcoholic drinks. JS estimates that he had about eight, while you had about four beers.
25At some point during the evening JS states that when he got tired, he went to sleep in one of the rooms. He was on the bed when you went into the room, laid down behind him and in the words of JS you, 'Put one hand on my back and one on my chest and pinned me down.' When he moved you said to him, 'No, no, don't leave’, and started reaching into his pants. You clutched at his penis under his underpants. The touching went on for approximately five seconds. JS said ‘no’ repeatedly.
26ZM a friend of JS's gave a statement confirming that you would ask JS and his friends to come to Melbourne and give them ‘cardless cash’ and more when they agreed to meet you there. Bank records confirm your sending $1,060 to JS during this period.
Charge 6 – Sexual assault of a child under 16
27After the incident described in Charge 5, you told JS, 'I miss you already' and offered him money to meet up again on 17 May 2022.
28Sometime in the afternoon or evening of 17 May 2022, JS, in the presence of a friend went to a hotel room you had taken on Elizabeth Street in the city. Initially the boys watched television, but when JS's friend went to the bathroom you put your hand into his pants while sitting near him on the couch.
29Initially it was you and the two boys, but other associates of JS's arrived during the evening. You bought one or two slabs of cruisers for the gathering. The children spent the rest of the night riding on electric scooters, drinking Vodka Cruisers and sleeping at the apartment before going home in the morning.
30After this night you told JS, 'Can't wait to see you again and I love you, come back please?'
Charge 7 – 21 May 2022
31On 21 May 2022, you again rented an apartment through Airbnb. JS and two friends arrived and spent time with you there. You also hired GoGet cars for the three of them to use throughout the night.
32On this day, you twice sexually assaulted JS by forcibly kissing him in an alleyway and a second time in a GoGet car when you attempted to put your tongue into JS’s mouth. Charge 7, I note, is a rolled-up charge including these two instances.
33JS describes the first of the incidents as you forcing him to kiss you. JS said that he told you ‘no’. The second incident occurred after hiring a GoGet vehicle. You leaned the seat back that JS was sitting in and in JS's words you then, 'forced me to kiss him', while you held his head.
34At about 4:45am a car being driven by JS and one of his friends was pulled over by police. They told police that their friend, Damien, had hired the car for them to use. You called GoGet to report the car as stolen.
35On 21 May 2022, you were arrested and interviewed for a second time.
Second Arrest and Interview
36In that interview on 22 May 2022, you made some admissions, for example to your booking of the Airbnb, but denied sexual assault of JS. Police obtained photographs of text messages on JS's phone both sent and received by you. The content of some of those messages is set out at paragraph 44 of the prosecution opening. The tone of these exchanges is exemplified in this small excerpt:
You: Walk to Collins street near Kristy khreme. Well if we did do stuff then I will be happy to give u $1000 but we didn’t
JS: I will give you a 30 min blowjob
You: When?
JS: Whenever I see u next
You: I can’t wait that long sorry
JS: You give me the 700 like you promised n I will give u a 30 min blowjob
You: When next. I can’t wait a few days.
37You also continued to send messages to JS after you were apprehended by police. 'I'm with police getting charged bro' you write, before going onto ask:
how much Optus credit do you need? Did you get home safe? Hotel tomorrow or Friday? I missed you bro
38After you had been released on bail on 5 November 2021, you were obliged to comply with conditions including not to have contact with or be in the company of children under the age of 18 unless supervised. You were also prohibited from using the internet or any online service, except for the purpose of banking services and medical purposes, and a small range of other necessary administrative tasks.
39While on that bail between February and May 2022, you committed indictable offences, the sexual assault of JS, were in the company of children without supervision, communicated with a child under 18, by sending text and Snapchat messages to JS and used online services including Snapchat and Discord.
40These acts give rise to the related summary offences of committing an indictable offence while on bail and breaching a conduct condition of bail. The first of these charges has a charged period between about 21 February 2022 and 21 May 2022. The second is a rolled-up charge encompassing four particular breaches of your bail conditions.
41You were remanded into custody on 21 May 2022.
Impact on Victims
42Turning now to the impact of your offending on your victims.
43Your counsel conceded, properly, that all child victims suffer presumed harm in these circumstances. This is so, and applies to both online and in person offending.
44JS filed an impact statement and in it he describes being frightened to look at his phone now when he gets a message. He describes what you did having an effect on his relationships and making him feel distrustful of others and is worried that other people would see him differently if they knew what you had done. His work at recovery is ongoing. He is a very young person to be dealing with these problems visited on him by you, an adult man.
45I take JS's statement into account in arriving at your sentence. I also take into account, what I think I can safely assume to be the consequences for your other child victims, as your offending intruded into their youthful online worlds and brought predation into their homes and lives.
Criminal History
46You have no prior criminal history, but for an irrelevant driving offence in Queensland.
Nature and Gravity of the Offending
47Turning now to the nature and gravity of the offending.
48Charges 1 to 3 involved three different victims over periods of 18 months (victim DM); 13 months (victim BH); and approximately 25 days (victim BRH).
49You were aged between 25 and 30 during the period in which you committed the offences.
50DM was between 12 and 14 when you committed Charge 1; BH was between 13 and 14 when you committed Charge 2; and BRH was 13 when you committed Charge 3.
51JS, the victim of Charges 4 to 7 was 12 when you committed your offending in relation to him. The offending on Charges 4 to 7 in relation to JS, was a mixture of online and in-person offending, which occurred over a four month period and notably after you had been charged and bailed for Charges 1 to 3.
52In relation to Charges 3 and 4 (committed after 23 June 2020) I am required to consider the age and maturity of your victims, so far as is known.[5] I would have regard to this feature in any event for each of the charges. I take into account the chronological age of your victims. It is difficult to draw any finer conclusions about their maturity from the material before me. They were boys in their early adolescence, a tender time in anyone's life.
[5]3 S 474.29AA(1)(a) Criminal Code 1995 (Cth).
53All sexual offending against children is destructive of their childhood and is abhorrent. Your barrister sensibly conceded the seriousness of the offending before the Court.
54The fact that no actual meetings occurred in relation to Charges 1 to 3 is only of peripheral relevance, it merely means that the potential harm is not greater than that contemplated by the offence itself. As the court said in the case of Gifford v R, '[t]he relevant harm lies in the impact of the communications themselves'.[6]
[6]Gifford v R [2016] NSWCCA 302 at [106] per Ward JA
55Your offending unfolded across a five year period and created four child victims; it was protracted and you disguised your true age. The sexual content of the grooming or procuring offences was, in relative terms, mild. I note however the escalation of sexual language and content in particular on Charge 2. Your offering of payment and gifts of V-Bucks or computer equipment or donations was persistent. You also conveyed to your young victims manipulative references to your potential self-harm when they did not take you up on offers of one kind or another.
56Just one example of a method you seemed to use with DM, is illustrated when he declines your offer of V-Bucks, and you say:
“im running away then… ok bro cya later… im leaving for good.. im done with life… no point living.. im not happy…ur not making me happy’
57This prompts the victim to reply in all capitals:
JUST RELAX…YOU HAVE THE PERFECT LIFE…I CANNOT TAKE THIS’.
58In relation to your commission for sexual offences against JS, the actual touching was again relatively brief but did include touching of your victim's genitals under his underwear. However, it occurred in the context of your creation of a world for JS and his friends, populated with alcohol, joy rides and accommodation in the city. This feature leaves me to conclude that your sexual assault of JS, on the occasion giving rise to the charges, was planned and carefully constructed.
59Charge 4 of course, is also in relation to JS and is a charge that captures the procurement aspect of your offending, and I'm careful not to punish you twice, by using the same conduct to aggravate the offending on Charges 5, 6 and 7. However I must take into account to some degree the circumstances of your offending on the charges of sexual assault of a child. Your persistence in the face of the original detection by police and your being charged and bailed is particularly concerning. Instead of recognising that what you were doing was wrong and that you had been detected and made you liable for criminal punishment, you instead set about an escalation of your conduct, to include persistent contact offending against a child. When apprehended for the second time, you continued to communicate with JS while in police company. There is compulsiveness and flagrancy about your continuing to offend, despite being detected, and that is worrying.
60The legislature has determined that these charges allow for very significant maximum penalties. Particularly by way of reference to the harmfulness of this conduct towards children. Overall, I find the procurement/grooming offences the more serious because of their protracted timeframes and their manipulative and persistent content. Your thoughts and desires are a wilful imposition on those children, they flowed into your victims’ childhood homes and into their young minds through the medium of the internet. These are serious examples of the offences of online procurement, notwithstanding their relatively mild sexual content.
Personal Circumstances
61You are now 31 years old.
62You grew up living with your parents and three elder siblings. You had remained living in the family home until your remand. Growing up, you recall that your parents fought often and that your father abused alcohol and gambled. Although you continue to have a positive relationship with your family, they have not always been aware of the nature of the current charges, and you have held fears that your family would reject you if they did find out. Your mother however, was present in Court at your plea and her support endures. You report being sexually abused by two adult men when you were approximately 10 years old at the skate park in exchange for cigarettes, and by an older male at Little Athletics.
63You were a victim of chronic bullying throughout your school years and later too in an employment context and on remand. Your appearance was criticised and you were physically assaulted. You did not make friends. During your teenage years you retreated into online games.
64You have been assessed as having a full-scale IQ falling in the low average and borderline ranges. You have lived a life of profound social isolation and struggle to establish meaningful connections with other people. You are considered to be intellectually impaired. You experienced learning difficulties and received classroom assistance throughout your schooling as a result. Despite this you did attend mainstream schooling and completed your VCAL.
65You started drinking alcohol and smoking cannabis at age 12, and your use became frequent, continuing until your remand. You started smoking methamphetamine once a week around aged 19 and this pattern continued until your remand.
66You worked as a cook at KFC for four years from the age of 15. You worked for three hours a week until the age of 19 or 20. You had also completed a security guard course at TAFE and worked at the National Gallery and other locations in this capacity for a few months. You were then employed as a truck driver but your work was terminated halfway through the probation period, due to having a nervous breakdown at work, and a second job as a truck driver lasted only two weeks. You have not been in any long-term relationship, nor do you have children.
67After your remand you were bullied in custody, physically assaulted and had your food and drink taken. Things improved when you were sent to the Hopkins Correctional Centre and put into a protection unit.
68Turning now to matters in mitigation.
Early Plea of Guilty
69You have pleaded guilty to these charges, and as a result you stand to receive a significant reduction of your sentences. Your victims are vulnerable and because of your pleas of guilty none of them had to come to court and be cross-examined. I accept that your case involved a complex resolution of the matters before the court, and this took some time, not attributable to your level of willingness to settle the case. I regard your plea as an early one. Although trial lists are almost at pre-pandemic level your plea was entered at a time when delays were still hampering the administration of justice and I will recognise your plea being particularly valuable in the Worboyes[7] sense.
[7]Worboyes v The Queen [2021] VSCA 169.
Remorse
70The prosecution conceded and I accept that you have expressed some appropriate contrition for your offending, tempered as this is by the sequence of your arrest and further offending. I accept that your time on remand has been particularly tough given the experiences that you had early on before being transferred to the Hopkins unit where things improved. This move made you safer but it also made it more difficult for your family to visit you, which has reduced the number of face-to-face visits you have received.
Moral Culpability
71Turning now to psychological material.
72A psychological report authored by Jane Lofthouse relied on at your plea, supplemented by a report authored by Dr Aaron Cunningham. Briefly, I should note that the Jane Lofthouse report was a neuropsychological report. This material gave rise to a limited submission in relation to the application of Verdins ‘limb 1’.[8] It was argued that the moral culpability of your offending should be somewhat reduced by reference to your intellectual impairment, and not by reference to psychological factors, I note. In the opinion of Ms Lofthouse, neuropsychologist, your intellectual impairment contributed to but does not fully explain the criminal offending that resulted in the current charges.
[8]R v Verdins (2007) 16 VR 269.
73I do reduce to an extent my assessment of your moral culpability by reference to your intellectual impairment, however I noted at the hearing the operation of this feature of mitigation is tempered by the fact that you have overlaid this impairment with methamphetamine use during the period of your offending. Ms Lofthouse's opinion continues and concludes that your drug and alcohol use would have been a further contributing factor, which led to the criminal offending.
74I find that your offending emerges from a combination of features in your life. Primarily your intellectual impairment and your social problems which make time with younger people attractive. These problems were then exacerbated by your use of drugs and alcohol. Your capacity to appreciate the wrongfulness of your conduct is somewhat impaired by your intellectual difficulties. Your facility in organising Airbnb's GoGet cars and the like, is highly functional in those narrow areas. I do not say this to detract from the mitigation on the basis of your impairment, but I also note your capacity to create a world of online and real world enjoyment for your teenage victims is unaffected by this and I bear this in mind when considering other features of this sentence, such as the need for community protection.
Prospects of Rehabilitation
75I must assess your prospects of rehabilitation; you maintain your family's support. You will need assistance to learn how to conduct age-appropriate relationships. Drug and alcohol use, a contributing feature of your offending, can be addressed through treatment. You have no prior convictions but your persistence in the face of investigation and police contact does give me some pause in finding your rehabilitation prospects are otherwise excellent.
76Both the prosecution and your counsel made valiant attempts to assist me by providing me with comparable cases, but this exercise is particularly difficult in your case. I have looked at previous sentences which involved grooming and procurement offences, as well as post-standard sentence cases for the offence of sexual assault of a child. No case is alike to yours, but I sentence you in this landscape.
Commonwealth and State Sentencing Structures
77Turning now to structural issues on this sentence.
78I pause here to note that an extraordinarily complex tapestry of both State and Commonwealth sentencing provisions must be incorporated into the exercise of my sentencing discretion in this case. Moreover, because of change in the Commonwealth legislative scheme coming into effect on 23 June 2020, and the fact that Charges 1 and 2 on the one hand and 3 and 4 on the other fall either side of this change, a different maximum penalty, the introduction of a presumption of cumulation and the requirement to take into account the age and maturity of the victims operate in sentencing on the latter two charges. This, combined with the different durations of the offence period for Charges 1 to 4 and other features of the offending makes the Commonwealth sentencing process even more complex than usual.
79Added to this are the statutory structures I must engage on the State sentences, which are the Serious Sex Offender provisions, engaged by the operation of Charges 1 to 4 (even though they are Commonwealth charges) and the application of a standard sentence regime.
80This is all before I even begin to grapple with the ordinarily complex task of fixing separate non-parole periods and commencement dates for State and Commonwealth sentences in accordance with the process set out in the case of Swingler.[9]
[9]DPP (Vic) and DPP (Cth) v Swingler [2017] VSCA 305.
81On the Commonwealth sentences, on Charges 3 and 4 committed after the introduction of the new legislation a presumption of cumulation for these charges operates and requires me to cumulate those sentences unless I decide that imposing a sentence in a different matter would result in sentences of an appropriate severity in all the circumstances. I depart from the presumption of full cumulation. I have concluded that the application of the principle of totality of the State and Commonwealth sentences requires some moderation in the cumulation and the orders on those charges, being three and four, will give effect to higher levels of cumulation than I would have otherwise ordered. I will cause this statement to be entered into the records of the Court.
82In relation to the State sentences because I will be imposing a sentence of imprisonment on Charges 1 to 4, you fall to be sentenced as a Serious Sex Offender on charges 5 to 7, pursuant to s6B(2) and s6C(3) of the Sentencing Act (Vic).
83This means that a presumption of cumulation applies to the sentences on those charges, and I bear in mind that the principle of totality may be applied in a manner which will not undermine the legislative policy inherent in s6E of the Sentencing Act, with a degree of cumulation increasing with the objective gravity of the offending.
84I must also regard, on these sentences, the protection of the community from you as the principal purpose for which the sentence is imposed. I must give this legislative requirement full weight while not abandoning the principle of totality. The prosecution did not argue for a disproportionate sentence and I will not impose one.
85Charges 5 to 7, sexual assault of a child under 16, attract the standard sentence provisions. I note the legislative guide post of four years' imprisonment for the offences of the middle-range of seriousness, referable only to the nature of the offending and without reference to matters particular to you. In this case, I will take into account all of the matters I am required to consider under s5(2) of the Sentencing Act, including the standard sentence for Charges 5, 6 and 7 before me.
86I incorporate the standard sentence into my instinctive synthesis of all the relevant matters in your case, including the maximum penalty and the standard sentence and for reasons that I have already set out, I have concluded that the sentences for these three charges will fall below the standard sentence of four years.
87Charges 1 to 4 are Commonwealth charges and the considerations set out in 16A(1) of the Crimes Act Commonwealth oblige me to sentence you to a disposition of a severity appropriate in all the circumstances, having regard to the non-exhaustive list of matters in s16A(2,) and I have endeavoured to consider each of those matters. Likewise, I have considered the sentencing factors in s5 of the Sentencing Act. I regard the need for general deterrence in relation to the online offending to be particularly great in sentencing for Charges 1 to 4. Online offending is difficult to detect and internet users who offend need to understand that the consequences, if detected, are very serious.
88Further, I regard the need for some specific deterrence to be of some significance, given the way you conducted yourself, escalating your offending after initial arrest and bail, however, I also bear in mind this is your first time in custody and it has been a difficult and I hope instructive experience for you. You need to understand, Mr Elms, if you were to do this again, the sentence would be even longer. All offending against children is disturbing for the victims and for the whole community and through me and through this sentence, your conduct is firmly denounced. I must also impose a sentence that's appropriately punitive and gives weight to the need for community protection.
Submissions of the Parties
89The prosecution submitted that having regard to all the circumstances, a term of immediate imprisonment with a non-parole period is required in relation to the Commonwealth offences and in relation to the State offences.
90Your barrister submitted that the appropriate disposition incorporated both a term of imprisonment and a Recognisance Release order.
91In considering those submissions, I observe that the fundamental tension of this sentence is between making allowance for your impairment and the fact that you have never been in trouble before on one hand and the need for both general and specific deterrence on the other.
Disposition
92So, Counsel, turning now to the disposition which is set out in the chart in front of you.
Victorian Charges
93I will read out the sentences on the Victorian charges first.
On Charge 5, you are convicted and sentenced to nine months' imprisonment. This is the base sentence.
On Charge 6, you are convicted and sentenced to nine months' imprisonment.
On Charge 7, you are convicted and sentenced to nine months' imprisonment.
On the related summary offence, Charge 5, you are convicted and sentenced to one month imprisonment.
On the related summary offence, Charge 6, you are convicted and sentenced to three months' imprisonment.
94Five months of the sentences on Charges 6 and 7 are to be cumulative on the base sentence on Charge 5, making a total effective State sentence of 19 months' imprisonment.
95And I direct that 12 months of that sentence be served before becoming eligible for parole on the Victorian sentence.
Commonwealth Charges
96In relation to the Commonwealth charges.
On Charge 1, you are convicted and sentenced to 18 months' imprisonment.
On Charge 2, you are convicted and sentenced to 12 months' imprisonment.
On Charge 3, you are convicted and sentenced to eight months' imprisonment.
And on Charge 4, you are convicted and sentenced to 12 months' imprisonment.
97The sentence on Charge 1 of 18 months will commence two months before the expiration of the State non-parole period. The sentence on Charge 2 will commence seven months before the expiration of the sentence on Charge 1, effectively creating five months cumulation on that charge. On Charge 3, the sentence of eight months will commence three months before the expiration of the sentence on Charge 2, effectively making five months cumulative. The sentence of 12 months on Charge 4, will commence four months before the expiration of the sentence on Charge 3, effectively making eight months cumulation.
98The total effective sentence on the Commonwealth charges is therefore 23 months to serve after which you will be released on a recognisance release order and I'll hear the parties on the conditions of the recognisance and how to construct this.
Recognizance Release Order – Conditions
99My intention is that conditional release be for a period of two years. The conditions I am considering are the core conditions of an undertaking, to be of good behaviour, and the completion of a sex offender's course within the two year period.
100So the total effective sentence across both State and Commonwealth is 46 months, or three years and 10 months. The non-parole period on the State offence is 10 months, the Commonwealth sentence to serve is 23 months, and total effective sentence to serve before then released on a recognisance release, 33 months, or two years and nine months.
Discussion
101Those are my provisional orders to construct the sentence. Counsel I know, Mr Cooper, you have another commitment so I'll finish here for now and I'll re-assemble this court at 2:15pm. Unless anyone has anything to say immediately, without giving the matter further consideration.
102MR COOPER: No, Your Honour, not at this stage.
103HER HONOUR: Mr Barr, is there anything obvious?
104MR BARR: No, Your Honour, just for the respect to the Commonwealth offences, with respect to child offences, there are mandatory conditions set out in s20.
105HER HONOUR: Good, yes.
106MR BARR: And then sub-paragraph 1B.
107HER HONOUR: Meaning, for the release on the recognisance?
108MR BARR: Yes, Your Honour.
109HER HONOUR: Yes, thank you so I'll hear further from you if there's anything separate or in addition to that.
110MR BARR: Thank you, Your Honour. Thank you.
111HER HONOUR: Mr Cooper do you want a moment with Mr Elms or are you content to do that this afternoon, after we've - - -
112MR COOPER: If I could have a brief moment, Your Honour just to clarify the proposed total effective sentence.
113HER HONOUR: Good. Yes.
114MR COOPER: But I don't propose to take very long.
115HER HONOUR: Thank you. All right, counsel, I will stand this matter down until 2:15pm today.
[The Matter is Stood Down]
Afternoon Hearing – Discussion
116HER HONOUR: Good afternoon, counsel.
117MR COOPER: Good afternoon, Your Honour.
118MR BARR: Your Honour.
119HER HONOUR: I received an email and I thought maybe the best way of approaching this is to just work through the statements on the email. Is that the best - - -
120MR BARR: Yes, Your Honour. And we could perhaps cut to the bottom line, we've now had an opportunity, well I've now had an opportunity to discuss the matters with my learned friend as well, so I might start with what we think the bottom line is and then go through how we think we got there.
121HER HONOUR: All right. Yes.
122MR BARR: Now if we just briefly go to Your Honour's proposed table.
123HER HONOUR: Yes.
124MR BARR: The TES across both State and Commonwealth, 46 months, the parties agree with that.
125HER HONOUR: Yes, that's clear.
126MR BARR: Yes, Your Honour. And where Your Honour states NPP state 10 months plus 23 months.
127HER HONOUR: Yes.
128MR BARR: There was some confusion between - - -
129HER HONOUR: That was my error because of the concurrency that I wanted to cover and I think that - - -
130MR BARR: Yes, Your Honour and as my learned friend pointed out so. So, if Your Honour's intending for 33 months to be served before Mr Elms is eligible to be released upon an RRO, then the non-parole period still must remain 12 months, because that's what it is, so Your Honour can give effect to that in two ways. One to say it's 21 months on the Commonwealth sentence to be served before RRO, and then noting total 33 months. Or - - -
131HER HONOUR: What I've endeavoured to do, is perhaps what you're about to say, which is to say 23 months, but two months of which are concurrent with the State non-parole period.
132MR BARR: Exactly, Your Honour.
133HER HONOUR: So that there's certainly no gap between the two.
134MR BARR: Yes, Your Honour. And as long as, and on my reading of the authorities and when you look at the cases, Your Honour, as long as the intention is made clear and the orders otherwise comply with the myriad of requirements that we've all gone through and tables and spent the last couple of hours going through.
135HER HONOUR: How much lawyer time has been spent on this, but anyway.
136MR BARR: Yes, Your Honour. Then that's adequate. So long as it's reflected in either of those two ways, then most importantly, those who are interpreting at Corrections will have the correct release statement so - - -
137HER HONOUR: Yes. So let me then be clear, you point out quite properly, that I've said non-parole period State 10 months. That is incorrect. I mean non-parole period State 12 months.
138MR BARR: Yes, Your Honour plus.
139HER HONOUR: And two months of the Commonwealth sentence in effect is to be served concurrently, but I express that by saying that the Commonwealth sentence is to commence two months before the expiration of the State non-parole period, which means that the total period to be served is 33 months, not I think 35, which was one of the calculations that came back to me.
140MR BARR: Yes, Your Honour that's right.
141HER HONOUR: But that's now clarified.
142MR BARR: And the only other addition and I'll just go back to the email now, Your Honour is that the other perhaps the orthodox way of sentencing remarks to be expressed when we look at the authorities between the State and the Commonwealth, is that we effectively do a TES for each, and then make the orders reflect what the ultimate intention is. And so the only think we would suggest is that a Commonwealth TES be included of 36 months, which effectively is 34 months with the concurrency, but it remains as 36 because that is the standalone sentence and then we can - - -
143HER HONOUR: Yes. And that number should have been noted there's some pale shading, where it says 23 and then two years in brackets, that's - that was my thinking on the duration of the undertaking, but I'll come back to that in a moment.
144MR BARR: Yes, Your Honour, yes.
145HER HONOUR: But if one looks at the pale shading underneath the navy blue.
146MR BARR: Yes, Your Honour.
147HER HONOUR: And perhaps it's too pale but yes, 36 months should be expressed there.
148MR BARR: And so the global TES therefore is 46 months.
149HER HONOUR: Yes. That's on my current table, yes.
150MR BARR: Yes, we've note it down as 36, Your Honour.
151HER HONOUR: All right.
152MR BARR: Yes, so it's 46.
153HER HONOUR: That's my intention 46, that should - that matches the graph, yes.
154MR BARR: Yes, Your Honour.
155HER HONOUR: Forty-six is correct.
156MR BARR: And then the only other matters Your Honour, is the expression of the RRO.
157HER HONOUR: Yes.
158MR BARR: And we've clarified the term. The order should reflect the wording of s21B(ii) as that's the - as being the 23 months to be served pursuant to that provision. And we also have Your Honour the mandatory conditions set out in s20 sub-paragraph 1B.
159HER HONOUR: Yes. And those - - -
160MR BARR: And the draft order should be, which Your Honour with those mandatory terms.
161HER HONOUR: Yes, I saw that. Let me just say this and you can correct me if anything about it is wrong or incomplete. Or should be better expressed. Recognisance release order of a duration of 36 months; 23 months to be served before being released. Noting that two of those months are to be served concurrently with the State non-parole period. What I want to do is to release Mr Elms after that period and for him to be on an undertaking to complete the conditions - to be of good behaviour and to complete the 1B conditions and that that period lasts a further two years after his release. Now, A ,is that proper and B properly expressed.
162MR BARR: I'll just go to the provisioning now, Your Honour. I'll need to have a look at the expressions now, Your Honour. To be of good behaviour for two years.
163HER HONOUR: To commence after his release having served 23 months on the Commonwealth sentence.
164MR BARR: Yes, Your Honour. If Your Honour looks at, I think it's in the first paragraph of the draft order.
165HER HONOUR: Of the draft order just - - -
166MR BARR: The court orders are released under 20 sub-paragraph 1, sub-paragraph B of the Crimes Act after serving 23 months of the term of imprisonment upon the defender giving a recognisance to comply with conditions that, and then the court - the first condition is the good behaviour for two years.
167HER HONOUR: Yes.
168MR BARR: And then it goes onto be additional conditions that Your Honour now can add to those. So, yes, Your Honour that's compliant.
169HER HONOUR: Good.
170MR BARR: And Your Honour is required under s20 capital, sorry sub-paragraph 2, to explain the conditions.
171HER HONOUR: Explain the order. Yes. There are still some outstanding matters that I have to get to and that's one of them to explain the obligations under the recognisance release to Mr Elms. And there are a couple of others, including the 6AAA and serious sex offender.
172Serious Sex Offender SORA, PSD and 6AAA are the only ones that we have noted. The other matters we understand that Your Honour has addressed in the sentencing reasons and they're not matters that I have found that require to be entered in the records of the court. So, Your Honour has dealt with those.
173HER HONOUR: So let me deal one a time.
Section 6AAA
174I indicate that globally that if Mr Elms was found guilty after trial, rather than having pleaded guilty, I would have sentenced him to a total effective sentence of six and a half years with a non-parole period of four and a half years.
Pre-Sentence Detention
175I declare that 515 days pre-sentence detention already served be calculated against both sentences.
176MR COOPER: There's Charges 4 to 7 Your Honour.
177HER HONOUR: Is that correct?
178MR COOPER: Yes.
179MR COOPER: The bail as I understand it Your Honour was never revoked.
180HER HONOUR: I see.
181MR COOPER: So, I don't think Your Honour can impose any pre-sentence detention aside from the State charges.
182HER HONOUR: I hadn't understood that.
183MR COOPER: However, sorry, I should just sit down and think about this more carefully before I say - - -
184MR BARR: I might take that up, Your Honour. I'd addressed Your Honour on that in the supplementary submissions and you may recall on the last occasion we had a brief discussion about Elwhaley v The Queen and at paragraphs 6 to 8 of those supplementary submissions, Your Honour, the authorities make clear that PSD can only be referrable to those upon which bail's been revoked.
185HER HONOUR: Yes.
186MR BARR: Renzella, does not apply, but with respect to Charges 1 to 3, Your Honour is still required to have regard to that account a part of the principle of totality.
187HER HONOUR: Yes.
188MR BARR: Your Honour makes a declaration with respect to Charges 4 to 7, but makes clear, if Your Honour has done so, that Your Honour's had regard to those 515 days in the sentencing with respect to Charges 1 to 3.
189HER HONOUR: Yes.
190MR BARR: In accordance with the principles of totality.
191HER HONOUR: I have had reference to the totality throughout arriving at my sentence, (indistinct words) of the more difficult aspects of arriving at it.
Sex Offenders Registration Act
192MR BARR: Thank you, Your Honour. And the Sex Offenders Registration Act is the - which applies to all the charges was the only other ancillary order that I have noted, Your Honour.
193HER HONOUR: All right, just a moment. If I haven't already done so, I declare that the - that Mr Elms is being sentenced as a serious sex offender, pursuant to s6F of the Sentencing Act in respect of charges - - -
194MR BARR: Five to seven.
195HER HONOUR: - - - five, six and seven.
196MR BARR: Yes, Your Honour.
197HER HONOUR: And I order that that fact be entered into the record.
Recognisance Release Order
198The recognisance release order I'll now explain to you, Mr Elms what that means. It's a complicated sentence but at the end of the day, and your lawyer will give you some advice about what it all adds up to. But instead of giving you a term of imprisonment where you have to apply for parole, I'm putting you on something called a recognisance release order.
199And I direct pursuant to s20(1)(b) that you be released after serving 23 months of that sentence. And upon giving a recognisance in the amount of $1,000 to be of good behaviour for a period of two years. So that means when you are released from custody, you are under an obligation to be of good behaviour. And if you got into trouble again, you could be brought back before me and there might be consequences, for example going back into custody.
200Another condition of the recognisance release order is that you have to complete a sex offender treatment program as directed by the Deputy Commissioner of Corrections Victoria or his or her nominee within a period of two years after your release. So, you've still got work to do even after you get out. Part of that is when you get out of custody, you have to go to your local Community Corrections Centre, and we'll find out where that is, the closest one to where you'll be living within two days of coming out of custody.
201So when you come out, you have to report to the Community Corrections office and they'll assist you undertake the programs necessary for your order. You also have to report to and receive visits from a Community Corrections officer or officers and notify them if you change your address or employment within two clear working days. So there's still things you have to do after you leave custody. Report to Corrections, undertake the sex offender treatment course and be of good behaviour.
202You need to understand that if you don't do those things you can be brought back and potentially re-sentenced. Do you understand your obligations under that order Mr Elms?
203OFFENDER: Yes, I understand, Your Honour.
204HER HONOUR: Good. The other thing I need to do is to deal with the Sex Offenders Registration Act. Having been found guilty of seven class 2 offences, for the purposes of the Sex Offenders Registration Act 2004, you need to be registered under the Sex Offenders Registration Act. The period of your registration is life. During which time you have a number of reporting obligations with which you are obliged to comply. And again, this is a separate set of obligations from those under the recognisance release order. So it's important that you understand both orders and that they're different and each one has different things that you have to do.
205Now you're appearing online so I can't hand you a copy of the order, but what I'm going to do is ask Mr Cooper when he has a moment to go through those obligations with you and make sure you understand each of them. It's important that you take advice about that and understand your obligations and get advice from your lawyers if you don't understand the consequences of not complying with them. Because failing to comply with your obligations under that order can make you liable for more criminal charges. So that could be a criminal offence if you don't comply.
206One of the obligations is to - is it, a general obligation to provide your current address. Now if you changed your address without telling the people running the register then you could get into trouble and be charged. So you need to understand that the Sex Offenders Registration Act obligations are an additional and different set of obligations, things that you have to do, once you're released from custody. Counsel, is that sufficient for the purposes of the explanation of the various orders?
207COUNSEL: Yes, Your Honour.
208HER HONOUR: And Mr Cooper I'd be obliged if you could take Mr Elms through the balance of those orders and those obligations; they are many and complex.
209MR COOPER: Yes, Your Honour. I can certainly have a brief conversation with him in court, if Your Honour's associates would be prepared to allow me to do so.
210HER HONOUR: I understand we have the link for a little longer so - - -
211MR COOPER: And then I'll arrange a separate conference, using the JABA technology.
212HER HONOUR: All right.
213MR COOPER: And I'll go through those in more detail with Mr Elms in due course.
214HER HONOUR: I believe we have the link for at least another half hour, so that can be facilitated.
215MR COOPER: Thank you, Your Honour.
216HER HONOUR: All right. Counsel is there anything outstanding, and I'm almost afraid to ask?
217MR BARR: No, Your Honour.
218MR COOPER: This may just be my lack of understanding; I'm merely asking for my own sake Your Honour in terms of clarification if that's all right?
219HER HONOUR: Please do.
220MR COOPER: In relation to the 515 days of pre-sentence detention that applies as I understand it only to Charges 5 to 7.
221HER HONOUR: Yes.
222MR COOPER: However, because Your Honour's ordered that the Commonwealth Sentence commence 23 months into the - sorry, commence 10 months into the State non-parole period, that effectively means the Commonwealth sentence commenced 10 months into a non-parole period that's now being backdated by way of PSD, is that correct?
223HER HONOUR: I'm not sure if I've understood the language.
224MR COOPER: No, there's a temporal issue I'm struggling with Your Honour. Because there's a State sentence that's been imposed today.
225HER HONOUR: Yes.
226MR COOPER: However, 515 days is pre-sentence detention is attributed to that State sentence by virtue of s18 of the Sentencing Act.
227HER HONOUR: Yes.
228MR COOPER: That 515 days outstrips the non-parole period of 12 months, and it also outstrips the non-parole - the period of the non-parole period being 10 months, before the Commonwealth sentence commences.
229HER HONOUR: Yes.
230MR COOPER: Now temporally as I understand it, that would mean that the Commonwealth sentence effectively commences 10 months into the State non-parole period that's already gone by. And - - -
231HER HONOUR: Correct.
232MR COOPER: - - - I'm just concerned and I felt I should raise that the pre-sentence detention can't be attributable to the Commonwealth sentence, because my client's bail was never revoked on those matters. And I'm sorry I don't have an answer for Your Honour here, it's just really something I've noted that I feel I should raise.
233HER HONOUR: Yes.
234MR COOPER: But there's no issue and my learned friend may have something to say about it, but there's no issue with the Commonwealth sentence effectively commencing not today, where there's no time to count, but 10 months into a State non-parole period that's already expired.
235HER HONOUR: In essence, what we're saying is the Commonwealth sentence has already begun.
236MR COOPER: Yes.
237HER HONOUR: And that seems accurate, yes.
238MR COOPER: It does and nothing's coming to mind as to there being a problem with that per say, but the legislative provisions are (indistinct words) and I may be missing something and I thought it prudent to raise it, before Your Honour finalised your sentence in case it is an error that needs to be taken into account in the structuring of the sentence. And I apologise for not noticing it until Your Honour was making comments on the Bench as opposed to before. And Your Honour specifically gave us time to contemplate these matters.
239HER HONOUR: Well, let me just give this a moment.
240MR COOPER: Sorry, Your Honour.
241HER HONOUR: What I might do. I really do want to get this right and if there's a technical problem, I'd prefer to allow the time now for you both to discuss it. And I'll hear any submission, the sentence is still open, orders are not yet confirmed. I'll hear any submission about, well first the technical aspect and secondly, whether I really should give better consideration to the totality feature of that.
242MR COOPER: Yes, Your Honour I think that's the way through.
243HER HONOUR: Yes.
244MR COOPER: If there is provisionally, if there is some sort of fatal error in the 515 days been counted so as to backdate a Commonwealth sentence before today, any issue that creates could be ameliorated through reconsideration of the totality principle insofar as (indistinct) the Commonwealth sentences in my submission.
245HER HONOUR: Yes.
246MR COOPER: But I need - well I appreciate the time Your Honour and I'm sure my friend
247HER HONOUR: All right, let me give you ten minutes just to think that through individually and collectively. And I'll do the same things. Because I do - I do wonder. And I'd rather put in the time at this end if it's needed.
248MR COOPER: Thank you, Your Honour.
249HER HONOUR: All right, I'll stand down briefly.
(Short Adjournment)
250HER HONOUR: Counsel, by my reckoning pre-sentence detention can be deducted from the sentence on Charge 4.
251COUNSEL: Yes, Your Honour.
252HER HONOUR: And that if one looks at the duration of the part of Charge 4 that I have cumulated - I know that is not Commonwealth language, but that's what I have done - added to the period of the State non-parole period at 10 months, so not including the concurrent period, the 10 month part of that non-parole period, we have a period of 18 months against which pre-sentence detention can be calculated. Anything I've said so far incorrect?
253COUNSEL: No, Your Honour.
254HER HONOUR: All right. Is it necessary for me to change the orders of sentence to give effect to that, so that the pre-sentence detention be applied properly?
255MR BARR: Your Honour, I think that's where we've landed. We were still trying to work out what the actual orders for the other Charges 1 to 3 would be, in order to give effect to Your Honour's intention of 36 months, but I'll speak for myself, but I think we had landed that if Your Honour orders Charge 4 to be the base and there's nothing - - -
256HER HONOUR: Yes. Do it backwards?
257MR BARR: Yes, Your Honour. There's nothing at all that requires the highest sentence to be the base.
258HER HONOUR: No.
259MR BARR: That's just the practice. Charge 4 becomes the base and Your Honour makes the orders for the commencement. If Your Honour wanted to keep it at two months into the last two months of the State charges and then Your Honour would then Charges 1, 2, 3 would then be attached by reference in their commencement, to Charge 4.
260HER HONOUR: Yes.
261MR BARR: And that ought to address the issue.
262HER HONOUR: And that means that the pre-sentence detention hasn't yet been all consumed by my reckoning.
263MR BARR: Eighteen months - - -
264HER HONOUR: Yes.
265MR BARR: - - - would be the term to be served according to time and date calculator, 515 days is 17 months, Your Honour. So it is less.
266HER HONOUR: Less?
267MR BARR: Yes.
268HER HONOUR: Because I get the 540 approximately on the 18 month calculation, so 515 out of 540 pre-sentence detention?
269MR BARR: Yes, Your Honour.
270HER HONOUR: Or thereabouts. Okay, all right. Yes, Mr Cooper, you have something else?
271MR COOPER: No, Your Honour. Just to say that I agree and it would seem to be the most logical way of dealing with the problem - - -
272HER HONOUR: Yes.
273MR COOPER: - - - if Your Honour's minded to sentence on Charge 4 first.
274HER HONOUR: Yes.
275
MR COOPER: That means that all the time is available to count, because
Mr Elms was never bailed on Charge 4.
276HER HONOUR: So the totality problem that might have been arguable before, is dissipated. Do you agree with that? I've got the totality on the rest of the problem but when you first raised it, I thought is there a totality problem if there is going to be some dead time there, but there's not. There's not dead time under this sentence.
277MR COOPER: No, Your Honour. I must admit it hadn't occurred to me the idea of switching Charge 4 to be the first Commonwealth charge to be sentenced on when I made that point, but I think this circumvents the issue.
278HER HONOUR: Good. Now of course what I would be grateful for, so that we don't have to start this process again, what I want to do - let me express this so that I can have both your assistance with it and we'll do it - because I need to confirm the orders today I think, Mr Elms is in custody. What I want to do is just reverse, go directly in the reverse, Charge 4 then Charge 3 then Charge 2 then Charge 1, with the same orders for commencement - well to give effect to the same intention on concurrency and cumulation.
279Now I will go back to chambers now and try to give that expression but I need you both to check it as well.
280COUNSEL: Yes, Your Honour.
281HER HONOUR: So that's how we'll conclude this. Is there anything else?
282COUNSEL: No, Your Honour.
283HER HONOUR: All right. Communicate with my chambers via email this afternoon, to make sure that we get that right and Mr Cooper, you still have a little time in which to explain this extraordinarily difficult and complex sentence to your client.
284MR COOPER: Thank you, Your Honour.
285HER HONOUR: I thank you again both, for your assistance.
286COUNSEL: Thank you, Your Honour.
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