CDirector of Public Prosecutions v Hockley
[2024] VCC 154
•22 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-23-00651
| DIRECTOR OF PUBLIC PROSECUTIONS (CMTH) |
| v |
| BEN HOCKLEY |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2024 | |
DATE OF SENTENCE: | 22 February 2024 | |
CASE MAY BE CITED AS: | CDPP v HOCKLEY | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 154 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Possess or control child abuse material obtained or accessed using a carriage service; Possess, carry or use imitation firearm without exemption or approval
Legislation Cited: Crimes Act 1914 (Cth); Sentencing Act 1991(Vic)
Cases Cited:
Sentence: Convicted and sentenced to 9 months imprisonment and released forthwith on a recognisance of $1500 and requirement to be of good behaviour for a period of 2 years - Summary Charge: Fined $500 without conviction – SORA Order: Placed on SORA for 8 years – S6AAA: But for plea of guilt, TES of 15 months and ordered to sentence 6 months before being released on recognisance release order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Cullen | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms J. Hession | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Ben Hockley, you have pleaded guilty on Indictment to a single charge of possess or control child abuse material obtained or accessed using a carriage service.
2You have also pleaded guilty to a related summary offence of possess an imitation firearm without exemption.
3In sentencing you for your crimes I am obliged to consider the maximum penalties for each of the offences you have committed. The maximum penalty for possess or control child abuse material is one of 15 years imprisonment. The maximum penalty for possess, carry, or use imitation firearm without exemption carries a maximum penalty of 2 years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
4The circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening for Plea' dated 20 September 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have entered your guilty plea as well as the factual basis on which I am to sentence.
The offending
5On 6 September 2022, the Australian Federal Police received intelligence that you had engaged in online activity concerning child abuse material.
6A search warrant was executed at your home on 6 December 2022, at which time police located a number of devices which were ultimately seized. These included your mobile phone.
7Police also located a gel blaster inside a cupboard within your home study. This was stored in a case alongside pellets. You told the police that the gel blaster had 'just been chucked in' with other unsorted 'crap everywhere'. You told police that you had purchased that item approximately six or seven years ago as a toy to shoot gel at your friends for fun. This gel blaster is the subject of the summary charge of possess imitation firearm. It is described as being of a similar shape to a Glock 19 handgun and has the appearance of a real gun.
8On interview at that time you made partial admissions. You provided police with a passcode to a secure folder on your phone upon their request.
9A subsequent analysis of your mobile phone seized by Police on 6 December 2022 located child abuse material. It is this material which is the subject of Charge 1 on the indictment - possess or control child abuse material obtained or accessed using a carriage service.
10A total of 445 files containing child abuse material were located on your mobile phone. 211 of those files were assessed as being category one and 234 were assessed as being in category two of the 'Interpol Baseline 4-Tier Categorisation System'. The files containing child abuse material were stored in various subfolders with an encrypted storage application which could only be accessed with a pass code or fingerprint. These files included both images and videos.
11A series of descriptions by way of example of the child abuse material located by Police on your mobile phone was detailed in the Crown summary and will not be repeated here given the graphic nature of the content.
12On 6 January 2023 you were arrested, charged and subsequently granted bail.
Offence gravity
13The summary charge of possess imitation firearm (the gel blaster) appears to be at the lower end of the scale for an offence of its type. There is no basis to quibble with the explanation which you gave to Police about how you came across this item and how you used it. Whilst no excuse, you told Police that you did not know it was illegal to possess such an item and I accept this is probably the case. You do know now. There is no suggestion that it was possessed by you for any sinister purpose.
14Obviously the focus of your sentencing is on Charge 1 – possess or control child abuse material.
15When spoken to by investigators you initially denied the possession of child abuse material on your devices. I note that you appear to have become quite distressed during your interview with Police such that investigators were concerned for your welfare.
16You were cooperative with Police at the time of the search in terms of providing the passcode to your mobile phone. I understand that whilst a number of devices were seized, that the child abuse material the subject of charge was all located on one device, that being your mobile phone.
17Encryption meant that you were the only person that could access that material but it also indicates an intention to retain the material.
18It is long established that the objective seriousness of such offending is determined by reference to a range of factors, these include, whilst not exhaustive:
(a) the nature and content of the material;
(b) the number of items or images possessed;
(c) whether the material was held for the purposes of sale or further distribution;
(d) whether the offender would profit from the offence;
(e) the number of children depicted and thereby victimised; and
(f) the length of time for which the child abuse material was possessed.
19Whilst comparatively the number of files which you possessed was relatively low, the nature of the material you possessed was abhorrent, appalling and disgusting involving children estimated to be aged between 3 and 16 years. I am mindful that you are charged with a single date of offending and there is no suggestion of distribution or profit. Nevertheless, you must understand that such material involves real children, harm is caused and access to and/or possession of such material supports an industry which, by its very nature, involves and perpetuates the abuse and degradation of children. Yours is not a victimless crime.
20General deterrence, just punishment and denunciation are important sentencing principles.
Plea of Guilty
21The Crimes Act 1914 (Cth) obliges me to take into account the stage at which you entered your plea of guilty. This matter resolved by way of straight hand-up brief at committal mention held on 28 April 2023, representing a plea made at the earliest opportunity.
22I accept the Crown submission that your plea of guilty was entered in the face of a strong prosecution case, and note that you initially denied being in possession of the child abuse material
23There remains a clear utilitarian value in saving the community the time and expense of contested proceedings and witnesses of the need to give evidence.
24
Although the court's criminal trial lists are no longer overwhelmed, your decision to plead guilty occurred at a time when the court was still responding to the
COVID-19 pandemic and therefore has some additional utilitarian value in providing certainty and finality to all parties in circumstances where the court's operations were significantly disrupted.
25I take these matters into account in your favour.
26Remorse is a little harder to discern. I accept that you are remorseful for the predicament you have now placed yourself and your family in as a result of being charged and the threat of incarceration. You, in my view, are still gaining insight as to how your activity fuels a deviant sector of our community and the resultant potential for, or of actual harm, to children.
Personal Circumstances
27I turn now to your personal circumstances which were helpfully outlined in detailed defence submissions.
28You are currently 30 years of age, having been born in May 1993 to parents Kathleen and Gregory ('Peter'). You have an older sister, Leisha, who lives in Victoria and works as a secondary school teacher. Your sister no longer has any contact with you.
29I am told your parents separated in 2009. Your father worked in aged care and is now semi-retired, returning for occasional shifts, whilst your mother works full time as teacher. I understand she is in her 44th year of employment.
30You have lived with your mother for the majority of your life save for the period between the October of 2021 and December of 2022 when you lived with your then partner in a residence in Manor Lakes.
31Growing up, you have reportedly suffered many health issues, including numerous fractured bones during your adolescence. At age 10, you were diagnosed with Chronic Recurrent Multifocal Osteomyelitis. You were medicated with Zoledronic acid until the age of 18, and also suffer from alopecia and, more recently, psoriasis, which on my understanding are stress-related conditions.
32You attended Bethany Catholic Primary School and then MacKillop College where you completed Year 12 via VCAL.
33At several times during your childhood, you were wheelchair-bound for months at a time. You experienced much adversity during your high school years due to your health issues, including missing a lot of school due to your conditions and being subject to extensive bullying and harassment.
34In Year 11 you met a teacher who encouraged you to participate in an overseas 30‑day school trip namely the World Challenge Trek in Borneo. You attended and completed this in 2011 and, to your credit, in 2012 you received a Wyndham City Mayoral Youth Award for your achievements in Borneo.
35Following the completion of Year 12, you began casual work at a bottle shop. A short time later, you commenced working at Nutrano Produce Group within the Melbourne Fruit Market. Your worked there for 10 years until you were made redundant in May of 2022. You then secured a position at Louis Melbourne, a produce supplier, as Store Manager. Your current employment involves one hour travel each way and tends to be an overnight shift. You sleep in the afternoon.
36With respect to your relationships, you met your long-term partner shortly after finishing high school and commenced a relationship with her. You have one daughter with her, who was born in August 2022.
37Unfortunately, both your partner and child - at that time 14 weeks old - were both present when police conducted the search of your property on 6 December 2022. On the same day, you made the decision to vacate this residence and moved in with your mother.
38From the date of the Police search through to mid-January 2023, you had no contact with your daughter.
39You were then initially able to see your daughter when your, now ex-partner brought her to your mother's house every few weeks in early 2023. Child Protection did have some involvement but closed their case. You have had no contact with your ex-partner or your daughter since March/April 2023.
40You remain motivated to work in order to support your ex-partner and child. You earn approximately $1,500 per week, and support your ex-partner and daughter by providing $300 in child support, and meeting the mortgage repayments of approximately $1,800 a month in full.
Prospects of Rehabilitation
41Section 16A (2AAA) of the Crimes Act 1914 provides that a court sentencing an offender for a Commonwealth child sex offence must take into account the objective of rehabilitating that person. This requires consideration of whether it is appropriate, when making an order, to impose any conditions about rehabilitation or treatment options and whether it is appropriate, in determining the length of any sentence or non-parole period, to include sufficient time for the person to undertake a rehabilitation program. This requirement is part of the instinctive synthesis in sentencing and, perhaps axiomatically, does not displace the need for any sentence to be of a severity appropriate in all the circumstances.
42It is relevant in assessing your prospects for rehabilitation to consider the simple fact that you have no prior criminal history and there has been no subsequent offending.
43To me there appears to be some sanction and deterrence for you in being charged, placed on strict bail conditions and the need to attend court hearings.
44I accept that you are well supported by your parents who are fully appraised of your offending and have supported you in court at both your Plea hearing and today's sentencing. Whilst you do not have any contact with your sister, ex-partner or daughter, I accept they nevertheless provide you with ample motivation to better your life as well as your desire to continue your rehabilitation. These factors auger well for your future.
45Your parents have both provided material which have referenced your level of remorse and the pain the offending has caused your life. Your mother has indicated that you have written letters to your ex-partner expressing your remorse and that you continue to apologise to her personally for the emotional and financial drain caused by your offending.
46
I have also seen additional references authored by Ms Michelle Garbett and
Ms Marlene Monahan, who have spoken of the difficulties you experienced in your school years, and the impact this has had on your mental health. Ms Garbett has described you as a very hard-working man who is well-respected in your workplace.
47I do take all character material tendered on your behalf into account.
48In addition, it is clear you have had a solid work history which is likely to continue into the future.
49You engaged in six sessions of psychological treatment with Dr Nicholas Kessous from 7 April 2023 to 15 December 2023.To me, this therapeutic relationship would appear to have had some difficulties, but Dr Kessous developed a treatment plan with goals of developing insight into risk factors and developing strategies for handling those risk factors. Dr Kessous was of the opinion that you have long standing depression exacerbated by the consequences of your criminal actions. He recommended treatment with a clinical psychologist and I encourage you to pursue this.
50Following your arrest, you were prescribed with an anti-depressant which you have been taking for approximately 13 months.
51You have taken proactive steps to further your rehabilitation by at least commencing psychological treatment and also by participating in and completing the 15 session CEM-COPE Program through Forensicare.
52A report authored by Emily Stevenson, Steph Butler, and Erika Fortunato titled 'CEM-COPE Group Treatment Summary' dated 18 December 2023 describes your participation in the program. Initially, you would only contribute to group discussion when called upon, however as the sessions progressed, you took feedback from the facilitators and engaged in more spontaneous contributions to discussions. The report states that by the conclusion of the program, you reportedly felt more open and honest with yourself and those around you and demonstrated optimism for the future.
53I am of the view that your depression is of concern. It was in the background of your offending. You are to be commended for your efforts with the CEM-COPE program but I am of the view that there is more work to be done to reduce your future risk.
Sentencing submissions
54I have had recourse to detailed written submissions and oral submissions by both parties for which I am extremely grateful.
55The Crown submit that the summary charge can be dealt with by financial penalty and without the recording of conviction.
56For Charge 1 on the indictment, is it submitted that a term of imprisonment should be imposed.
57Where a sentence of imprisonment for a Commonwealth offence does not exceed three years, a recognisance release order pursuant to s20(1(b) Crimes Act 1914 (Cth) ('the Act'), and not a non-parole period, must be imposed.
58Section 20(1)(b)(ii) creates a presumption that a child sex offender must serve a specified portion of a term of imprisonment unless there are exceptional circumstances that justify an immediate release on a recognisance. It is conceded that, in all the circumstances of your case, that the presumption can be displaced given the relatively low level of images, your early plea, your rehabilitation, extra curial punishment in the loss of important relationships, your physical conditions and lack of prior criminal history.
59I accept that submission.
60In your case the Crown submit that all relevant sentencing factors could be reflected by releasing you on a recognisance release order without requiring you to serve an immediate term of imprisonment.
61Your counsel submits that all relevant sentencing considerations can be reflected in the imposition of a community corrections order.
62In order to be better informed, I had you assessed as to your suitability for a community corrections order and also requested that a mental health assessment be conducted.
CCO Assessment
63An assessment of your mental well-being was conducted by the Mental Health Advice and Response Service. A report dated 16 February 2024 has been provided. You have not previously been subject to any mental health review or treatment. You presented with appropriate insight and judgment into your mental health. You also presented as emotionally vulnerable and as a person who experienced multiple psychosocial stressors that impacted your mental state and quality of life. The author saw benefit in you participating in psychological counselling that could support you going forward, provide you with skills to self sooth and self-regulate your thoughts and moods. It was recommended that ongoing assessment or treatment of your mental health be made a condition of any community corrections order should one be imposed.
64In terms of the assessment undertaken by community corrections, I have received an assessment outcome report also dated 16 February 2024. You are assessed as being low risk of re-offending. You were been found suitable for a community corrections order.
Sex Offenders Registration
65Charge 1 is a Class 2 offences in accordance with the Sex Offenders Registration Act. This means I am required to place you on the Sex Offenders Register for a period of 8 years and I do so. At the conclusion of these matters, you will be provided with documents that you will be required to sign and set out your obligations under this scheme and it may well be that Ms Hession can be of assistance to you in completing this documentation. I am about to enter the sentencing phase and I am just going to check with you whether there are any matters that either of you need to bring to my attention.
66MS HESSION: A minor matter, Your Honour. The Mayoral Certificate dated 2012, I heard 2002, that was the only.
67HER HONOUR: Well I do know that it was 2012, if I said 2002 I apologise. Thank you very much, Ms Hession. Mr Cullen?
68MR CULLEN: No, Your Honour. Nothing.
69HER HONOUR: All right, thank you. I am going to deal with the summary charge before engaging in the considerations under the Commonwealth Act, the summary charge is of course a State offence.
Sentencing Principles
70For the summary charge, considering my assessment of the gravity of this offence, your lack of criminal history and all other relevant sentencing considerations and submissions made to me, you are fined the amount of $500 without the recording of a conviction.
71The Federal sentencing regime is set out in Part 1B of the Crimes Act 1914. Under that regime the court must impose a sentence that is of a severity that is appropriate in all the circumstances. That requirement must obviously be read together with the need to ensure that a person is adequately punished for the offence. Section 16A(2) sets out a non-exhaustive list of factors that the court must take into account where they are relevant and where they are known to the court.
72Of particular relevance to your case are the nature and circumstances of the offence, general deterrence, specific deterrence and prospects of rehabilitation, contrition, your plea of guilty, the need for adequate punishment and your character, antecedents, age, means and physical or mental condition. I have already been through these requirements in my sentencing considerations to date.
73I have taken into account also the matters contained in Part IB of the Commonwealth Crimes Act and specifically the principles in s16A, the factors also listed in s16A of that Act.
74I have outlined the relevant matters going to mitigation. In my view these matters are significant but not such as to outweigh the need to impose a term of imprisonment as a reflection of the gravity of the offending given the nature and the content of the material you possessed and to which you have pleaded guilty. As I have already made clear, s16A requires that imprisonment is to be a sentence of, I describe as ‘last resort’, and only to be imposed where a court is satisfied that no other penalty is appropriate in the circumstances of the case.
75I am not of the view that a community corrections order would adequately reflect all relevant sentencing considerations, particularly the need for general deterrence.
76In doing so, if not already indicated, I have taken into account current sentencing practices for the offences to which you have pleaded guilty. I was assisted by a list of comparative cases provided by the Commonwealth in relation to the charge on the indictment as well as a decision of this court provided by Ms Hession.
77
For Charge 1 on the indictment, possess or control child abuse material obtained or accessed using a carriage service, you are convicted and sentenced to
nine months' imprisonment, that sentence is to commence today. You are to be released forthwith on a recognisance of $1,500 and a requirement that you be of good behaviour for a period of two years.
78I further direct that you are to comply with the following further conditions:
(a) You are to be subject to the supervision of a probation officer (Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee) for a period of 18 months;
(b) You are to obey all reasonable directions of the probation officer (Deputy Commissioner Community Correctional Services in Sex Offender Management or his or her nominee;
(c) You are not to travel interstate or overseas without the written permission of that officer;
(d) You are to undertake such treatment or rehabilitative programs that the (Deputy Commissioner Community Correctional Services in Sex Offender Management or his or her nominee) reasonably directs;
(e) You are to report to the Werribee Community Correctional Services at
87 Synnot Street, Werribee, Victoria by 4 pm within two clear working days;(f) You are to receive visits from a Community Corrections officer, if those are undertaken;
(g) You are to notify an officer of the specified Community Correction Centre of any change of address or employment within two working days after the change; and
(h) You are to attend for assessment and to be assessed as suitability for treatment for sex offender programs or programs reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services in sex offender management or his or her nominee.
79Whilst somewhat clumsily worded by me, those conditions will be reflected in the draft order provided helpfully by the Commonwealth.
80In my view this order presents you with a chance to continue to change your life in a positive fashion should you choose to take up that opportunity and the supports that I intend to be made available through the orders just made.
81The effect of this order is that you are released 'forthwith'. It is akin to a wholly suspended sentence of imprisonment. During the period of good behaviour which exists for a period of two years, you must not commit any other offence punishable by imprisonment or you risk breach of the recognisance and may be required to serve the nine months in prison.
82I am not required to make a s6AAA declaration.
83MR CULLEN: (Indistinct words) that Your Honour should make a s6AAA declaration. That is our position, sorry, Your Honour.
84HER HONOUR: I am required?
85MR CULLEN: Yes, Your Honour.
86HER HONOUR: Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. That sentence would have been one of 15 months' imprisonment. You would have been required to serve six months of that sentence and otherwise been released on a recognisance release order in similar terms to that made today.
87Any other matters?
88MS HESSION: No, Your Honour.
89HER HONOUR: No. There is documentation obviously to be signed by your client and by me, I believe. If my associates do not have it all ready, can the recognisance release order be provided in word form to my associates?
90MR CULLEN: Yes, Your Honour.
91HER HONOUR: Yes, thank you. Just while that documentation is prepared I might stand down and I will give you the opportunity to take your client through the documentation as well, Ms Hession. If you would be so kind, yes.
92MS HESSION: I appreciate that, Your Honour.
93(Short adjournment.)
94HER HONOUR: Those documents have been signed, Ms Hession?
95MS HESSION: They have, Your Honour.
96HER HONOUR: Thank you. I do thank counsel for their assistance in relation to this matter. The written work was of great assistance from each of you, so thank you very much. Mr Hockley, in the nicest possible way, I don't want to see you again. I'm reasonably confident I won't, but I really do encourage you to get the help that you need to make you feel better.
97Thank you very much, I will close the court till Monday at 9.30, thank you.
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