CDirector of Public Prosecutions v Varga

[2022] VCC 1007

IN THE COUNTY COURT OF VICTORIA

AT LA TROBE VALLEY

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00864

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL JOHN VARGA

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2022
DATE OF SENTENCE:	1 July 2022
CASE MAY BE CITED AS:	CDPP v Varga
MEDIUM NEUTRAL CITATION:	[2022] VCC 1007

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Use carriage service to make available child abuse material – two messages sent over telephone chat service in single day – messages incestuous in nature – 46 year old offender – no relevant prior history – objective gravity of offending at lower end – plea of guilty at the earliest opportunity

Legislation Cited:      Criminal Code Act (Cth); Crimes Act 1914 (Cth)

Cases Cited:Ponniah v The Queen [2011] WASCA 105; Worboyes v The Queen (2021) 96 MVR 344

Sentence:                  18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Sebastian Campbell	Commonwealth Director of Public Prosecutions
For the Accused	Christin Tom	Victoria Legal Aid

HIS HONOUR:

1Paul Varga, you have pleaded guilty on indictment to one charge of use a carriage service to make available child abuse material contrary to s 474.22(1) of the Criminal Code Act (Cth).

2This offence carries a maximum penalty of 15 years’ imprisonment.

3The details that give rise to your offending are contained in an agreed summary of prosecution opening.[1]

[1]Exhibit A.

4The offending was committed on a single day; 11 December 2020. Utilising the FastMeet telephone chat service, you conversed with another user by voice messages. The conversation constitutes child abuse material.

5It involved two messages from you where you talked about abusing your child. You stated that you abused her up to the age of five. That you would “cum all over her belly” and “…shoot up all over fuckin’ face too.” You said that you played with and kissed her vagina. You added that she was now seventeen years old and you would love her to suck your penis.

6A search warrant was executed at your home address on 1 December 2021. Your Samsung mobile phone was seized. You were interviewed that same day. During the police interview, you said:

·        You were the sole user of the Samsung mobile phone. No one else had access to it.

·        You utilised the FastMeet chat service to talk to other adult users.

·        You accepted participating in the conversation the subject of the offending. You said the conversation was fictitious and was to ‘help him get off’.

7At the conclusion of the interview, you were arrested and bailed to attend the Magistrates’ Court on 8 December 2021. You indicated a plea of guilty at a committal mention hearing and the matter was committed to this Court on 20 May 2022. You have remained on bail throughout.

Personal circumstances

8Your counsel, Mr Tom, provided the Court with an Outline of Submissions dated 22 June 2022.[2] In addition, a psychological assessment report prepared by Dr Mathew Barth, dated 13 June 2022, was tendered on your plea.[3] The submissions and the report set out your background.

[2]Exhibit 1.

[3]Exhibit 2.

9You are an only child born and raised in Melbourne. You enjoyed a stable and supportive childhood.

10As a result of your father engaging in an extramarital affair, your parents separated when you were 15 years old. Your relationship with your father was strained and you remained living with your mother. When you were aged around 20, your parents reconciled and your relationship with your father improved. Both your parents have passed away; your father in 1999 and your mother in 2012.

11You left school after having completed Year 11. You then worked in various labouring jobs in the construction industry. You were employed as a machine operator at an abattoir for 10 years. Thereafter, you have held short-term roles in bricklaying, food processing and as a delivery driver. You are currently unemployed and have not worked for the past nine months.

12You have enjoyed one sustained intimate relationship which lasted around nine years. You met your partner when you were 26 years old. She had a daughter at the time your relationship commenced. You enjoyed being a father figure to your partner’s daughter. Over the years, you and your partner grew apart and became emotionally detached. Despite your separation some 10 years ago, your relationship with your former partner remains amicable. In particular, you have remained close with your partner’s daughter. You are currently residing with her and she is fully aware of your offending. She has provided the Court with a reference[4] in which she reiterates her trust in you and emphasises the out of character nature of your offending.

[4]Exhibit 3.

13You began smoking cannabis at the age of 15. By the time you were 17 years of age, you were using cannabis on a daily basis and that use has continued. You told Dr Barth that you were ‘most likely stoned’ when you committed this offending. Your cannabis use has impacted your ability to hold down regular employment. Dr Barth has diagnosed you with severe Cannabis-Use Disorder.[5]

[5]Psychological report, [43].

14You have not been involved in any intimate relationship since separating from your long-term partner. Your social skills are very limited, and you have struggled with developing healthy, intimate relationships. Instead, you have resorted to online activities as a social and sexual outlet. You are predominantly attracted to adult women and have a secondary attraction to men. You have regularly viewed both heterosexual and homosexual pornography. Your online chats became progressively more sexualised, moving from flirtation to fantasy. Your involvement in the FastMeet gay chatline involved conversations around sexual fantasies. Regrettably, those sexual fantasies transgressed into conversations about incestuous sexual acts involving an underage child. That is why you are now before this Court.

15Following your arrest, you have ceased engaging in all social media applications and chatlines. You continue to view online pornography on a regular basis.[6]

[6]Ibid [22] – [25].

Objective gravity and sentencing purposes

16Your counsel concedes that offending of this nature is objectively serious. That point is made aptly by Parliament legislating a maximum penalty of 15 years imprisonment.

17The communication you engaged in was vile, depraved and debasing. It is shameful in its emphasis of incestuous underage sexual abuse.

18In the circumstances of your case, Mr Tom pointed out that the offending conduct was limited to a single day, was short in duration, no actual children were involved, there was no wider dissemination, and no financial advantage was to be obtained.

19I accept that your offending does not depict real children. However, as the Western Australian Court of Appeal said in Ponniah v The Queen [2011] WASCA 105 at [38]:

This is not to say that material of this type is harmless; it has the tendency to ‘normalise’ exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children.

20In sentencing you, general deterrence is an important objective. Anyone who may consider using social applications to engage in sexualised conversations involving children must understand that the courts will not hesitate to punish and impose significant penalties. The community’s abhorrence of such conduct must be conveyed by the sentence. Your conduct must be denounced, and you must be justly punished. Your counsel took no issue with these important sentencing purposes.

21To a degree, any sentence must specifically deter you and protecting the community from you is important.

22I accept the submission that the offending conduct in this case is towards the lower end. It is a brief conversation involving two messages from you and limited to a single day. It occurred some 18 months ago now. Any sentence must not only consider the important sentencing purposes I have outlined but must also give weight to your rehabilitation. It is plain from Dr Barth’s opinion, that you require assistance with various difficulties that have affected you throughout your life. Ordinarily, this Court would not hesitate in imposing a term of imprisonment. However, in light of the objective gravity of your offending, the matters in mitigation, in particular your early plea of guilty, this Court is able to deal with all sentencing purposes by imposing a sentence that is punitive, and which also addresses the multitude of issues you are grappling with.

Matters in mitigation

23You are now aged 46. Your criminal history is limited to a single prior from 2009, which bears no significance to the sentencing exercise.[7] This offending occurred 18 months ago. There are no subsequent or pending matters alleged against you.

[7]Sentenced to a bond without conviction for obtaining a financial advantage from a Commonwealth entity.

24I accept that your plea of guilty was entered at the earliest opportunity. You have facilitated the course of justice and taken responsibility for your actions. Your plea of guilty has saved the community the time and expense of a trial.

25Further, your plea of guilty has been entered at a time when this Court is facing significant delays due to the pandemic. You are entitled to an additional and palpable discount.[8]

[8]Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35]-[39]. See also Rossi v The Queen [2021] VSCA 296 [13].

26I accept that your plea of guilty demonstrates remorse. You told Dr Barth:

I’m disgusted in myself, why did I take it (the fantasy) so far. I thought, it was just fantasy, but it (transmitting child abuse material) is very wrong.[9]

[9]Psychological report, [35].

Mental health

27In his detailed report, Dr Barth states:

·        You have experienced periods of anxiety and depressed moods since your mid-teens. You experienced suicidal ideation and have engaged in self-harm when you were younger by cutting your wrists on two separate occasions.[10]

·        You experienced sporadic suicidal thoughts, particularly after your separation with your long-term partner and following the death of your mother. You have been prescribed antidepressants in the past but have been non-compliant in taking your medication. You have dealt with your emotional distress by abusing cannabis.[11]

·        You are currently experiencing noteworthy anxiety related and depressive symptoms. Those symptoms have been intensified by your current legal predicament. Dr Barth has diagnosed you with an Adjustment Disorder - with Mixed Anxiety and Depressed Mood.[12]

[10]Ibid [28].

[11]Ibid [29].

[12]Ibid [36] – [38], [51] (1) – (3).

28Dr Barth undertook a comprehensive risk assessment and concluded that you present with a low-moderate risk of sexual recidivism. He opines that you have a propensity for deviant sexual fantasies involving female children. Dr Barth further concludes that you display very limited insight into your offending conduct. He makes plain that to enhance your rehabilitation, you need to participate in a specialist sex offender treatment program.[13]

[13]Ibid [42], [51](6), [52].

29In addition, you require psychological and substance abuse treatment.[14]

[14]Ibid [52].

Sex Offenders Registration

30By reason of your finding of guilt you will be subject to the requirements of the Sex Offenders Registration Act 2004 and are required to report for a period of 8 years. You will be provided with a document that sets out your responsibilities in respect of the reporting requirements. Failure to comply with the reporting requirements is a criminal offence punishable by imprisonment.

31You will be asked to sign a document today acknowledging receipt of your reporting requirements. Your instructor will assist you with that.

Sentencing

32I bear in mind that s 17A(1) of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence, unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances.

33I have also taken into consideration the non-exhaustive list of factors set out in s 16A(2) of the Crimes Act 1914 (Cth).

34I have had regard to the pre-sentence Community Correction Order (‘CCO’) assessment report dated 27 June 2022, which assesses you as suitable for a CCO.

35Mr Campbell on behalf of the Commonwealth Director, emphasised the sentencing objectives, but quite sensibly agreed with the submission made by Mr Tom, that all sentencing purposes can be met by a suitably fashioned CCO.

36I sentence you, Mr Varga, as follows:

37On Charge 1, use a carriage service to make available child abuse material you will be convicted and sentenced to a CCO for a period of 18 months, commencing today.

38Every CCO has core conditions that you must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

39In addition to the mandatory core conditions, the CCO will also include the following special conditions:

·First, you will have to perform 90 hours of unpaid community work as directed.

·Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·Third, you must undergo assessment and treatment for mental health.

·Fourth, you must undertake programs to reduce re-offending, including a specialist sex offender treatment program.

·Fifth, you will be subject to supervision as directed for the duration of the CCO.

40Pursuant to s 48CA(2) of the Sentencing Act 1991, I order that 30 hours of treatment and rehabilitation successfully undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

41You must report to Morwell Community Correction Service Centre within two working days from today.

42Mr Varga, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.

43The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence.  In those circumstances, you could also be resentenced for the offence for which you were placed on the original order. You would then face the possibility of being sent into custody.

44There are serious consequences attached to any breach. Do you understand that Mr Varga?

45OFFENDER: Yes, I do.

46HIS HONOUR:  Do you also understand all of the conditions of the proposed Community Correction Order?

47OFFENDER:  Yes, Your Honour.

48I need to now ask you; do you consent to being placed on a Community Correction Order in the terms I have outlined and to abide by all of its conditions?

49OFFENDER:  Yes, Your Honour.

50Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where you are appearing by way of a video link.