CDirector of Public Prosecutions v Munn

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00294

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MUNN

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATES OF HEARING:	28 June 2021
DATE OF SENTENCE:	27 July 2021
CASE MAY BE CITED AS:	CDPP v Munn
MEDIUM NEUTRAL CITATION:	[2021] VCC 1038

REASONS FOR SENTENCE
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Subject: Use carriage service to procure sexual activity with child under 16 years. 2 charges. 34 years of age at time of offending within very short space of time of annual interview pursuant to lifetime registration under the SORA. Relevant criminal history with prison term imposed for sex pen of child and possess child pornography. AFP member posed as the child in the course of the communications. Mandatory minimum imprisonment.
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms K. Breckweg	Commonwealth Director of Public Prosecutions
For the Accused	Mr T. McCulloch	Doogue + George

HIS HONOUR:

Matthew John Munn you have pleaded guilty to two charges of using a carriage service with the intention of procuring a sexual act with a person believed to be under 16 years of age. The maximum penalty is 15 years' imprisonment.

You have a relevant criminal history. You were born in December 1985 and you are 35 years of age now but were 34 at the time of the offending last year.

The prosecutor Ms Breckweg opened this matter to me on 28 June. She relied upon a written summary dated 25 June 2021. Your counsel Mr McCulloch told me that it was an agreed opening and so it was marked as Exhibit A. In such circumstances, there is no point in my setting out all the agreed facts in these my reasons. I will sentence in accordance with the agreed summary.

Facts

Very briefly stated, in the between dates periods alleged in each charge, you communicated with two people you believed to be children under the age of 16. You did so intending to procure a sexual act. The means of communication varied.

Charge 1 involved SMS, the KIK application and Snapchat. It was more extensive. The second charge involved the KIK app. You believed each person was a 14 year old girl. In each instance, you initiated the communications.

You commenced the communications within a couple of weeks of an annual interview conducted pursuant to your lifetime obligations under the Sex Offender Registration Act. I do note that the date of the Sex Offender Registration Act annual review is incorrectly set out in the opening. The 2019 review was on 16 July 2019. The 2020 review in fact took place on 1 July 2020. You had an ongoing obligation to report any contact with a child. See p80.

For the initial contact with the person you believed to be ‘Lucy’, you engaged in the subterfuge of having a female picture and pretended that your girlfriend ‘Krystal’ had showed you Lucy’s profile.

There is no particular utility in setting out the full details of the chat and SMS communications. The opening summarises that and I have read the full exchange in relation to each charge which is set out in the depositional material. Suffice to say you were engaged almost immediately in inappropriate chat and knew that you were. You spoke more than once in the communications with 'Lucy' of the dangers to you of the communications and of you having contact with someone of that age. You requested images be sent and sent some yourself including a photograph of an erect penis.

It was a between dates period in each case and you had ample opportunity to pause for thought and to consider the seriousness of your conduct. You eventually ended the communication with 'Lucy' in October but of course the charge is one of intending to procure a sexual act. Undoubtedly you did. You had in fact broken off the communications earlier, citing your concern about getting into trouble. You told her at that earlier stage that you were too old and she should 'go for a guy her own age' (see p.150 of the Depositions). None the less you then resumed the communications. You had been nominating days to meet as well as locations. Your counsel places great store on your final communication cancelling a meeting and the reasons why. It is true that you pulled back from a meeting but as I say, you had done that already in the course of the earlier communications. I am not dealing with you for acts committed upon any meeting. Your final communication took place on 9 October and it was only a handful of days between then and your ultimate arrest. That final communication is set out at p169. You spelt out that you had something wrong with you and asked her to delete your number. I do accept that there is at least that expression of insight.

You had also initiated the communications with the person you believed to be Isy. Again it was heavily laced with a sexual overtone.

You were arrested on 14 October 2020 and made a no comment interview as was your right. You have been in custody ever since. You pleaded guilty at a committal mention.

So much then for my summary of the summary.

In Mitigation

Mr McCulloh conducted the plea on your behalf and relied upon a written outline dated 24 June 2021. There was also a supplementary written outline dated 26 June 2021 dealing with the aspects of the mandatory sentencing scheme. He relied upon a number of personal references that were marked as Exhibit 3 and an expert report from Sandra Cokorilo, a psychologist. That report was marked as Exhibit 2.

Mr McCulloch took me to your family, educational and work history. He conceded the seriousness of the offending and the undoubted relevance of the past criminal history. He made submissions as to your rehabilitative prospects.

He relied upon the following matters in mitigation;

· Your early guilty plea;

· The presence of some contrition;

· A COVID-19 increase in the burden of imprisonment.

· An increased burden owing to your inability to be present in the life of your infant son who was born whilst you were in custody.

In the earlier written submissions, he had conceded the inevitability of prison but argued that a sentence of under three years was open here and hence a recognisance release order would be available to the court. He withdrew that submission when dealing with the impact of the mandatory sentencing scheme. He conceded the inevitability of a head sentence and one requiring a non-parole period.

Prosecution

The prosecutor Ms Breckweg made some brief oral submissions as to sentence but had also filed a detailed written outline of submissions that was marked as part

Exhibit B. That document went to many matters of established principle in this area, principles derived from a variety of cases to which I was referred. I am well familiar with the case law. Those matters set out at paragraph 4 of the written submissions were entirely uncontroversial. Your counsel said as much. I do not intend to work my way through every submission contained within that document. The parties differed as to the level of gravity of this offending and where it sat on the spectrum of offence seriousness. The Crown argued that Charge 1 was mid-range offending, your counsel argued that it fell at a lower level.

The written submissions also dealt with the effect of the mandatory scheme and referred to a number of cases relevant to the interpretation of the scheme. There had only been three or four cases dealing with the actual provision, three not yet finalised and one from the District Court of NSW, likely to be appealed. So there was really no guidance from any superior court as to this particular provision. It was in this area where there was something of a contest between the parties as to how the mandatory scheme applied. There was agreement that the case law made it clear that the provision set down another guidepost. There was the maximum penalty as well as the mandatory minimum period. They represented a floor and ceiling respectively. There was agreement that the provision did not oust the need to take into account the range of matters a court is ordinarily required to take into account either pursuant to the Crimes Act or at common law. The dispute lay in the extent to which one could factor in the reduction for a guilty plea. The prosecution argued that the reduction (a maximum of 25 per cent) would only apply if dealing with the least serious example of the offence. The Defence argued against that interpretation. I will come back to discuss this aspect. What is clear enough is that I still must make an assessment, having regard to all the relevant sentencing factors, of where the offending falls in the range between the least serious and worst category offending.

The Commonwealth Director was calling for a term of imprisonment and one of a dimension requiring a non-parole period to be fixed. That was very obvious given the nature of the offending and the existence of the mandatory sentencing scheme. Your counsel agreed that that was so.

I turn then to your background.

Background

Your background is set out in detail in the report of Ms Cokorilo. I see no point just repeating it. I accept the family and personal background that has been placed before me.

For that reason, I will provide only a brief summary. You were born in December 1985 and are 35 years of age now. As I understand it, you were one of two children and your parents separated when you were in primary school. You had little contact with your father for many years though have established a positive relationship with him from your early 20s. He has written a reference. Your mother re-partnered and that was not pleasant for you or for your sister. There are some step siblings from one or other of your parents’ new relationships.

You moved out of home at the age of 17.

It was not the easiest of backgrounds and of course I take it into account as far as I am able to.

You were educated to Year 12 and left before the end of that year to commence an apprenticeship as a plumber, which you did not complete.

You have had a very decent employment record in a range of areas with few gaps in employment. You were a painter at the time of your arrest.

The report speaks of your relationship history. You have been in a relationship with your current partner Belinda since January 2016 and a son Hendrix was born in February 2021. It follows then that you were pretending to be a single male when involved in these sexual communications with the two young 'girls', as you thought they were. In fact, you were in a relationship and you were expecting a child. Those things did not put a brake on your offending

Belinda was not in a relationship with you at the time that you previously offended in 2015 but she stood by you as that case made its way through the courts and you went to prison.

Your criminal history though brief is of real significance for a number of reasons. For one thing, it brings you within the mandatory sentencing provisions. You were sent to prison in 2016 for three years for a variety of serious sexual offences against a child as well as a charge of possession of child pornography. The offences occurred in 2015 on more than one date. The sentencing remarks of Judge Maidment are instructive and have been marked as an exhibit in these proceedings. The medium neutral citation is [2016] VCC 1294. Those offences included two acts of actual sexual penetration with a 14 year old girl commencing with on line communications such as the ones I am dealing with, with a meeting taking place in your car where sexual acts took place. The sentencing judge accepted that you had groomed the victim in that case. The child pornography related to images she had sent you. I was told that you were paroled on 3 July 2018 and that the sentence lapsed on 25 August 2019. You had done a sex offenders program. You had one on one counselling as part of your parole. You had already received extensive counselling and treatment in the lead in to that sentence. You were on the sex offender’s registry for life and as I have said, had conducted your annual interview on the first of July 2020 and yet here you were offending within a matter of weeks.

You do not fall to be sentenced a second time for those past matters. They trigger the mandatory sentencing provisions but do not otherwise aggravate the matters that I am dealing with. However, I must make judgements as to the need to deter you and protect the community from you. I must make judgements as to your rehabilitative prospects and your risk of reoffending. It is troubling that you have reoffended in this way. You are relatively insightless and still to some degree are downplaying your offending in discussions with others including the expert. You repeatedly, for instance, describe how you did not intend to meet. You have admitted the elements of the offences. You were engaged in these communications intending to procure sexual activity with a child. I must deter you. That is very obvious. The need for community protection is also very clear in this case.

Drugs have been an issue in phases of your life though had no role at all in this offending. You ceased drug use as a 26 year old.

You have been in custody for a decent time already and it has not been easy on account of the COVID-19 pandemic. There has also been the birth of your child. You were not there for that. That is a big loss for you and for your partner. You had at the time of the plea not even met your son. Again, it is a massive loss for you. Your grandmother with whom you have a strong relationship is elderly and you have provided her much support especially during the COVID-19 pandemic. You will be anxious about her predicament.

The references make clear that you have a number of qualities and you are still supported by your family. That can only really be a good thing. Some of them mention your concern for your partner and your child and your grandmother. I do not doubt it has been hard for you and for them. There is however an air of unreality to the suggestion made by one of your sisters that you do not present any danger to the community or to children. It is just not supported by the expert assessment or the plain facts of your offending. Plainly you present something of a danger.

Let me turn then to the matters in mitigation.

Guilty plea

The first of those is your early guilty plea.

You have pleaded guilty and you have done that at the earliest opportunity.

You have taken this earliest responsibility for your offending. There is a utilitarian benefit in pleading guilty. Witnesses have all been spared the experience of coming to court to give evidence. The community has been saved the time, cost and the effort associated with the conduct of a contested criminal hearing, either a trial up in this court or a committal conducted in the Magistrates' Court. I must reward you for facilitating the course of justice in the way that you have. There is also a heightened value for a guilty plea in the midst of the global pandemic for the many reasons mentioned in the relatively recent case of Worboyes.[1] You case is not part of the very large backlog that has been created. A guilty plea is especially valuable in such a setting as this.
[1]Worboyes v The Queen [2021] VSCA 169

You have also facilitated the course of justice by consenting to forfeiture of devices. There is no need for any formal orders as result of your stance. I take that into account as well.

Contrition

I move then to the aspect of contrition or remorse.

A guilty plea is often though not always, indicative of some contrition or remorse. You have pleaded guilty at the earliest of stages and as I have said, I will give full weight to that matter. The case against you was of course an overwhelming one. That does not reduce the weight that I give to your plea. That is a quite separate matter and it is not dependent on whether I find the existence of contrition or remorse. The strength of the case does though impact upon the inferences that might be drawn from the fact of a guilty plea. What else really could you do here? It was an overwhelming case. Objects identifiable from the photographs sent were found upon the execution of the warrant at your home. Your face was captured in one of the communications. You were linked to the devices and to the address. Some of the authors of the written references speak of the presence of remorse. So too does Ms Cokorilo and I do not ignore those observations. But they were observations in a setting where you still claim that you never intended to meet. The fact is you intended to procure a sexual act with a person you believed to be a child.

I am not persuaded there is very much insight at all in this case. It is true there is the final communication with Lucy stating how wrong your conduct was and saying that you could not meet. The fact is, you knew that throughout and had mentioned the trouble you could get into more than once. I do not doubt that you are worried by the impact of the offending upon your family members and there is that sense of letting them down. There is shame in that respect. I certainly do not find that you are in anyway revelling in the offending. You are a work in progress, it seems to me, and not resistant to exploring why you offended in this way. You probably do not know. I am not satisfied there is fulsome remorse here but as I say your lack of insight may have some role to play in all of that. I am prepared to accept your counsel's submission and to find the existence of some contrition or remorse in this case and I take that into account in your favour.

Rehabilitation

I turn now to consider your prospects of rehabilitation. You had extensive treatment in the past in the lead up to the sentence imposed in 2016. Then treatment in custody, then supervision and treatment pursuant to your release on parole. You had the reminders posed by your lifetime registration under the Sex Offender Registration Act. You had your annual review in early July 2020 and offended within weeks. You had a home, a job, a partner and a child on the way. Still you offended. It is not possible to view this offending as situational. That was the conclusion drawn in your favour back in 2016 and your counsel conceded on this plea that it was obviously wrong. The expert does not view it as situational offending. There is a paraphilic tendency of some description. You have some attraction to underage girls, whatever you may say on that topic. You do not acknowledge that you do. You have a high enough risk of offence generally, as is mentioned in the expert report. You still have family support but always have and that has not impeded your offending on this occasion or the last. It is true that at least you successfully completed your parole.

The time you have served in prison as well as the time yet to be served by you will serve to deter you to a degree.

I am prepared to find then that you have some prospects of rehabilitation but it is impossible to be optimistic given the serious nature of this offending and the chronology. It was between dates offending by a man who knew what lay in wait if you continued to conduct it. You started the last offending with this style of communication and that ended with acts of sexual penetration and a sizable prison term. You were intending to procure sexual activity with a child on this occasion. You had not been deterred by being sent to prison previously. At least you did pull back and cancel the meeting but the description of you ‘pulling back from the brink’ is really not that accurate actually. You were already well and truly over the brink when you chose to communicate in this way with the intent that you had. However, you at least recognised in that last text that there was something wrong with you to want to do this with a 14 year old. At least you did not go on to meet, though had you done so you were in for a shock given that you were dealing with a covert AFP member. There really is little evidence of any great insight on your part. The positive is that you do not at this point seem resistant to further treatment including potentially, pharmacological treatment. You will wish, I am sure, to take on your role as a father to your son and that may provide some added incentive for you to get treatment and to avoid any re-offending.

I am prepared to find that there are some prospects of rehabilitation but the risk of reoffence is very real here. It is possible that pharmacological treatment may reduce your risk but it really is too early to know if that is something open in the future or an option which you will avail yourself of. I certainly will not write you off. I think you do have some realistic prospects of rehabilitation but I really cannot put it any higher than that. Nor did your counsel put it higher than that in his submissions to the court.

Report of Cokorilo

I have mentioned already certain matters from the report of Ms Cokorilo. Her mention of remorse and lack of insight and her assessment as to the level of risk. I do take into account the report of Ms Cokorilo. You made disclosures to her as to your past offending but frankly, it really would have been far more useful if she had been provided with a copy of the sentencing reasons so that she could have an understanding of exactly what you did on that last occasion. You may well have downplayed that conduct to a degree saying, as you did to her, that you were not specifically seeking out a child. That is not what happened at all.

She seems to have taken you at your word that in the current offending, you did not intend to meet the ‘children’ in person and only wanted to exchange photographs. And she places great store in the cancellation of the meeting. See paragraph 52 and also 76. She administered a risk assessment tool associated with a child pornography offender. I really do not know why. I repeat, you have previously sexually penetrated a 14 year old girl having groomed her online and in this case, you were communicating with two people you believed to be 14 year old girls with the intention of procuring the ‘girl’ to engage in sexual activity with you. It is not situational offending. She goes on to say that you made no attempts to minimise or deny the behaviour. The fact is of course, you have done both of those things, denying sexual interest in children and stating that you never intended to meet in person.

The report is not relied upon as in any way enlivening any of the principles from the well-known case of Verdins. The report is useful in setting out your background. It also sets out details as to your level of risk and the nature of treatment that you may well need down the track. You need long term, high intensity specialist treatment to reduce your risk of recidivism. You may also need pharmacological treatment as well. You are presently accepting of the need for treatment, which as I have said earlier, is a positive. I take into account the report in the ways urged upon me by your counsel. As I have said already, I believe you do have some realistic prospects of rehabilitation and you are certainly not revelling in this offending as some do.

COVID-19: Increased burden

Your counsel in his written and oral submissions relied upon the mitigatory value arising from the impact of the COVID-19 pandemic upon your custodial experience.

I do accept that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden to a degree. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there is worry about catching the virus in such a setting where unlike someone in the community, there is no level of autonomy at all. You have been in prison since October of last year. It has not been easy. There have been no visits and limited courses for at least some of that period.

As to what lies ahead on the pandemic front, it really is impossible for me or anyone else to know. The impacts of the virus upon prisoners had been lessening in the course of this year, with visits and courses getting back underway earlier in the year. But we have been experiencing ups and downs as the events of the last few months surely make plain enough. We had the circuit breaker lockdown in February and that brought about the temporary suspension of prison visits. We have had the issues in June and July in this State with another lockdown and implications arising once again for prisoners. Whilst we have generally been travelling very well in our community, it is not that difficult to see how restrictions may spring up again as they have in the past. There will be some ongoing anxiety amongst prisoners as to how they will fare in the future and I take that into account. I cannot know if limitations will be prolonged or if once lifted, whether they may start up again down the track and I am not free to speculate about those matters. I take into account the impact of the virus in the ways urged upon me by your counsel. It has not been easy for you in such a setting. Far from it.

I also accept that there is an increased custodial burden arising from your personal predicament with a child born whilst you were in prison. That is more than a bit sad to contemplate really. There is mention in the references of your concern and worry about your partner, your child and your grandmother. Of course you would have been and still will be anxious as to the predicament of your partner, your child and your grandmother. It is a shame you did not reflect on those matters as providing a reason not to offend but for whatever reason, you did not. But I do take into account the increased burden arising from these matters but it cannot dominate my task.

Principles

I turn now to some of the general principles at play in this sort of matter.

The general principles for sentencing in relation to this sort of matter are just not in doubt. I am not speaking of the mandatory sentencing scheme. I will deal with that separately in one moment. But many of the general principles are referred to in the prosecution written submissions at paragraph 4 and your counsel did not challenge them at all. See paragraph 3 of the supplementary defence submissions.

The prosecution sentencing submissions cite a number of cases. I see no need to. The Court of Appeal in this State has frequently commented on the seriousness of sexual offences targeting children. So too have other superior courts all around this country. You communicated with the intention of procuring a sexual act with a child. At all times, you believed you were dealing with a 14 year old child. You knew that the communications were quite wrong and that the acts that you were proposing or hinting at were seriously illegal.

There is a strong public interest in protecting children. These provisions exist to protect children from the considerable harm that may be done to them by communications on the internet by those seeking involvement with children. It is a serious crime and that is so even if no sexual act occurs. Often enough there is a covert operative as there was in this case. The failure to meet is not a matter in mitigation. Rather it is the absence of a matter that may have aggravated the instant offence.

The seriousness of this offence is not to be underestimated. See the case of Singh[2]. The conduct which the section prohibits is insidious and often highly damaging. Children are vulnerable to abusive predatory approaches which are by their nature, liable to be kept secret from third parties. You, I note, were counselling secrecy in these communications. The cases are clear that the offence usually merits a term of immediate imprisonment and that lesser sentencing dispositions should be very rare. Of course, your case is covered by these new mandatory provisions so there is no question of any non-custodial outcome here.
[2]DPP (Cth) v Singh [2017] VSCA 146

As I have said, it is not mitigatory that you were in fact talking to an AFP member. You believed that you were communicating with a 14-year-old girl in each instance. At least the aggravating feature of communications such as yours being actually received by a 14 year child does not exist but that is about as far as it goes. So too, I suppose, the absence of the aggravating feature of actually turning up at a meeting.

You were 34 years of age. So there was what you believed to be this substantial gap in age. You mentioned that. You initiated the contact. You used the device of having a female photo as the lead in to the communication with ‘Lucy'. The communications quickly turned to matters sexual. You drove it in that direction. This was between dates conduct. It was not an isolated communication. You went back and back to the well, especially in relation to Charge 1. It progressed to SMS communications in the first charge. Plainly you were leading in to a meeting. That was discussed. It was not pie in the sky stuff of people cities or States or even countries apart. You were suggesting the same sorts of meetings that came to pass in your last offending. You sent photographs and sought to elicit photographs. You were, in having these communications, seeking to procure a sexual act with a person you believed to be 14 years of age, who you believed was living in your own town. Whilst it is true that you did take little effort to conceal your identity, you were counselling secrecy, from parents for instance. You thought you were dealing with a 14 year old and were discouraging the communications being disclosed to other parties.

The internet has changed our lives forever and this sort of case shows how it is not all change for the better. Social media platforms are not without risk especially when there are people such as you online. The internet makes such connections between adults and children so much easier. With the internet, responsible adult figures can be cut out of the equation and there can be direct unfiltered and damaging communications between adults and children. There must be a strong message sent by the courts to adults who use the internet for their own warped sexual purposes, as you did.

General deterrence is a very important sentencing consideration.

You have these highly relevant prior convictions and in this case there is no reduction in your moral culpability.

I take into account the matters that are set out within the relevant provisions of the Crimes Act 1914 (Cth), in particular s16A(1) and (2). Also s.16A(2AAA). General deterrence, as I say, is very important. So too denunciation. I must give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. The need for community protection and specific deterrence is very clear in this case. You present a real danger to children. You did back in 2015. Not even being sent to prison, being counselled and treated and paroled and living in settled circumstances with a pregnant partner has impeded your desire to offend. The risk you pose is not illusory. It is very much a real risk.

Mandatory scheme.

Prison is always a disposition of last resort. Plainly prison is the only option here. There is no question about that. That would be so quite aside from the mandatory sentencing provisions. There is though in this case, a quite deliberate modification of my usual sentencing discretion as a result of the mandatory minimum sentences provided for in s16AAB. Indeed when one looks back at s16A(1) dealing with the foundational concept of proportionality, there is a note actually inserted into the body of the Act mentioning the existence of minimum sentences for certain offences.

It is conceded that the scheme applies to you courtesy of your prior offending and the nature of the instant offences. There is then a mandatory minimum period specified within the Act. Subject to s16AAC, I must impose a sentence of at least four years' imprisonment in relation to each offence. Section 16AAC sets out one exclusion and two potential reductions. As to the exclusion, the scheme does not apply to those under 18 years of age. See s16AAC(1). There are specified potential reductions set out in s16AAC(2)(a) and (b).

One of those reductions relates to assistance to the authorities which has no application here. The other relates to a discretion to sentence below the four year minimum by making an allowance for the guilty plea. That reduction is capped at a 25 per cent maximum rate. See s16AAC(3). It is discretionary.

Now I have read all the cases that I have been referred to in the various submissions including Haidari[3], Bahar[4], Mammoliti[5] and Atherden[6]. None of these cases deal with this provision. At best they provide some guidance as to methodology. The case of Bahar dealt with a mandatory minimum term in the context of people smuggling. So too Atherden. Those provisions provided no ability for a sentencer to sentence below the minimum period. On the other hand I have the capped reduction potentially available in s16AAC(2). From a reading of the explanatory memorandum item 212 at p48, one suspects that that provision was inserted to deal with the aspect of compression of sentence spoken of in the cases. Bahar was approved in the Victorian case of Haidari which again dealt with people smuggling. The minimum is not reserved for the least serious example of the offence committed by an offender with the full range of matters in mitigation. That proposition had been pressed by the Director and as I understand was rejected by the Western Australian Supreme Court in the case of Bahar. They said in that case there is no instance at either extremity, either of worst or least serious offending, that it would be open to impose the minimum for an offence falling in the least serious category. Haidari picked up that concept.
[3]DPP (Cth) v Haidari [2013] VSCA 149
[4]Bahar v The Queen [2011] WASCA 249
[5]Mammoliti v The Queen [2020] VSCA 52
[6]Atherden v The State of Western Australia [2010] WASCA 33

I do accept that Bahar sets out a methodology which has some application in this case. The statutory minimum like the offence maximum is a Legislative direction as to the seriousness of the offence. The maximum represents a ceiling, the minimum period a floor. So a floor and ceiling within which I must apply the general principles of sentencing. I do not accept however the prosecution argument that the exclusion set out in s16AAC(2) is reserved only for the very least serious instance of the offence.

I know that there is some support for that stance in the explanatory memorandum. See item 213 which states:
'The reductions in sub-s16AAC(2) and s16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the tables in s16AAA and s16AAB'.
Now, I recognise that Bahar did not deal with the issue that I am dealing with. None of the cases have. That legislation had no reduction open to the court.

The prosecution argue that I should engage in an assessment of the seriousness of the offence and my instinctive synthesis and it is only if I am of the view that I am dealing with the least serious instance of the offence that I can then go on to consider the reduction spelt out in s16AAC(2). The reduction is after all not something applying automatically. That is the argument. So, the Crown argue that this provision deals with the compression of sentence issue that had been flagged in the other cases, including Bahar.

My problem is that all of the case law dealing with any legislation setting out some form of statutory minimum period, be it a non-parole period or head sentence, makes it clear that though the mandatory provisions modify some of the principles of sentencing they in no way oust the matters that a court must have regard to in assessing the seriousness of the offence.

I must in this case have regard to the matters in s16A(1) and (2) and s16(2AAA) as well as such common law principles as I required to take into account. That is common ground. I must take into account the various matters in mitigation and aggravation. To reach that point as contemplated by item 213 in the explanatory memorandum, it seems to me I would necessarily be engaging in two step sentencing. For me to have imposed the minimum penalty, I would have completed my sentencing task. How could I then deduct from that penalty imposed, such discount as deemed appropriate under that provision? I would need to have conducted my intuitive synthesis, got to the point of establishing that four years was the appropriate sentence and only then be permitted to take into account by way of reduction below that four year period such portion of the 25 per cent reduction as was deemed appropriate. That is, on any view of it, two step sentencing. I do not believe that it is open to me. I am not prepared to engage in two step sentencing in the absence of a very direct statement from the Legislature in the body of the Act itself. There is no such statement.

Even though there is this support within the explanatory memorandum, it is not explicit and the case law in the related areas that I have looked at recognises my need to take into account all the other factors which ordinarily are taken into account. I am interpreting a statue which has impact upon the liberty of an accused person and in the absence of something very explicit, I believe I should favour the interpretation urged upon me by your counsel. I accept the cases to which I have been referred deal with different legislation. But the case law supports the view that intuitive synthesis is required and that there is still a prohibition upon two stage sentencing.

The question then for me is where, having regard to all the sentencing factors, the offending falls within the range between the least serious category of offending and the worst category of offending for which the maximum is appropriate. Where an offence falls within the spectrum of offence seriousness will be determined by reference to all the relevant sentencing considerations including matters personal to you. I do not have a starting point. I do not start from three years or from 15 years. To have a starting point would be to immediately fall into error. The same has been said of the Standard Sentencing scheme operating in this state.

I have not really mentioned the case of Mammoliti. That case was decided as against a different legislative framework. There was a mandatory minimum non parole period dealt with in that case. The Court of Appeal said that the minimum operated as a legislative yardstick and one that did not oust either the sentencing principles at Common law or those affected by Statute. That the minimum is not necessarily reserved only for those cases falling at the lowest extreme of the spectrum. Those provisions did not permit a sentencer to sentence below the minimum period by taking into account the plea. It was for that reason in that State sentencing scheme that there was an expectation of compression of sentences. The same matter had been mentioned in Bahar and Haidari.

The Court said that the scheme must not swamp other considerations. The Court of Appeal made it clear that that scheme, though operating as a legislative yardstick sat alongside the established sentencing principles (see paragraph [27]). Two stage sentencing was not allowed. I do not believe there is any inconsistency between Bahar, Haidari and Mammoliti.

Plainly enough the fixing of a legislative mandatory prison period whether it is a non-parole period or head sentence discloses Parliament's view as to the seriousness of the offence generally. So in this case I have this floor (which I will treat as three years not the four years contended by the Director) and a ceiling of 15 years within which I have a sentencing discretion to which the general sentencing principles are applied. As I say, it would be quite wrong to have a starting point. One does not. Equally wrong in my view to engage in a process where I have arrived at a four year term as the appropriate penalty which would then and only then be subject to a reduction for a guilty plea under s16AAC(2). That was what the Crown really was arguing was required here. That the reduction below the minimum period specified is only available for the least serious instance of the offence. Well the general provision setup at s16AAB commences by saying 'subject to s16AAC'.

I do not accept the prosecution argument contained in paragraph 20 of the written submissions.

Where then does this offending sit on the spectrum of offence seriousness? Well it was committed by a man with relevant prior history. Your counsel argues that every person covered by this particular scheme will have a relevant criminal history. That is undoubtedly true. However, the gravity of the qualifying offending will no doubt vary as will the level of gravity of the instant offence. That every person covered by the mandatory provisions will have relevant offending does not remove in any way the need for me to assess the seriousness of the current offence. The existence of the previous matter merely triggers the provision and it says nothing at all as to the nature and gravity of the current offence or the weight to be given to specific deterrence, rehabilitation and community protection. I have to assess the offence and apply the relevant sentencing principles in the way I ordinarily would, absent these provisions but bearing in mind of course that the minimum in the given case represents not just a floor but also a guidepost. The ordinary matters that a court would have regard to in making that assessment as to offence gravity and matters in mitigation and aggravation and the weight to be given to sentencing purposes are not ousted by this mandatory provision.

Your prior offending involved actual contact offences arising from the use of the internet. You were sent to prison. You were not deterred. You chose then in this current offending to use the internet with the intention of procuring sexual acts with children. That despite the sure knowledge that you were committing a serious crime indeed. These were not low level examples of the offending at all. They were over a sizeable enough period. I treat the conduct the subject of Charge 1 as being more serious than the conduct the subject of Charge 2. That is conceded. It was committed by a mature man who has not been deterred. You have a real risk of reoffence. The offending is at least towards the mid-level, in terms of Charge 1, and it is not mitigatory that you did not meet up. I am not dealing with you for meeting up and engaging in sexual acts. This is a preparatory offence. I do accept that Charge 2 is slightly less serious.

Consistency of sentencing is an important consideration but there are no other examples available to me of a person sentenced under this scheme. I am in the unenviable position of being the first Judge in this State finalising an outcome. The existence of and application of these provisions surely must lessen the weight that can be given to instances of sentences passed where the scheme did not apply. Plainly there is a very strong direction from Parliament as to the seriousness of this style of offence and also a recognition that past sentencing practices were inadequate. The explanatory memorandum is explicit in that respect. See p9 item 40. These provisions unashamedly are directed at increasing penalties. There can be no question about that. That reality is also reflected in your counsel’s change of tack when altering his submissions as to the available disposition here. He abandoned the suggestion of a sentence of less than three years being open owing to consideration of the impact of these provisions.

What I have to do is pass an appropriate sentence in your case for your crimes, taking into account the mitigatory matters in this case and taking into account your background. I have regard to the usual matters that the court is required to take into account such as the matters in s16A(1) and (2), (2AAA) as well as matters of common law. As to this mandatory scheme, well of course I must take it into account, it applies to my task. But I am not and must not consider that there is any starting point. There is none. I am not to engage in two stage sentencing. The scheme does not disturb the requirement for intuitive or instinctive synthesis. I do not and must not go about my task by plotting a point on the spectrum of offence seriousness and then making a set of either deductions and/or additions. In every sentencing exercise there is a ceiling that is represented by the offence maximum. I note the way the maximum is referred to in Aydin & Kirsch[7]. It provides no guidance at all as to the actual seriousness of the instant offence and there is of course, as your counsel observes, the difference between steering by the maximum and aiming at it. The maximum is reserved for the worst class of offence. Well I have a floor and a ceiling. I must not as matter of law sail below the floor of four years other than in a setting encompassed by s16AAC. In your case then, given that you have pleaded guilty, in my judgement there is the theoretical range of three to fifteen years. But that is all it is. That theoretical range does not provide any answer to my task. Where between the period of three and fifteen years your case falls will be determined by my judgement as to the usual matters such as the nature and gravity of the offence and the matters in mitigation and aggravation. Also the extent to which the purposes of sentencing must be adequately reflected.
[7]DPP v Aydin and Kirsch [2005] VSCA 86

Plainly this offending is not low level offending by any description for the reasons I have listed. The conduct the subject of Charge 1 is at least towards the mid-level. The conduct the subject of Charge 2 is not at the lowest level by any stretch of the imagination but is less serious than Charge 1.

Here you believed you were communicating with two different children. The charges break down what you believed to be these separate communications with separate children. Charge 1 for 'Lucy'. Charge 2 for 'Isy'.

There must be some cumulation as between the two offences even though they occurred in the same time frame. I will significantly moderate the extent of cumulation owing to this temporal connection. Plainly though, each is a serious offence. They each have the mandatory minimum period. There must be some cumulation. I can only achieve that in this area by fixing the commencement dates.

I am sorry to have taken so long to get to this point. I will now pass sentence upon you, Mr Munn. I will have you remain seated in the circumstances given that we are using the internet to engage in this process.

Sentence

On Charge 1, which is the charge of using a carriage service to procure a person believed to be under 16, you are convicted and sentenced to five and a half years' imprisonment. That sentence commences immediately.

On Charge 2, another charge of that same description, you are convicted and sentenced to four and a half years' imprisonment.

That second sentence will commence 18 months after the commencement of the sentence imposed on Charge 1. It is my intention to produce cumulation to that extent of six months, which I believe that commencement date does. But I will hear from the Crown in due course.

TES

The total effective sentence then is by my reckoning term of six years' imprisonment. That is my intention.

Now I must fix a non-parole period. It is true that the mandatory provision that I have spoken of does not set out any minimum non parole period. Undoubtedly though the scheme was designed to and will increase head sentences and as a matter of reality, an increased head sentence will inevitably lead to lengthier non-parole period than had been fixed as against lower head sentences. I take into account all the relevant considerations in terms of the fixing of a non-parole period here.

Non parole period

I fix a period of four years during which you will not be eligible for release on parole.

I believe I am required to explain the nature and effect of this parole order.

The purpose of such an order is to permit your possible release from prison, subject to certain conditions, at the expiry of the non-parole period. It follows that you will serve a sentence of four years in prison. A parole order may then be made, but in the Federal domain, as I understand it, that is entirely in the hands of the Commonwealth Attorney-General. See s19AL of the Commonwealth Crimes Act. As I am dealing with a Federal sentence, these considerations of parole will not be vested in the hands of the State Adult Parole Board, but rather you would be under the control of the Federal Offenders Unit of the Commonwealth Attorney-General's Office.

If, and when such an order is made, it would envisage a period of service in the community called the 'parole period' to complete the service of this sentence.

Now, I cannot speculate about whether you will be paroled or whether you will not be paroled. Only time will tell on that score.

If a parole order is made, it would be subject to conditions which you would need to comply with. Such an order can be amended or it can be revoked. It is impossible for me to know in July 2021 what those conditions might be some years from now. They would no doubt be informed by your needs at the time. Should you be paroled, if you were to fail without excuse to fulfil the conditions of your parole, you would be ordered to serve the balance of the sentence up to six years.

Section 17A

I am obliged to state the reasons for proceeding to impose a term of imprisonment. Well, no other sentence was appropriate, given the nature and gravity of these crimes. This was explicitly conceded by your own counsel, and my reasons to this point would I am sure explain why there was no other option other than to imprison you. Of course I also have the mandatory sentencing scheme in play here. It is very clear indeed that prison was the only option here.

Pre-sentence detention

I make a declaration pursuant to s16E of the Crimes Act, as to the time that you have already served in custody. I declare that the period of 287 days has already been served pursuant to this sentence. That amount of pre-sentence detention is to be noted in the records of the court. So of course you get credit for the pre-sentence detention that you have served already.

6AAA

I told you that I reduced your sentence because you have pleaded guilty. I have taken into account your early guilty plea. If you had been convicted of these two offences following a trial, I would have sentenced you to be imprisoned for a period of eight years and I would have fixed a non-parole period of six years and that statement is to be noted in the records of the court.

SORA

You are already required to comply with your obligations under the Sex Offender Registration Act for the remainder of your life courtesy of the sentence imposed by Judge Maidment back in 2016. I decline to make any further order under the Sex Offender Registration Act 2004 (Vic). Though these matters I am dealing with would, in conjunction with your past matters, enliven lifetime registration, you are already exposed to that outcome. I see no utility in serving any further notice under the Act spelling out requirements that already exist upon you. So I make no order under the Sex Offender Registration Act.

Let me just ask the parties whether there is anything arising out of that. Firstly you, Ms Breckweg.

MS BRECKWEG: Yes.

HIS HONOUR: In terms of that commencement date does that achieve what I was intending, cumulation of six months?

MS BRECKWEG: Yes. Yes, the total effective sentence is six years.

HIS HONOUR: All right, so six with a non-parole period of four with the credit, obviously, for the pre-sentence detention to date.

MS BRECKWEG: Yes.

HIS HONOUR: All right, any other matters then from your perspective?

MS BRECKWEG: No, Your Honour.

HIS HONOUR: All right. Mr McCulloch, anything from you at all? Any other matters that I need to deal with?

MR McCULLOCH: There's no other matters, Your Honour.

HIS HONOUR: Now you will - it is all a bit of a shambles doing it online. I think you are all off in different places and I would obviously extend to you the ability to speak to your client using the current Webex. But you are going to need to speak to your client I think privately and discuss with him what has occurred here to today and his rights in relation to it, presumably.

MR McCULLOCH: Yes, could I just indicate for Mr Munn's benefit that both myself and my instructor have a conference booked with him already on Thursday of this week.

HIS HONOUR: Great, all right. Well that is fine then. So we do not need to keep the current link going. So it is booked - - -

MR McCULLOCH: No, thank you, Your Honour.

HIS HONOUR: - - - Thursday of this week. All right, well thanks very much. All right, Mr Munn, you have heard all that so your counsel and your solicitor will be in contact with you. They have got a conference booked for Thursday of this week and they can have a chat to you about what has occurred here today and your rights in relation to it, do you understand?

OFFENDER: Yep, that's fine.

HIS HONOUR: All right, great. Well that completes the matter then so I think we are in court tomorrow. What time is tomorrow, Ms Todisco? 10.30, is it?

ASSOCIATE: No, 11.15 tomorrow for that pre-trial.

HIS HONOUR: All right, I have a - look, I will stay online with my staff but the court can be adjourned then till 11.15 then all the parties can exit the hearing please, thank you.

MS BRECKWEG: Thank you, Your Honour.

MR McCULLOCH: As the court pleases.

- - -

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Citations

CDirector of Public Prosecutions v Munn [2021] VCC 1038

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R v Hurt (No 2) [2021] ACTSC 241

Cases Citing This Decision

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R v McCall [2022] NSWDC 78

R v Hurt (No 2) [2021] ACTSC 241

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[2021] VCC 1038

27 July 2021