CDirector of Public Prosecutions v Schroen

[2024] VCC 126

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01599

DIRECTOR OF PUBLIC PROSECUTIONS (Cth)

v

DEAN SCHROEN

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 February 2024
DATE OF SENTENCE:	20 February 2024
CASE MAY BE CITED AS:	CDPP v Schroen
MEDIUM NEUTRAL CITATION:	[2022] VCC 126

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea.

Catchwords:              Sentencing – possessing child abuse material – absence of aggravating features - relatively low level – very early plea of guilty – poor mental and physical health - reasonable prospects of rehabilitation - exceptional circumstances – released forthwith on RRO with strict conditions.

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

Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169.

Sentence:Total effective sentence 5 months imprisonment; immediate release on recognisance release order with special conditions; SORA registration for eight years; 6AAA: 10 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr M. Challen	CDPP
For the Accused	Ms L. Dubroja	Anselma Criminal Law Specialists

HIS HONOUR:

1Dean Schroen, you have pleaded guilty to possessing child abuse material obtained on the internet, that is, using a carriage service, on 7 October 2022, contrary to s474.22A of the Commonwealth Criminal Code.

Summary of offending

2The basis for your guilty plea is set out in the summary of prosecution opening dated 13 December 2023.

3In summary, on 7 October 2022, police came to your house because of reports they had obtained about online activity connected to your devices.  They executed a search warrant at your house and during the search they located and seized a mobile phone, a notebook and some loose pages containing passwords and account names, and a computer tower.  On legal advice you did not participate in a police interview with them.

4Police examined your devices and found a total of 55 files depicting child abuse material across the two electronic devices.  The mobile phone contained 22 'Category 2' images.  The digital computer tower contained nine 'Category 1' videos, four 'Category 2' images and 20 'Category 2' videos.  The 'Category 1' videos depicted children under 13 masturbating and engaging in oral sex.  The 'Category 2' videos depicted children under 18 engaging in oral sex and self-penetration.  The 'Category 2' images depicted a child under 13 being penetrated, as well as children under 18 engaging in sexual penetration.

Procedural history

5You were arrested on 7 October 2022 and granted bail on that date. You have not served any pre-sentence detention.  

6At a mention in the Magistrates' Court on 8 September last year, you indicated you would plead guilty and you were committed to this court. 

7Your plea shows that you accept responsibility for what you did and that you have helped to facilitate the course of justice.  Your settling of the case has a real benefit, both to those involved in the case, but also to the wider community, all of whom have been relieved of the burden of conducting a trial.

8This benefit is all the more important because at the time of your plea the court was able to reallocate resources to the backlog of trials in other cases and I have reduced your sentence accordingly.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [35]-[39].

Personal circumstances

9You were 51 at the time that police came to your house.  You are now a couple of years older.  You grew up with your parents, two brothers and one sister, and until your parents separated in 1989 it was a very difficult home.  Your father was violent and you suffered sexual and physical violence from other members of your close family.  After the separation, you and your siblings stayed with your mother and you have had very little contact with your father since then. Your relationships with your siblings are strained.

10You left school in about year 9 and then engaged in mainly labouring work.

11You remained close to your mother and for the last fourteen years of her life, since 2007, you were her primary carer.  Sadly, she passed in 2021 and that had a significant impact on your life as she was your primary emotional support and social contact.  Since 2021, you have been in receipt of Centrelink benefits.  You have had severe financial problems and struggled with homelessness at various times.  

12Prior to 2007 you were in a relationship with your now ex-wife for about  nine years and you have two daughters to that relationship with whom you have little contact.

13You have a criminal history of offending, but none of it was sexual offending. Since 2003, you have received community-based orders, suspended sentences and served terms of imprisonment for short periods.  This offending involved driving, some assaults and cannabis related charges.  You have breached some of those orders, but not all of them.

14During your plea Ms Dubroja on your behalf relied on:

Exhibit 1 – a medical report by Dr Neda Beikaee dated 5 January 2024;

Exhibit 2 – a psychological report by Rebecca Fakhri dated 13 November 2023;

Exhibit 3 – a neuropsychological report by Dr Mathew Staios dated

11 February 2024.

15Dr Beikaee confirmed your treatment for epilepsy since you were a child and for depression since you were about 15.  You are currently on medication for epilepsy, depression, hypertension, hypothyroidism, and diabetes.  Your heart condition needs to be reviewed by a cardiologist.

16Ms Fakhri said you developed an adjustment disorder following your mother’s passing in 2021 and that this has developed into a major depressive condition.  Dr Staios said you do not have any neurological injury or intellectual disorder, but confirmed your limited ability to plan, solve problems, moderate your emotions, and think through the consequences of your actions.  He said you function in the borderline range.

17Ms Fakhri stated that you suffer from generalised anxiety, social anxiety, and with complex post-traumatic stress disorder.  She said your depression and anxiety symptoms stemmed from your childhood experiences, instability and trauma.

18I accept that your criminal history is likely sourced in that experience and likely to have been a result of your using drugs to avoid your trauma which has also had a negative impact on your ability to be rational and make good decisions.

19Ms Fakhri observed that although depression itself did not directly cause you to offend in this case, it did reduce your ability to exercise good judgment and think rationally at the time.  Additionally, your underlying post-traumatic stress causes you to have poor control over your feelings and your response when you are under stress.

20During your interview with Ms Fakhri and Dr Staios, you denied downloading or seeking out the child abuse material.  Whilst denying it then, you were also not able to provide a reasonable explanation as to how it ended up on your devices.  Ms Fakhri observed that your social anxiety is related to your fear of judgment, and being ridiculed and abused, and I find and accept that this would explain your inability at that  time to honestly accept what you did.  Rather, I find that you said that to avoid further isolation and exclusion.

21Your counsel on your behalf in open court today admitted that you accept responsibility for having those files and that you are ashamed.  I accept that.

22

Ms Fakhri observed that imprisonment would likely weigh more heavily on you than a person without your mental and physical conditions and

Dr Staios said that imprisonment was likely to be particularly difficult and lead to a further decline in your mental health.  

23Ms Fakhri used risk assessment tools that are recognised in psychology and noted that you are only a moderate risk of further offending in this way, that is, without any intervention.  Dr Staios agreed and suggested that your risk would reduce even further with appropriate treatment. Ms Fakhri recommended a moderate to high intensity community-based sex offender program, as well as long-term psychiatric and psychological treatment.  She also recommended your participation in community groups and recreational activities focusing on building your social connections. Dr Staios recommends your treatment providers use a behavioural-based approach to therapy and treatment. 

24I am satisfied in all the circumstances, as Dr Staios opined, that sending you to prison at this stage is likely to be particularly difficult.  Your depression, anxiety and PTSD causes your mood to shift significantly and that in the prison environment this would make this worse.  I accept his opinion that your naivety and compromised reasoning would open you to being abused by others and your poor ability to cope and low impulse control may place you at further risk.

Sentencing issues

25As to sentencing you, the maximum penalty for having these kinds of files on your computer is imprisonment for 15 years.  Whilst no mandatory sentence provisions apply in this case, I may only make an order permitting you to stay out of custody at this stage if there are exceptional circumstances. 

26In weighing up those circumstances, I must also have regard to the objective of rehabilitating you when imposing any conditions or the length of any sentence so as to allow you enough time to engage in them.[2]

[2] s 16A(2AAA)

27The nature of your offending in this case is serious.  It relates to the abuse of children sexually.  On the facts as alleged, however, I find that the scale of your offending is relatively low level.  It related to possession on one day, and the number of files found was very low.  It was not suggested that you had paid for them or stored them in any organised way which might demonstrate a highly planned approach and it was not charged as a course of conduct over a longer period of time.

28Whilst I have some doubts about your insight into your offending and why it happened, particularly given your denial of your offending within recent months, I do, however, accept that you have demonstrated contrition.  You are sorry for what you have done and that you appreciate its wrongfulness so much as you are able.

29You pleaded guilty at a very early stage in the case and well before any contested hearing and it has never been listed for trial, so this early plea benefits the community by avoiding the cost to those involved and the inconvenience and cost to the wider community.

30I do accept and find that your personal circumstances in 2022 were parlous – they were very poor.  You have long been depressed and anxious and isolated and living with post-traumatic stress. The psychological opinion about your mental state was unchallenged, and that included the opinion that your offending was likely precipitated, caused to a degree, by your chronic loneliness, isolation, depression, poor judgment and lowered ability to consider the consequences.  You now know what the consequences are.  I find that your situation at the time reduces what we call your moral culpability to a moderate degree.  On the material before me I find that you do not have a deeply entrenched antisocial character.

31Physically, you are also not well.  You suffer with failing kidneys, arthritis, asthma, high blood pressure, type 2 diabetes, shoulder pain and a stomach hernia.  You also have neck and back trauma from previous motor vehicle incidents.

32I do accept that the toll of this proceeding has been significant for you.  The stigma attached to this kind of offending, that is being known to have sexual child abuse material, is considerable for you.  I accept that you do not engage with the community very much and that you feel shame and isolation.  You have lived with the prospect of being named and shamed publicly now for 18 months, and all of this has had a significant deterrent effect on you, I accept.  The sentence I am about to impose is intended to ensure that it has deterred you from continuing down this path but it will also punish you. 

33I also intend to impose a sentence that deters other people from doing what you have done and to show them that, even for low level offending of this type, there are significant penalties that will flow and they will involve substantial interruptions to their lives.

34As regards your future, I think you have reasonable prospects for rehabilitation.  The expert assessment of your risk of further offending of this kind is not elevated above other offenders.  You do not have a history of types of offending such as this.  Whilst you have a fairly lengthy history of other types of offending, that offending has not been regular or consistent.  I am not blind to the compelling nature of online pornography. It is compelling for many people in the community, and I accept probably also for you.  However, you must make a distinction between acceptable kind of online material and unacceptable material that involves children.  I am satisfied on all the material that you are capable of getting that message and avoiding further offending.

35I am also particularly conscious in a case such as yours of the likelihood that in custody you or somebody like you would be housed and probably treated in group therapy with offenders who have engaged in contact offending and other more serious offending than of the nature that you have.  I am concerned that your punishment in that way would have countertherapeutic and therefore counterproductive effects, and that is in the context of the imperative that I impose a sentence that in facts promotes the protection of children, not makes the risk higher.

36Having said this, I am also thinking of what the psychologist said about your insight into your problems you face in this regard and I have not embarrassed you by reading out the details of the images or the kinds of children involved, or of reading much of the assessment reports that speak about highly private matters for you.  But you have to face up to what you did and why.  That will be a challenge for you, but I am going to make sure that there are workers available to you to help you with that, and you must speak with them.

37As you probably heard during the hearing, if you commit this offence, even for only a few images, again, you will be before this court facing four years in gaol, and that is a mandatory four years.  It means a judge like me does not have a great deal of choice about it.  Similar mandatory sentences apply for other kinds of offending online and certainly offending that involves actual children live.

38The prosecutor rightly submitted that only a term of imprisonment would be appropriate in this case.  This is because of the high importance of protecting children from those people who create the material that you had and also to prevent people like you from keeping that market going.  Your counsel submitted that whilst that is agreed, you should be released immediately on strict conditions, and after hearing both parties and reading all the material, I agree.

39I accept that a term of imprisonment would satisfy the need to deter other people and to denounce what you did, but I am not satisfied that you should go into custody at this stage, and if you do all of the things that I order you to, you can stay out of prison.  If you do not abide by the conditions I set, then you will likely spend in prison, and as you heard from the learned prosecutor, I will not have a choice about the five months that I impose or, if you offend again in this way, the four years.

40I sentence you as follows:

(a)   

On the charge of possessing child abuse material obtained online,

five months' imprisonment.

(b)   I make a recognisance release order.  That means an order providing for your immediate release if you sign a promise, and the terms of that order are that if you re-offend or breach the order you must pay $1000. During the period of the order, which is two years, you have to stay out of trouble, and by that I mean no further criminal offending.  If you do engage in any further offending of any kind, that will breach this order.  That will mean you have not been of good behavior and you will be brought back to court.

(c)   Other conditions are that for the two years you have to be under supervision of Community Corrections and go to their offices when you are told to and receive their visits to you when they say that they will do so.  That is called supervision.

(d)   You will also engage in any programs that they refer you to.  That includes sex offender treatment programs, because like it or not this offence is a sex offence, and there are other requirements that are in the order that I will read out to you that if you do not do, you will breach the order and you will return here, and I will have very little choice but to impose actual prison time on you.

41If you had not pleaded guilty to this charge and been found guilty after trial, I would have imposed not five months but 10 months.

Ancillary orders

42Because of the nature of your offence under the Victorian Sex Offenders Registration Act it is considered a class 2 offence and the Act provides that you are automatically on the sex offender register and you automatically must report to police.  Within the next few days you must contact them and annually you must go and visit them, and all throughout eight years you must provide them information:  where you live, where you work, whether you have contact with children, whether you have a car or a registration number, your email addresses, your phone numbers, and you must contact them any time any of those things change.  You will get all this in writing and Ms Dubroja will help you understand it.

43If you breach that order during that eight years by not telling police things or trying to keep things quiet, that will land you back in court and you can be imprisoned for that; it is serious.

44I will provide you some papers that you have to look through and sign to say that you have received them and you will be able to take them away or a copy of them so that you can go through them with your lawyers. 

45But you must remember the order that for the next two years you must do the things on the order that I will soon print for you and have you sign.  These are the conditions, and again Ms Dubroja will go through these with you writing.

46You have to go to meetings throughout the next two years at Corrections.  That is called supervision.  That might be every week or every fortnight, but whenever they say you have got a meeting you have got to go.  If they direct you to go somewhere or do something, you must obey them.

47You are not allowed to go interstate or leave Victoria at all, go interstate or go overseas unless you have got written permission from them.  If they say that you have got to go to a particular meeting or a group or a counselling session, including about sex offences, you must go.

48Between now and Thursday you have to go to Wonthaggi and talk to the Corrections officers there to make your first appointment, so within two days you have to attend.

49As I said, you have to visit them when they say so and you have got to let them visit you at home if they want to.  You have to tell them if you change your address or, if you work, whether you change work. 

50I am making a particular direction that you must participate in a sex offender program that is tailored to your needs and to this offence.  If you do not do any of those things within the next two years you can be brought here and I will not have much choice as I said but to imprison you. 

51I am going to give you this order now so that you can sign it and
Ms Dubroja can help you there at the table and there is also the copy of the obligations you have under sex offender registration. 

52You do not have to read through that right now, you just have to sign to say that you have been given them.  Thanks, Ms Dubroja.  Mr Schroen, is that your signature?

53OFFENDER:  Yes.

54HIS HONOUR:  That is about receiving your orders for the sex offender registration reporting.  That starts today and it goes for eight years.  And that is your signature on the recognisance, the promise to obey all those conditions? 

55OFFENDER:  Yes.

56HIS HONOUR:  You are not the first person to have made some mistakes about what you do on the internet.  The adult and grown-up thing to do is to rise above it, to talk honestly and openly with the people that you are going to be chatting with, to accept what it meant for you, and to show them that it is not going to happen again.

57OFFENDER:  Thank you.

58HIS HONOUR:  Do not just sweep it under the carpet.  Do not just stay at home.  Step out.  These people have done all this before, they are not going to treat you poorly because of it.  They are going to help you make sure it does not happen again, all right?  Thank you, everyone.

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