CDirector of Public Prosecutions v Stockton
[2020] VCC 1755
•5 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00574
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| AARON STOCKTON |
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JUDGE: | Her Honour Judge Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2020, 28 October 2020, 5 November 2020 | |
DATE OF SENTENCE: | 5 November 2020 | |
CASE MAY BE CITED AS: | CDPP v Stockton | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1755 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – using a carriage service to solicit child pornography material – possession of child abuse material – cooperation with police – early guilty plea – gravity of offending – mental health issues – impact of COVID-19 on burden of imprisonment – general deterrence
Legislation Cited: Criminal Code (Cth) ss474.19, 474.22A; Crimes Act 1914 (Cth) s16A, s17A, s20(1)(b); Sentencing Act 1991 (Vic) s6AAA; Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Phintong v R [2011] WASCA 192; Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; R v De Leeuw [2015] NSWCCA 183; Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Garside [2016] VSCA 74
Sentence: Total effective sentence 12 months’ imprisonment, to be released after serving 5 months’ imprisonment upon entering into a recognisance in the sum of $500 to be of good behaviour for a period of 18 months, with conditions attached in respect of supervision and treatment.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms Natasa Stevic | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr Damien Hannan | Thexton Lawyers |
HER HONOUR:
Introduction
1 Aaron Stockton, you have pleaded guilty to an indictment containing four charges, being three charges of using a carriage service to solicit child pornography material contrary to s474.19(1) of the Criminal Code (Cth) (charges 1, 2 and 3) and 1 charge of possessing child abuse material contrary to s474.22A(1) of the Criminal Code (Cth) (charge 4). The maximum penalty for each charge is 15 years’ imprisonment.
2 Each of the offences arises as a result of material located at your home when police executed a search warrant on 29 November 2019. Charges 1, 2 and 3 relate to conduct in 2011 when you were 28 years of age, whilst charge 4 relates to material in your possession as at 29 November 2019 when you were 36 years of age. I note at the outset that you do not have any prior criminal history, nor any subsequent or pending matters.
Circumstances of the Offending
3 The circumstances of the offending are set out in full in the ‘Prosecution Opening Upon Plea’ tendered as Exhibit A on the plea hearing. I do not intend to refer to every matter set out in that opening in these sentencing reasons, however a summary of the offending is as follows.
4 In November 2019, police received information that you had used the ‘Shareaza’ Peer-to-Peer sharing network to access or download child pornography. As a result of this information, police obtained and executed a search warrant at your home on 29 November 2019. During the search, police located (with your assistance) and seized a Samsung mobile phone and a Toshiba laptop computer which were forensically analysed at a later date.
5 From the analysis of those devices it was identified that you were in possession of child pornography as at 29 November 2019. There were 1214 files which were identified and classified as child abuse material (charge 4). Of the images and videos classified – 917 were category 1 (no sexual activity); 80 were category 2 (solo sexual activity / sexual activity between children); 34 were category 3 (child and adult – penetrative activity); and 18 were category 5 (sadism / bestiality / child abuse). A description of a representative sample of the files was attached to the Prosecution Opening as Annexure B. I have had regard to that annexure.
6 Analysis of the devices also revealed that you had used Skype to solicit child pornography from three separate female children in 2011. On each of the occasions that you solicited child pornography via Skype you purported to be a teenage bi-sexual female. Your Skype account contained a photograph of a blonde-haired female who appeared to be approximately 15 years of age, and your full name appeared as “amy t”.
7 On 27 February 2011 you commenced a conversation with a 14 year old girl, who I will refer to as MH.[1] On this date you asked MH to turn on her web camera and requested that she take her top off and lift her bra. MH did not tell you her age on this date.
[1] I have referred to each of the young people the subject of charges 1, 2 and 3 by their initials to ensure that they are not identifiable from these reasons for sentence.
8 On 1 April 2011, you and MH exchanged further messages. MH confirmed on this occasion that she was 14 years of age. You then requested that MH kneel on her bed and show you her belly and her bra (charge 1). MH refused to do so.
9 On 10 July 2011 you sent a further series of messages to MH in which you asked her to talk to you, attempted to share an image file with her, asked her why she would not speak to you, and asked if she wanted to see you. MH eventually responded ‘leave me alone’, but you continued to persist with requests that MH speak to you. During July, August and October 2011, January, March, April and May of 2012, you sent a series of messages to MH asking if the two of you could chat. You eventually ceased messaging MH on 29 May 2012.
10 On 11 July 2011, you commenced a conversation with a 12 year old girl, who I will refer to as AM. During the initial conversation with AM, you asked AM to turn on her web camera and show her belly. When AM said she would not do so, there was a further exchange in which you told AM that you were a 14 year old girl. It was at this point that AM confirmed that she was 12 years of age.
11 After AM had identified that she was 12 years of age, you continued to message her and asked her to lift her top, take her top off, take her pants off, and put her hands down her pants. You told her she would like it. You also said you would teach her how to finger herself. You asked AM to back away from the camera so that you could see more of her. You asked her to take off her bra and told her you like ‘boobies’. You told AM not to be nervous and asked her to feel her boobies and to make noises. The entirety of this conduct constitutes charge 2.
12 When AM told you she could not continue, the following further messages were exchanged:
AM:no! This is uncomfortable. Im 12 and I shouldn’t be doing this. You are a bitch! This is called abuse! I am not like this!
You:im soz. I relli like u
AM:Just stop. I am 12 and innocent
You:I no. can I just see u plz
13 Between 12 July and 14 December 2012, you did not communicate with AM. On 15 December 2012, you sent a message to AM which said “hi”. AM did not respond and your communication with AM ceased on that day.
14 On 1 September 2011, you requested to be friends on Skype with a 15 year old girl, who I will refer to as AF. AF accepted the request and the two of you had a brief non-sexual conversation.
15 On 16 October 2011 you contacted AF again and asked how old she was. AF confirmed that she was 15 years old. You then exchanged the following messages:
You: cam lowa plz. Move ur top down plz. U got huge boobies
AF:I know
You:do u like them?
AF:u guess
You:yes u do. coz I do
AF:Thanks
You:wish I could play with them lol. can we be gfs?
You told AF that she was ‘sxc’ and asked that she kneel on her bed. You asked AF to show you her belly and take off her top. When she told you that her Dad was around, you suggested that she go to the bathroom and lock the door and not tell her Dad that she was taking the laptop in the bathroom with her. This conduct constitutes charge 3.
16 Communication between you and AF ceased on 16 October 2011.
Interview
17
You participated in a record of interview at the Gisborne Police Station on
29 November 2019 and made full and frank admissions.
18 You admitted that you had used both your mobile phone and laptop to access and download child abuse material. You confirmed that the child abuse material that you viewed contained children aged from between 3 years of age and 15 or 16 years of age. You stated that you viewed the child abuse material during your low moments when you were depressed, but after viewing it you would feel wrong and dirty for doing so. You said that when you viewed the material you would initially feel sexual gratification but would then feel instant regret – which would kick in before ejaculation.
19 You further admitted that you would have young girls aged as young as 13 take their clothes off after you had told them that you were a 16 year old bi-sexual girl.
Guilty Plea/ Remorse
20 You entered a plea of guilty in this matter at the very earliest opportunity – at the first committal mention on 17 April 2020.
21 Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the Court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. As already noted, this was a plea entered at the very earliest opportunity. It has significant utilitarian value in avoiding the cost and delay of trial – especially with the current unprecedented disruptions to the smooth running of the criminal justice system caused by COVID-19. Furthermore, I am satisfied that your plea, especially considered in light of your cooperation with police, and your extensive admissions in your record of interview, is both indicative of remorse and a willingness to facilitate the course of justice.
22 In the circumstances I have given you a substantial discount for your plea of guilty.
Gravity of Offending
23 Mr Hannan submitted on your behalf that charges 1, 2 and 3 are at the lower end of seriousness for this kind of offending. He argued that charge 1 in particular, involving only a request for the victim to lift her top and show her bra, was at the lowest end of solicitation. Mr Hannan further submitted that your requests of the children were not accompanied by any inducements, promises, threats or demands. Nor were they accompanied by an invitation to meet in person. He submitted that whilst it is the request itself that forms the basis of soliciting, that your requests were wholly unsuccessful and did not result in the victims exposing themselves. He also submitted that the offending the subject of charges 1-3 did not persist beyond 16 October 2011 – some nine years ago – and that there had been no similar offending since that time.
24 Ms Stevic, by contrast, submitted that charges 1, 2 and 3 are serious offences having been committed by you in circumstances where you purported to be a 15 year old female named Amy, and communicated with three children who had confirmed their ages to be 12, 14 and 15. Your communication with all three children was sexually explicit, and involved you requesting they perform sexualised acts. Ms Stevic disputed that the children had not complied with your requests, submitting that it would be open for me to find on the basis of the conversations that each of the children had complied with your requests, however she did concede that I would need to be satisfied of that fact beyond reasonable doubt before I could use it as an aggravating feature of your offending. Finally Ms Stevic made reference to the sentencing principles in respect of these kinds of offences noting that children can suffer equally as much harm from cybersex offences as from in-person encounters, and that the absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.
25 I accept that, whilst serious, charge 1 is at the lower end of a solicitation charge. However, the circumstances of charges 2 and 3 involve persistent requests of the victims of a sexually explicit nature, in circumstances where you know that they are young girls and where you are holding yourself out to also be a young girl, even when challenged by them as to your age and sex. Furthermore, charge 2 involves you making multiple requests of the victim to undertake multiple different types of acts, and charge 3 involves you encouraging the child to go into the bathroom and lock the door so her father does not know what she is doing. Ultimately, whilst I have very strong suspicions that the victims in charge 2 and 3 did expose themselves to you in some way, I cannot be satisfied of that fact beyond reasonable doubt on the basis of the conversations and accordingly I have not taken that into account as an aggravating feature of the offending. However, I do reject the proposition that this offending was restricted to 2011 given your admission in your record of interview that the last time you got an underage girl to lift her top had been the night before you were interviewed. Whilst again I have not taken this into account as an aggravating feature, it does mean that I am not in a position to deal with this offending on the basis that it was a one-off period of offending which ended nine years ago.
26 Turning to charge 4 – possession of child abuse material – the legislature and the courts recognise the seriousness of this kind of offending. As was outlined by Justice Mazza in Phinthong v R:
[w]hether an offender is sentenced under state or federal law, the sentencing principles, where an offender is found in possession of child pornography, are the same. Ordinarily, a sentence of immediate imprisonment would be imposed. This is because such offences are not victimless crimes. Those who are prepared to possess or import it help fuel the demand for it, and in that way encourage the corruption and exploitation of children. In order to protect children, deterrence is the paramount sentencing consideration.[2]
[2] [2011] WASCA 192, [24].
27 In assessing the objective seriousness of the offending in any particular case, the following factors are of relevance:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(vi) the length of time for which the pornographic material was possessed.[3]
[3] See, eg, Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477, [21]; R v De Leeuw [2015] NSWCCA 183, [72]; Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Garside [2016] VSCA 74, [25].
28 On your behalf, Mr Hannan conceded that child abuse material at any level represents abhorrent and serious offending. However he argued that in this case more than 75% of the material was classified as category 1 material, and only 1.5% of the material was classified as category 5. He further submitted that over 80% of the files were images as opposed to videos.
29 Ms Stevic submitted on behalf of the prosecution that your possession of child abuse material in this case constitutes a serious example of this offence by reason of the significant quantity of images possessed (being 1214 files), and the extreme nature of some of the material possessed – in particular the category 5 material. However, Ms Stevic also emphasised that even though a significant proportion of the material which you possessed was category 1 material, that material in itself is capable of possessing significant gravity, and involves the corruption and exploitation of children. Ms Stevic did however concede that there is no evidence to suggest that you possessed the files for the purpose of sale or further distribution, or that you stood to profit from the offending.
30 I agree with Ms Stevic’s submission that this offending was of a serious nature. There were a significant number of images and movies, there were children of all ages depicted in the material including children as young as three years of age, and the category 5 material described in the schedule to the Opening was particularly extreme and disturbing. Whilst the percentage of category 5 files may have been minimal compared with the percentage of category 1 files, this does not reduce the seriousness of those category 5 files which were possessed. Further, the category 1 images included still images at the highest end of category 1 images – that is involving full exposure of the breast and genital areas, and the category 2, 3 and 4 material also involved children aged between 3 and 18 years engaging in disturbing acts.
31 I am not in a position to be able to identify how long you had had the files in your possession, but as fairly conceded by Mr Hannan, the amount of material in your possession would certainly not have been collected overnight, despite the offence being charged as a single date charge. There is no evidence that you possessed the images for sale, profited from them or passed them on. However, even in the absence of those factors, this, in my view, is still a serious example of the offence of possession of child abuse material.
Personal Circumstances
32
You are now 37 years of age. You were born in Victoria and you are the eldest of five siblings. You have a supportive family and had good relationships with your parents and siblings as you were growing up. I am told that your family is aware of your offending, and whilst you had distanced yourself from them during the period of the offending due to your mental health, you have now reconnected with them, and they are supportive of you. Indeed your father attended physically at court in support of you on
28 October 2020 for further plea, and again today via Webex for further plea and sentence.
33 In terms of education, you completed Year 12 at school and then moved to Warrnambool to commence a Bachelor of Arts. You completed two years of that degree before withdrawing. In 2002, whilst still enrolled at University, you joined the Warrnambool Fire Brigade as a volunteer and also worked as a swimming teacher on a casual basis to support yourself through University.
34 You subsequently worked for two years as a call taker for the Fire Incident Reporting Department of the Country Fire Authority (CFA), before commencing work in computer simulation training for the CFA in 2006. You continued to work in that role with the CFA for approximately 14 years. Over that time you gained considerable expertise in the area, visiting a number of European agencies to view their systems and presenting at several conferences.
35 It is apparent from the two psychological reports which were tendered on the first day of this plea that you found your work at the CFA to be stressful. You also suffered a number of traumatic incidents during your time with the CFA. In particular you were involved in the emergency response to the Black Saturday fires in 2009, assisting with overflow calls from 000. You found this experience extremely distressing both at the time and in the aftermath as you were faced with a situation where you were taking calls but had no capacity to dispatch support to callers due to all resources being utilized.
36 You were suspended from the CFA with pay in November 2019 in light of these charges, and ultimately resigned from your position in July 2020. Since being suspended you have volunteered with Blaze Aid in supporting fire-affected communities to help rebuild infrastructure in Corryong. You have also volunteered through a 4WD club to help build and fence wildlife shelters in Buxton. More recently, in September of this year, you have started a new job as a fencing contractor and I am told that you are enjoying that work.
Mental Health Issues
37 As already noted, I received two psychological reports on the initial plea – one from your treating psychologist Dr Biliana Ivanova, dated 7 October 2020, and the other from forensic psychologist Ms Carla Ferrari, dated 31 August 2020. I note that neither psychologist had seen the report of the other at the time of completing their reports.
38 Dr Ivanova reported that you were referred to her for treatment following your hospitalisation after three suicide attempts. Those suicide attempts had occurred within days of you being charged by police with these offences. You have been attending regular sessions with Dr Ivanova since 20 January 2020 and had seen her 11 times as at the time of her writing her report.
39 Over your sessions with Dr Ivanova you have described to her a long history (over 15 years) of exposure to traumatic events in your work with the CFA, and have described ongoing symptoms from those events. You have also described difficulties in relationships especially with your most recent former partner of three years. Based on clinical interview and various psychometric and screening tests which Dr Ivanova has conducted with you, she is of the opinion that:
(i) your presentation indicates the presence of persistent depressive disorder and a superimposed recurrent major depressive disorder, and that you also meet criteria for post-traumatic stress disorder;
(ii) you have long-standing interpersonal difficulties most likely due to mild deficits in social-emotional functioning, with possible mild traits on the autism spectrum;
(iii) you have some deficits in assertiveness skills which further compromise your interpersonal functioning and increase the risk for depression and for seeking impersonal forms of gratification; and
(iv) overall this forms a complex clinical picture of untreated psychological syndromes and skills deficits, which combined with poor coping skills most likely contributed to the offending behaviour as a maladaptive attempt at self-medication.
40 Dr Ivanova notes that during your treatment with her you have demonstrated high motivation for change. However she also notes that to date you have avoided talking directly about the offences and have tended to use elusive language, for example referring to the offences as “the court stuff”. You have stated to Dr Ivanova that your elusiveness is due to shame but also difficulty fully understanding your offending behaviour. In Dr Ivanova’s opinion your prognosis is optimistic, conditional on ongoing psychological therapy and continued engagement with purposeful work and social networks.
41 In her report, Ms Ferrari similarly expresses the opinion that you are displaying symptoms of persistent depressive disorder, recurrent major depressive disorder and post-traumatic stress disorder all of which cause you clinically significant distress and impairment in social, occupational and other areas of functioning.
42 Ms Ferrari identifies that your offending commenced in the context of a severe depression in which you experienced suicidality consequent upon having suffered untreated trauma and depressive symptoms for a number of years, heightened stress at work, and the breakdown of your first serious romantic relationship. Ms Ferrari is of the view that your offending commenced in response to your low coping ability, extremely low mood, and loneliness, as well as to fill the void stemming from the loss of your relationship. She expresses the opinion that your presentation at the time the offending commenced, is consistent with studies which have found that internet-only offenders experience higher levels of emotional loneliness, social isolation, intimacy deficits, problems with interpersonal functioning and low levels of emotional warmth compared to contact or mixed offenders.
43 Insofar as risk assessment is concerned, Ms Ferrari assessed you as a moderate risk of future sexual re-offending on the basis of your history of relational problems, major mental disorders being PTSD and major depressive disorder, and the heightened and protracted stressors inherent in your former employment, albeit she notes that you have since engaged in treatment for your mental health (both psychological interventions and psychotropic medication) and have resigned from the CFA which will substantially mitigate these risk factors. Ms Ferrari also noted that your relationship difficulties can be addressed in psychotherapy to improve your assertiveness and identify other deficits that may be contributing to your problems maintaining relationships. Ms Ferrari concluded that through ongoing treatment and learning skills to more effectively manage your depression, stress and trauma symptoms when they are triggered, your future risk of sexual re-offending would be further reduced.
44 Whilst I have some concerns about the fact that Ms Ferrari was of the view, when forming her opinions, that you ceased further attempts to solicit online contact following the three offences in 2011 – which is clearly at odds with your admissions in your record of interview, it would appear that this finding did not lead to a reduction in the assessment of your overall risk, as this was still rated as a moderate risk factor.
45 Further, whilst it would seem that you are still in need of ongoing therapeutic treatment for your mental health issues, as well as requiring offence-specific treatment, you have at least progressed to the point where you are now able to reflect on your mental state at the time of offending and identify triggers and risk factors which have increased your propensity to engage in this conduct. Ms Ferrari noted that you are ashamed, remorseful and disgusted in your actions, and are now able to identify the children as victims and empathize with them.
46 I note that Ms Ferrari is of the view that your mental health issues will not only make any time you spend in custody more onerous open you than someone without your issues, but that you are also at risk of exacerbation of your mental health issues and further emotional deterioration in custody due to your low coping resources, and the inability for you to access specific treatment for PTSD whilst in custody.
47
In this regard I also received an addendum report from Dr Ivanova dated
2 November 2020. Dr Ivanova noted that subsequent upon media reporting of the plea in this matter – which incorrectly referred to you as a paedophile and prompted backlash against you (and to some extent your family) in social media and the community – your mental health has deteriorated somewhat. She also noted that it is likely that the combination of the impact of the publicity and the burden of a term of imprisonment will further exacerbate your mental health issues. Dr Ivanova expressed concerns that your risk of self-harm and suicidal behaviour is now elevated and recommended that your mental health be directly and regularly monitored throughout any term of imprisonment, and upon release into the community.
48 Your mental health issues, and the steps you have taken to date to address them are relevant to sentencing in a number of ways. Firstly they have a bearing on your prospects of rehabilitation, and the kind of treatment which might be required to best facilitate both your rehabilitation and ongoing community protection. It is clear that you are motivated to undergo treatment and achieve change and have commenced on early steps towards rehabilitation. However it is also clear that you still need further treatment both for your mental health as well as specifically in relation to sexual offending to ensure long-term rehabilitation and community protection.
49 Secondly, given your current mental health status, it is clear that a term of imprisonment will weigh more heavily upon you than it would on someone without your condition. Thirdly, there is a serious risk that a term of imprisonment will have an adverse impact on your mental health – which has been further exacerbated by the impact of the media reporting prior to you being remanded. These second and third factors are mitigating features which are relevant to the length of any sentence which I might impose.
50
As a matter of completeness, I note that despite your mental health providing a context within which your offending has occurred, I am not of the view that there is a causal connection between your mental health and the offending such that your moral culpability for the offending is reduced, nor am I of the view that your mental health was at such a level of severity at the time of the offending or now, that I am required to reduce the weight that I give to the sentencing purpose of general deterrence in this case. Your counsel,
Mr Hannan, quite properly, eschewed reliance on either of these factors.
Impact of COVID-19
51 In determining the type of sentence to be imposed, Mr Hannan submitted that I should take into account that the burden of a period of imprisonment upon you will be further increased by reason of the COVID-19 restrictions which are currently in force. At minimum, you would be subject to a 14 day period of quarantine, of which you have already served eight days, would be unable to have any face to face contact with your family and friends, and would have limited ability to access courses, programs and work opportunities whilst in custody. I note that you have found the first eight days of quarantine to be very difficult and isolating. Further, any term of imprisonment during the current pandemic would lead to an increased anxiety on your part as to not only your own health in custody, but also the health of your family in the community, although I note that the current low numbers of new cases of infection in the community does lessen this impact to a certain degree.
52 I do take these considerations into account.
Extra-curial punishment
53 Mr Hannan also submitted that I should take into account the impact of the media reporting upon you as extra-curial punishment. Whilst Mr Hannan conceded that the courts are open, and cases which come before them are potentially subject to being reported upon, he submitted that some of the reports of your case – which were factually inaccurate and inflammatory in labelling you as a paedophile – have resulted in a level of extra-curial punishment which would allow for some mitigation in sentence. In particular Mr Hannan pointed to the heightened shame, embarrassment and public stigma brought about by the factually inaccurate material, the level of public retribution through social media, the heightened risk which you face in custody through being incorrectly labelled as a paedophile, and the impact of the media reporting on your mental health both whilst in custody and upon release.
54 Ms Stevic for the prosecution submitted that limited weight should be given to extra-curial punishment arguing that whilst the reference to you being a paedophile was unfortunate there should be an expectation of media coverage, the coverage which has ensued has not been substantial. There is no evidence of custodial retribution to date and that the impact of the distancing of your former partner would be limited given that your relationship was already strained.
55 The weight, if any, to be given to extra-curial punishment depends upon the circumstances including the nature of that punishment and the impact it has had on the offender. It also must be weighed against other relevant sentencing factors, such as the need for adequate punishment, general deterrence, specific deterrence and the overarching obligation to impose a sentence of a severity appropriate in all of the circumstances.
56 I accept that some of the reporting in this case has been inaccurate and inflammatory – especially through labelling you as a paedophile when there is no evidentiary basis for doing so. I also accept that the inaccurate reporting – and the media reporting in general – has already had some impact upon your mental health, and will accordingly increase the burden of your imprisonment (a factor which I have already indicated that I have taken into account in sentencing). It also has relevance to the assessment of what might be needed by way of sentencing orders to support your ongoing rehabilitation upon release.
57
Insofar as the other aspects of extra-curial punishment relied upon by
Mr Hannan, I am not satisfied that those factors require any further mitigation of sentence. Those factors are all factors which (i) would have either arisen through the very nature of your offending (for example, it is highly likely that you would have been placed in protective custody irrespective of any media reporting of this case given the nature of the offences you have committed), or (ii) the impact of which are already being taken into account through the weight being given to the deterioration in your mental health, and the need for ongoing rehabilitative support on release from custody.
Other Sentencing Factors
58 Turning to other sentencing factors. It has long been held that general deterrence and denunciation are paramount sentencing considerations in respect of child pornography and sexual offences against children. That is, other like-minded individuals must know that engaging in such serious criminality will result in significant punishment. There is a need to deter others from committing such offending, given the prevalence and ready availability of pornography involving children on the internet, and the need to protect children from sexual abuse.
59 Further, in offending involving child abuse material, an offender’s subjective circumstances including prior good character and prospects of rehabilitation must not be allowed to overshadow the objective seriousness of the offences for the purpose of sentence, and must therefore be given less weight than they might otherwise be given.
60 I have taken each of these principles into account.
61 I have already referred to your prospects of rehabilitation, and the recommendations of Ms Ferrari and Dr Ivanova in relation to ongoing treatment to facilitate your rehabilitation. In formulating an appropriate sentence in your case, I have had regard to s16A(2AAA) of the Crimes Act 1914(Cth). That section requires me to have specific regard to the objective of rehabilitating you. In that regard, I have considered whether appropriate rehabilitation and treatment options are available and I have considered the need to structure any sentence to enable sufficient time for that rehabilitation to be achieved. I note however that the requirement to have specific regard to this objective does not override the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence. Accordingly I have been careful not to impose a sentence which is disproportionately severe in pursuit of the objective of rehabilitating you.
62 Finally I note that in formulating an appropriate sentence in your case, I have considered the need to impose punishment for each of your offences which appropriately reflects the gravity of your offending. I am of the view that each offence requires a discrete sentence, and that a degree of cumulation is required in respect of each offence to reflect the separate and discrete offending which has occurred on each occasion
Comparative cases
63 I was provided with submissions by both prosecuting and defence counsel in respect of comparable cases. However as noted by both counsel strictly comparative cases are hard to find in respect of this matter. So far as charges 1-3 are concerned, most often cases involving soliciting offences are joined with other offences such as grooming, transmitting or procuring, and charge 4 is a new offence whereby there are no appellant sentencing decisions with respect to s472.22A, and only a small amount of first instance decisions.
64 Ultimately, whilst I have had regard to the previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, each case must of course be decided upon its unique facts. As identified by both counsel, none of the cases provided are factually comparable to yours. They are examples of the application of the relevant sentencing principles applicable in this area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. However, ultimately, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Sentencing Submissions
65
Mr Hannan conceded that an immediate term of imprisonment is required in this case however he submitted that it would be open to the Court to impose that term of imprisonment in combination with a community correction order of substantial length – that is that it would be open to the Court to impose a term of imprisonment of 3 months or less in respect of one or more offences and a community correction order in respect of the other offences. Alternatively,
Mr Hannan submitted that if I was of the view that a period of imprisonment longer than three months was required, that a recognisance release order should be imposed.
66 Ms Stevic for the prosecution also submitted that a sentence involving a term of immediate imprisonment is required.
67
I agree with both parties that an immediate term of imprisonment is warranted in this case. Section 17A of the Crimes Act 1914 (Cth) provides that a Court shall not pass a sentence of imprisonment on any person for a federal offence unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. Despite the significant mitigating factors in this case, I am of the view that a term of imprisonment is required in respect of each offence to reflect the gravity of the offending, and to adequately address principles of
general deterrence and denunciation. Further I am of the view that the
total effective term of imprisonment to be imposed must be greater than 3 months.
68 However, I am also of the view that taking into account the mitigating features including your co-operation with police, your pleas of guilty, and the impact of your mental health and COVID-19 on the burden of imprisonment, combined with your need for ongoing mental health and offence-specific treatment to ensure long term rehabilitation and community protection, and the principles of totality and parsimony, it is appropriate for you to be released on a recognisance release order with rehabilitative conditions during the period of that term of imprisonment.
Sentence
69 On charge 1, using a carriage service to solicit child pornography material, you are sentenced to a term of imprisonment of 2 months.
70 On charge 2, using a carriage service to solicit child pornography material, you are sentenced to a term of imprisonment of 3 months, such sentence to commence 1 month after the commencement of the sentence on charge 1.
71 On charge 3, using a carriage service to solicit child pornography material, you are sentenced to a term of imprisonment of 3 months, such sentence to commence 1 month after the commencement of the sentence on charge 2.
72 On charge 4, possession of child abuse material, you are sentenced to a term of imprisonment of 9 months, such sentence to commence 1 month after the commencement of the sentence on charge 3.
73 Accordingly the total effective sentence is 12 months' imprisonment.
74 The period of 8 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of the sentence and I order that such declaration and its details be entered in the records of the court.
75
Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released after serving 5 months’ imprisonment upon you entering into a recognisance in the sum of $500 to be of good behaviour for a period of
18 months. There will also be conditions attached to the recognisance release order as follows:
(a) that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 18 months;
(b) that you attend for assessment and, if assessed as suitable, treatment for mental health as directed by the Deputy Commissioner, Community Correctional Services and/or his or her nominee;
(c) that you attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;
(d)
that you report to Ballarat Community Correctional Services, at
206-208 Mair Street, Ballarat (phone 4301 7000), within 2 business days following release;
(e) that you report to and receive visits from a community corrections officer or officers;
(f) that you notify an officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change;
(g) that you not leave Victoria except with the permission of an officer at the specified community corrections centre; and
(h) that you obey all lawful instructions and directions of community corrections officers.
76 Mr Stockton, I've given you 12 months' imprisonment and then a recognisance release order that releases you, with conditional freedom in 5 months' time. So the purpose and effect of that recognisance release order is to grant you, as I say, that conditional freedom in 5 months' time (minus the 8 days which you have already spent in custody). Upon your release, if you commit a further offence in breach of the recognisance to be of good behaviour during that
18 month period, or if you fail to comply with any of the conditions, then unless you can show a reasonable excuse for the further offending or the breaching, you will be dealt with for that breach and be re-sentenced. You may have to pay the $500 I have indicated, and you may have to immediately serve the remaining term of imprisonment of 7 months. Do you understand all of that?
77 OFFENDER: Yes, I do.
78 HER HONOUR: A copy of the recognisance release order will be forwarded to the prison later today for you to sign, and you will be provided with a copy of that order so that you have a copy to know what you need to do.
79 I also inform you that you, or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with s.20AA of the Crimes Act 1914(Cth).
80 Counsel, before I move onto the rest of the orders, are there any issues which either of you wish to raise about the sentence, the way I have framed the sentence or the reasons for sentence at this stage?
81 MS STEVIC: No, Your Honour.
82 HER HONOUR: Mr Hannan?
83 MR HANNAN: No, Your Honour, no.
84 HER HONOUR: Ms Stevic, you are satisfied that in terms of the way I have articulated the commencements of the terms of imprisonments, that that complies with the federal legislation?
85 MS STEVIC: Yes, Your Honour. If you could just clarify the commencement of charge 1, I think the rest - - -
86 HER HONOUR: Do I need to do that when I have declared the pre-sentence detention? Because I am not sure that I can back date, under State law,
the - - -
87 MS STEVIC: That is sufficient, Your Honour. The pre-sentence detention was declared as eight days, is that correct, Your Honour?
88 HER HONOUR: Yes, that is right.
89 MS STEVIC: Thank you.
90 HER HONOUR: I think the sentence effectively starts from today but there is pre-sentence detention of eight months which I have taken into account in relation to the five months.
91 MS STEVIC: Yes, Your Honour, thank you.
92 HER HONOUR: The 12 months in total, yes, good.
s6AAA Declaration
93 Pursuant to s6AAA of the Sentencing Act 1991, so this is about the discount for pleading guilty, Mr Stockton, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and had been convicted of them, you would have been sentenced to a total effective term of imprisonment of 22 months' imprisonment, with release on a recognisance release order after a period of 12 months, with that order to then go for a period of 18 months with supervision and treatment conditions attached. So you have saved a considerable amount of time both in custody and in relation to your overall sentence by reasons of your pleas of guilty.
Registration pursuant to the Sex Offenders Registration Act 2004 (Vic)
94 The next thing I have to deal with is registration pursuant to the Sex Offenders Registration Act. As a result of your convictions and sentences on charges 1, 2 and 3, you have become a registrable offender under the Sex Offenders Registration Act 2004 (Vic). You are required to comply with the provisions of that Act. Each of charges 1-3 are class 2 offences under the Act. As you have been found guilty of three or more ‘class 2 offences’, the length of the reporting period is life.
95
A copy of the notice of your obligations under the Act will be provided to you later today at the prison. It is important that you read that notice carefully as you will be required to make an initial report within 7 days of being released from prison, and then on an annual basis, as well as when any of your personal details change. It is a criminal offence if you don’t comply with those obligations, so it is incredibly important that you read that notification, that you comply with the timeframes, and, if you don’t understand anything in that notification, that you seek some legal advice. Do you understand all of that,
Mr Stockton?
96 OFFENDER: Yes, I do, Your Honour.
97 HER HONOUR: Thank you.
Other Matters
98 I note that there is no need for any forfeiture orders given there has been a release of property form signed and provided on a previous occasion.
99 Ms Stevic, can I just confirm whether your office will actually prepare the recognisance release order and forward it to the Court?
100 MS STEVIC: Yes, Your Honour.
101 HER HONOUR: All right. Does that cover - sorry, go on?
102 MS STEVIC: Sorry, Your Honour, there was only one paragraph in the recognisance release order that I would like clarified but perhaps I am happy for your associate to email me the wording if Your Honour - - -
103 HER HONOUR: Just tell me which one it is just so that we have had the conversation with Mr Hannan and Mr Stockton present?
104 MS STEVIC: It was that the defendant was to attend for assessment and if assessed as suitable, treatment, and you mentioned four sex offender programs but the specific wording I don't think I noted.
105 HER HONOUR: What I said was - but I am happy to be guided if there's a need to word it slightly differently. What I had said was treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
106 MS STEVIC: Thank you, Your Honour.
107 HER HONOUR: What I can do though is I can ask Ms Ventura if it's of assistance to you to just extract those conditions out of what I have just read out and send them to you. If there is an issue with the technical wording of any of those please let me know and obviously CC in Mr Hannan and I can make sure that the technical wording is accurate.
108 MS STEVIC: Thank you, Your Honour, that would be helpful.
109 HER HONOUR: Mr Hannan, I take it you don't have any issue with that?
110 MR HANNAN: I don't but is Mr Stockton to sign that document?
111 HER HONOUR: Yes, he will need to sign it. What I am intending the impact of that to be is that he be under supervision for the full 18 months, that he undergo assessment and treatment for mental health, that he undergo assessment and treatment for sex offender programs or programs to reduce reoffending.
112 The technical wording in relation to who he is under the supervision of needs to be done in a particular way just because it's not a community corrections order, it's Corrections taking on responsibility under the recognisance release order so the only thing that's going to potentially change, and I don't think it will, is just the wording of the person who is responsible but I think it should stay as I read it out. And then it's the equivalent of the mandatory conditions on a community correction order, that is to report to the Ballarat Community Correctional Services within the two business days following release, reporting and receiving visits from community corrections officers, notifying within two clear working days of any change of address or employment and not leaving Victoria and obeying all lawful directions and instructions of community corrections officers.
113 So those are what would be the standard mandatory conditions in a community correction order in any event.
114 MR HANNAN: Yes, Your Honour.
115 MS STEVIC: Your Honour, in terms of the signing of the order, I believe the court has recently put out some guidance or advice that the recognisant release orders do not need to be signed during the pandemic. So I'm not sure whether Mr Stockton will physically be required to sign the order. I think it's the case that your explanation and Mr Stockton's verbal acceptance of the RRO is now sufficient.
116
HER HONOUR: I think that is indeed the case, Ms Stevic, but I would - with
Mr Stockton being in custody and look the quarantine may cause an issue with this but my understanding is with those who are in custody that they are still signing the orders. However, certainly I have explained to Mr Stockton what the conditions are and as I understand it you have understood all those conditions on the release order.
117 OFFENDER: Yes, I'd like to see it in writing though.
118 HER HONOUR: All right, that's fine obviously. As I say, the main thing for you to understand is it's supervision, you're going to have someone overseeing you and being like a case manager for you during that 18 months.
119 OFFENDER: Yes.
120 HER HONOUR: You'll have to undertake mental health treatment and you'll have to undertake sex offender programs or programs to reduce reoffending. So whatever you're directed to in that regard you'll need to do and then the rest of the conditions on there are conditions about effectively remaining in contact with Corrections and not going anywhere or doing anything without them either knowing about it or having permission of them so that's what the conditions are. But we'll ensure that we've got a copy of that out to at the gaol and I think in the circumstances, Ms Stevic, it might be useful for Mr Stockton to be able to read through, look at it and sign it once he's read through it all and made sure that he understands it all.
121 MS STEVIC: Yes, Your Honour, I agree with that.
122 HER HONOUR: As I say, you'll get your Sex Offender Register Act obligations as well and Mr Hannan, it may be that - do you want a copy of those obligations sent through to your instructing solicitor as well just in case Mr Stockton wishes to speak to your instructing solicitor about his obligations.
123 MR HANNAN: Thank you, Your Honour.
124 HER HONOUR: I will ask my associate if that can be done too. Has that covered all of the orders that I need to make today?
125 MS STEVIC: Yes, Your Honour.
126 HER HONOUR: And there's nothing else that either counsel wishes to raise?
127 MS STEVIC: No further matters from me, Your Honour.
128 HER HONOUR: Thanks, Ms Stevic. Mr Hannan?
129 MR HANNAN: No, Your Honour, thank you.
130 HER HONOUR: I've already noted the custody management issues on the last occasion so I don't need to do them again today so I think that then finalises everything. So, Mr Stockton, as I say you will be released on that conditional freedom in five months' time minus the eight days that you've already done and then the really important thing to make sure that you do is obviously make that first report to Ballarat Community Correctional Services within two days of being released and from there on follow their directions in relation to any treatment they ask you to do and any supervision that's required. Okay?
131 MR HANNAN: Just for completeness, Your Honour, because it's hard to have conference with Mr Stockton, those conditions, at least the residential condition, can be changed. He's not stuck necessarily in Ballarat without there being a change through the court system. We can arrange that if that's necessary.
132 HER HONOUR: Yes, that's right. So there's ways of doing that without needing to come back to court as I understand it. I've put it as the initial report being to the Ballarat Community Correctional Services. I haven't said it needs to remain as being Ballarat so if was to move it could be sorted out within Corrections internally.
133 MR HANNAN: Thank you, Your Honour.
134 HER HONOUR: If there's nothing further I will ask Ms Aguirre to adjourn the court.
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