CDirector of Public Prosecutions v McGlashan

[2024] VCC 1234

IN THE COUNTY COURT  OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 24-00060

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

BENJAMIN McGLASHAN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2024
DATE OF SENTENCE:	13 August 2024
CASE MAY BE CITED AS:	CDPP v McGlashan
MEDIUM NEUTRAL CITATION:	[2024] VCC 1234

REASONS FOR SENTENCE
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Subject:
Catchwords: Using a carriage service to transmit indecent communications to a child under the age of 16; using a carriage service for child abuse material.
Legislation Cited: 474.27A(1) Criminal Code 1995 (Cth); 474.22(1) Criminal Code 1995 (Cth);
Cases Cited: Ibbs v The Queen (1987) 163 CLR 447; Hasan v The Queen (2010) VSCA 352; Hudson v the Queen [2010] VSCA 332; The Queen v Pham [2015] CLR 555; DPP v Dalgleish (a pseudonym) [2017] HCA 41; The Queen v Tootell; ex parte Attorney-General of Queensland [2012] QCA 273;
Sentence: Three year community correction order.
6AAA: Two years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms M. Satkunarajah	Office of Public Prosecutions (Cth)
For the Accused	Ms P. Marcou	Garde Wilson Lawyers

HIS HONOUR:

1Mr McGlashan has pleaded guilty to the four charges in the Commonwealth Indictment dated 9 May 2024 signed by Matthew Sinnett.  In the plea, Ms Satkunarajah appeared on behalf of the Director and Ms Marcou appeared on behalf of Mr McGlashan.

2Mr McGlashan was born in September 1991.  He is now aged 32.  He was 31 at the time of these offences.  He is a qualified carpenter but is currently a farmhand and as we have heard this morning now has a permanent job at that particular organisation.

3The plea took place on 11 June 2024.  There were four charges in the indictment. Two charges under 474.27A(1) of transmitting indecent communications to a child under the age of 16.  The maximum penalty prescribed by Parliament for that is 10 years' imprisonment.  The first charge took place in the period 20 October 2022 through to 4 August 2023 and involved five children.  In regard to Charge 2, that took place in the period from November 2022 to August 2023 and involved communications with a police operative.

4Charges 3 and 4 are in fact more serious charges as they are laid under s474.22(1) which brings with it a maximum penalty of 15 years' imprisonment, being use carriage service to solicit.  I will have something to say about those charges in due course.  Charge 3 occurred in the period November 2022 to May of 2023 and involved the same operative who was involved in Charge 2. Charge 4 took place during the month of February 2023 and involved three occasions, but on this occasion a separate operative.

5The prosecution tendered as part of its case, Exhibit A, summary of prosecution opening dated 21 May 2024, Exhibit B, outline of prosecution submissions on sentence dated 7 June 2024, Exhibit C, schedule of comparable cases dated
7 June 2024, Exhibit D, community correction report dated 12 June 2024 and Exhibit A, the MHARS Report dated 12 June 2024. 

6Defence tendered the following documents: Exhibit 1, defence submissions.  Exhibit 2, a psychological report of Luke Armstrong dated 5 June 2024,
Exhibit 3, two letters from Tracey Allen, counsellor/psychologist, dated 10 June 2024 and 12 August 2024, Exhibit 5, a bundle of character references from the family, all dated 11 June 2024 and finally additional cases and a further addendum submission from Ms Marcou, finally completed with the tendering of a further case this morning.

7In Exhibit B and in the oral submissions for the prosecution, the ultimate submission upon the factors detailed in the submission was that a period of immediate imprisonment should be imposed on Mr McGlashan.  Indeed, in addition, that a community correction order was not within the range.  In Exhibit 1 and the submissions set out therein by Ms Marcou, there was an alternative submission put, firstly, at [27], that there be a community correction order or in the alternative, a term of imprisonment with immediate release under a recognisance release.

8Fundamental to the determination of the sentence in regard to Mr McGlashan, is an assessment of the culpability of the offences themselves.  Insofar as that topic is concerned, I was met with alternative submissions.  In regard to the prosecution, from Exhibit 2 at [14], the submission was made that Charges 1 and 2 are of mid to high culpability/seriousness and Charges 3 and 4 are low range, as set out in [16] to [17].  The defence submitted that Charges 1 to 2 should be classified upon proper analysis as being in the low to mid serious range. The defence accepted the submission of the prosecutor in regard to Charges 3 and 4, albeit that the submission was that I should assess Charges 3 and 4 as being of very low order culpability.

Assessment of culpability

9Firstly, the Court, and indeed the defence, accepted the prosecution's submissions as to the seriousness of these offences and the factors the Court must take into account in its own assessment.  In particular, those factors set out by the prosecution at [5] to [8] of Exhibit B.  In making assessments of this kind, I refer to the authority of the High Court in Ibbs (1987) 163 CLR 447, 452, when the following quotation, applicable by way of analogy, although Ibbs concerned actual contact sexual offences.  The Court said this:

'When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined'.

10The High Court referred to a determination made Dwyer C.J., in Western Australia in 1948, when he said the following:

'Crimes bearing the same general description have not equally evil content or characteristics and offenders also differ in themselves'.

11I come therefore to Charges 1 and 2.  Charge 1 involved five underage children.  Such children were unidentified or incapable of being able to be identified, I am not sure which.  The charges involved the transmission of indecent conversations with children, under the age of 16. Albeit that the indictment charges an eight-month period, the actual conversations in that period are quite limited, as is their degree of indecency.  In saying that, each of the first three occasions refers to requests for fellatio, then a request for anal sex and references to an eight-inch penis and what is being requested to be done with that. The fourth occasion relates to a request as to the child spreading its legs and the fifth occasion mentions anal.  Insofar as the occasions themselves, the first female child, involved two conversations, the second, involved two conversations, the third, four conversations, the fourth, one conversation and the fifth, one conversation. 

12Charge 2, this involves 19 conversations over nine months with an undercover officer, who in fact initiated nine of these conversations.  I should make it clear there is no criticism of the undercover officer's role.  This is no doubt a very arduous part of policing in the Federal Force and such actions bring out, as they have in this case, persons who have committed serious offences. However, these are the facts of this particular offence. 

13Charge 2 involved very similar topics to the ones that I have identified in Charge 1 and all of the circumstances referred to involve, again, conversations, but for the circumstances which occurred on 20 January 2023 and 30 May 2024, when Mr McGlashan in fact transmitted, as part of the conversations, photos of a penis on each occasion.  In regard to both charges, at no stage was any CAM material transmitted by the victim. Indeed, despite many requests by “the victim” in Charge 2 for a personal meeting, this offending ended and the conversations ended, as a result of the 'child' not conforming to Mr McGlashan's request for photos of herself. He then ceased the conversations and as such a warrant was executed. 

14Upon analysis of these two crimes, I accept the defence submissions that the culpability should be assessed as low to mid seriousness. 

15Coming then to Charges 3 and 4, it is to be noted that each carries a maximum penalty of 15 years' imprisonment.  While charges in an indictment are the prerogative of the Director, given the circumstances of the offending here, these two charges I consider are examples of unnecessary and excessive charges being included in the indictment. Charge 3, while factually correct, is really part and parcel of the conversations set out in Charge 2.  Charge 3 occurs on two occasions insofar as the ongoing conversation with the operative, which I have referred to in Charge 2, and those two occasions relate to a request for upskirting.  The third discussion seems to me to be totally innocuous.  Charge 4 again is a discussion with another undercover operative, in this case, Chantelle.  It involved two occasions.  On one occasion, that is the same day, at one stage there was a request for an upskirt and another on that day a request for 'Can I see your ass' and then on another occasion a request for a photograph.

16Insofar as these two charges, both the prosecution and defence see them as low order seriousness, indeed the defence put them as very low order. Given the maximum penalty involved for such a charge, it seems to me that to bring those charges, given the circumstances of the offending, amounts to overcharging on the indictment.  However, as I have said, those decisions are independent matters for the Director.

17Coming then to the plea of Ms Marcou. There are strong factors in such presentation in Mr McGlashan's favour: 

1)The first is his age of 32, he comes before the Court with no priors whatsoever. 

2)The second factor is associated with coming before the Court with no priors, of being in a long period of family stability connection, and also employment stability. Both of those being particularly disrupted by these proceedings and his own actions which I will come to in due course. 

3)The third factor is the strong family support shown at the time of the plea, in the six family references provided to the Court, Exhibit 4, and as has been explained by Ms Marcou the presence of the family being here on the 11^th of June and today.

4)The fourth factor is his acceptance of guilt and, given the resolution discussions and the final indictment, the plea of guilty is made by Mr McGlashan at the first opportunity. 

5)The fifth factor is the taking of steps by him to overcome the personal deficiencies which led to this offending, albeit not without issues initially. 

6)The sixth factor is that with appropriate treatment, it is my belief that he will be able to rehabilitate. Indeed I have no doubt the circumstances involved in this public humiliation in front of his family, would be such as to assist that rehabilitation.  If it does not, he is not the man that has been attested to by his family. In particular, I refer to the family exhibits in Exhibit 4, and the professional opinions set out in Exhibits 2 and 3. 

7)The seventh factor is the extra curial punishment which has been effected, being the cessation of his family life, albeit certainly on the materials there were problems prior to this offending becoming known.  The results of which of course have led to restrictive access to his child, Spencer. Also, there was apparently, a very strong reaction in his own community, which saw his then business of carpentry forced to close down. 

8)The eighth factor is the somewhat naïve characteristics of Mr McGlashan as detailed in Exhibits 2 and 3 which led to him indulging in such activities upon his own phone. Such, from an assessment of those two reports, come about from the intimacy deficits in his personality, the corresponding relationship failure and its impact upon a dependent personality disorder.  I mean by that the relationship failure that was happening in his marriage prior to, or perhaps at the same time, as these offences were occurring.  In that regard, I refer in particular to Exhibit 2 and the opinion set out by Mr Armstrong under the term 'summary'. 

9)The ninth factor is the positive CCO report.

18I of course take into account all of the factors that I am required to take under s16A of the Act.

19Following on from the comments made this morning by Ms Marcou, I must say that I was very impressed with the evidence of Mr McGlashan's former wife, Georgie Drummond.  In fact, might still be his wife.  Is that right, Ms Marcou?

20MS MARCOU:  Yes, Your Honour.

21HIS HONOUR:  I accept that the impact upon her financial situation and that of the child would be substantial if Mr McGlashan, because of a determination made by me to place him in gaol, would no longer be able to work and pay for the mortgage over their joint property in Pakenham and provide the appropriate support, especially in the current economic climate.

22As to the prosecution submission of s21(B)(2) creating a presumption of actual imprisonment in these cases, I consider if such can be called 'a presumption', such only applies when imprisonment is actually imposed.

23As to the sentencing statistics supplied by the defence and the cases referred to me by both counsel, for which I thank them, being the cases set out in Exhibit C of the prosecution and the cases set out in Exhibit 5,  I refer to the Court  of Appeal's determination in Hasan v The Queen [2010] VSCA 352, [44], where the Court said this:

'The first task of a sentencing judge when seeking to ascertain an appropriate sentence in a particular case is to ascertain the objective gravity of the particular offence.  The maximum sentence prescribed by Parliament will give a definitive answer to the question where the most serious example of the offence in question stands in the catalogue of criminal behaviours.  An examination of comparable cases will then assist the Judge to make an objective assessment of the range of sentences applicable in cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced, but the limitations of the exercise must be borne in mind'.

[45], still under quotation:

'Tables or graphs showing average or mean sentences across the full spectrum from the statutory maximum to nothing, while important, will also be of limited use because they cannot of themselves identify the appropriate range for an offence of the particular gravity of that for which the particular offender is to be punished.  Indeed, their limitations are conveyed by the descriptions given to them, certainly in Victoria as "snapshots"'.

Then paragraph [47]:

'Following an appropriate study of comparable cases, together with the application of the relevant sentencing principles, the Judge will be in a position to identify the boundaries marking the range within which the particular sentence must fall.  Up to this point, the exercise will have been a largely objective on, but with an element of the subjective introduced by the process of instinctive synthesis without which the case for which, and the offender upon whom, the sentence is to be imposed cannot be assessed'.

24In addition, I take into account the principles set out in Hudson v the Queen [2010] VSCA 332 and the words of the High Court in The Queen v Pham [2015] CLR 555, [29]. Mr McGlashan of course, pursuant to what the High Court said in Dalgleish [2017] ALJR 91, [1063] and [1072], [49] is entitled in the administration of the criminal law to individualised justice and the imposition of a just sentence based upon the facts of this case which will do justice to him.

25In all the circumstances I have recited above, I consider that the principles expounded in Boulton & Ors v The Queen [2014] VSCA 342 are applicable here. In Boulton, the Court  observed that a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment since the sentencing Judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community correction order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects of rehabilitation.

26I accept the analysis detailed in The Queen v Tootell which was provided to me by counsel, being ex parte The Attorney-General of Queensland [2012] QCA at 273, where the Judge was talking about similar legislation in Queensland and at [19] there was reference made to a statement of the then Chief Justice de Jersey in The Queen v Quick where the Chief Justice emphasised the need for careful assessment as to whether the aggregation of such features warrants the conclusion that the offender should be spared imprisonment.

27I think it should also be noted that the sentences for these charges, as was put by the defence submission and clearly as is demonstrated by the laws passed by Parliament, are rightly distinguished by the Parliament from the offences mentioned in s16AAA and 16AAD where mandatory gaol sentences are imposed for particular sex offences against children.  Mr McGlashan, the sentence I intend to impose upon you reflects a degree of mercy being exercised in your favour for these serious offences.  Can I say to you now, you would not want to disappoint the Court and break any of the conditions I intend to impose on you.  The mercy I intend to exercise today will not be available twice.  Do you understand that?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  What is important it seems to me for you in the future is to ensure that alcohol does not impact on your life, nor drugs, nor gambling. 
Ms Marcou, I intend to accept the proposition put by the defence and impose a community correction order under s41 in regard to all of the four offences for three years. The conditions to be imposed are a work order of 180 hours. Treatment involving alcohol and drugs, for rehabilitation in that regard and testing. The requirement to undergo sex offender programs. The requirement to undergo treatment, rehabilitation and testing in regard to mental health and re-offending programs and supervision.

30They are all the matters that were set out in the report, Exhibit D, albeit there was no testing recommended, but I am adding the testing.  It is important that Ms Marcou you point out to your client what a community correction order means, ‑ ‑ ‑

31MS MARCOU:  Yes.

32HIS HONOUR:  ‑ ‑ ‑ what the consequences will be if he breaches any of the conditions and that this is in a long period, but it is necessary for him to comply with them for the whole period.  If he does not wish to or for some reason thinks it is inappropriate, then I can give him another sentence, but it is very important for you to ascertain his consent to these conditions. So I'll stand down while you do that.

33(Short adjournment.)

34HIS HONOUR:   Yes, Ms Marcou?

35MS MARCOU:  Consented to and signed, Your Honour, and understood.

36HIS HONOUR: Yes, if you would stand please, Mr McGlashan. Mr McGlashan, for these four offences a finding of guilty will be recorded in regard to each offence. Pursuant to s41 of the Sentencing Act, you will be sentenced by way of an aggregate community correction order in regard to all of those offences for a period of three years.  The conditions imposed will be a work condition of 180 hours.  It seems to me over the three years that is not too hard, despite you working fulltime. 

37But most importantly, in addition, is appropriate treatment for you to take control of your life and not get yourself into a situation which led to this criminality, both by way of alcohol, gambling and, in particular, and I had included drugs in that as well, but in particular a sex offender program that has been recommended so that you get the strength not to be involved in this sort of offending.  These matters have been explained to you.  I have given you a warning of what will happen if you come back.  The view of the Parliament is if you are lucky enough to get a community correction order for these serious offences, when you come back here if you have breached it, then you come back knowing that you have to bring your toothbrush.  Do you understand?

38OFFENDER:  Yes, Your Honour.

39HIS HONOUR:  Yes, in those circumstances, do you consent to enter into this community correction order?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  All right, well I will sign that order on the basis of the conditions that have been set out and the fact that you have signed it.  Yes.  Madam prosecutor, there is a forfeiture order which I have signed.

42MS SATKUNARAJAH:  Thank you, Your Honour.

43HIS HONOUR:  And in regard to 6AAA, on the understanding that it applies to Commonwealth matters, it is always I find very difficult to make such a declaration, albeit required by Parliament.  You can take a seat, Mr McGlashan.  Especially in these circumstances which has led to the community correction order being granted.  Insofar as an aggregate sentence, I can certainly indicate that a community correction order would not have been passed and that as best as I can in taking into account only one factor, an aggregate sentence of two years' imprisonment would have otherwise been imposed.

44As to the eccentricities of deciding whether a recognizance release order would have been passed, I will just let that go.  I will sign the forfeiture order and they are otherwise the orders that I will make. I thank both counsel for their assistance in what was a difficult sentencing process.  Yes, thank you.

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