CDirector of Public Prosecutions v Leishman
[2018] VCC 2124
•14 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00829
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| PETER STUART LEISHMAN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 November 2018 | |
DATE OF SENTENCE: | 14 December 2018 | |
CASE MAY BE CITED AS: | CDPP v Leishman | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2124 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Access child pornography using a carriage service – Cause offence using a carriage service – Knowingly possess child-abuse material – Plea of guilty.
Legislation Cited: Sex offenders Registration Act 2004; Sentencing Act 1991
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: 24 months’ imprisonment to be released on a recognizance release order in the sum of $500 after serving 12 months’ imprisonment and to be of good behaviour for a period of 2 years’ together with a community correction order for 2 years’ with conditions; 15 days pre-sentence detention; SORA registration 15 years; 6AAA declaration: 3 years and 6 months’ imprisonment with a non-parole period of 2 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr B Stevens | Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Offender | Mr J Gullaci | James Dowsley & Associates |
HIS HONOUR:
1 Peter Leishman, you came before me on 29 November 2018, to conduct your plea in respect to access child pornography using a carriage service (Charge 1), cause offence using a carriage service (Charge 2) and knowingly possess child-abuse material (Charge 3). The first two charges are Commonwealth offences and the maximum penalties for them are 15 years' and 3 years’ imprisonment respectively. Charge 3 is a state offence and carries a maximum penalty of 10 years’ imprisonment.
2 It is to be noted that Charge 1 is a between-dates charge from 25 January 2016 to 26 November 2017, a period of approximately 22 months. Likewise, Charge 2 spans a period from 30 March 2017 to 13 September 2017, a period of approximately 5½ months. Charge 3 relates to 30 November, the day that police executed a warrant at your address.
3
Tendered as Exhibit “A” on the plea was the Summary of Prosecution Opening for Plea, which was read aloud in Court. In respect to Charge 1, between
25 January 2016 and 26 November 2017, you used two Asus laptop computers to access child pornography images that had been sent to you via online applications “chatstep”, “uploadpie” and “imgur”. It is an aspect of chatstep that it does not log messages, images or user information, and messages are encrypted before they are sent. Interrogation of your computers revealed that as late as 20 November 2017, you had used “picpaste”, a log-in free service for uploading pictures.
4 In respect of Charge 2, between 30 March 2017 and 13 September 2017 you purported to be an adult female “Eve”, and using an email address, engaged in a number of offensive online conversations with an unknown person purporting to be “Mandy”. During these communications you, adopting the persona “Eve”, and engaged in sexualised chats with “Mandy” and roleplayed as the child’s “mummy”. An example of the type of communication that you were engaged in, is that which occurred on 3 August 2017, where you wrote:
“Hi my love. Hope your panties feel yummy on your pussy mound and lips. I have my thong on today and so wanna rub clitty. Love from mummy".
5 In respect to Charge 3, you were found in possession of 496 images and video files classified as child abuse material. Analysis of this material, which was contained on a Verbatim USB, an Asus Pro 616 laptop and an Asus X53Z laptop, appears at pages 4, 5, 6 and 7 of the prosecution opening and I do not propose to repeat the summaries of the images set out therein, save that when analysed using the categorisation model of the Australian National Victim Image Library (“ANVIL”), you had images that were classified in each of the six categories. Of particular concern are the images that fall within Categories 3, adult/child non-penetrative images; Category 4, adult/child penetrative images and Category 5, sadism/bestiality/child abuse images.
6 Each of the descriptions of the images that you possessed as set out in the prosecution opening are an adequate basis for me sentencing you. I did not view the images.
7 Charges 1 and 3 of the Indictment are Class 2 offences under the Sex Offenders Registration Act 2004 and are registrable offences. Accordingly, upon conviction you will be subject to the Act for a period of 15 years.
8 You have no prior criminal history.
9 You pleaded guilty to the charges on the Indictment at the committal mention at the Melbourne Magistrates’ Court on 20 April 2018.
10 At the end of the plea I remanded you in custody and accordingly you have served 15 days by way of pre-sentence detention, not including today.
11 Mr Gullaci of counsel, who appeared on your behalf, accepted that your offending was serious and that it required a sentence of imprisonment. However, he submitted that you had taken significant steps towards rehabilitation. Mr Gullaci submitted that an effective term of 12 months’ imprisonment followed by a community correction order was an appropriate sentence in all of the circumstances.
12 To make good this submission, Mr Gullaci relied on the limited number of images and videos actually possessed by you and that there was an overlap between Charges 1 and 3. However, each of counts 1 and 3, in my opinion, are elementally different and are directed as distinct and separate vices. However, it is plain in your case that but for the commission of Charge 1, the images the subject of Charge 3 would not have been found in your possession as at the time of the execution of the warrant.
13 Mr Gullaci emphasised your early plea and the benefits that should flow to you as a result of it, being that it has utilitarian value and that it is some evidence of your remorse. By reference to the contents of the field interview, Mr Gullaci submitted that you immediately made a number of admissions against interest to the police in which you expressed insight into the seriousness of your offending. This, combined with your cooperation with the police, demonstrated, according to Mr Gullaci, that you had facilitated the course of justice.
14 Mr Gullaci tendered as a bundle of documents, Exhibit “1”, that contained:
·The report of Michael Street, psychologist, dated 28 August 2018;
·The report of Dr Vanessa McKay, psychologist, dated 22 August 2018;
·The report of Draga Jevtic, psychologist, dated 17 August 2018;
·The report of Dr Byron Rigby, psychiatrist, dated 20 November 2018;
·The report of Jeffrey Cummins, psychologist, dated 30 August 2018;
·A Patient Summary from the Carlton Medical Centre, dated 18 August 2018, setting out the medications you take; and
·References from your wife, dated 12 August 2018; your son Jason, dated 4 September 2018; your son, Ben, dated 29 August 2018; a work associate, Kathryn Anderson, dated 6 August 2018 and another reference from a work colleague, Narelle Mielczarek, dated 27 August 2018.
15
By reference to the four reports from your treating psychologists and psychiatrist, you sought psychological treatment from Michael Street in December 2017. Between 12 January 2018 and 17 July 2018 you had
10 sessions with Dr Vanessa McKay, psychologist. This treatment was funded by your employer. Thereafter, you had four weekly sessions with Ms Jevtic and finally you were referred to psychiatrist, Dr Rigby, by your general practitioner. Additionally, there is a general overview provided by psychologist, Jeffrey Cummins.
16
Mr Street was of the opinion, despite your outward appearance of joviality, generosity and diligence, that you were somewhat naïve and guileless.
Mr Street was of the opinion that you were more fragile than your presentation would suggest. He also passed comment on the effect of your treatment by
Dr McKay and Ms Jevtic. In summary, Dr McKay opined that you were well motivated towards treatment that was directed to reducing your risk of re-offending.
17 Ms Jevtic descended into aspects of a history of Depression and Anxiety, but like the other psychologists, emphasised the treatment that you had undergone to reduce your risk of re-offending.
18 Dr Rigby commented upon the two reported suicide attempts or, as he referred to them, gestures, and after having dealt with some of your prior history opined that you suffered from symptoms in the past consistent with a Major Depressive Disorder of a severe degree. He opined that these symptoms have been present for many years but have become more intense since the initiation of the investigation and charges. Thereafter, he dealt with your personal history and described your online activity as largely comfort seeking, but was undoubtedly also sexual, and to a greater extent than your marital relationship. Dr Rigby opined that he did not think that you sought out illicit relationships with minors or that you had a particularly paedophilic bent. He opined that it was highly likely that you inadvertently ventured into the territory that was not sought out, and that your primary interest had been engagement in a distant, non-threatening, unreal form of relating that paradoxically contained a high degree of false intimacy. Ultimately, Dr Rigby opined that you were now fully engaged in treatment and it would be helpful if this treatment could be mandated for at least one, if not two years.
19 By way of your personal history, you are 62 years of age, having been born on 15 April 1956. You grew up on a farm about half an hour outside Warrnambool and your parents remained working on the farm until it was sold in 2001, after which they relocated to Warrnambool. Your father died of a brain aneurysm at age 72 in around 2006/2007. Your mother is 87 years of age and lives alone in Warrnambool. You told Mr Cummins that you believed that you never adequately bonded with either of your parents. You told Mr Cummins that as a small child you had a recollection of being put in a 44-gallon drum to keep you safe whilst your mother and father were working in the dairy. You have recollections of your father disciplining you by holding you upside down and belting you with an electric jug cord. You also recall being belted by your dad with lengths of poly piping. This form of discipline continued until you were aged about 16 years. You described your father as moody, aggressive and quick to anger.
20 You attended the local primary school and claimed to have been bullied by teachers and students alike. After leaving primary school you attended Terang High School between 1965 and 1971, and you again claim to have been regularly bullied. You informed Mr Cummins that you hated school and had no self-confidence and as a consequence performed badly and never got your VCE. Accordingly, you have a Year 11 level education.
21 After leaving school at about 17 or 18 years of age you managed a pioneer concrete plant at Camperdown until moving to Bendigo in around 1988/1989. You again managed a concrete plant at Bendigo and later at Castlemaine. After Castlemaine you relocated to Warrnambool, where you again worked as a concrete plant manager for several years. After that you managed a timber yard for a period of approximately 12 months and thereafter worked selling plumbing fittings and kitchen and bathroom fittings in Warrnambool for approximately two to three years. You moved to Sydney in 2003, when your first marriage ended.
22 You met your first wife when you were aged 17 when you both attended Terang High School. You were married when you and your wife were aged about 20 or 21 years. From your first marriage there are two sons, Ben, who is aged 36 and lives in Hong Kong, and Jason, aged 34, who is married with three children and lives in Koroit. I was told that during the course of the plea that your son Jason’s wife has banned you from their family home and having any dealings with your three grandchildren.
23 You reported to Mr Cummins that the separation from your first wife was caused by you having grown apart and your sexual relationship having declined significantly.
24 Your second wife, Ms Lazzarini, is 62 years of age. You met your second wife shortly after you separated from your first wife when you moved to Sydney in 2003. You have been in a relationship with your second wife of 15 years and were married in Melbourne on 15 April 2018. Your second wife has three adult children and you and your wife have regular contact with them.
25 On arriving in Sydney, you worked in a sales job for Sensis (Telstra), but were sacked within 12 months and you returned to Melbourne in July 2004, at which time you obtained a job in sales with Sensis White Pages. You informed Mr Cummins that you were unable to cope with the pressure of this job and with being separated from your sons, you had what you described as a “nervous breakdown”. You were off work on sick leave for approximately two months. You resumed working with Sensis in Melbourne and continued with them until you were retrenched in 2010. In 2011, you were employed by Medicare in the sales area and in 2012 you commenced employment in sales with Energy Australia. From 2015 you have been employed in the Energy Australia Inbound Business Care Centre in the Melbourne CBD, which I take to be a call centre.
26 You and your wife appear to have placed yourselves under substantial financial pressures, having purchased nine investment properties over which you borrowed approximately $3 million. Between January 2015 and November 2017 you worked as an Uber driver in order to “fend off bankruptcy”.
27 In late 2014 you were retrenched from your sales role with Energy Australia and your wife was unemployed as well, and this caused you to divest yourself of many, if not all, of your investment properties. Unsurprisingly, this was a very stressful period in your life.
28 You have been diagnosed with elevated blood pressure over the years and are prescribed the drug, Karvea. As well, you have been prescribed Mogadon, Serepax and Luvox to deal with depression and anxiety.
29 None of the psychological/psychiatric reports deal with what I described during the course of the plea as “the elephant in the room”, in that none of the reports deal with the pathology of your so-called addiction. It is perfectly plain from the materials available to me that you obtained sexual gratification by your offending. Not one of the professionals descended into the causes of your offending, save that you were under pressure at work and your criminal activity was a means of escaping these pressures.
30 There is a recurring theme within the psychological/psychiatric reports, namely that a term of imprisonment is likely to have an adverse effect upon your mental health and accordingly, Mr Gullaci relied upon the principles in Verdins, submitting that due to your mental-health issues you will find a period of imprisonment more onerous than those who do not suffer from those issues; and that there is a real risk that your mental health will deteriorate upon being imprisoned. I accept each of these submissions and these factors must be reflected, ultimately, in the sentence which I will impose on you.
31
In her reference, your wife corroborates many of the things that you told
Mr Cummins concerning the financial pressures that you suffered and she expresses her continuing support for you. Each of your sons are supportive of you.
32
The references from your two work colleagues each speak of you either expressly or by necessary inference as a good family man. Additionally, that you are a good worker, indeed an outstanding worker according to
Ms Mielczarek. You are described as a good man and in particular provided support to Ms Mielczarek when her father died some eight years ago. Each are aware of the charges that you face.
33 It is plain from the admissions that you made to police during the field interview that you were well aware of the seriousness of your offending and that the children that you viewed were victims. It is well recognised by authority that child pornography is not a victimless crime. Each of the children that appear in each of the images are victims. The principal purpose for sentencing in crimes of this kind is the principle of general deterrence.
34 Mr Gullaci submitted that you had good prospects of rehabilitation because of your age, no prior criminal history, family supports, your attempts at rehabilitation since being detected offending, that you have obtained some insight into your offending as a result of your treatment, and that you have been assessed by Mr Cummins as a low to moderate risk of committing further similar sexual offences.
35 You are a man of 62 years without prior conviction. You made admissions to the police from the outset. You entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from that plea. You have sought treatment for your illness and have the support of your wife and sons, albeit that you are persona non grata at the home of your son, Jason, because of his wife’s attitude to your offending.
36
I accept the submissions made by Mr Gullaci that an effective term of
12 months’ imprisonment followed by a community correction order is the appropriate disposition in your case because of the matters that he put to me on your plea. Will you please stand?
37 By this sentence I must punish you, publically denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, and your offending, I sentence you as follows.
38 In respect to Charge 1, I sentence you to 21 months’ imprisonment, to commence today.
39 In respect to Charge 2, I sentence you to 6 months’ imprisonment, which will commence 3 months prior to the expiration of the sentence imposed on Charge 1.
40
In respect of the Commonwealth offences, this results in a total effective sentence of 24 months’ imprisonment and I direct that you be released on a recognizance release order in the sum of $500 after you have served
12 months’ imprisonment and that you be of good behaviour for a period of
2 years after your release.
41 In respect of Charge 3, the state offence, I sentence you to 12 months’ imprisonment, together with a community correction order for a period of two years with conditions:
(i)that you be subject to supervision by the Secretary of the Department or his nominee;
(ii) that you undergo medical assessment and treatment;
(iii)that you undergo assessment and treatment in respect to your mental health; and
(iv)you undergo programs that address the factors related to your offending behaviour; and programs addressed to reduce your risk of re-offending.
42 I declare that you have spent 15 days by way of pre-sentence detention, not including today.
43 It is my intention that by this sentence you serve 12 months’ imprisonment and thereafter that you are released, in respect of the Commonwealth offences, on a recognizance release order for a period of 2 years and that you undergo a community correction order for a period of 2 years with conditions.
44 The effect of this order is that you will be sentenced to a term of 12 months' imprisonment immediately, that in respect to the Commonwealth offences, you will be released on a recognisance release order after that 12 month period. However, 12 months of that sentence will be effectively suspended for a period of two years whilst you remain on that recognisance release order. Should you breach that recognisance release order, than you will go to gaol for 12 months immediately. You will have breached the community corrections order, and you will return to me for resentence on Count 3 on this indictment. Do not return to me.
45 I declare that you are be subject to the provisions of the Sex Offenders Registration Act 2004 for a period of 15 years.
46 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, without descending into the mechanics of the sentences, I would have sentenced you a total effective sentence of 3½ years’ imprisonment with a non-parole period of 2 years’ imprisonment.
47 You may be seated.
48 MR STEVENS: Your Honour, I have prepared a recognisance release order for the court.
49 HIS HONOUR: Thank you.
50 MR STEVENS: I'll hand that up for Your Honour's consideration.
51 HIS HONOUR: Thank you very much. Mr Leishman, what is going to happen is, my associate will come to you with a copy of the community correction order and also the recognisance release order for your signing. As well, she will provide you with a number of documents that relate to your obligations under the Sex Offender Registration Act which you are to sign simply as an acknowledgement of receiving those documents.
52 MR McLEOD: May I approach Mr Leishman?
53 HIS HONOUR: Yes, of course, you can approach the prisoner.
54 MR McLEOD: Thank you, Your Honour.
55 HIS HONOUR: Are there any other matters that need to be attended to?
56 MR McLEOD: No, Your Honour.
57 HIS HONOUR: I would like to thank you, Mr Stevens, for your assistance in this matter.
58 MR STEVENS: May it please the court.
59 HIS HONOUR: Remove the prisoner, please.
60 MR STEVENS: As the court pleases.
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