CDirector of Public Prosecutions v Tate

[2023] VCC 1330

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00528

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

GEOFFREY TATE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2023
DATE OF SENTENCE:	28 July 2023
CASE MAY BE CITED AS:	CDPP v Tate
MEDIUM NEUTRAL CITATION:	[2023] VCC 1330

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Use carriage service to make available child abuse material – transmit child abuse material – exceptional circumstances demonstrated

Legislation Cited:  Crimes Act 1914 (Cth), s16A (1), (2); s16A(2AAA), s17A, s19(5), (6); s20; s20AB

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Phibbs v The King [2023] VSCA 123

Sentence:Convicted and ordered to serve a two-year Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms B. Hill	Director of Commonwealth Public Prosecutions
For the Accused	Mr J. Anderson	James Dowsley & Associates

HIS HONOUR:

1Geoffrey Tate, on 27 July 2023, at the County Court of Victoria sitting at Melbourne you pleaded guilty to the following charges on
CR-23-00528:

Charge 1 was use a carriage service to make available child abuse material.  This charge has a maximum penalty of 15 years' imprisonment. 

Charge 2, use a carriage service to transmit child abuse material.  This charge has a maximum penalty of 15 years' imprisonment. 

2You have no prior criminal history and have not spent any time in custody as a result of being charged with these offences.

The Circumstances of the Offending

3

You were between the ages of 51 and 53 years old when you committed these offences.  The prosecutor tendered a Prosecution Opening for Plea dated

8 June 2023.  It was Exhibit “A”.  The prosecutor read that summary into the court record.

4On 6 October 2022 police executed a search warrant at your home and seized your mobile phone.  Your offending was committed over text messages and using a telephone chat service called FastMeet.  The caller dials into FastMeet's host number and creates an audio recorded introductive greeting message.  This message can then be listened to by other users of the same service.  If a user decides that they wish to converse with the person who has recorded the message, then that second user can in turn leave a recorded message for the first person. 

5Each person has a virtual inbox and callers can then leave messages for each other similar to Voicemail.  The service also allows callers to engage in live chat, which operates the same way as a typical phone call but within the FastMeet service.  Callers are advised that any communications over the chat service is recorded and monitored.  FastMeet uses volunteer line monitors to ensure that messages are vetted and meet ordinary community standards of proper communication.

Charge 1: Use a carriage service to make available child abuse material

6The police analysed your communications conducted on the FastMeet service between 4 November 2020 and 8 June 2022.  You left 12 separate messages for other users to access on FastMeet.  I will not repeat the messages you have left on FastMeet.  The communications are Category 2 child abuse material under the Interpol Baseline 4 tier categorisation system.  The general theme of your messages is about masturbation, oral and anal penetration of little boys and little girls.  The messages are depraved and disgusting in a highly sexualised manner.  This offending extended over a 19 month period.

Charge 2: Use carriage service to transmit child abuse material

7This charge involves transmission by you of child abuse material in the form of text messages from your mobile phone and over the live chat function on the FastMeet platform.  This occurred on four occasions between 24 August 2021 and 9 June 2022.  The communications have been categorised as Category 2, child abuse material.  Your communications refer to raping, performing fellatio and the use of sex toys with children.  The communications are demeaning and depraved in context. Again, I will not repeat the text of your communications in these sentencing reasons.

8You were interviewed by police on 6 October 2022 where you stated the following: 

·You used a landline and mobile phone to call FastMeet.

·You used FastMeet to talk with other users about sex with children.

·You are not interested in having sex with children but enjoy the taboo nature of the conversations.

·You have been using FastMeet for approximately 10 years; and

·You used FastMeet to talk about sex with children a couple of times a week.

9You have been on bail since your arrest.  You indicated a plea of guilty at the earliest stage.

Your Personal Circumstances

10You are now 54 years of age.  You have no prior criminal history.  You are the youngest child in your family.  You have an older sister.  Your mother is still alive.  Your father passed away when you were in your early 20s.  You have not told your mother of these charges; you say due to the shame of your offending and also the stress on your mother.  She is an elderly woman.  You have told your sister more recently and she has prepared a reference which was Exhibit 4 in this plea.

11You reported to Dr Barth that your relationship with your father when you were growing up was a very detached one.  You said your father was an alcoholic and verbally abusive towards you and was described as emotionally abusive towards you.  Your father would work long hours, further adding to your disconnection from him.

12You attended primary school in Prahran and Malvern.  You then went to Caulfield Tech, which was a boy’s school.  You did not fit in with your school colleagues and were at times subjected to bullying and harassment.  Your interests at that time were reading about science fiction books rather than your fellow school attendees, who preferred sport.  You left school at Year 11.

13You initially worked in a shoe store in Prahran, then you got a job within the bank industry, where you worked for 30 years.  You are currently an area manager with that bank.  You identify as exclusively homosexual.  You have never had an intimate relationship.  Your sexual experiences with men have been on a casual basis only.   In more recent years your sexual outlet has been utilising chat lines to engage with other men.

14You admitted to Dr Barth that your chat line use was becoming compulsive and covered a diverse range of sexually explicit scenarios.  In respect of the child abuse material you admitted that you had gained sexual gratification from it and that you incorporated it into your masturbatory fantasy.  You told Dr Barth you engaged in the fantasy based chats to arouse your, 'partners'.  As you told the police the taboo nature of the chats created arousal in yourself.

15You are not a drug user and partake in alcohol in moderation.  Dr Barth reports that you have expressed remorse and feel shame for your offending.  You have a moderate degree of distress as a result of your prosecution and appearance in court.  The symptoms, according to Dr Barth, do not warrant a diagnosis of psychological disorder.  Dr Barth noted you have been receiving treatment from Mr Hanley, who is a psychologist, in a Sex Offender Treatment Program.  You have been assessed by Dr Barth as a low to moderate risk of sexual recidivism.  The sex offender course is expected to reduce this risk profile.  You have not been using chat platforms since your arrest.

16

Mr Hanley's report confirms you started sex offenders course treatment on

8 May 2023.  You had five sessions with him, the last of which was on

21 June 2023.  He states you have engaged in the treatment program positively.  Mr Hanley opines that the problems giving rise to your offending are deeply entrenched and require considerable treatment to rectify.  He further states, the treatment will be a protective factor against your risk of sexual recidivism.

Sentencing considerations 

17The sentencing considerations for a person such as yourself who has committed Federal offences are set out in the Crimes Act Commonwealth. Section 16A(1) of the Crimes Act provides that in sentencing a person for a federal offence, a court must impose a sentence…that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) sets out a non-exhaustive list of matters that a court must take into account if they are relevant and known to the court.

18Section 16A(2AAA) of the Crimes Act makes a specific provision for the sentencing of offenders of Commonwealth child sex offenders, being relevant in your case, in the following terms:

'In determining the sentence to be passed, or the order to be made in respect of any person for a Commonwealth child sex offence, in addition to any other matters the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: 

(a) when making an order - to impose any conditions about rehabilitation or treatment options; and

(b) in determining the length of any sentence or non-parole period, to include sufficient time for a person to undertake rehabilitation programs.’

19Section 17A(1) of the Crimes Act sets out the restrictions on imposing sentences:

'A court shall not pass a sentence of imprisonment on any person for a federal offence… unless the court, after having considered all of the available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case'.

20Section 19(5) of the Crimes Act relevantly provides, for the present purposes, that there must be full cumulation of sentences imposed for more than one Commonwealth child sex offence. However, that requirement is qualified by s19(6), which provides that s19(5) does not apply if the court is satisfied of a different sentence to be imposed and, most relevantly to your considerations, as I found them in the end.

21Section 20 of the Crimes Act permits a sentencing court to conditionally release a convicted person, but I will not recite this relevant provision.

22Section 20AB of the Crimes Act has the effect, for the present purposes, that a sentencing court in Victoria which sentences a person for a federal offence may make certain sentencing orders under the Sentencing Act including a community corrections order.

23You have pleaded guilty to the two charges before the court.  Your plea is an early plea, and it follows your cooperation with the police at the time of your arrest. 

24Your plea has significant utilitarian benefit, particularly at the present time when the courts are facing a considerable backlog of trial cases due to the COVID-19 pandemic.  Your plea of guilty must result in a perceptible amelioration of sentence, and that is a statement out of Worboyes' case. 

25

I accept you are remorseful for your offending.  Your remorse is indicated by your plea to these charges, your statements to Dr Barth and Mr Hanley, who are your treating psychologist for the Sex Offender Treatment Program at the

Melbourne Private Psychology.

26

Since your arrest you have commenced the Sex Offenders Treatment Program.  You started on 8 May 2023 and you had five sessions of treatment with

Mr Hanley up until 21 June 2023.  You have privately funded your treatment to date.  Mr Hanley says your engagement treatment is positive but stated that your offending includes fantasies and paraphilic arousal patterns that relate to longstanding problems with intimacy and identity formation.  Mr Hanley's opinion is that you require the treatment to reinforce a protective role in reducing your risk of recidivism. 

27Dr Barth has assessed you, as I have said before, as a low/moderate risk of sexual recidivism.  Dr Barth also opined that your participation in the Sex Offender Treatment Program would be likely to reduce that risk.

28The prosecutor submitted that your offending called for the immediate term of imprisonment to be served as the only appropriate sentence to satisfy the requirements of general deterrence.  The prosecutor submitted there are no demonstrated exceptional circumstances in your case which would allow an immediate release on a recognisance release order once sentenced to a term of imprisonment.

29Your counsel submitted there are exceptional circumstances in your case which would allow for an immediate release on a recognisance release order.  Mr Anderson relied upon a combination of the following matters to establish exceptional circumstances: 

(a) Your offending whilst abhorrent, is in itself, does not have any form of photographs or videos of actual children involved in the offending.  This is an unusual feature of this type of offending.

(b) Your prior good character.

(c) Your positive prospects of rehabilitation, that is relying on the Sex Offenders Program.

(d) You have in fact engaged with and funded the Sex Offenders Treatment Program yourself.

(e) Your risk of reoffending, which has been assessed as low to moderate; and

(f) your plea and cooperation with the authorities.

30

I note in a case of Phibbs v The King reported at [2023] VSCA 123 the

Victorian Court of Appeal used the phrase, 'constitutes special circumstances', in an immediate release disposition. I accept that the combination of all the matters set out in (a) to (f) above, in combination, amount to exceptional circumstances. Exceptional circumstances have no part to play if the court's disposition is a community corrections order under s20AB of the Crimes Act.

31You have no prior criminal history.  You are of previous good character.  You have worked continuously in the bank and are now in a relief manager position.  Your current employment role may be in jeopardy if your offending is known by your employer.  I do not speculate on this extra curial punishment in fixing your ultimate sentence.

32The seriousness of your offending is indicated by the following factors:

(a) Parliament has fixed a maximum penalty of 15 years' imprisonment in respect of both charges.

(b) Your communications took place over a total of

19 months.

(c) In total there are 16 separate communications, 12 by leaving recording messages (Charge 1); and four by live chat related communications with like-minded persons (Charge 2).  Each of those charges are rolled up charges.

(d) Your messages and conversations are graphic, depraved and debasing, including talk of rape, incest, and drug use with children.

(e) There is no use of actual images or videos of real children or the distribution or receiving of them by you.  

(f) Child abuse material was of your making in respect of Charge 1, messages; and

(g) the volume of the child abuse material is confined.

33Your offending is not harmless because no actual children are in your child abuse material.  Again, in the case of Phibbs, the Court of Appeal sets this out and they were referring to the FastMeet platform communications:

'Those statements were not simply items of conversation between two men which were without consequence.  That is the conversation was recorded and could be accessed by others, with the risk that the behaviour described in the statements could be normalised and that the individuals might be encouraged by the statements to physically engage in that behaviour, or to access child pornography that depicts that behaviour'.

34The prosecution accept that the conduct subject of these charges are factually interrelated.  I find that to be the case for your offending. 

35I have assessed your prospects of rehabilitation as good.  The basis for that assessment is your early plea of guilty, your seeking treatment for sex offence treatment, your prior good character and full time employment history and that you still enjoy, the support of your only sister and her adult sons.

36The continued control of your rehabilitation will enhance the sentencing considerations of protection of the community.  Offending of this type usually attracts an immediate term of imprisonment to satisfy the sentencing considerations of general and specific deterrence.  I have assessed your offending at the low range for this type of offending. 

37I have had you assessed for a community corrections order.  You have been assessed as suitable.  A CCO community corrections order allows for flexibility and sentencing to apply both general and specific deterrence, just punishment, denunciation of your offending and rehabilitation, combined with protection of the community. 

38Would you stand, please?

39On Charges 1 and 2 you are convicted and sentenced to serve a community corrections order for a period of two years with the following special conditions:

(1)that you are to be supervised;

(2)that you are to perform 200 hours of unpaid community work;

(3)that you undergo offence specific programs to reduce reoffending at the direction of the CCS manager at Frankston CCS; the program at Melbourne Private Psychology conducted by Peter Hanley is to be continued if that is possible;

(4)that the mental health treatment and rehabilitation;

(5)that judicial monitoring, you are to appear here on 23 October 2023 at 9.30 am in person, and I will see how you are going with

this CCO;

(6)and pursuant to s48CA, up to 50 hours of your rehabilitation treatment can be credited for the community work hours.

40Is there anything further?

41MS HILL: Your Honour, I will just note, in accordance to s6AAA of the Sentencing Act, but for the guilty plea.

42HIS HONOUR:  Yes.

43MS HILL:  As well as a declaration as to the SORA period being 15 years.

44HIS HONOUR:  Yes, thank you.

45MS HILL:  Thank you, Your Honour.

46HIS HONOUR:  Yes, thank you.  In relation to the SORA, first of all that is the Sex Offenders Register Act, you are placed on the register for a period of 15 years, and secondly, the s6AAA is three years with two years.

47MS HILL:  Thank you, Your Honour.

48

HIS HONOUR:  Those documents will be prepared.  You can take a seat.

Mr Anderson, you can approach your client when you have got these documents if you would not mind.

49MR ANDERSON:  Thank you, Your Honour.

50HIS HONOUR:  Thank you.

51MR ANDERSON:  I come to court with a computer instead of a pen these days, Your Honour.

52HIS HONOUR:  That is the way of the world, Mr Anderson.  Mr Tate, I have given your counsel an extra copy of your community corrections order.  You can stick it or hang it up inside the wardrobe.  Every day you open it to get dressed you get a reminder of what your obligations are for the next two years, commencing today.  One thing I just want to say is if your employers get hold of this, they might take the action that you expect them to do.  That will be one of the most dangerous times for you because your work is so much of your identity that it will be taken from you in one swipe.  That is when you have got to most carefully navigate this CCO.

53OFFENDER:  Yes.

54HIS HONOUR:  Otherwise you come back here if you breach it or the SORA obligations - - -

55OFFENDER:  That won't happen.

56HIS HONOUR:  You will come back before me and you know what I will do.

57HIS HONOUR:  Thanks.  Is there a further?

58MR ANDERSON:  No, Your Honour.

59HIS HONOUR:  Just before I do, thanks, counsel, again, thanks for filling in, if I can use that term, Ms Hill.

60MS HILL:  Yes, of course, Your Honour.

61HIS HONOUR:  In making sure I have got all the T's crossed and I's dotted. 

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