CDirector of Public Prosecutions v Honeysett

[2022] VCC 1002

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BAIRNSDALE

CRIMINAL JURISDICTION

CR 19-02195

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

JAMES DONALD HONEYSETT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	24 June 2022
CASE MAY BE CITED AS:	CDPP v Honeysett
MEDIUM NEUTRAL CITATION:	[2022] VCC 1002

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr Saunders	Commonwealth Director of Public Prosecutions
For the Accused	Mr Rattray	Daniel Taylor Lawyers

HIS HONOUR:

1James Donald Honeysett, you have pleaded guilty to one charge of using a carriage service to procure a person under the age of 16 years for sexual activity.  That crime carries a maximum penalty of 15 years' imprisonment.

2As I understand it, you are now 31 years of age.  You pleaded guilty to a settled indictment and you must get the benefit of that.  Remorse is extremely problematic. When speaking to Dr Cunningham, the psychiatrist who spoke to you, you were adamant that you really were not guilty and you were somehow or other the victim of all this.  You have pleaded guilty so I will give you the benefit of the doubt.

3Insofar as utilitarian benefit is concerned you must, of course, get that.  I am aware that any sentence to be imposed will be undergone in COVID conditions and the factors that come into play there.  I am also very aware of the decision of Worboyes where in the circumstances a plea of guilty relieves the court to some extent of the very serious backlog that we have and I will certainly give effect to that.

4The has now been a delay of some years of this matter originally coming to light to being finally determined.  Whilst part of that was because of a plea of not guilty for an extended period as I recollect, I certainly take into account the delay that has occurred and I accept that you have not been charged with any further offending since this all came to light.  They are all factors which I take into account.

5At the time of this offending you were, as I understand it, living in Golf Links Road in Lakes Entrance.  At the time of the offending the complainant or victim was living in Perth.  She was 12 years of age.  Some time prior to
27 October 2017 the two of you made contact.  It is not known how that contact was established or whether it was on the internet or through a social media application.  You gave her your phone number.  After that initial contact communications occurred on mobile phones, exchanging text messages and videos with each other between October 2017 and 18 January 2018.  From the outset those communications were sexualised in nature.

6I have an appendix which goes through all those messages and I do not propose to go through that here.  It can simply be said that over that period of time there were a significant number of sexualised messages.  She was invited to, and indeed sent, as I understand it, images of herself in a naked situation to you.  You sent her multiple photographs of you masturbating and this went on, as I said, for a significantly long period of time.

7You have maintained that you did not know how old she was even to the psychiatrist, however, tendered during the course of the plea was a photograph of herself that she sent to you which, as I understand it, had been filtered.  It is clear, I would have thought to anybody looking at that photograph that that girl is no more than 13 or 14, absolute tops.  In fact she was 12.  I do not have to go into the detail of it.  I have never seen these and I do not want to see the photographs of her naked, but I do not accept that you had a genuine belief that she was of the age of 16.

8You, back in 2015, were sentenced in Queensland for imprisonment for two years to be suspended for two years after serving six months of it.  That sentence was for communicating with a child.  Indeed, you did meet that child and indecent treatment of a child under the age of 16.  You did that six months and that suspended sentence, as I understand it, had expired by the time this offending commenced.  However, it cannot be said that you do not understand the consequences of such offending.  That was also achieved via the use of the internet.  Six months, and part of that was, as I understand it, you getting that girl to perform oral sex on you.  Six months active imprisonment for that seems to be an extremely light sentence in my view, but that is what occurred back then, but this whole matter has to be viewed in the light that not only have you in this situation endeavoured to procure a child well under the age of 16, you have done it before.

9Other photographs were sent by her, which I agree with the Crown opening, depict a very young female.  There is one with her with leopard print ears and a black nose, or second, a picture with rabbit ears or white nose and whiskers.  In the course of those conversations you tried to, whether it be genuine or not, make arrangements to meet her in Perth.  You were concerned about her parents, just told her to not let her parents see or know anything about it.  You told her that you were going to, in those messages, that you were going to go to Perth next year in February and you were going to meet up with her and various suggestions that you had made.  You asked her to perform indecent acts and the like.

10I do not need to go through the multiplicity or messages that were sent, and it was clear that you were sending images of yourself masturbating and describing what you were doing and again, I do not think I am going to go into the detail of that.  The Crown opening is tendered.  It is on the brief and it, indeed, speaks for itself.

11The crime is serious.  It calls for the application of general and specific deterrence.  It calls for denunciation and it calls for an appropriate punishment.  It is under the Commonwealth legislation so I take into account that there is going to be hardship caused to your mother and, indeed, to you by an active term of imprisonment of reasonably significant proportions.  I am aware also of the need for general deterrence and a situation such as this plays a very significant part.

12I then, look at matters personal to you and determining that sentence.  It is, as I understand it, not disputed that a custodial sentence is warranted.  The Crown say that that should be a head sentence with a minimum term.  Your counsel have said that you could be released immediately upon a recognisance.

13I then turn to the victim impact statement and she says:

'This event caused me to start self-harming to relieve the stress, and has also caused me to have various mood swings which lead me to isolation, making it harder to open up.  Ever since the event happened my close family relations became strained, making it harder for them to talk to me.  This also includes having a harder time being around friends due to me not wanting to open up'.

14There is a deal of material that has been put before me, including a letter from your mother and a letter from her GP, which is concerned with her welfare.  It is interesting that in this whole process in the materials provided before me there does not seem to be a lot of concern of a 12 year old girl self-harming in Perth as a direct result of your actions.

15The submission was put that your belief that you did have a belief that she was 16 or over, I have very grave doubts about that.  I could not sentence you on the basis that you definitely knew but it is hard to believe that, looking at those photographs and the nature of the conversations that you did not know.

16In any event, you are single, 31 years of age.  You have one child.  You were born and raised in Victoria and you resided here for all of your childhood and most of your adult life.  Your family moved around a lot.  You struggled to settle.  Your father was an Aboriginal man and he left the family shortly after your younger brother was born.  You were one at that stage and apparently have no memory of him from your childhood.  The only time you ever met him was at, as I understand it, your brother's funeral in 2007.  You do not know whether he is alive or where he is if he is alive.  You have a younger brother and a younger half-sister and as I have already explained, your younger brother tragically passed away in 2007.

17You currently reside or have resided with your mother and I accept on the material before me that you have been a full time carer for her.  Up until recently you were also caring for your maternal grandmother, who is aged in her 80s.  She has reached a stage where she had to be moved into a nearby nursing home.  She suffers, that is your grandmother, suffers from various health problems including dementia, and I take that into account as well.

18It is clear on what you have instructed counsel on the report of Mr Cunningham that you had endeavoured in the past at least to get some sort of therapy or some sort of counselling.  You were able to complete Year 12 it appears in Timboon and you have had various jobs over the years.

19I will not go through the history of what happened after you went to Queensland.  You obviously were convicted of those matters up there, served your sentence, apparently endeavoured to join the army but after a few months knew that that was the wrong choice and you were then living with your now ex-partner at her parents' home and they kicked you out and you have never spoken to your
ex-partner or the child since.  That is the child I have referred to earlier.  You had obviously ruminate on what has become of your life and as I say, since returning to Victoria you have been the sole carer of your mother.

20That is a very significant factor and is one which obviously I will have to take into account.  The fact of the matter is, as I recollect, this matter has been now before me for something in excess of a year.  It has been clear from the outset what the Crown's position was in terms of sentence and it is a very understandable position that they have taken.  It is circumstances where no factors have been put in place to endeavour to take care of the problems your mother will have with you incarcerated.  There has been plenty of time to do it.

21So as far as rehabilitation is concerned it is hard to know in your particular circumstances.  You, when speaking to Mr Cunningham, the psychiatrist, were basically adamant that you were not guilty and that you are somehow a victim of authority and that you just want to lead your life without having authority involved.  He said that you were a moderate risk of re-offending.  As I say, I struggle with that, bearing in mind he makes no mention of you having been incarcerated for the same thing before.

22The rehabilitation has to be up to you.  The risk of you re-offending is, he says moderate, but I suspect it is greater than that.  Because of the nature of the offending you will be placed on a sex offenders register.  As I understand it, the reporting period will be for 15 years.  I have been asked essentially by your counsel, very persistently and to his credit, that I exercise mercy insofar as this matter is concerned.  The simple fact of the matter is that whilst I realise it is going to be very difficult for your mother in these circumstances and possibly difficult for your grandmother, you have done it before, you have been to gaol for it before, this offending occurred and started to occur in circumstances where you were already, as I understand it, living with your mother, who was in ill health at that time as well, and there is really no one to blame but yourself for this situation arising, Mr Honeysett, and whilst I am, as I have indicated, prepared to give a certain recognition to it, I am certainly not going to give the full recognition that your counsel asks for.

23I indicated before that I think the Crown's submission of a head sentence with a minimum term had great force to it.  In these circumstances, now that I have had this extra information, with some reluctance, I am prepared to find that the sentencing falls in the range where a recognisance can be entered into but there is going to have to be a significant period, in my view, of incarceration before that takes place.

24Accordingly, taking all those matters into account, on the charge of using a carriage service to procure a person under the age of 16 years, you are sentenced to be imprisoned for a period of two and a half years.  I direct that you be released on a recognisance to be of good behaviour in the sum of $500 after serving 10 months of that sentence.

25I understand there is one day pre-sentence detention.

26In these circumstances, just so you understand what you have gained by pleading guilty to this and by having your counsel persist so strongly on your behalf, I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of four years with a minimum term of two and a half and any amount of mercy that I have entertained is reflected when one looks at those figures.

27All right, are there any other orders I need to make, gentlemen?  The recognisance, what happens with those now, Mr Saunders?

28MR SAUNDERS:  It has to be signed by the accused, Your Honour.

29HIS HONOUR:  Yes.

30MR SAUNDERS:  I suspect the easiest way we can do that is Ms Hogarth will fax it down to my associate.

31HIS HONOUR:  What I will do is you will have to go into custody now, so what I will do is - if that can be faxed to me here I will have to get him to sign it.  We will have to.

32MR SAUNDERS:  Although email might be better and then print it off down to Your Honour's associate.

33HIS HONOUR:  Email and then, yes, if that can be done within the next few minutes or is it going to take longer than that?

34MR SAUNDERS:  No, I do not think it will take more than 10 or 15 minutes to have it down to Your Honour's associate really.

35HIS HONOUR:  All right.  We are in Bairnsdale so we have the custody problems.  I think what I will do, if that can be sent through to me and he will have to - I cannot keep him here, there is no facility, so it will have to be signed at the police station.  We will organise that, yes.

36MR RATTRAY:  Your Honour, I think Mr Doga may be able to assist, my instructing solicitor who is there.

37HIS HONOUR:  I am sorry?

38MR RATTRAY:  My instructing solicitor, Mr Doga, Your Honour, may be able to assist.

39HIS HONOUR:  Yes, and that is what I am thinking, yes, yes.

40MR SAUNDERS:  Yes.  We will get it emailed to Your Honour's associate as soon as we can.

41HIS HONOUR:  Yes, if you email to my associate and we will work it out and get him to - I am sure he will sign it, get it signed during the course of the day.

42MR SAUNDERS:  And then if copies at some stage can be scanned and emailed back we would be grateful.

43HIS HONOUR:  Yes, of course, yes, yes.

44MR SAUNDERS:  Thank you.

45HIS HONOUR:  And it is also copied into my orders for the day too.

46MR SAUNDERS:  If Your Honour pleases.

47HIS HONOUR:  All right, yes, whatever you have got to do, gents.  I will just leave the Bench.

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