CDirector of Public Prosecutions v Holland
[2022] VCC 1858
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
CR 21-00821
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DYLAN HOLLAND |
---
JUDGE: | HIS HONOUR JUDGE M. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 28 October 2022 |
CASE MAY BE CITED AS: | CDPP v Holland |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1858 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr M. Keks | |
For the Accused | Ms H. Lyons |
HIS HONOUR:
1Dylan Vincent Holland, you are to be sentenced for one charge of using a carriage service to cause child abuse material to be transmitted to you (Charge 1 on the indictment), one charge of using a carriage service to transmit such material (Charge 2), one charge of using a carriage service to solicit such material (Charge 3), one charge of using a carriage service to access child abuse material (Charge 4), and one charge of possessing such material obtained using a carriage service (Charge 5).
2All are offences under ss474.22 and 474.22A of the (Cth) Criminal Code. All carry a maximum sentence of 15 years' imprisonment.
3You were charged arising out of an Australian Federal Police raid at your home on 21 October 2020. You lived at Ross Creek near Ballarat with your father.
4In a police interview on that day you exercised your right to silence as to some questions, but also made relevant admissions, particularly as to the electronic devices which revealed your offending. At committal in April 2021 you entered a plea of not guilty but the hearing went by hand-up brief. After a number of mentions and adjournments in this Court, you were arraigned and pleaded guilty to these charges on 17 March 2022.
5You receive the benefit of your plea of guilty and that level of cooperation in the investigation and proceeding. Your plea has facilitated the interests of justice, accepted responsibility and expresses remorse.
6You were arraigned again and a plea hearing ran before me on 20 October 2022. Mr Keks for the Crown tendered an amended summary of prosecution opening. He provided written submissions on sentence and a schedule of comparative sentencing cases.
7Mr Petric, for you, tendered the forensic psychological report of Simon Candlish dated 27 May 2022, the treating psychological report of Dr Anthony Aris dated 20 July 2022 and letters of character reference by members of your family and your partner. He also provided written submissions on sentence.
8Your offences are comprehensively set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is to some extent also informed by matters put on your behalf, not challenged by the Crown.
9You were 22 years of age at the time of offending, which ran over the period late July to the time of the police raid on 21 October 2020. On that day, police seized three electronic devices, two mobile phones and a computer tower. Each contained child abuse material.
10Charges 1 to 3 are closely related. You had a Twitter account “Addicted2Cuties”, and an account in another application named Telegram “Kiddielover”. Using them you sought out, received and transmitted material in five chat conversations with unknown persons between 29 July and 6 October. Charge 4 relates to you accessing child abuse material using Twitter between 9 and 20 October. Charge 5 is your possession or control of such material found stored in a mobile phone and the computer tower on 21 October.
11Overall, you so dealt with 36 files and possessed 28 files. They were in equal number, images and videos. The Crown opening sets out categories of the material under an established Interpol categorisation system, also explained in the opening.
12Each of Charges 1, 2 and 3 are rolled-up charges of multiple acts of that offending in the five conversations.
13The videos and images solicited, received and transmitted were in substantial part depraved depiction of children engaged in, rather the victims of, sexual activity which included vaginal, anal and oral penetration by adults, children engaged together, acts of masturbation. The children were as young as about six and three years. Conversations between you and the other people were equally depraved, with emphasis for example, upon degradation and pain. I am not complete.
14Charge 4 (accessing child abuse material) relates to images and videos found by you within the Twitter application. They numbered 10 of the 64 total. Their description indicates that they included penetrative sex, also perhaps less extreme non-penetrative images. All were still serious examples of child abuse.
15Charge 5 relates to images and videos found stored within your devices. Some showed very young children, including an infant moaning and screaming in pain.
16There is also evidence of conduct, not charged, which includes messages sent by you, conversation about sexual activity with children and your interest in that. In one you state an addiction, your paedophilia, guilt and self-disgust. It is hard to gauge the reality or sincerity of this. Psychological assessment of you does not state established paedophilia. You say, in this conversation, that you do not actually engage in sexual activity with children. You are not to be sentenced for the conduct not charged.
17Overall, the material found and conversation about it must be seen as representing seriously depraved examples of this kind of offending.
18You are a 24-year-old man without a criminal history. You still live with your father in Ross Creek. Your mother, father, sister and partner were present in court supporting you. You parents separated when you were 11 to 12 years. You describe a stressful childhood exposed to domestic violence and emotional neglect. Your sister is eight years older than you. Schooling was difficult featuring negative peer experiences, bullying, truancy and ultimately expulsion at Year 10.
19You started to use cannabis at about 15, which continued growing to heavy use at the time of offending.
20For about eight years you worked with your father as a woodcutter. Serious knee injuries led to use of medications such as Xanax and Endone, together with cannabis use. You are presently unemployed. You have been with your partner for about eight months. You met her through your mother.
21Throughout your life you have suffered symptoms of anxiety and/or depression. There has been some suicide ideation and attempts at that. You have in the past self-harmed. Since the offending, you have engaged in voluntary treatment with psychologist, Anthony Aris. Mr Petric, in his written submission states fifteen privately funded sessions. That treatment has focussed upon your anxiety condition. It has not addressed your offending. I shall return to the psychological opinions tendered.
22In the time leading into the offending, you were affected by the death of your grandmother in June 2020 and had dislocated both knees. Mr Petric states
a situation of self-isolation, increased cannabis and medication abuse and a growingly obsessive engagement with your computer. You developed, he states, a pattern of regular pornography consumption.
23Forensic psychologist, Simon Candlish, states:
Mr Holland experienced sexual arousal to the child abuse material he viewed, however it is less clear if he would meet the criteria for paedophilic disorder. His deviant arousal occurred in the context of desensitisation and objectification after sustained immersion in pornographic content via the internet and a progressive interest in prurient themes. He is also aroused to adult females and has a history of sexual activity with adult females.'
24Applying recognised assessment tools Mr Candlish states you to be in the category of moderate to low risk for sexual offending. He places you in the low-risk category for what he calls a contact sexual offence against a child.
25Mr Candlish diagnoses conditions of anxiety/depression, cannabis use disorder and mild personality disorder. The opinion of treating psychologist, Anthony Aris, fundamentally agrees but does not diagnose personality disorder. Your anxiety condition is stated to be in the moderate to severe range. As to the question of the Verdins principles, particularly what causal connection between a mental health condition and the offending may impact upon such sentencing considerations as moral culpability, Simon Candlish states as follows:
'Mr Holland's personality disorder contributes to affective issues including disproportionate reactions and poor coping in response to stressors. His cannabis use disorder has undermined his ability to pursue social and occupational roles. His social withdrawal and reliance on internet pornography represent dysfunctional coping styles related to his personality impairment'.
26I see very limited application of Verdins in that sense. The moral culpability of your offending would have been clear to you and aspects of the electronic conversations seized support that. What is stated by Mr Candlish has relevance to your sentence in that it provides a personal and psychological context to the offending. It is part of the personal circumstances relevant to sentence. I also see you as likely vulnerable in prison, causing additional hardship, and that deterioration of your anxiety and depressive conditions is at least very possible.
27I see your offending as a serious example of it. Mr Petric is correct to say that the number of images and videos is relevantly modest compared to what can be. The period of offending is limited to under three months. Aggravating features such as sale, profit, grooming or attempt to interact directly with children are not present. There was not a high level of sophistication, for example, in attempt to secrete the material. However, there must be some measure of the gravity of offending in the nature of the material you had and dealt in. It was, as I have said, depraved and quite sickening in its corruption of very young victims. Mr Keks is also correct to put that, particularly on Charges 1 to 3, you actively contributed to continuing dissemination and therefore production of it. You did so for sexual gratification.
28In such circumstances sentencing considerations of your moral culpability, deterrence, particularly general deterrence, strong condemnation and proportionate punishment become important. General deterrence and therefore attempt to protect such dreadfully vulnerable and exploited victims, is very important.
29Mr Petric argued for imprisonment but immediate recognisance release. That does not meet the seriousness of offending. An actual custodial sentence is necessary.
30However, I also take into account relevant moderating factors as to the length of that sentence. They include the following matters.
(i) Your plea of guilty and cooperation. I accept that you feel remorse and shame, particularly in respect of your family.
(ii) Your otherwise good character, albeit that seems not uncommon in offending like this.
(iii) Your youth. You are now 24 and were 22 at time of offending. You present, in part likely because of the difficulties of your developing years, as immature.
(iv) I find that you have good prospects for rehabilitation. You have no other convictions and have family and other supports which will exist for you when you leave prison. I take into account the psychological assessment of the risk of your reoffending in this way. You have developed some, if not full insight, into your offending. One feels instinctively guarded about the opinion that you do not clearly meet the criteria for paedophilia. However, I do not reject, and act upon the expert evidence. I see it as necessary and of course inevitable, given my sentence, that you will undergo a sexual offender program or programs. You will be registered as a sex offender under that regime.
(v) I take into account your personal history and circumstances, which include the impact of your early life, mental health conditions and the other circumstances that existed for you at the time of and leading to the offending.
(vi), I apply the principle of totality. To do so, I will make orders of only partial cumulation and effectively concurrency between charges. Therefore, I sentence otherwise than in accordance with the legislative presumption of cumulation. The aim is a just and proportionate total sentence. In other words, I am satisfied that my sentence is that of appropriate severity given all the relevant circumstances of your case. Cumulation, in an exact sense, reflecting the relationship between the offences is not always possible.
31I have considered the comparative sentencing cases provided however, I also bear in mind the need to sentence individually to your case.
32Having considered and weighed what I see to be the relevant matters, I sentence you as follows. Stand up please, Mr Holland.
33On Charge 1 you are sentenced to two years imprisonment, commencing today.
34On Charge 2 you are sentenced to two years imprisonment, commencing today.
35On Charge 3 you are sentenced to two years imprisonment, commencing today.
36On Charge 4 you are sentenced to 12 months imprisonment, commencing 14 months from today.
37On Charge 5 you are sentenced to 12 months imprisonment, commencing 18 months from today.
38To make it clear, that is a total effective sentence of two years and six months.
39I order that you be released on recognisance after serving 12 months of that sentence. Recognisance will be in the sum of $5,000.
40Has that document arrived?
41MR KEKS: It has been sent through, Your Honour.
42HIS HONOUR: Yes. Can we print it out please? It might take some little time. You can take a seat, Mr Holland. I will go back one part. Recognisance will be in the sum of $5,000. The recognisance period will be two years. The relevant terms or conditions are as follows.
43That you be of good behaviour for a period of two years.
44That you be subject to the supervision of a probation officer, it says here Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee for a period of two years.
45That you obey all reasonable directions of the probation officer, as I have described, and that you not travel interstate or overseas without the written permission of the probation officer.
46That you undertake such treatment or rehabilitation programs that the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee reasonably directs.
47That you report to the Ballarat Community Correction Centre at 206 Mair Street Ballarat within two days of release from custody.
48That you report to and receive visits from a Community Corrections officer.
49That you notify Community Corrections of any change of address or employment within two days.
50That you attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending, as directed by Community Corrections.
51Yes, now, do you understand that?
52OFFENDER: I do, Your Honour.
53HIS HONOUR: Do you agree to it?
54OFFENDER: Yes, Your Honour.
55HIS HONOUR: I will get you to now – does Mr Holland have to sign it or just me? There only seems to be provision for my signature.
56MR KEKS: It is the position that he can sign it. There is a space for him to do so.
57HIS HONOUR: Is there? I am trying to find it.
58MR KEKS: On the last page.
59HIS HONOUR: Yes, there is another page. Yes, I see. Yes. Well I will get him to sign that. The whole of the document should be shown to him and it is the last page that he signs, and then you sign it. That is what I read out to you, Mr Holland. I will sign that document and the document needs to be printed out or copied and versions be given to Mr Keks and Ms Lyons, is it?
60MS LYONS: Ms Lyons, yes Your Honour.
61HIS HONOUR: Thank you. Well that can happen after Court, all right. Now people have come – Mr Holland is about to be taken into custody.
62You are to be registered as a sex offender under the relevant Victorian legislation. That means a document needs to be printed out and served on you now. The reporting period is for life, I think, is it?
63MR KEKS: Yes, Your Honour.
64HIS HONOUR: Thank you. Now can you tell me the class of offences?
65MR KEKS: Each of the five offences is a class 2 offence.
66HIS HONOUR: Yes, thank you. You are about to receive a document which indicates to you comprehensively your obligations under that registration. There is another shorter document which requests your signature, indicating that you have received the first larger document. You can sign that or not, as you choose. We will prepare those documents now.
67MR KEKS: Your Honour, while those documents are being prepared, perhaps out of an abundance of caution, Your Honour is required statutorily to explain the ROO. Now I think Your Honour has done so in substance. The only thing that I do not think Your Honour has mentioned is the consequence of a breach, which is of course that if ‑ ‑ ‑
68HIS HONOUR: He will be brought back to court before me, won't he?
69MR KEKS: Yes, and liable potentially to serve the balance of the sentence which is the 18 months.
70HIS HONOUR: Yes, all right. Yes, did you hear that?
71OFFENDER: Yes, Your Honour.
72HIS HONOUR: Do you understand that?
73OFFENDER: Yes, Your Honour.
74HIS HONOUR: Yes. Is there anything else I need to do?
75MR KEKS: No, Your Honour.
76MS LYONS: Nothing further, Your Honour.
77HIS HONOUR: I do not think I formally stated in sentence the 6AAA. It is if you had not pleaded guilty you would have received a sentence of three and a half years with a minimum term of two years. Mr Holland is about to be taken into custody. People have come here to support him. If they wish, they may briefly speak to him before he gets taken into that custody, it must be short though. That can happen now.
78MS LYONS: Thank you, Your Honour.
79HIS HONOUR: Do you wish to speak to your son?
80Thank you for your assistance in this matter, Mr Keks.
81MR KEKS: Yes, Your Honour.
82HIS HONOUR: Thank you, Ms Lyons.
83MS LYONS: Thank you, Your Honour.
84HIS HONOUR: I will return in a moment.
‑ ‑ ‑
0
0
0