CDirector of Public Prosecutions v Fallon
[2023] VCC 1489
•23 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02642
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| NICHOLAS FALLON |
---
JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2023 | |
DATE OF SENTENCE: | 23 August 2023 | |
CASE MAY BE CITED AS: | CDPP v FALLON | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1489 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - SENTENCING
Catchwords: Use carriage service to solicit child pornography material – Use carriage service to access child pornography material – Use carriage service to cause child pornography material to be transmitted to himself – Use carriage service to transmit indecent communication to a person under 16 – Use carriage service to procure a person under 16 – Use
carriage service to solicit child abuse material – Possess or control child abuse material obtained or accessed using a carriage service – Plea of guilty – Worboyes – Delay – Extra-curial punishment – Good prospects of rehabilitation – Autism spectrum disorder
Legislation Cited: s16A(2) Crimes Act 1914 (Cth).
Cases Cited:R v Gajjar [2008] VSCA 268; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 4 years and 1 month with a non-parole period of 2 years and 4 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms K. Breckweg | The Commonwealth Office of Public Prosecutions |
| For the Accused | Mr J. McGarvie | Stary Norton Halphen |
HER HONOUR:
1Nicholas Fallon, you have pleaded guilty to a total of 20 charges: seven counts of use carriage service to solicit child pornography material; two counts of use carriage service to access child pornography material; one count of use carriage service to cause child pornography material to be transmitted to you; five counts of use carriage service to transmit indecent communication to a person under 16; three counts of use carriage service to procure a person under 16; one count of use carriage service to solicit child abuse material; and one count of possess or control child abuse material obtained or accessed using a carriage service.
2The maximum sentence for use carriage service to transmit indecent communications to a person under 16 is seven years' imprisonment (Charges 5, 13, 14, 15, 17) and the maximum penalty on all other charges is 15 years' imprisonment.
Circumstances of offending
3The full circumstances of your offending are outlined in the prosecution opening marked as Exhibit A on the plea, which represents the factual basis upon which I will sentence you.
4You are now approximately 41 years of age and at the time of the offending you were aged between 29 and 38.
5The offences were discovered after you engaged in online text-based communications with a covert police operative who was purporting to be a 14-year-old girl named, ‘Ashygirl’ and used the pseudonym name ‘Ashleigh Saunders’. These text-based communications were made using the online social media chat sites, ‘Chatiw’ and ‘Kik’.
6As a result, police conducted a search warrant at your residence and located a number of electronic devices. During a manual review of these devices, police located a significant number of text-based communications with female children which were saved within your Skype account.
7The specific details and also the objective gravity of your offending, vary as between charges. In broad terms, your offending involves you logging into your Skype account with a username ‘Nick’ and a display name of ‘Wintermute 10101’. You initiate a text-based conversation with the female user by requesting that they add you as a contact and then engage them in private text-based conversations. The full detail of the communications is outlined in the opening and the following is only a brief summary of your offending once you have established contact with the relevant user.
Communications with ‘Carla’ (Charge 1 – Solicit CPM)
8On 8 October 2011, you engaged in conversation with a female with a username of ‘Carla Meyer’ who told you that she was ’17 6 months’. She forwarded one image to you, contents unknown. After doing so there was sexualised text-based communications and advances on your part, along with an unsuccessful attempt at a Skype audio connection and video call with each other.
Communications with ‘Rosa’ (Charge 2 – Access CPM and Charge 3 – Cause CPM to be transmitted to himself)
9On 17 January 2012, you engaged in conversation with a female with a username of ‘Rosa Muller’ who told you that she was 15. She told you she could sell you pictures and you discussed payment. You requested a sample image and she forwarded one image to you, contents unknown. Once payment was confirmed, she forwarded 13 images to you. Ten of the images contain unknown content, while the remaining three depict explicit images of a female aged approximately 15. Rosa also forwarded to you the images in a zip file with the file. You continued your text-based conversation and discussed further arrangements for a live video cam, but you explained that you had no money until the next day. A subsequent analysis of your computer revealed an additional 17 images believed to be from Rosa, depicting explicit images of the same female, approximately 15 years of age.
Communications with ‘Sharpay’ (Charge 4 – Solicit CPM)
10Charge 4 relates to communications on 3 March 2012 with a female with the username of ‘Privacy Tehe’. On 10 June 2012 she told you that she was 15. You asked her to take a picture of her breasts, she said ‘I don’t know’, you replied ‘pretty please’ and she did not respond.
Communications with ‘Lily’ (Charge 5 – Transmit Indecent Communication)
11On 30 July 2012, you engaged in conversation with a female with the username of ‘Lily Moldov’ who told you that she was 14. You engaged in sexualised and indecent communications with her, as outlined at paragraph 25 of the opening, including a description of what you would like to do to her sexually. You asked her if she has ‘got cam’, she replied no and you asked for pictures. She forwarded one image to you, contents unknown. It was followed by further sexual comments by you. She did not respond to your messages.
Communications with ‘Kelly M’ (Charge 6 – Solicit CPM)
12On 3 May 2012, you communicated with a female with the username ‘Kelly M’. During your first conversation, you did not ascertain how old she was. She forwarded two images to you, contents unknown. You then forwarded an image of your erect penis.
13There was a break in conversation for some months and in August 2012 you
re-established contact. She told you she was 16. You asked if she had a picture and she stated that she did not. You then made a number of sexual comments and suggestions to her.
Communications with ‘Millie’ (Charge 7 –Solicit CPM)
14On 25 October 2011, you communicated with a female with the username ‘Millie’. On 1 November 2012 she forwarded one image to you, the contents of which are unknown, but following the image you forwarded an image of your erect penis. After this she told you that she was 17.
15On 3 November 2012, the sexual conversation continued and you ask if Millie has ‘got any naughty pics?’. She forwarded an image to you, contents unknown, but it was followed by sexual comments on your part as to what you would like to do to her.
Communications with ‘Sexynaila5’ (Charge 8 – Solicit CPM)
16On 4 November 2012, you communicated with a female with the username ‘sexynaila5’ who told you she was 16. You sent sexual messages to her and invited her to ‘cam’ with you; stating, amongst other things, ‘I wanna see whether you really are naked,’ however you received no response.
Communications with ‘Jude’ (Charge 9 – Solicit CPM)
17Charge 9 is a rolled-up count relating to your communications with a female with the username ‘Jude’ who told you she was 14. On 16 February 2013, you communicated with her, asking her if she had ‘cam’ or ‘a pic’. You engaged in sexual communications with her and sent an image of your erect penis. She replied by sending, in total two image files, contents unknown, but you responded ‘sexy baby’ and used other explicit and sexual terms.
18You had further sexual conversations with her on 3 March 2013 and 29 March 2013 and forwarded an image of your erect penis. You made further requests for images but do not appear to have received any.
Communications with ‘Bre S’ (Charge 10 – Use of carriage service to procure)
19On 30 April 2013, you communicated with a female with the username ‘bre s’ who told you she was 15. You made a number of sexual comments and suggestions and graphically described what you wanted to do to her sexually. You asked her about her sexual interest and the possibility of meeting up, with you telling her ‘no strings attached’ and ‘just meet for fun (Emoji wink)’.
20On 2 May 2013, you attempted to communicate with her but she did not respond.
21On 5 May 2013, you communicated with her again and engaged in a short sexualised conversation.
Communications with ‘Cvgibbs’ (Charge 11 – Solicit CPM)
22On 20 July 2013, you communicated with a female with the username ‘cvgibbs’. You invited her to use ‘cam’ or send you ‘a pic’. Following this she forwarded you an image that is unknown and you replied ‘cute too’. She then told you she was 13. You asked her to send a nude and she forwarded you another image, contents unknown, though you responded ‘sexy pic babe’ and forwarded her an image of your erect penis.
Communications with ‘Tylah Durie’ (Charge 12 – Procure)
23On 2 August 2014, you communicated with a female with the username ‘Tylah Durie’ who told you she was 14. You told her that you were 20. You then engaged in a sexual conversation. She told you that she has only ever kissed a boy, you asked if she wanted to do more and she responded ‘maybe’. She told you to call her and gave you her mobile number. Sexual conversation continued by way of messages, with you saying, ‘I wouldn’t mind seeing you nakie (Emojie wink)’.
24On 3, 6, 10, 18 and 20 August 2014 you continued having sexually explicit conversations with Tylah, where, amongst other matters, you told her what you wanted to do to her sexually, in very graphic detail. You also requested phone calls and images from her but did not receive any.
25On 25 August 2014, Tylah forwarded one image, contents unknown, and you replied ‘pretty pic (Emoji smile)’. You continued sending sexually explicit messages.
26On 30 August 2014, 1 September 2014, 28 September 2014, 2 November 2014, 6 November 2014, 10 November 2014 you continued to engage in a variety of explicit and sexual conversations with her; including directing her to perform sexual acts, such as digitally penetrating herself as described in the opening.
27On 17 November 2014, you continued to engage Taylah in sexual conversations, suggestions and directions. Tylah forwarded an image file to you, contents unknown, but you replied ‘mmm yummy … is that you wearing it?’. You requested more pictures and she forwarded a further two images, contents unknown, but you reply ‘yummy’ and ‘so when you visiting melb? (Emoji tongue out)’. She responds ‘why’ and you say ‘so I can fuck you for real’.
28On 21 November 2014 and 6 December 2014, you continued to engage her in explicit sexual conversations, as outlined in the prosecution opening.
29Between 28 January and 18 May 2015 you continued to message Tylah. She forwarded her personal phone number to you and you stated that you hoped she had a good first day at school and that you bet she looked ‘damn hot’ in her uniform. You continued to message her but she did not respond.
30On subsequent analysis it was found that Tylah transmitted a total of eight images to you and you personally spoke on Skype 14 times. On 7 July 2021 police met and obtained a signed statement from her. She recalled communicating with you and sending images of herself to you but could not recall the content of the images.
Communications with ‘Courtni’ (Charge 13 – Transmit)
31On 23 June 2015m you communicated with a username of ‘Courtni Cheer’ who told you she was 14. You asked her for a picture and then made sexual comments.
Communications with ‘Amanda’ (Charge 14 – Transmit)
32On 19 November 2015 you communicated with a female with a username of ‘Amanda Jones’. You asked her for a picture and she sent an image of a female aged between 10 to 12 years holding a children’s book. She said, ‘that’s me’, and you replied ‘cute’ and made some other suggestive comments to her. You asked for more pictures and she sent you three images. The images depicted a female child between 10 to 12, laying on her stomach with her feet in the air and another one with her legs apart; and one kneeling on a chair with her buttock pushed outwards. You then made a number of further sexual comments.
Communications with ‘Grace’ (Charge 15 – Transmit)
33On 9 March 2016, you communicated with a female with a username of ’miiss grace n sugRAGHH’. You messaged ‘cut pic, you do archery?’. She then forwarded you three images depicting the following – a female child aged between 10 to 12 years of age, blowing a kiss; standing near a Christmas tree and holding a bow and arrow. You call her a ‘cutie’ and she says ‘btw .. 11 not 12 … idk if u care or not’ and you replied, ‘you can still sit your lil butt in my lap’ and further ‘what would you wanna do if you were here cutiepie’, to which she replies ‘dunno lol’.
Communications with ‘Aime J’ (Charge 16 – Procure)
34On 31 July 2016, you communicated with a female with a username of ’Aime J’. You commenced by asking her where she was located and if she had a ‘pic’. She sent you an image, depicting four females aged between 15 or 16 posing to the camera and identified herself. You forwarded an image to Aimie depicting a close‑up view of your face and then engaged in sexualised talking, asking her ‘what would you wanna do if you were here babe?’. She told you she’s a virgin and you said in reply ‘there a first time for everything’. She asked you how old you were and you responded 34 and she told you that she was 15. You asked about her sexual experiences. She sent you images of her face and you asked for ‘naughty pics’. You sent an image of yourself dressed in a jokers costume.
35On 16 August 2016 you continued communicating with Aimie. She told you that she had been thinking of you and she did not think it was a good idea. You responded by saying ‘no rush babe’ but suggested if she wanted to do something sexual you could organise something. You indicated she could come to you, as you were not far from the train stations.
36On 9 September 2016 you recommenced conversation with Aimie. In these conversations she sent you another image of her face and told you that she was actually 13. You responded, ‘naughty girl’ and went on to make other highly sexual comments and suggestions. She referred to her friend, who was younger, joining in and forwarded an image of her, depicting a girl between 10 and 12 clothed and sitting on a bed. She asked if she and her friend could both come over to your house on the holidays and you say you will try and get time off work. She also told you her friend was actually nine. There is some further sex talk and Aimie goes on to tell you that she loves you, to which you make various sexual comments.
37On 4 October 2016 you have a further conversation with Aimie and she tells you that she will be in the city on Saturday and you say that you will also be there. There is talk about the possibility of meeting up. Aimie sends another image of two females aged between 13 to 15 sitting on a couch posing for the camera. You discuss what you will do when you meet on Saturday and there is further sexual talk. You then stopped messaging each other and there is no evidence as to whether the two of you actually met.
Communications with ‘Autumn leaf’ (Charge 17 – Transmit)
38On 14 June 2018, you communicated with a username of ’R (Autumn Leaf’ who told you she was 15. You commence by referring to her buttocks and she sends you a clothed picture of herself from behind. You remark again on her buttocks and refer in graphic terms to the sexual acts you would like to perform on her. You also ask her to take a picture of herself in her uniform.
Communications with ‘Ashleigh’ (Charge 19 – Solicit)
39On 1 January 2020, you communicated with a user by the name of ‘Ashleigh Saunders’. You commenced sexual talk and asked for a photo. She sent you an image of a female purporting to be a 14 years of age wearing a white shirt. You remarked on the photo and made sexual suggestions. On the same day you used your Kik account to continue your sexual conversation with Ashleigh and you sent her an image of an adult's male erect penis. Ashleigh requested a photo of your face and you sent her a selfie. You then asked her for ‘any naughty pics’ and she sent you a close-up image of the genital region of a female wearing underwear, to which you replied in sexual terms. I note here that Ashleigh was in fact an undercover police officer.
40As I have already noted, that is a summary only, Mr Fallon, of the otherwise comprehensive opening which outlines in detailed terms the various communications.
Search warrant and arrest
41On 1 October 2020, police executed a search warrant to your premises. You were arrested and they removed a laptop computer, two computer towers, a hard drive and a mobile phone.
Access CPM (Charge 18)
42An analysis of the data extracted from your mobile showed the Chatiw and Kik applications and other information. Within the image files there were various images including one image on 7 May 2020 that depicts a female aged between 14 to 16 taking a selfie with her top raised and her bra exposed. The same Category One image was located further into analysis as a screenshot file, Chatiw.jpg modified on 3 April 2019.
Possession of child abuse material (Charge 20)
43The image and video files contained in the Hard Drive and the mobile were categorised using the accepted scale and as outlined in the table at paragraph [148] of the prosecution opening. In total there were 240 images and 11 videos, with the majority falling into category [7], non-illegal/indicative.
Interview
44During the search warrant you participated in a record of interview. You provided some information to police, as to usernames and your contact details, and made some admissions. Your answers are summarised at paragraph 151 of the prosecution opening. You stated that you probably had chats with other people ‘that claim that they’re underage’. When asked what made you continue the chats to people underage you answered ‘probably boredom and loneliness really, to be honest’.
Commonwealth sentencing regime
45In sentencing for Commonwealth offences, the Court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) in particular, sub‑s16A(2) which sets out a non-exhaustive list of factors, where relevant and known. In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.
Gravity of the offending
46Mr Fallon, the charges that you have pleaded guilty to are inherently serious, as reflected by the maximum penalties. The applicable principles and factors in sentencing for offending involving child abuse or child pornography material and online child exploitation are well established and not in dispute.
47General deterrence is the primary sentencing consideration, given the prevalence and ready availability of such means of offending via the internet, and the difficulty of detection. There is a paramount public interest in protecting children from sexual abuse and exploitation. Children are vulnerable online and must be protected against predators using rapidly developing internet facilities to exploit them.[1] There are no victim impact statements before the Court. I accept that there is a presumption of harm that arises in such cases.
[1] DPP (Cth) v Watson [2016] 259 A Crim R 327.
48In determining the objective seriousness of the child abuse material and the online child exploitation offending, the relevant factors are helpfully outlined in the prosecution submissions at paragraphs 4(b) and 5(d). I have adopted these principles as the framework in which to assess the gravity of your offending.
49In broad terms, your offending is objectively serious and your moral culpability is high. Viewed as a whole, the facts and circumstances of your offending, disclose the nature and extent of the offending involved, which is significant. However, the objective seriousness of each offence must be assessed separately to determine the appropriate sentence for each count. Totality will then be reflected in the orders made as to concurrency and cumulation.
50Your offending period spans from October 2011 through to the date of your arrest in October 2020. I note that it is not continuous and is carried out at several discrete times during those years and sometimes intermittently.
51You communicated with 18 different people, whom you believed were female children aged mostly from 14 to 17. I note that Charge 13 and 16 involve users who identify as being 13 years of age and Charges 14 and 15 appear to involve users aged between 10 and 12. You would ask the users' age at the very early stages of your communication and asked several of them if they liked older men. There was a considerable age gap between you and these children. On each occasion you initiated contact. You used only your first name or a username. While the prosecution submit that this may have assisted to conceal your identity, I note that on Charges 16 and 19 it appears that you sent close up images of your face. Your communications were highly sexualised and depraved in their content. You often asked very sexually explicit questions and graphically described what sort of sexual conduct you wanted these children to engage in.
52Your offending covers six distinct and discrete offence types, namely: transmitting indecent communications to a child under 16 (5, 13, 14, 15, 17); soliciting child pornography material (1, 4, 6, 7, 8, 9, 11) (and child abuse material, charge 19); accessing child pornography material (2, 18); possessing child abuse material (20), causing child abuse material to be transmitted to yourself (3); and procuring a child under 16 for sexual activity (12, 12, 16).
53In relation to the soliciting charges, you described the material you wanted in explicit and sexual terms and in the instances where you received images, you often made depraved and obscene comments in reply.
54Putting aside the rolled-up charge which is Charge 9, all the solicit charges are single date offences and the majority relate to exchanges on the one day, usually confined to the one conversation. I accept your Counsel’s submission that these particular charges are of short duration, relatively confined and transactional. They lack the aggravating feature of ‘grooming’ type behaviour where a particular child is targeted over a more extended period of time or manipulated into responding or engaging. On Charges 6 and 7 images were forwarded to you and you also forwarded an image of your erect penis, but I am mindful that this conduct precedes that particular charge period and is not the subject of the charge in question.On Charges 11 and 19, several images were sent to you by users you believed were 13 and 14 respectively, and you also sent images of an erect penis on these occasions.
55Overall, while serious offending, and noting the aggravating features of some, I consider that these charges sit more so at the lower end of the range of seriousness.
56Charge 9 is a rolled-up count reflecting many instances of offending. In sentencing on this charge, I must consider all the circumstances of the offence and your overall criminality. Between mid-February and late March 2013, within the context of sexual conversations and at your request, the 14-year-old recipient forwarded you two unknown images and you sent her two images of your erect penis.
57In relation to the transmit charges, I accept that they are also of relatively short and confined duration and generally fall at the lower end of objective seriousness. Broadly speaking, they encompass sexualised, indecent, graphic and obscene content. I do note that on Charge 17 you forwarded an image of an adults erect penis. On Charges 14 and 15 it appears, from the images sent to you, that you were communicating as I have already noted with females aged between 10 and 12.
58Turning to other specific charges, Charge 2, 3 and Charge 18 relate to accessing child pornography material. On Charges 2 and 3 you accessed and caused approximately 30 child abuse material images to be sent to you from a child who stated she was 15, after agreeing to make payment. As noted today in discussion, while they relate to different images, there is some overlap between Charges 2 and 3. Charge 18 relates to you accessing the one Category 1 image of child pornography material.
59You have also pleaded guilty to three charges of using a carriage service to procure a person believed to be under 16. In my assessment of the gravity of these charges I have taken into account the period you engaged with the recipients and the number and nature of the communications. Charge 10 relates to a recipient who tells you she is 15 and you communicate with her twice and attempt to communicate with her on another occasion. You engage in sexual talk and during the first conversation you talk about meeting up, in very general terms. Charge 16 involves four contacts with a user who initially tells you she is 15 and then says she is 13. You engage in sexual talk with her; ask for images and she does send some, content unknown. There is some talk about being in the city on the same day and discussion about meeting up.
60As discussed at your plea hearing, I regard Charge 12 as the most serious of your offending. This is a charge of procuring a child victim for sexual activity between August 2014 and May 2015 in circumstances where she was a child aged 14 and you said that you were 20. This offending was protracted. You spoke to her during 14 different Skype calls, as well as on-line text communications. You directed her to perform various sexual acts on herself. You described in graphic detail what you wanted to do to her. You suggested meeting to engage in sexual activity. During the communications, she transmitted several image files to you.
61I regard the procurement charges as serious, in particular, Charge 12. I do note the absence of some aggravating features, for example, the charges do not involve any inducements or threats, and while meeting up is discussed there is no specific occasion to meet identified, with perhaps the exception of the discussion in Charge 16 of meeting on Saturday in the city.
62In respect of Charge 20 you were in possession of 52 items of child abuse material, including 46 images and six videos. I have had regard to the classification of this material. It lacks the aggravating features of some other cases, where the material is more voluminous or depraved, or profit is involved. However, I accept the prosecutor’s submission that irrespective of the lower classification of material, the existence of it contributes to the exploitation of children.
63Your counsel, Mr McGarvie, made submissions addressing the relevant context of your offending. While there is no causal connection between your autism and your offending, it was submitted that it goes some way to explain your social isolation and the broader context. You are not assessed as being a paedophile or as having a relevant disorder. Forensic Psychologist, Dr Dion Gee states that you demonstrate:
…clear intimacy and social skills deficits and to a lesser degree emotional and behavioural misregulation and cognitive distortions that appear to make [you] vulnerable to ‘act out’ in an aberrant manner.
64Your Counsel submitted that you have experienced great difficulty with intimacy and interpersonal relationships, compounding your sense of isolation and loneliness. From your teenage years your sexual development appears to have been underpinned by the consumption of pornography. In engaging in these online forums you were partly motivated by a want of intimacy and these chat rooms allowed you make connections, either sexual or purely fantastical. Along with sexual offending, in these online forums you also engaged in other fantasies, such as pretending to be a cat or vampire. Your Counsel submitted that your ‘offending [was] the perverted combination of loneliness and a desire for web‑based sexual fantasy’. He accepted that given the nature of the offending, it can be inferred that you were partly motivated by perennial sexual desire, but the other part of it was your attraction to this forum, which allowed you to overcome, in the most distorted and misplaced way, your natural limitations. In broad terms I accept this submission and will return to it. Over the years, the line between reality and fantasy appears to have faded. You told Dr Gee that you saw it ‘like the virtual world’ and did not ‘intend to do [it] in real life.’ You also told him that:
…over the years [you] got desensitised to online communication, every chat same with everyone; not really thinking…chatting with so many people over so many years, it just blurred in.
Plea, contrition and co-operation
65You indicated an intention to plead guilty at a committal mention at the Melbourne Magistrates’ Court on 10 December 2021.
66You have entered an early plea of guilty which entitles you to a substantial discount in sentence. Your plea of guilty demonstrates your willingness to facilitate the course of justice. It also represents an acceptance of responsibility for your offending and remorse. Your plea of guilty is of utilitarian benefit and will also result in a greater amelioration of sentence in the current circumstances.[2]
[2] Worboyes v The Queen [2021] VSCA 169.
67I also take into account that you made some admissions in your interview and that you have cooperated with police throughout this investigation. Also, I was told at the plea hearing that you have consented to forfeiture of relevant items.
68I also accept that you are developing insight into your offending, though you clearly have further work to do so as to understand and truly appreciate the consequences of your offending for you and your victims. While Dr Gee clearly indicates that you are struggling with your insight with a reduced understanding of your offending, when asked if anything was wrong with your conduct, you were able to articulate ‘…they can’t consent to it and may not know what they are doing when chatting’. You also stated, ‘I’m sorry for doing what I did to these people, and any harm that might have been caused from doing that’. This is also consistent with the reflections you have made to family and friends, which indicate remorse and growing insight.
Personal circumstances, character and antecedents
69Mr Fallon, your personal circumstances were canvassed in detail by your Counsel, Mr McGarvie, and in the reports of Dr Dion Gee, forensic psychologist and Cindy Parsons, registered psychologist. Your mother also has offered insights into your background in the letter that she provided to the Court.
70You are now in your early 40s. Your Counsel submitted that your life has been marked at different times by events that have operated to compound your sense of isolation and separation from others.
71Your parents separated when you were around six years of age and following this you and your older brother relocated from Victoria to Sydney with your mother. She re-partnered in 1993/1994 and the family then moved to Armadale in New South Wales. Throughout this period you had only limited contact with your father.
72You attended mainstream schooling and completed high school in 1999, without it seems any real academic difficulties. You did not enjoy the learning environment and would often report illness to ‘get out’ of going to school.
73When you were only 18, upon completing her PHD Doctor of Philosophy, your mother relocated to China with your stepfather, where they remained for 15 years. At this point in time, your brother had returned to Melbourne to live with your father.
74You ended up returning to Melbourne and also lived with your father for a period. This had its own challenges as you discovered that he was not coping very well and that his mental health was declining. Sometime in 2017 he attempted to take his life. You told Dr Gee that he had tried cutting his wrists and had drunkenly fallen asleep and that your brother found him. He called you and the two of you had to clean up the physical mess which was very confronting and traumatic.
75Your brother later converted to Islam, which was another challenge for you, as it represented another form of separation or distance from an important person in your life. As Mr McGarvie described it, you experienced a pervasive and accumulated sense of isolation – from your father originally, then your mother upon her relocation, and then later your brother.
76In terms of school and work, you attended university and commenced a degree in Asian Studies before transferring to a Bachelor of Arts, Sustainable Tourism – Economics. You left university after two years without completing a formal qualification. You were then on Youth Allowance and did some courses.
77You then worked for a period as a security guard, and later for a period in retail and at a Telstra call centre. You applied for a job at Centrelink and started working in new claims and then compliance and undertook quality assurance training. From there you moved to Intelligence.
78During the relevant period, you were employed with Centrelink as an Intelligence Analyst. Between October 2019 and until the day of your arrest, you were employed as a contractor to perform duties within the Australian Federal Police to assist with fraud and anti-corruption investigations.
79You report struggling throughout your life to build ‘authentic’ connections with peers. While you enjoy some social interactions, you prefer to be alone. You have lived in a range of shared households and have experienced some ‘intimate relationships’.
80For completeness I also note that you present with a chronic history of asthma and eczema.
Psychological assessments
81Dr Gee considers that you meet the diagnosis for a Single Episode Depressive Disorder, moderate, without psychotic symptoms. He also considers that while you do not present with an enduring personality disorder, you present with several personality traits that impact on your ability to function productively. He considered that you demonstrated some features consistent with an underlying Autism Spectrum Disorder, though he recommended further assessment.
82At paragraph [46] of his report, Dr Gee sates the following:
Overall, and consistent with his presentation during assessment, Mr Fallon currently describes both acute and enduring symptoms of mood disorder (namely, major depression, dysthymia); along with those anxious and somatic symptoms often associated with such disorders. Saliently, in line with the significant endorsement of depressive pathology on the MCMI-IV, his responding on the BDI-II saw his score of 39 placing him at the bottom end of the ’Severe’ range of depression … Taken together, the foregoing psychopathology continues to cause heightened social and interpersonal difficulty, thwarting Mr Fallon’s cognitive, emotional and behavioural control, derailing his adaptive coping capacities, and further compromising his personality functioning.
83Dr Gee also offers an opinion as to the likely impact of imprisonment on you. He states at paragraph 16:
That said, at the point of sentencing, Mr. Fallon’s incarceration would nonetheless likely result in a further deterioration in mental health (that is, an increase in anxious/depressive symptoms, and his suicidal ideation/intent); vulnerability toward exploitation due to his criminal/prison naivety; difficulty accessing specialist intervention services; reduced appreciation of autism spectrum symptomology within custodial environments; and elevated distress as a result of finding himself without access to his already limited support networks. Overall, sentencing Mr. Fallon to a term of incarceration would also act to reinforce his psychological escape/avoidance behaviours and further embed a somewhat inept and self-critical interpersonal identity in a man whom – for the first time – has been drawn into aberrant behaviour within the context of deteriorating mental health and increased levels of psychosocial difficulty/dysfunction/distress.
84Psychologist Ms Parsons undertook formal testing for autism and you scored above the cut-off score of 29, indicating that your responses are consistent with individuals who have been diagnosed with Autism Spectrum Disorder. She states:
…the essential features of Autism Spectrum Disorder are persistent impairment in reciprocal social communication and social interaction which are pervasive and sustained, and restricted, repetitive patterns of behaviour, interests or activities.
85She makes a number of recommendations to support the challenges identified with your pragmatic language and social communication, including that you seek support to manage your frustrations through a registered health professional.
86After a careful consideration of the material before me, I accept that a prison sentence will weigh more heavily on you. Given how you currently present and the effects of your severe depression and autism, as canvassed in the reports, I consider overall that there should be some marginal reduction in general and specific deterrence. Also, I accept, and this was not a matter in dispute, that Verdins[3] limbs 5 and 6 have application in your case and I will take them into account in sentencing you.
[3] R v Verdins [2007] VSCA 102.
Other mitigatory factors
87On your behalf your Counsel also relied upon other factors in mitigation.
88There has been a substantial delay in the finalisation of your case.
89There is no suggestion that you have reoffended and I note that you have experienced some loss and challenges during this time, including it seems your grandparents passing away, housing issues arising and also recent health issues or concerns in respect of your parents. I also take into account that you have been complying with various bail conditions, including regular police reporting. Further, I take into account that you have had ‘hanging over your head’ for a substantial period the prospect of an indeterminate prison sentence. In her reference your aunt refers to the stress as being enormous and as contributing to your low emotional state. As your Counsel submitted, this has been overwhelming and has made it extremely difficult to plan for the future. Notwithstanding, in more recent times, you have enrolled in an RMIT cyber security course and have had some part time work in a call centre. I take this delay into account in sentencing you.
90Your Counsel also relied upon extra curial punishment, which I have taken into account. After your arrest you were stood down with pay from your employment initially and then later your employment was terminated.
Prospects of rehabilitation
91Overall, Mr Fallon, I consider that you present with reasonably good prospects of rehabilitation. I take into account a number of factors, including that you have pleaded guilty to the charges; you have no prior criminal history; and you present with no history of illicit drug use or addiction or any mental illness.
92In my assessment I have also had regard to the formal testing of Dr Gee from which he concludes that you represent a moderate risk of re-offending sexually in the future. While Dr Gee considered that you demonstrated a compromised appreciation of potential future risks, with appropriate supports and treatment in place your insight can develop. You have now been diagnosed, for the first time, with autism and it is expected that targeted supports can assist you in your challenges and difficulties.
93Dr Gee makes a number of recommendations, including ongoing monitoring of your mental health and psychoeducation. He also recommends a best-practise group-based sexual offender intervention program and therapy around interpersonal relationships. He also suggests that the information in his report should be made available to those providing you with community based and/or custodial services.
94I take into account, Mr Fallon, that you have family supports available to you. Your mother describes in her letter her ongoing support of you as does your stepfather in his letter. It is clear that you have the continuing support of your family and extended family and friends. They collectively also describe you as someone who is hardworking, generous and trustworthy. In my assessment of your prospects of rehabilitation, I also take into account additional protective factors including your relatively solid work history.
Sentencing principles
95In sentencing you, I must give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community. Rehabilitation is also a relevant sentencing consideration.
96Where general deterrence is a primary consideration, as it is in your case, personal mitigatory factors such as prior good character, must usually be given less weight than they might otherwise be given. As was stated in R v Gajjar[4], in a case of this nature:
…it is clearly appropriate…to give paramount consideration to the principle of general deterrence…this is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows, at lease in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors.
[4] R v Gajjar [2008] VSCA 268, at [28].
97I must also have regard to current sentencing principles for offences of the kind that you have committed and I have done so. I was provided with comparable cases that I have considered carefully. However, plainly each case will be different and will depend on the nature of the offending and also on the circumstances of the offender. The way in which these particular offences can be committed are varied, making a comparison quite difficult. Also, in many of the cases provided, for example, the relevant charges were comprised of between date offending to be contrasted to the majority of your charges which are single date offences[5].
[5] R v Perrey [2022] SASCA 51; Burton v R [2020] NSWCCA 127; Martin v R [2019] NSWCCA 197; DPP v Ramos [2018] VSCA 290; McNiece v R [2019] VSCA 78.
98I am required to impose sentences that are of a severity appropriate to all the circumstances of the given offence. In your case, there was no dispute that a term of imprisonment was warranted, one attracting a non-parole period. On an assessment of all relevant matters, I have concluded that, given the gravity of your offending, the only just and appropriate sentence in your case is one of imprisonment.
99I take into account, Mr Fallon, the principles of parsimony, proportionality and totality in your case. I must ensure that your overall sentence remains just and appropriate and I have sought to do this through the orders I’ve made for cumulation on the separate charges.
Sentence
100On all charges, you’re convicted and sentenced as follows -
101Charge 1, five months' imprisonment.
102Charge 2, 10 months' imprisonment.
103Charge 3, 10 months' imprisonment.
104Charge 4, six months' imprisonment.
105Charge 5, four months' imprisonment.
106Charge 6, six months' imprisonment.
107Charge 7, six months' imprisonment.
108Charge 8, five months' imprisonment.
109Charge 9, 12 months' imprisonment.
110Charge 10, 12 months' imprisonment.
111Charge 11, seven months' imprisonment.
112Charge 12, 22 months' imprisonment.
113Charge 13, four months' imprisonment.
114Charge 14, five months' imprisonment.
115Charge 15, five months' imprisonment.
116Charge 16, 16 months' imprisonment.
117Charge 17, five months' imprisonment.
118Charge 18, five months' imprisonment.
119Charge 19, eight months' imprisonment.
120Charge 20, 12 months' imprisonment.
121Orders for cumulation are as follows:
122Charge 12 is the base sentence; Charge 1, one month; Charge 2, two months; Charge 3, one month; Charge 4, one month; Charge 5, one month; Charge 6, one month; Charge 7, one month; Charge 8, one month; Charge 9, two months; Charge 10, two months; Charge 11, one month; Charge 13, one month; Charge 14, one month; Charge 15, one month; Charge 16, three months; Charge 17, one month; Charge 18, one month; Charge 19, two months; Charge 20, three months.
123That should arrive at a total effective sentence of four years and one month.
124I will give Counsel one moment to check those numbers please.
125MS BRECKWEG: Yes, Your Honour. A total of 49 months, four years, one month?
126HER HONOUR: Yes.
127MS BRECKWEG: Yes. That's correct, Your Honour.
128HER HONOUR: All right. Is that what you arrive at, Mr McGarvie?
129MR McGARVIE: Yes, Your Honour.
130HER HONOUR: Now, as I have already indicated, Mr Fallon, if you can stand up now please.
131So I have sentenced you to a total effective term of four years and one month. I have made various orders for concurrency and I have done that - and cumulation. I have made those orders to reflect the discrete nature of this offending but also to give proper weight to a very important consideration in your case which is one of totality and to look overall at what is the just proportionate and appropriate sentence here and that is what I have arrived at.
132In terms of the minimum non-parole period, I have taken into account - clearly general deterrence is something that applies to both the head sentence and any non-parole period that a court sets. I am mindful of that. I have taken into account your lack of prior criminal history, my favourable assessments as to your rehabilitative prospects and your particular vulnerabilities. I consider that a lengthy parole period will allow you to engage in relevant treatment programs and appropriately supervise you which is also I regard to be in the best interests of the community.
133For those reasons, I am imposing a non-parole period of two years and four months. That is the term that you have to serve before you become eligible for parole. Do you understand? All right. You can take a seat now.
134Section 6AAA declaration; had you not entered a plea of guilty to these charges, I would have sentenced you to a period of some six years and three months' imprisonment with a non-parole period of approximately four years.
135I am also required to order that you be placed on the Sex Offenders Registry for - Ms Breckweg, it is mandatory life?
136MS BRECKWEG: Yes, that's correct, Your Honour.
137HER HONOUR: All right. And I do so. That will generate paperwork from us now, Mr Fallon, and we will just wait for that to occur while I ask Counsel some other questions, all right?
138Ms Breckweg, am I required to do anything else?
139MS BRECKWEG: Your Honour, did Your Honour declare pre-sentence detention? Was there any? I am not sure if there - - -
140HER HONOUR: No, I do not understand that there has been any pre-sentence detention.
141MS BRECKWEG: No, you're quite right, Your Honour. There is not. Thank you.
142MS BRECKWEG: Other than that, no, Your Honour.
143HER HONOUR: Yes. All right.
144MS BRECKWEG: There is nothing else.
145HER HONOUR: I am going to note custody management issues as follows; that it is Mr Fallon's first time in custody, that he is diagnosed as suffering with autism and depression. Are you on medication at the moment? No. All right. Also the recommendation of Dr Gee was for the report to be provided. Is there any issue? It is more so directed at you, Mr McGarvie. If I was to - I think I am capable of doing it but my preference would be to attach it even to the remand warrant or to ensure that Corrections have it.
146MR McGARVIE: I don't have any issue with that, Your Honour.
147HER HONOUR: All right. I am going to ensure that that is done and I direct that more so to my associates. Dr Gee's report is to be annexed to the warrant or provided to Corrections please.
148Are there any other custody management issues?
149MR McGARVIE: No, Your Honour.
150HER HONOUR: All right. The forfeiture was by consent so there is nothing further in that regard. We will just wait. Perhaps I should stand down for one - of items, it was by consent so it need not concern this Court. I might stand down while that paperwork is being generated or is it occurring now? Thank you.
151HER HONOUR: All right. Look, I will just have Mr McGarvie approach you, Mr Fallon. This is information in relation to the Sex Offenders Registration. What it does is it outlines in detail your responsibilities. Certainly when released from custody, you have a number of responsibilities including an initial report and it is incumbent on you to advise them of any details such as registration, phone number and so forth. I will not go into detail about that now but I will have Mr McGarvie approach you with that document because you will have to sign that you have received that information. You will have time later to process it.
152All right. Ms Breckweg, anything - well, I beg your pardon, just in terms of those orders for cumulation, - - -
153MS BRECKWEG: Yes, Your Honour.
154HER HONOUR: - - - just to be clear, I will need to first of all indicate that the commencement date - let me get this right. The first sentence to commence is Charge 12.
155MS BRECKWEG: Yes. And that commences today, 23 August 2023.
156HER HONOUR: Yes. And then in turn - just give me one moment.
157MS BRECKWEG: Your Honour, I think what you're doing, aren't you, is really just - so then Charge 1, one month cumulation on Charge 12 of Count 1.
158HER HONOUR: So it is to commence four months before the expiry. That is how I would word it, would it not be? Charge 1 is to commence four months before the expiry on the base sentences on Charge 12.
159MS BRECKWEG: Yes.
160HER HONOUR: Charge 2 will commence eight months before the expiry. Charge 3 to commence nine months before the expiry. Charge 4 to commence five months prior to the expiry on Charge 12 - sorry, on the last sentence, on Charge 3, that is the way it would - - -
161MS BRECKWEG: Yes.
162HER HONOUR: Of course, sorry.
163MS BRECKWEG: Yes. That's right.
164HER HONOUR: Charge 5 will commence three months before the expiry of Charge 4. That is it. It is cascading if you like.
165MS BRECKWEG: Yes. That's right.
166HER HONOUR: Charge 6 - I should do it in court though - to commence five months prior to the expiry on Charge 5. Charge 7 to commence five months prior to the expiry on Charge 6. Charge 8 to commence four months prior to the expiry on Charge 7. Charge 9 to commence 10 months prior to the expiry on Charge 8. Charge 10 to commence 10 months prior to the expiry on Charge 9. Charge 11 to commence six months prior to the expiry on Charge 10. Charge 12 is the base sentence. Charge 13 to commence three months prior to the expiry of the sentence on Charge 11. Charge 14 is to commence four months prior to the expiry on Charge 13. Charge 15 to commence four months prior to 14 expiry. Charge 16 to commence 13 months prior to the expiry of the sentence on Charge 15. Charge 17 to commence four months prior to the expiry on Charge 16. Charge 18 to commence four months prior to the expiry of the charge on no.17. Charge 19 to commence six months prior to the expiry on the charge of 18. And Charge 20 to commence nine months prior to the expiry on Charge 19.
167HER HONOUR: So that accords with the orders of cumulation that I have intended.
168All right. Having done that then, if there is nothing I will adjourn the court so that you can speak briefly to Mr Fallon.
169MR McGARVIE: If the court pleases.
170HER HONOUR: All right. Thank you.
171MS BRECKWEG: Thank you, Your Honour.
- - -
0
8
0