Director of Public Prosecutions (Cth) v Bodin
[2021] VCC 1112
•9 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
SEXUAL OFFENCES LIST
CR 21-00020
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID BODIN |
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JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2021 |
DATE OF SENTENCE: | 9 August 2021 |
CASE MAY BE CITED AS: | DPP (Cth) v Bodin |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1112 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Plea of guilty - Using a carriage service to procure a person believed to be under the age of 16 years - No criminal history - On-line communication using social networking site - Victim not 14-year-old girl but in reality, an undercover operative - Offending reprehensible and repugnant although relatively unsophisticated - Used own identity - Ceased offending of own accord - Continued commitment to treatment and rehabilitation - Development of insight as to offending
Legislation Cited: Criminal Code Act 1995 (Cth)
Cases Cited:Director of Public Prosecutions (DPP) (Cth) v Singh [2017] VSCA 146
Sentence: Convicted and sentenced to 3 years’ imprisonment to be released forthwith upon Recognisance Release Order giving security by recognisance of $5,000 to be of good behaviour for 3 years with conditions - Ancillary order SORA
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APPEARANCES: | Counsel | Solicitors |
For the CDPP | Ms N. Stevic | Solicitor for the Commonwealth Director of Public Prosecutions |
For the Offender | Ms B. Franjic | Tony Hargreaves & Partners Lawyers |
HER HONOUR:
1David Bodin, you have pleaded guilty to one charge of using a carriage service to procure a person believed to be under the age of 16 years in contravention of the relevant provision of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 15 years' imprisonment, which reflects the seriousness with which Parliament regards this offence and is a matter that I must take into account in sentencing you.
2The learned prosecutor tendered a detailed prosecution opening and I sentence you on the basis of the opening, marked Exhibit A, but for the purposes of sentencing you I will summarise that opening in slightly briefer form.
3I was told that you are 66 years old now and you were 64 at the time of the offending.
4The offending occurred between 28 October and 28 November 2019 and involved you using online platforms Skype and Chat Avenue to send messages to the profile of a 14-year-old female child who identified as 'Tahlia'. In reality, the profile was operated by an undercover operative (UCO) from the Joint Anti Child Exploitation Taskforce (JACET) conducting covert online duties.
5Chat Avenue is a social networking site comprising a number of chatrooms where users select which chatroom they wish to enter and can either log in, if they are registered users, or enter under a guest username which they choose.
6During the period of your offending the communication between you and Tahlia, who you believed to be a 14-year-old girl, involved you doing the following things:
(a) You uploaded an image of your penis to your Skype profile and directed Tahlia to open it;
(b) You asked for 'sexy images' of Tahlia;
(c) You attempted to video call Tahlia while instructing her how to masturbate;
(d) You provided instructions to Tahlia on how to masturbate;
(e) You raised the prospect of meeting Tahlia in Sydney, suggesting that you could meet on 11 December 2019, which was a time you were to travel Sydney for work. You told Tahlia that you could pick her up from her area and bring her to your hotel, where you could engage in sexual activity and swim at your hotel pool.
7On 28 October 2019 the UCO logged into an online chatroom via Chat Avenue. Posing as Tahlia, she received a private message from you. You used the username 'dave_aust'.
8You told Tahlia that you were 64 years old and asked her whether the age difference was okay. Tahlia replied that she did not mind. You and Tahlia than exchanged a number of messages, commencing as follows:
[You] 'I travel heaps for work. Off to NZ tomorrow'.
[Tahlia] 'That's so kool'.
[You] 'Hehe. It's not always as good as it seems. U met anyone from chatb4?'
[Tahlia] 'What u mean?'
[You] 'Have you met anyone that you first met on chat? Like physically met them?'
[Tahlia] 'Oh soz, I didn't know what u meant. Nah, I haven't. I'm only 14'.
[You] 'Kk. It's ok. So still a virgin?'
9I was told that you then went straight into a sexualised conversation with Tahlia, asking her whether she had ever kissed a boy or had her breasts stroked. When Tahlia asked you why boys did that you replied it 'gets a girl feeling nice' and 'arouses them too'. You asked Tahlia whether she stroked her own breasts, had ever masturbated and whether she had touched her 'pua.sy and cl.it' and 'orgasmed'. You asked her whether she would experiment playing with herself and if she would like to hold a penis. She told you that she had not seen one and with that you changed your profile picture to an image of a penis. You then told her to open the picture and there was the following exchange:
[You] 'Open the pic up. It's the second pic'.
[Tahlia] 'Omg. Is that ur thing?'
[You] 'Yep, it is indeed'.
[Tahlia] It looks big'.
[You] 'It's average, around 6 inches. Changed the pic now'.
[Tahlia] 'Lol lucky, some1 mite c it'.
[You] 'Hehe. Would u like to hold it do u think?'
[Tahlia] 'Idk, id b shy. Plus u rnt from Syd lol'.
[You] 'No probs, we could take it slow. No I'm Melb but I get to Syd for work'.
10You than asked Tahlia if she was alone in her room and if your chat with her made her feel a little aroused. Tahlia asked what you meant by this and you replied in a most explicit and prurient fashion. Tahlia told you she did not wish to respond to your question as to whether her hands were between her thighs and asked whether you had Skype. You then said you would add her on Skype and did so.
11On your Skype profile you had stated 'Melbourne guy who's pretty happy. Like chatting to teens. Not sure why, just feel younger'.
12The sexualised conversation then continued on Skype, with you instructing the complainant in fairly lurid terms as to how to masturbate and asking her if she would like to show you what she was doing. You then tried to video call Tahlia via Skype. You asked her whether boys would usually watch her and said because they could you wished to see if she was 'doing it ok'. As you could not see or hear Tahlia the call ended.
13On 28 October the conversation continued and was summarised as follows:
·The offender asked Tahlia whether her 'pussy' was 'a bit wet' and whether her 'clit [was] a bit hard'. He told her where she could find her 'clit' and instructed her to 'feel it', to 'keep touching it' and to 'rub it around and around'.
·The offender asked Tahlia to 'slide a finger inside'. When Tahlia asked whether it would hurt the offender said he did not think so; 'just a little, ok?'
·The offender asked Tahlia whether she was 'tingly' and asked her if she could take a picture. Tahlia told the offender that she could not because she was on her computer.
14On 30 October you sent Tahlia a Skype message asking her how everything was going, but you did not receive a reply.
15On 8 November you and Tahlia resumed your conversation, where you asked her if you and she had talked about 'maybe meeting'. You said that you were serious when you told her that you went to Sydney and you could potentially meet up. When she asked what you and she would do, you replied:
'Well, that depends. Maybe just chat and a milkshake?'
16When she asked you what you meant, you replied:
'Depending on what you wanted to explore. Did you want to experience anything sexual?'
17When she asked you what you meant by this you said, 'maybe do things you hadn't done before' and asked her if she had ever held a man's 'cock'. You said that it would be up to her as to what she wished to explore but that you and she could 'kiss, touch, lick and suck'. You told her that you could suck on her 'nipples or pussy' and she could suck your 'cock'.
18You asked her whether there were any pictures on her computer that she wished to share with you. She sent an image of herself and you told her that she was sexy and natural and that she needed to open her 'lovely eyes'.
19After discussing the weather in Sydney, you asked the complainant whether the hot weather made her 'feel more horny'. You also asked for a picture of her in a bikini. Tahlia replied that she did not have many pictures on the computer. You said this was a pity and asked if she had Skype on her phone. She replied that her mother would not let her. You said that she could download this for free and she replied that she did not want to get into trouble with her mother. You then replied, 'Well we'd better not meet then, cos she would be seriously angry, more with me'. Tahlia replied, 'Ok if u dnt wanna'.
20You replied, 'Guess not till you're way older'. Tahlia said that she was excited but did not want you to get into trouble. You replied that you did not know that she was excited and asked her if she meant sexually excited. Subsequently, you tried to video call Tahlia, but the call ended as you were unable to see or hear her.
21On 11 November 2019 you sent Tahlia a message asking her to let you know when she was around. After a brief discussion about your respective weekends and the weather you and Tahlia engaged in sexualised conversation which included you asking her whether she had thought about masturbating and about perhaps meeting. You asked her what things she wished to try if you and she were to meet, asking if she was curious about anything such as 'what it's like to hold a man's cock, or feel him lick and suck yr pussy or be kissed passionately'. You asked her whether she would muck around with boys at school, telling her she was too sexy for young boys. You said that you were sure that the boys at school would like her as she was slim, had a great smile and a sexy body. You asked her if she had ever taken a topless selfie and for her height and weight measurements, as well as her dress and bra size. You also asked her if she had a nice bikini or sexy bra and undies, and if she had a picture of herself in it.
22You told Tahlia that you were old enough to be her grandfather and said, 'u wouldn't chat with him about what we chat about'.
23You told her that it was sexy chatting to her and it would be nice for her to experience an orgasm. You explained what an orgasm was and sent website instructions on how to masturbate and a number of images with instructions on clitoral and vaginal orgasms. The complainant told you that there was a lot of information and asked you to just tell her how to do it. You then provided her with detailed instructions on how to masturbate, telling her that you were 'stroking' your 'cock' at the same time.
24On 12 November 2019 you sent Tahlia a message via Skype, asking her to let you know when she wished to chat. On 18 November Tahlia replied, asking you how you were.
25On 19 November you sent Tahlia a Skype message, telling her that you missed her and that she was looking great. After discussing the weather, you exchanged messages with Tahlia. You told her that your hotel had a pool. You said that you loved swimming and skinny dipping at night, suggesting that you might do this with Tahlia. In the course of that conversation Tahlia asked if you were serious about meeting up when you came to Sydney or just teasing. You said you were serious if she would like to, but otherwise you could just chat. When Tahlia asked when you would be in Sydney you said it would most likely be around 11 December. You asked her whether she would be finished school and told her you would have a car, so you could meet anywhere. You said you could buy her a drink or lunch. Tahlia told you that school holidays were a week after 11 December, so you said you could possibly delay a week. You asked her what time you could pick her up and when she would need to be back. You said that you could go to the beach with her and that Tahlia could see your room and could 'do some things with me that you want to'. She asked you if you meant 'the sex stuff' and you answered:
'Some potentially. What ru interested in exploring?'
26Tahlia said she did not know, as she had not done anything before, and said you would have to teach her. You said this would be your pleasure. When she expressed concern about disappointing you, as she 'wont b any good at it', you said that she would be excellent. She asked if it would hurt and you said:
'Not what we'll do, Tah. Nothing like that'.
27You told her that you and she could not have sex, as that would hurt her, but you could 'play it by ear'. You also told her that you could not have sex with her, because she was too young, but that you could explore kissing and touching. You told Tahlia that her mother would cut off your balls if she knew. You suggested to her that you and she could start texting and you asked whether she could receive calls. In order to avoid Tahlia's mother finding out you suggested that you call via an unknown number and told her that she could delete it.
28On 20 November 2019 you made attempts to contact Tahlia but did not receive a response.
29On 22 November you and Tahlia exchanged messages where you said you were dreaming of being with her but that you would have to be careful and could not do anything too much. You said 'and couldn't let your mum know and have to be safe for you'. You said you would not do anything that she did not want to do but guessed that she wished to do some exciting things. When she asked you what you meant you said, 'You tell me, you're a big girl'. She replied, 'Lol not that big, I'm only 14'. You replied 'true'.
30The conversation went on, with you asking Tahlia whether she wished to be treated like a 14-year-old or older. You asked her whether she thought she was ready for some sexual experience. She said that she would be nervous. You replied that you would probably be nervous too, as she was 'really too young and I'm so much older', you said. You asked her if she had ever been naked with a guy. She said she had not, so you asked her how she would feel about this. You then asked her how she would feel about kissing and 'maybe petting…touching each other'. You said that you and she could touch all over; 'breasts and pussy and cock and balls' and 'maybe licking and sucking'.
31When Tahlia told you that she never took photos of herself of a sexy nature you asked her 'why not?' You asked her if she had seen your cock and she said she could not remember. You said that that was okay and you would see how things panned out. You said, 'if we meet all this talk would be just chatter'.
32You then confirmed that you wished to meet Tahlia and told her that you could explore what she wanted.
33On 25 November 2019 you sent Tahlia a message through Skype and told her it was nice to see her. Tahlia told you that she had a good weekend and had seen her father. She said that he would not like to know that you and she were chatting. She said she did not tell anyone that you and she chatted. You said that you knew this and thanked her. You asked if she was still keen to meet. She said that she was if you wished to. You said it would be nice to meet her, as you had been chatting all of this time. She agreed that this would be good. You said that it would most likely be a day that school was on and she said she could skip school. You replied, after a smiley face, 'Good girl. Are you good at school work?' When she said she was okay at this you said 'so a day off wouldn't matter much. Maybe a Wednesday the 11th Dec'.
34You and Tahlia continued the conversation, where you asked Tahlia where you could pick her up. You and she discussed train stations and a suitable time to collect her. You reminded Tahlia that your hotel in Surry Hills had a pool and a balcony. You again asked her whether she had ever been skinny dipping and told her it was a great feeling but probably you could only do this at night, so people could not see. When she said that she would be 'kinda shy' you replied, 'not with me tho I hope?'
35You told Tahlia that she was very sweet and sexy. You also told her that you knew she was 14 but she looked a bit older 'and adventurous'. You again spoke to her about holding your 'cock' and being kissed and touched. You said it was natural for her to be nervous about this.
36You said you would make sure she felt like a grown-up girl by treating her with respect and taking things slowly. You said, 'And if you wanted to have full sex I'd make sure I had condoms'. You then asked her if she thought she wished to have full sex. She said she did not want to be bad at this, as she was concerned about you being disappointed. You promised her that she would not be bad at this and that she could not be really, as she was a sexy, young, gorgeous girl. She replied with a smiley face and you then said, 'so we have a plan for the 11th Dec?'
37You went on to ask her if she was feeling sexy and excited about the 11th and whether she felt like touching herself on her 'fleshy pussy'. You told her to take her panties off and asked her whether she was touching herself and 'feeling inside'. You then gave her directions about masturbation and inserting her finger into her vagina, and to tell you when she felt different, and told her that she was a good girl. You told her that you were masturbating. When Tahlia asked you about this you said, 'I'll show u when we meet'. You continued to talk Tahlia through masturbation and told her that she might have an orgasm if she kept going, which you said would be mind-blowing.
38Between 26 and 27 November you contacted Tahlia via Skype but received no response.
39On 28 November you and Tahlia had a conversation where you asked her what she was wearing and when she was going to send you a 'sexy selfie'. You told her that this meant 'bikini, undies' and whatever she was 'comfy with'. You said that the reason you were asking for this was so you could have a better feeling for her and her personality.
40You asked her to confirm that she had already seen your 'cock' and told her that she would get to hold it. You then said that she could 'ride it too' if she wanted. When she asked you what you meant by this you replied, 'If you have sex with me'. She asked how she would 'ride it' and you replied with a graphic explanation of this. You said that you would work out what else you would do when she and you were together and that you would not do anything that she was not comfortable with. You told her that you thought she would be just like her profile picture in person; 'sexy, slim, small breasts'. You asked her what colour her bikini was and she told you that her strap broke. You offered to purchase her a new one, saying you could buy it together on the way to the hotel. You said that she could model the bikini for you. You commented that people at the store would think you were her grandfather, noting that you were sixty-four and she was fourteen.
41On 29 November 2019 you sent Tahlia a message saying that you had been thinking a lot about whether you and she should meet and felt it would be wrong on a 'whole lot of levels'. You told her that you were going to have to cancel.
42On 10 July 2020 you were arrested at your home, which was also your work address, and search warrants were executed. Your iPhone, iPad and laptops were seized and you were taken to the Mornington Police Station, where you were formally interviewed whilst in custody.
43You made the following admissions:
·You said you communicated to Tahlia via Chat Avenue and Skype and that the conversations were sexualised.
·You raised the prospect of meeting Tahlia in person and offered to purchase her a new bikini, however you said this was fantasy and was never going to happen.
·You said that you 'may have sent a picture of a penis' to Tahlia.
·You said that Tahlia told you that she was not 18 but you could not remember whether she said she was 14 or 15 or 16. I have taken into account that these were not the only answers in relation to that particular subject but I will come to this issue in due course.
·You told police that you instructed Tahlia on how to masturbate because she was saying she did not know how to. You said, 'I was saying in my experience this is what you can do, describing female masturbation. I wouldn't have without prompting'.
·You said that the purpose of the conversation about masturbation was 'weird sort of funny gratification' but something that you were uncomfortable with and ashamed of.
·You said that you fantasised about meeting Tahlia for 'some sort of sexual contact' but you felt that the whole thing was immoral and illegal, so you deleted her from Skype and did not chat to her again. You said you did not intend to actually meet with her.
·You said that you had had other similar interactions with people besides Tahlia but you had never met with them or phoned them. I was taken to further passages in the record of interview which clarified this particular answer and amounted to you admitting to having had online exchanges with other underage females, but you said that you had only asked them about their fantasies and the communications were not of the same explicit nature as those you had had with Tahlia.
44Insofar as this last aspect is concerned you have not been charged with any offending relating to other underage females and, as your counsel submitted, the only relevance of you speaking with underage females in the way you admitted to is to put your charged conduct in its proper context and prevent your counsel from submitting that you had only communicated with one person who you believed to be underage; namely Tahlia.
45Mr Bodin, your offending is serious and I must impose a sentence which is of a severity that is appropriate in all of the circumstances of the offence. As the prosecution submitted, you initiated contact with someone who you believed to be a 14-year-old child and spoke to her in the most prurient or lurid fashion, in circumstances where Tahlia was conveying to you that she was an innocent. Rather than being deterred by this, or indeed the fact that she was only 14, you embarked on sexualised conversation with her almost immediately and sent her an image of your penis, directing her to open the uploaded image. Further, you asked Tahlia to send you sexualised images of herself repeatedly and re-instigated communications with her. Whilst it is true that you called off plans to meet with Tahlia you expressed to her the intention to do so on more than one occasion and returned to the topic more than once. Also, having said that you would not engage in penile/vaginal sexual intercourse with the complainant you returned to this topic on 28 November, where you were encouraging this type of sexual activity with her. You attempted to video call the complainant on two occasions while instructing her on how to masturbate, thereby attempting to engage in sexual activity via Skype. You were also prepared to corrupt the complainant by instructing her on how to masturbate and speaking in such a lurid way repeatedly in respect of a range of sexual activities.
46I am also of the view that your offer to buy her a bikini and to have her come to your hotel, which had a pool, were enticements to further encourage her to meet with you.
47As the prosecution submitted, the fact that the victim was not in fact a 14-year-old girl does not reduce the objective seriousness of your offending. The fact of the matter is that you believed that she was. Your conduct was morally reprehensible and repugnant and calls for an appropriate punishment, firm denunciation and strong weight to attach to general deterrence in a bid to deter others from behaving as you have. As the prosecution submitted, general deterrence and denunciation in respect of this type of offending are paramount sentencing considerations, as this type of offending is prevalent, an easy crime to commit and often difficult to detect.
48Whilst it is true that your offending was relatively unsophisticated in that you used your own identity, if you had not been communicating with an undercover operative your offending might well never have been detected. Certainly, at times you were conscious of the fact that Tahlia's mother might discover what you were up to; expressing gratitude when Tahlia volunteered that she did not tell anyone about your conversations with her. Whilst I accept that you were embarrassed and ashamed of your conduct when the police questioned you about this some seven months later, I find it difficult to accept that you did not specifically recall whether you had sent a picture of your penis to Tahlia if that is what you were meaning to convey to the police. Further, you were the one who was prompting conversations about masturbation, rather than the complainant, so that your answer to police that you would not have told her about this without prompting was somewhat disingenuous and flies in the face of the evidence, in my view. Also, although there were a number of references in the record of interview to the age that you believed the complainant was, in your conversations with her there were repeated references to her being only 14 so, again, the various ages that you mentioned need to be seen in this context. In the end I accept that you were very frank with the police in respect of your offending but some of your answers were tinged with a bid to distance yourself from full culpability at that time.
49In your favour, however, you put the offending to an end for all the right reasons. Unlike many who commit the offence for which I now sentence you, you did not make a concrete arrangement to meet with Tahlia and you were not caught in the act of trying to do so. You ceased offending of your own accord rather than being stopped by the police, which is a matter to your credit.
50You have no prior convictions and it is clear from the abundant character material tendered at the plea hearing, as well as evidence given by Mr Blayney, that you are a person of otherwise good character. As the prosecution submitted, evidence of good character in offending such as this is given less weight than might otherwise be the case, however it is still an important matter to take into account.
51You have never been diagnosed with any impairment of mental function, which might help to explain your offending and impact on your moral culpability or the weight needed to attach to other sentencing factors. On the other hand, the absence of an impairment of mental function is a positive matter in terms of assessing your prospects of rehabilitation and protection of the community.
52Also, in your favour I allow for a significant discount in the sentence you would otherwise receive due to the stage at which you entered a plea of guilty in this matter. You pleaded guilty to the charge at the third committal mention but had indicated a preparedness to plead guilty to an appropriate charge from an early stage, therefore you have saved the witnesses the time and trouble of giving evidence in contested proceedings and you have saved the community the time and expense of contested proceedings. Further, I accept that you are genuinely remorseful for your offending and have demonstrated appropriate insight.
53I should also add that your preparedness to plead guilty in these times of COVID-19 adds an extra utility and is deserving of a further allowance in your case.
54In sentencing you I have taken into account in a general way the reports of
Dr Barth dated 9 May and 18 May 2021, and I have also taken into account his further report. In particular I note that you have taken part in a sex offender treatment program since 20 July 2020 with Mr Peter Hanley, an associate of
Dr Barth's practice. You have taken part in the program with Peter Hanley on 19 occasions and, in essence, you have done everything that you could since the offending to take a path of rehabilitation. I note that you were gainfully employed at the time of the offending but you put an end to this in April this year because of these proceedings. I understand that you have worked as a volunteer driver for a not-for-profit organisation that provides meals for those who are suffering as a result of a crisis.55You have an impressive education and work history and I accept that you have been a productive and contributing member of the community with a strong work ethic.
Background
56As previously mentioned, you are now 66 years old. You are the first of four children and enjoyed a happy and stable childhood. After completing your secondary education in 1972 you commenced studying dentistry at the University of Melbourne but after three years you discontinued this and travelled around Australia. After travelling for six months, you worked in a garden maintenance business that was operated by your father and brother and went on to become a partner in that business.
57You returned to tertiary study in 1978, undertaking a Bachelor of Economics which you completed in 1980. You then began work as a sales representative in November 1980 and remained with the same company until 1983. You worked in several roles after this and in 1987 you worked for the Australian Paper Mills, becoming general manager of the packaging division. You stayed with this company until 2003. Between 2003 and 2006 you worked as an independent commission agent with a particular company, working from home. In 2006 you worked at Edwards Dunlop Paper as the national manager of the packaging division, leaving in 2009 after being recruited by another company. You managed the Australian operation of that company, Ekman Pty Ltd, until April 2021, when you resigned because of these proceedings.
58You have one significant relationship in your life; being your wife, Margot. You have been married for 40 years and have two adult children.
59You live with your wife in suburban Melbourne. Your children have left home and live independently with their respective partners.
60I was told that you have suffered several serious health issues, although these all seem to be appropriately managed. You suffer from hypertension, for which you receive medication, and after a cardiac arrest in 1987 you underwent surgery where a stent was inserted. In that year you broke two vertebrae in your back after being struck by a car whilst riding your bike. In 2018 you were diagnosed with lymphoplasmacytic lymphoma, which is a slow growing
non-Hodgkin lymphoma. This condition is being monitored and you have blood tests every six months and are reviewed annually.61I have also factored in the report from your haematologist indicating that you have a haematological condition which impairs your immune defence and if you were to contract Coronavirus, or other bacterial or viral infections, your ability to fend off severe illness would not be normal and you are at high likelihood of developing severe illness and the need for hospitalisation. In this regard also I was told today that you have received your first vaccination against COVID-19 and you are due for your second vaccination on 1 September.
62I did not understand your counsel to be submitting that any time in jail would be harder because of any of your medical problems. However, I do take into account in particular the report from your haematologist indicating your susceptibility to infection which, in my view, would make that time a good deal more burdensome in your case.
63It is evident from your commitment to treatment since your offending and your expressions of remorse and insight in your letter to me and in what you have told others, including Mr Hanley and Dr Barth, that you are genuinely contrite and have done all you could in order to redress the wrongfulness of your conduct. You had taken part in 19 treatment sessions with Mr Hanley and you have attended four interviews with Dr Barth and not committed any further offences. I have received updated information from each of those treating professionals which indicates that you are still receiving appropriate treatment. You are ashamed of your actions and, notwithstanding the seriousness of your offending, your wife and children remain supportive of you. You are also well supported by others, such as Mr Blayney, who gave character evidence on your behalf and who also spoke of your heartfelt remorse.
64Mr Hanley noted:
'Mr Bodin demonstrated insight into his offending as a compensatory coping behaviour related to losses of power in several domains including sexual potency, health and financial position. Mr Bodin also showed insight into the self-centred and manipulative nature of his offending which had resulted in him having ignored the needs and rights of the victim and having sexually objectified them'.
65While such insight is encouraging, I am concerned that you saw fit to address your problems by communicating with someone you believed to be 14 years old rather than someone who was age appropriate. Dr Barth assessed you as presenting a moderate risk of re-offending but said that provided you continued to take part in further sex offender treatment the risk would likely reduce. He said:
'Continued participation in a sex offender treatment program would be the single most important factor in the prevention of relapse in Mr Bodin's case and I would strongly suggest that he undertake it at the earliest possible opportunity. When considering the progress he has made to date, treatment is likely to have a genuine protective benefit in Mr Bodin's case'.
66Dr Barth's finding that you are at moderate risk of re-offending was based on the RSVP assessment tool. He said that such a risk was no greater than most sexual offenders living in the community and that the available research indicated that the tool had a propensity to overestimate the risk for recidivism of a first-time online offender.
67Dr Barth said:
'Mr Bodin is an intelligent man who values pro-social connections, has an excellent employment record and enjoys positive support from his wife, daughters and a group of close friends. Furthermore, Mr Bodin has displayed a positive disposition towards psychological treatment and has engaged very well with such intervention. These all represent positive factors with regards to his prospects of successfully achieving his rehabilitative goals. Provided Mr Bodin continues to receive the required treatment and support there are grounds for optimism with regards to his ultimate rehabilitative prospects in the community'.
68Mr Hanley was also optimistic about your capacity to benefit from future treatment interventions. Dr Barth found that if you were to continue to display commitment to treatment, as you had done, your risk would likely trend to the low range in the medium term.
69Since the original plea hearing, as I have said, I have received updates in respect of your progress from Mr Hanley and Dr Barth; both of whom have spoken in most positive terms about your progress and developing insight in respect of your offending. You have continued to see each of these experts at your own expense and it seems to me that since the offending you have done all you can to rehabilitate and shown an open preparedness to continue on that path.
70In all of the relevant circumstances I find that your prospects of rehabilitation are very good and I need place minimal weight on specific deterrence and protection of the community. However, as I have said, strong weight must attach to general deterrence in a bid to deter others from behaving as you have and also I must denounce your conduct. Just punishment is also a prominent sentencing consideration which must be given strong weight.
71In sentencing you I have factored in that any time in custody would be especially difficult for you in view of the COVID-19 restrictions and in view of your age and medical condition, to which I have referred, as contained in the letter from
Dr Herbert. I have also taken into account that this would be your first time in custody.72I have also considered sentencing practice insofar as I can, noting that I have not been provided with any case that is on all fours with yours and also that sentencing practice is but one consideration and not a controlling factor. As your counsel submitted, I must impose a sentence that is just and appropriate in all of the relevant circumstances and no more severe than is necessary. I can only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence. While the authorities make it clear that ordinarily an immediate term of imprisonment would be imposed for offending of this kind, as your counsel submitted in her written submissions; imprisonment is not a starting point, nor is it a default position in sentencing. As was submitted, the Court of Appeal in Director of Public Prosecutions (DPP) (Cth) v Singh [2017] VSCA 146:
'That is not to say that an immediate term of imprisonment must be imposed in every case of offending against s474.26, nor did the Director contend for that position. It is clear that there will be some cases where it is open to a sentencing judge not to impose a term of imprisonment. Section 17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence unless it is satisfied, after having considered all other available sentences, that no other sentence is appropriate in all of the circumstances of the case'. [46]
73Although cases where immediate imprisonment is not imposed ought be rare there will be cases which justify a lesser sentence.
74Having considered all of the relevant circumstances in your case, and indeed the extended assessment report from Community Corrections, I am of the view that your case is a rare one in that you, of your own volition, stopped offending, and you have embarked on a path of rehabilitation over a significant number of months which, in all of the relevant circumstances, bodes very well for your rehabilitation. In sentencing you I have taken into account that the offending was of relatively brief duration, was relatively unsophisticated and, importantly, that you desisted rather than being caught. I have also factored in your otherwise good character and impressive efforts at rehabilitation, as I have said.
75The prosecution submitted that nothing short of an immediate term of imprisonment was warranted in your case, albeit that an immediate term with the structure of a recognisance release order would be open. Your counsel submitted that in all of the relevant circumstances a recognisance release order which saw you remaining out of jail was appropriate or, in the alternative, which saw you spending a limited period in prison.
76I had you assessed by Community Corrections and have received a most helpful report. You have been found suitable to undergo Community Corrections conditions as part of a recognisance release order. Conditions in respect of supervision, mental health and the sex offenders’ program are recommended. You were assessed as being at low risk of re-offending.
77In my view justice can be done to all relevant sentencing principles and the weight that needs to attach to these by imposing a recognisance release order which would see you continuing on your path of rehabilitation without the need to have you serve an immediate term in jail. In my view there is no utility in sending you to jail immediately however you should be under no illusion,
Mr Bodin, that if you were to re-offend you will be at great risk of serving an immediate term for this offending.Recognisance Release Order
78You are convicted of the offence.
79You are sentenced to three years' imprisonment to commence today but you are to be released forthwith upon you giving security by recognisance in the sum of $5,000 to comply with the following conditions:
(1) That you are to be of good behaviour for three years;
(2) That you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee, for the period of the order, being three years;
(3) You are to 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. In this regard it would be highly desirable, in my view, that you continue with your current treater or treaters;
(4) That you attend for assessment and, if assessed as suitable, treatment for sex offender programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee;
(5) That you report to the Box Hill Community Correctional Services - and the address and contact information will be provided to you - by 4 pm within two clear working days from today's date, being 9 August 2021. So that is by
4 pm on Wednesday and I would say telephone contact would be the way to make contact because we are in lockdown;(6) That you report to and receive visits from a Community Corrections officer or officers;
(7) That you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change;
(8) That you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and
(9) That you are to obey all lawful instructions and directions of Community Corrections officers.
80I have made this order because you have been charged with the federal offence of using a carriage service to procure a person believed to be under the age of 16 years for sexual activity and I have sentenced you to a term of imprisonment of three years but I have decided that you are to be released forthwith if you comply with the conditions of this order.
81This means that you have been sentenced to a term of three years' imprisonment but you will not have to serve that term unless you commit another offence, including breaching any condition of this order within the next three years. If you commit a criminal offence, including breaching any condition of this order within the next three years from today, then unless you can give a justifiable excuse you will be required to serve three years' imprisonment and may also be required to pay the sum of $5,000.
82I have imposed this sentence because of the seriousness of the offence that you have committed and to give appropriate weight to all relevant sentencing principles in this case.
83I am required to tell you that the recognisance release order can be varied or discharged under s20AA of the Crimes Act 1914 (Cth) upon application by you or a person described in s20AA(1) of the Act.
Sex Offenders Register
84Under the Sex Offenders Registration Act 2004 by reason of your conviction on this offence you are to be recorded as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for the next eight years. You must first do so - that is, report - within seven days from today. Details in writing of the reporting conditions will be served shortly upon you by my associate. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.
Section 6AAA
85I indicate pursuant to s6AAA of the State Sentencing Act if not for your plea of guilty I would have sentenced you to an immediate jail term of five years' imprisonment, to commence today, with a non-parole period of three years. Take a seat for a moment, please.
86Now, Madam Prosecutor, just I noticed that when I was reciting the actual offence towards the end of my sentencing remarks it's actually a procure, isn't it? Not a groomed?
87MS STEVIC: That's correct, Your Honour.
88HER HONOUR: Yes, so that was a slip made by me. I knew that it was a procure not a groom but that was something that was put in by way of typographical error, so I'll change that. Now, is there anything arising from those sentencing remarks from your point of view, Madam Prosecutor?
89MS STEVIC: No, Your Honour.
90HER HONOUR: Did you wish to have a look at the recognisance release order?
91MS STEVIC: Yes, Your Honour. Thank you.
92HER HONOUR: Thank you very much. If we could have you check that please? If I just indicate I'm grateful to the Commonwealth providing us with some templates; the recognisance release orders. Unfortunately it had 'groom' in that body of that document not 'procure', but we'll change that.
93MS STEVIC: My apologies for that, Your Honour.
94HER HONOUR: No, that's all right. We'll change that. That's my fault, I should have changed it.
95MS STEVIC: I think it's just the provision.
96HER HONOUR: Is there a difficulty with one of the ‑ ‑ ‑
97MS STEVIC: It's just the provision on the second page, Your Honour. It should be 474.26.
98HER HONOUR: Do you mind just writing down ‑ ‑ ‑
99MS STENVIC: Yes, I've done that. I can hand that back to Your Honour's associate.
100HER HONOUR: Thank you. And while that's being printed I'm just wondering if the sex offender's register document could be provided and - all right.
101MS FRANJIC: Your Honour, may I approach my client?
102HER HONOUR: Yes. Anything further, counsel?
103COUNSEL: No, Your Honour.
104HER HONOUR: Yes. Thank you for your assistance and we will now adjourn.
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