CDirector of Public Prosecutions v Palanas

[2024] VCC 1881

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02326

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAUL PALANAS

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2024
DATE OF SENTENCE:	22 November 2024
CASE MAY BE CITED AS:	CDPP v Palanas
MEDIUM NEUTRAL CITATION:	[2024] VCC 1881

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea

Catchwords:              Sentencing – procure a child to engage in sexual activity outside Australia – grooming – possess or control child abuse material – offending involving multiple children – aware of ages of victims – no criminal history – remorse – insight into offending – low risk of re-offending – reasonably good prospects of rehabilitation – general deterrence – denunciation – just punishment  

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic); Criminal Code Act 1995 (Cth)

Cases Cited:Boucher v R [2022] VSCA 3; DPP vHaynes [2017] VSCA 79; Rivov R [2012] VSCA 117; Darke v R [2022] NSWCCA 52

Sentence:Total effective sentence 3 years 8 months; non-parole period 1 year 10 months; 5 days reckoned as already served; s 6AAA: 4 years 10 months; non-parole period 2 years 10 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Hogan	CDPP
For Accused	Mr L. McPhie	RA Criminal Lawyers

HIS HONOUR:

1Raul Palanas, you have pleaded guilty to two charges of procuring a child to engage in sexual activity outside Australia, grooming a child outside Australia and possessing child abuse material obtained using a telecommunications service, all occurring variously between 5 February 2022 and 7 March 2022.

Summary of offending

2The agreed basis for your guilty pleas is set out in the prosecution opening dated 5 August 2024.

3In summary, during the months before your offending, you had planned to travel to the Philippines on 24 February 2022 to visit family and attend a funeral, which you did, returning to Melbourne on 6 March 2022.

4Upon your return Australian Border Force staff at Melbourne airport examined your luggage including your phone on which they found child abuse material.

5The next day, 7 March, Australian Federal Police officers executed a search warrant at your home where you provided them with a USB memory stick and three compact discs that contained further child abuse material.

6All of the allegations in this case arise from what was found on these devices. Police had received no complaints about your conduct and relied on no evidence from any other source.

7Charge 1 relates to Facebook Messenger exchanges you had with JS between 26 January 2022 and 3 March 2022 in which she indicated she was 15 years old.

8From 5 February, those messages became sexual. You told her she looked like she was only 12 and asked her how much she would charge for providing pictures and having sex. Your messages were quite explicit about what you would like to do with her, as were her responses.

9While you were in the Philippines, you raised the idea with JS of meeting and discussed arrangements. She agreed to do so for money that she needed for her family. You said you would do so as long as she did not talk. JS provided you her account details, but it is not alleged that you made any payments or had any further contact with JS.

10The prosecutor conceded that it could not be proven that your conduct went any further than messages that procured JS for possible future sexual activity.

11Charge 2 relates to Facebook Messenger exchanges you had with BR between 30 January and 4 March 2022.

12You requested naked pictures from her and she said she had a friend who was also 15 and in need of money too. You received images from her and explicit messages, to which you responded in kind, but no images were recovered from your phone.

13BR provided you with account details for you to send money and you discussed your trip to the Philippines and the possibility of meeting. She said she was inexperienced and so you would have to pay for her Aunty to meet with you as well.

14You exchanged messages with BR about arranging a meeting, including a time and place, and later messages referred to having met. The prosecutor does not allege that you did, however, in any sexual context. Your counsel submitted that I could not be satisfied beyond reasonable doubt that you met BR at all. However, in light of the content of the messages outlined in the prosecution opening, that was agreed, I find that you did meet BR but I do not find beyond reasonable doubt that that was conducted in a sexual context.

15Your messages with BR continued after the meeting, including explicit sexual content, explaining what you would like to do with her sexually, paying her for it, and that she should not tell anyone because she was really young.

16The prosecutor agreed that there was no sufficient basis to suggest you had done anything more than exchange messages with BR procuring her for possible sexual activity, but not that you had done so or had paid her.  

17Charge 3 relates to a Facebook Messenger exchange you had with BR on 27 February 2022 while you were in the Philippines. In those messages you asked BR if she would bring her 13-year-old sister to a future sexual encounter. Your messages included explicit sexual descriptions of what you proposed to do with the sister, including reassurances about not doing some things due to her age, and you discussed a price that you would pay for such an encounter.

18The prosecutor does not allege that you paid anything or ever had any contact with the sister of BR.

19Charge 4 relates to the total child abuse material found on your devices, consisting of 701 images and 29 videos. They were all Category 2 items, that is, they were likely to cause offence to a reasonable adult, but do not include any child involved in a sex act or witnessing one, or that focus on their genitals.

20The items were saved in secure folders that required a code for access, and you provided those codes to police.

21Following your arrest at the airport, police interviewed you. You answered their questions candidly, admitting that you had child abuse material for your personal use, but denying that you had had any sexual contact with any children, including during your trip.

22The prosecutor did not dispute the truth of your answers.

23There are no victim impact statements in this case. However, I will proceed on the basis of the presumption of harm to any child with whom you had such online contact.

24While some might argue your contact consisted only of words or messages, I find that this type of conduct does cause harm to children which is likely to have long-lasting effects and to pervade their relationships with others. I find that it is very likely to undermine their trust in others, the kind of trust that is crucial to their development and taking their place in the world as they grow into adulthood. Such offending is truly abhorrent.   

Procedural history

25Following your arrest, you were released the next day on bail following the search of your home. You had only spent that one day in custody until I remanded you following your plea.

26You made very substantial admissions to authorities as soon as the examination commenced at the airport and further during your police interview. You cooperated with investigators in every way that you should have.

27I regard your guilty plea as being made relatively early in the proceeding, given that you accepted a prosecution offer involving a substantial change to their case.

28I find your plea represents your acceptance of responsibility, your willingness to facilitate the course of justice and it also has utilitarian benefits to the community by avoiding the need for a trial and all the resources that it would require.

29I also find that your plea represents remorse.

Personal circumstances

30You are now 60 years old and you were 58 when you committed these offences.

31You moved to Australia in 1992 when you were 28, to be with your wife to be, who got work here. You have two children together, both now adult professionals. You had been a close family unit until they learned of your offending when police arrived to search your home.

32After significant tension and some estrangement, things have improved as you have demonstrated to them your contrition and engagement in appropriate treatment over the last two years and eight months.

33Your son, who rejected you upon hearing of what you did, provided a written reference (Exhibit 2). He stated that you are truly sorry for what you did. He described you as honest, hardworking and providing for your family tirelessly. He honestly believes you are working hard to make amends.

34You are an intelligent man, having finished high school in the Philippines and completed an engineering degree. Having done so, you worked with your father in his marine engineering business, until you left to join and marry your wife here. You are now an Australian citizen.

35Having settled here, you continued to work hard, regularly in two jobs and at times in leadership roles.

36Healthwise, you have type 2 diabetes, which is managed with medication. You feel some side-effects, which you can tolerate. While you have asthma, for which you are prescribed an inhaler, and bursitis in your right knee, you remain fit for a man of your age.

37You have no criminal history whatsoever and this favours leniency in sentencing because you have reached a mature age without any offending.

38In cases of child sexual abuse, however, good character and other personal matters attract less weight than in other cases, albeit they are not to be ignored. In this case, I have given your personal circumstances and achievements full consideration that the law permits in arriving at the total sentence.

39You have engaged with psychologist Kim Dowse in extensive offence-specific treatment.  She is an experienced psychologist and you did so over a lengthy period (Exhibit 1). As she repeated in her evidence in Court, during 16 sessions until April 2024, you engaged with interest, openness to being challenged and willingness to take new learnings on board. You have restructured your attitudes and changed your previously dysfunctional behaviours. She described you as having achieved excellent results in treatment and to be highly remorseful. I accept this.

40

As to risk, Ms Dowse expressed her view that you are now at low risk of

re-offending. She reported that she had applied the STATIC-2002R assessment tool and took account of all your circumstances. While she readily accepted that, in a treatment setting, she was unable to provide a properly independent risk assessment, she was of the clear view that she did not observe any of the high-risk factors commonly seen in other cases, with which she has considerable experience.

41Ultimately, I accept that you are likely to be at low risk of further offending.

42Too often, offenders come before this Court in denial, minimising their offending, blaming others, and having engaged in repeated offending even after being caught or warned, and without any insight. The work to be done by way of sentence to prevent future risk and harm to children is considerable in such cases.

43I find your case to be different. You have achieved a very substantial degree of rehabilitation over the two years and eight months since your arrest. You have done so voluntarily and openly with your family. I accept that this is very significant, and very much to your credit.

44You report having been suicidal following your arrest, with depressive and anxious symptoms since, but coping well now. You are concerned about the impact of imprisonment on your family for whom you have been the main income-earner to date.

45In hindsight, you explain your offending as arising in the context of your increasing use of the internet for pornography to meet your needs for sexual intimacy. You now recognise that your offending was truly repulsive.

46The prosecutor did not challenge any of the plea material, save for the risk assessment discussed above and I accept the matters raised by Ms Dowse and your son.

Sentencing issues

47The maximum penalty for each of the four charges is 15 years' imprisonment.

48The nature and seriousness of your offending is reflected in the harm it causes to children and the depravity that sexualising them involves. In your case, I note however, the relatively short time over which it occurred, in particular Charge 3 was very brief. You were not said to be a part of any collective or any other type of related criminality.

49However, your age difference with the stated ages of the girls you had contact with was stark, you engaged with more than one child, it included inducements even if money was not paid, and the sexualised content of your messages was deliberate.

50As for Charge 2, the prosecutor submitted that procuring a child as alleged, having met her, knowing she was therefore actually available to you, and having observed her apparent age makes your ongoing procurement more grave, which I accept.

51The number of images and videos you possessed indicate a participation in the illicit market for such material, a market that causes great harm to the children involved. The number and nature of the images and videos you possessed was not at the high end or in the more serious category. It is not suggested that you possessed them for sale or distribution.

52In all the circumstances, I find your moral culpability for your offending to be moderate to high.

53For offending of this nature, general deterrence is the primary sentencing objective. That is, I must sentence you in a way that deters others from doing as you did. Denouncing your offending and exacting just punishment are also important.

54Importantly, the actual protection of children from any repeat of your offending is also highly significant. So, given your progress, I propose to sentence you in a way that minimises disruption to the gains you have made and avoids increasing risk through the prolongation of time in prison beyond what is absolutely necessary.

55Given your character is otherwise good, I attach no significant weight to the need to deter you specifically or to protect the community by way of increased focus on time in custody.

56I have had regard to the importance of reflecting the totality of what you did in the total sentence and to adjust orders for commencement dates for each sentence accordingly.

57I regard your progress in rehabilitation to be substantial and your prospects to be very good, particularly in light of your extensive treatment, family support, work prospects and the lack of any other offending history.

58I accept that your imprisonment will cause hardship to your family, particularly your wife and daughter who remain at home where you have to date been the provider. However, given their age and their own abilities to work I attach only a mild degree of weight to this.

59Your counsel referred me to comparative cases of Boucher [2022] VSCA 3 and Haynes [2017] VSCA 79 where the sentences were of three years or less such that they attracted a recognisance release order.

60The prosecutor referred me to Rivo [2012] VSCA 117 resulting in a sentence of seven years, which it was accepted was not comparable to the facts here; Darke [2022] NSWCCA 52 that attracted a three year sentence with release on a recognisance release order for offending in relation to one child only; and Doig [2023] NSWCCA 76 resulting in a sentence of four years for procuring a child over a period of nine to 10 months and transferring money to a 13 year old girl and two others associated with her. The prosecutor accepted that this was a more serious case than yours.

61I have had regard to these cases as indicative of relevant sentencing practices, but have arrived at a sentence in your case according to the circumstances applicable to you, not bound to follow the results based on different facts.

62The prosecutor submitted that a term of imprisonment involving time served in prison such that a non-parole period must be set is the minimum necessary in your case. Your counsel submitted that a term of less than three years, such that a recognisance release order could be made, would suffice.

63Having considered all of the matters and each of the separate offences and the entirety of the circumstances, I agree with the prosecutor.

64I sentence you as follows.  If you would please stand.

Charge 1, procuring a child outside Australia – 2 years 4 months,

Charge 2, procuring a child outside Australia – 2 years 8 months,

Charge 3, grooming a child outside Australia – 1 year 5 months,

Charge 4, possessing child abuse material – 15 months,

65The sentence on Charge 2 is to commence five months after the commencement of the sentence on Charge 1. The sentence on Charge 3 is to commence one year and one month before the completion of the sentence on Charge 2 and the sentence on Charge 4 is to commence 12 months before the completion of the sentence on Charge 3.

66To put that in another way, the sentence on Charge 1 is such that five months will be served cumulatively on Charge 2.  The sentence on Charge 3 has the effect of four months cumulative.  And the sentence on Charge 4 has the effect of three months cumulative.

67The total sentence is, therefore, 3 years 8 months.

68I fix a non-parole period of 1 year 10 months.

69I declare that you have served five days pre-sentence detention and direct that this be reckoned as a period already served under this sentence.

70In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 4 years 10 months and fixed a non-parole period of 2 years 10 months.

71Having given this indication, I note that it is highly artificial. It is hard, if not impossible, in a case like this to disentangle the guilty plea from your cooperation with police, admissions, voluntary treatment and remorse, among other matters. Yet, s 6AAA only addresses the guilty plea.

Ancillary orders

72Under the Victorian Sex Offender Registration Act, Charges 1 and 2 are class 1 offences and Charges 3 and 4 are class 2 offences. So, upon being sentenced you become a registrable offender and in accordance with s 34 of the Act, you must comply with reporting obligations for the rest of your life.

73I note, however, that you may apply to the Supreme Court after complying with your reporting for 15 years for a suspension of your obligations. You should get legal advice about that if you wish to make such an application down the track.

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