Director of Public Prosecutions (Cth) v Botting
[2018] VCC 621
•3 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 17-01700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID BOTTING |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 23 April 2018 | |
DATE OF SENTENCE: | 3 May 2018 | |
CASE MAY BE CITED AS: | DPP (Cth) v Botting | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 621 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Code Act (Cth) 1995; Sex Offenders Registration Act 2004; Sentencing Act 1991; Crimes Act 1958 (Cth)
Cases Cited:DPP (Cth) v Watson [2016] VSCA 73; DPP (Cth) v Singh [2017] VSCA; R v Fuller [2010] NSWCCA 192146; Konamala v R [2016] VSCA 48; R v Pham (2015) 256 CLR 550; R v Gajjar [2008] VSCA 268, DPP (Cth) v Hizhnikov [2008] VSCA 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr B. Stevens | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr J. Van Arkadie | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HIS HONOUR:
1 David Botting, you have pleaded guilty to one charge of transmitting indecent communications to a person under 16 years of age using a carriage service, contrary to s474.27A of the Criminal Code Act (Cth) 1995. The maximum penalty applicable to that offence is seven years’ imprisonment. You have also pleaded guilty to one charge of using a carriage service to procure a person believed to be under 16 years of age for sexual activity, contrary to s474.26(1) of the Criminal Code Act (Cth). The maximum penalty applicable to that offence is 15 years’ imprisonment.
2 These crimes arise out of events which took place between 21 January 2017 and 26 April 2017. The victim of your offending relevant to Charge 1 is Tyler Ingram[1].
[1] Tyler Ingram is a pseudonym
3 It is not necessary for me to recount in great detail the facts of this matter, as the matter has been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are, in my opinion, most serious and disturbing.
4 I turn to a brief summary of your offending.
5 Between 21 January 2017 and 13 March2017, you used a social media website, Instagram, to send indecent communications to a 12 year old male, Tyler (Charge 1).
6
Between 25 March 2017 and 26 April 2017, you communicated with and arranged to meet a person you believed to be under 16 years of age, with the intention of procuring that person to engage in sexual activity with you
(Charge 2).
7 Turning to Charge 1. Tyler states that in approximately June 2016, he was on a Grade 6 excursion to Deakin University where you were then employed. You told police in your record of interview, you did not remember meeting him. Tyler stated you gave all the children on that excursion your Instagram user name which was “Blindinglight”.
8 On 21 January 2017, Tyler was searching for people on Instagram to follow and he remembered your user name and decided to begin following you.
9
That same day you engaged Tyler in a private conversation on Instagram by sending him a direct message. You and Tyler continued to converse until
13 March 2017.
10 During the course of the Instagram conversations you made sexual comments and asked Tyler about his sexual interests. Those conversations were indecent and included those set out within the prosecution opening (see paragraph 6). Those conversations, in particular on 9 March 2016, are particularly concerning, commencing with you offering gifts. In that conversation Tyler told you he was in Year 7 and that he was nearly 13. You asked him if he has ever been “curious” and whether he had “ever looked at porn or anything like that”. You asked:
“Have you ever tried seeing how good your ah feels? That was the best discovery. Seriously. So you never play with it? That’s what it’s made for! To feel good. I hope I’m not [weirding] you out”. You then said, “I had someone explain and show me, helped me loads”.
11 Two days later you instigated a conversation with Tyler, asking “Did you get freaked out or were you curious? Just trying to help”. He said he had “heard all that stuff before”, so he was fine. You replied, “I was hoping you would be interested in trying, so you would know what it’s like”.
12 Later that same day you sent Tyler another message, stating you were in bed. You asked him if he ever got "morning glory" or “morning wood". He replied, “No”. You described that you lay in bed at times masturbating and then encouraged him by saying, “Like this morning. It feels good tho, right?!” You asked, “Are you doing it now?” Tyler replied, “No”. You asked, “Why not?”. Two days later you asked, “What’s going on?” and said you described you were then “kinda doing what I was talking to you about”. You told Tyler, “I want you to try, it’s good to relax, man.”
13 Those conversations ceased on 13 March 2017, when Tyler’s mother, Jenna Forbes[2], located the conversations between yourself and Tyler and reported the matter to police on 22 March 2017.
[2] Jenna Forbes is a pseudonym
14 Following your arrest on 26 April 2017, you participated in a record of interview and made a number of statements regarding that offending. You said primary school aged students never toured the university where you worked. “No need for primary school students to go to Deakin”. You said you did not give out your Instagram account name to primary school students. You said you had not been contacted by a young student but had “never had a conversation like that on Instagram”. You did remember talking to a young boy on Instagram about Nike, but said, “It was a conversation that didn’t go anywhere, as far as I’m aware, it just ended up fizzling out”. You said the conversation you had with Tyler was, “One of those conversations I knew I shouldn’t have had at the time” and that the conversation “was not good”.
15 As a result of Jenna's report to police, an investigation was conducted and in that regard a police officer posed as a 14 year old boy on Facebook. On 25 March 2017, that covert operative sent a friendship request to you via Facebook, which you accepted.
16 On 26 March 2017, you contacted that covert officer via private message and between 26 March 2017 and 26 April 2017, communicated privately with that operative. Early in the conversations, the operative told you he was 14 years of age. You initially questioned the authenticity of that person’s age and asked the operative to purchase a webcam so you could Skype. During the course of the conversation, the operative sent you two photographs of a boy aged approximately 14 years of age and stated the pictures were of him.
17 In subsequent conversations you referred to the operative’s age and said, “I could go to prison. As much as it would be fun with you and I wanna show you, I wouldn’t want to go to prison”.
18 Later on in the conversation you instructed the operative to use a secret messenger conversation so that the conversations would be automatically deleted after a certain period of time.
19 The conversations with the operative started as a general discussion about the operative’s life and family situation. You then sexualised the conversation and escalated that content over time. Some of the conversations are set out in the prosecution opening (see paragraphs 13-19) and I will not repeat those details here.
20 I have read all the messages sent by you to Tyler and to the operative. I discussed these in great detail with your counsel. As I stated in Court, it is only after careful reading of all messages and submissions by both counsel and the opinion of Mr Cummins, to which I shall later refer, can they then be fully assessed.
21 Ultimately, you asked the operative to meet with you and told the operative not to tell his parents as they would not like it. An arrangement was made to meet at Hawthorn McDonalds at approximately 10.15 am on 26 April 2017. You attended as planned and were then arrested.
22 When interviewed about that offending, specifically the conversation with the operative, you said, amongst other things, that you believed the operative’s Facebook account was an older person, pretending to be 14 years of age. You continued to talk to the operative, you said, because you were curious and wanted to find out "for sure" if the operative was really 14. You agreed you asked the operative to send you photos and for the operative to get a camera so you could talk “face to face”.
23 You agreed to engage in sexual conversations about gay sex with the operative (prosecution opening, paragraph 21e). You also admitted talking to the operative about details of male same-sex relationships. Your reason for that, you said, was that you were “playing two sides of the cards” to see if “that account was real or whether it really was a kid that was young and if they understood what it meant to be gay or were they just going on a fad and going, 'I’m gay'”.
24 You agreed you instructed the operative on how to digitally penetrate himself (prosecution opening, paragraph 21h). Regarding that conversation, you said you were “testing the waters” to see how far the "covert" was reacting to what you were saying.
25 You said you were 90 per cent sure it was a fake account and acknowledged there was a small chance the account was real and that it was a 14 year old boy. I discussed with your counsel your concerns that the covert operative was a ‘fake’ account. Mr Van Arkadie conceded in your interview, you minimised your offending. He is correct.
26 You said you wanted to make sure the operative was aware of what being in a gay relationship entailed and that the whole conversation was if the operative was actually 14.
27 You said you were concerned about explaining to the operative what a gay relationship "looked like", as you thought the operative did not understand what a gay relationship was like and what the reality of a gay relationship was. When asked whether you thought it was your role to teach the operative about gay relationships you said, “I don’t know, it’s just part of me. I normally teach a lot of people and I’m used to talking to people about just the hard stuff”.
28 You said that you wanted to make the operative comfortable in the conversation and if you thought that the operative was not comfortable, then it would not have continued. You agreed the conversation with the operative was inappropriate and you did not know why you had done it.
29 You said your arrangement to the meet the operative was just going to be a “general meeting to sit down and have a chat”. That you would have had that conversation at McDonalds and then you would have said, “I need to go and you should go back and do your school thing”. You said you chose McDonalds because it was a “comfortable public space. That if any of them decided they were uncomfortable, they could go”.
30 You told police you did not have an attraction to anyone below the age of 16, stating, “I talk like that. There's no way I would do anything”. You acknowledged, “I shouldn’t be talking like this and it’s not right”. You said that only occurred when you are “having a hard time” or were in a "hard space", when you are not mentally happy and healthy.
31 You said you did not get sexual gratification from the conversations, but liked speaking to people on a ‘deep level’.
32 The two charges before me are Class 2 offences and under the Sex Offenders Registration Act 2004, these are registrable offences. By your pleas of guilty, you are required to comply with those obligations, as set out in the Act, for a period of 15 years, such being mandatory. Your counsel, Mr Van Arkadie agreed such a duration and classification applied to you.
33 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses, in particular, Tyler, have not been required to give evidence upon your trial. Further, I take into account in your favour, you intimated early your intention to plead guilty to Charge 1 and that whilst your plea of guilty was entered relatively late (ie shortly before trial) in relation to the other charge, is still relevant in mitigation of your sentence.
34 There is a utilitarian benefit in your plea of guilty to these offences.
35 I accept your pleas of guilty to these offences indicate some remorse by you, although am concerned about the extent of your remorse, given some of your answers in the record of interview, which reveal a level of denial and/or minimisation. I accept you have expressed remorse to Mr Cummins and to the authors of the two references before me. My concerns regarding the extent of your remorse were discussed with your counsel.
36 There are a number of aggravating features of your offending, as set out within the prosecution submission on sentence (Exhibit C). I agree such are aggravating features of it.
37 Mr Van Arkadie accepted those features were applicable to your offending, however also referred to a number of ‘often’ seen aggravating features in cases such as this, not apparent in your case, including that you did not misrepresent your age, gender or identity and the limited duration of your offending (over approximately six weeks). Mr Van Arkadie also relied upon the prosecution accepting you were not ‘trawling’ the internet looking for underage persons to communicate with, although conceded it was you who commenced the sexualised conversations. Further, the two photos you sent of yourself did not involve photos of your genitalia or of you participating in sexual acts. He is correct. Further, he submitted and I accept, there were no inducements/gifts offered or threats made.
38 Mr Van Arkadie disagreed with the prosecution submission that there was no remorse for your offending. I accept, as I have said, you have demonstrated some remorse, although consider it to be limited somewhat over and above your pleas of guilty and timing of them.
39 I accept relevant both to remorse and your rehabilitation prospects, that you attended a psychologist (albeit not named) for assessment. Your instructions were, however, that you were told not to attend until this Court matter concludes.
40 The victims of the offending, Tyler and his parents, have suffered considerably as a result of it and I shall return later to those in these sentencing remarks.
41 Mr Van Arkadie prepared a helpful written outline of submissions and addressed those during the course of your plea hearing.
42 Turning to s16A(2)(m) Crimes Act 1958 (Cth), you were 30 years of age at the time of offending and are 31 at this plea hearing. You were born in New Zealand and a permanent resident in Australia and until your remand, were living in Maribyrnong in rental accommodation.
43 You are single with no dependents. Turning to your childhood and family, due to your mother’s medical and mental health issues, you were adopted by another family. When 21 you contacted your birth mother and were in the process of meeting her, however she passed away before you met her. You were adopted from birth and raised in a sibship of four children. Your family made you feel loved, included you and were always supportive of you. Your adoptive mother, in particular, was supportive of you when you were diagnosed with Attention Deficit Disorder at school. You apparently used to enjoy fishing with your father.
44 Your family were active members in their local church. Your father was a pastor of that church. Your adoptive parents remain in New Zealand and your siblings are also living there.
45 You completed primary education at Te Awamuta Primary School, graduating in 2003, including Year 11.
46 At school you played saxophone, played in the school band and in competitions. That led you to pursuing musical and technical production roles.
47 From 11 years of age your passion for music was complemented by learning how to operate audio equipment at the local church. After leaving school you worked with a music retailer, simultaneously working with the Hamilton City Council as senior theatre technician. You have devoted much of your career to date developing working with lighting, television and audio equipment.
48 At the time of this offending you were working full-time at Deakin University as a technical director and manager of Deakin Broadcast Studio. You resigned from that employment after being charged with these offences.
49 You are currently working as a freelance lighting designer and in that role, you work in consultation with a range of performing artists to complement live performances and professional lighting.
50 At the time of this offending you had little savings and following resignation from Deakin, were unemployed for some time. Prior to your recent remand, as I have said, you were in receipt of some income (various amounts) from casual work. Your living expenses were set out within the written submissions (Exhibit 1 paragraphs 23-24).
51 You were engaged in 2013, living together for four to five years, when you moved to Australia with your fiancée. Your aim was to pursue a life in Australia, but due to difficulties your fiancée had in accepting your confusion about your sexual identity, you separated.
52
Your counsel, Mr Van Arkadie, referred to you being assessed by Mr Jeffrey Cummins, Forensic Psychologist, on 8 March 2018, with a report completed on 11 April 2018. Mr Van Arkadie referred to a number of the findings of
Mr Cummins (see Exhibit 1, paragraph 30). I discussed this report in detail with Mr Van Arkadie, as the transcript will reveal, in particular regarding some of
Mr Cummins’ conclusions and opinions.
53 Mr Cummins assessed your current risk of re-offending as low/moderate. The recommendations of Mr Cummins were, that it was imperative you participate in offence-specific treatment and that you also receive counselling to focus on your confusion regarding your sexuality. I agree. Such treatment/counselling will hopefully increase your prospects of rehabilitation.
54 Mr Van Arkadie referred to your lack of prior criminal history and I also note nothing subsequent or pending. You are an active member of the Encore Church in Hawthorn and have undertaken training in leading prayer and counselling. It appears that a number of the members of the church were aware of your current offending and I was told, you had received some counselling for this offending from Church members.
55 You described spending about four days a week in church-related activities, relied upon by Mr Van Arkadie as relevant to assessment of your good character. Your good character is a relevant sentencing consideration, although I am mindful such is of less significance (albeit not eliminated) regarding offences such as yours.
56 Turning to s16A(a) and the nature and circumstances of your offending relevant to Charge 1, Mr Van Arkadie submitted you only contacted the victim months after the victim added you to his Instagram account. He urged that you did not actively seek out communication with a child. However, as I discussed with Mr Van Arkadie, I have some real concerns about why you would give your account details anyway, Tyler being a child who you had seen once at university, so it is a mystery to me as to why you would give him your account details.
57 Mr Van Arkadie also submitted that the indecent communications with Tyler were confined to a four-day period in March 2014. Those conversations, however, became, in my opinion, sexualised very quickly. There were also several messages ‘leading up’ to the indecent conversations (the subject of Charge 1) which provided background to those indecent conversations, as I discussed with him.
58 You were not deterred from communicating with Tyler and it was, as I said, you who started those sexualised conversations.
59 Turning to Charge 2, Mr Van Arkadie referred to the receipt of the communications being a covert operative and not an actual child. However, he appropriately conceded that the absence of an actual victim was a neutral factor, rather than a factor in mitigation.
60 Despite this communication occurring over a month, he relied upon the lack of threats, violence or coercion evident in those communications, nor inducement or gifts offered. That is so.
61 Turning to s16A-F, it was conceded by Mr Van Arkadie you demonstrated ‘some’ remorse in relation to these charges, by accepting the inappropriateness of your behaviour and your guilt. He submitted there was evidence of remorse in your record of interview with police and also during your psychological assessment with Mr Cummins. In the opinion of Mr Cummins, he thought you genuinely felt guilty, embarrassed, ashamed, regretful and remorseful for your offending and that you did have some insight in relation to victim empathy. He also said there was remorse indicated by you resigning from your employment after being charged. I have referred to my concerns regarding the extent of your remorse during the plea hearing. I accept you have expressed "some" remorse for your offending, as described by your counsel.
62 Turning to your pleas of guilty to these charges, Mr Van Arkadie submitted that had utilitarian benefit and showed a willingness by you to facilitate the course of justice. I agree. Your pleas of guilty are a relevant sentencing consideration in mitigation of sentence, to which I have previously referred, as is the stage at which you indicated your intention to plead guilty.
63 Turning to s16A(2)(h), Mr Van Arkadie submitted you were co-operative in your dealings with police when interviewed. I have, however, discussed your minimisation of your offending in that interview.
64 Regarding your prospects of rehabilitation, Mr Van Arkadie relied upon you being a low to moderate risk of re-offending, as assessed by Mr Cummins. You had insight into the need for treatment and had expressed a willingness to undertake treatment. You had, he urged, strong prospects of rehabilitation. I have guarded optimism regarding your prospects of rehabilitation, given in part your minimisation of your offending in the record of interview. However, your chances of rehabilitation will likely be increased by your successful participation in programs designed to reduce your risk of similar re-offending. When sentencing you, I must seek to maximise your chances of rehabilitation, as they may be.
65 Regarding disposition, Mr Van Arkadie referred to s16A(1). The Court must impose a sentence or make an order of a severity appropriate in all the circumstances of the offence.
66 He submitted that the sentence imposed should encourage your rehabilitation, consistent with the opinion of Mr Cummins. His primary sentencing submission was that I could impose a community corrections order for your offending. Should I consider a term of imprisonment was required to be served by you, I combine that with a recognizance release order.
67 I discussed with he and Ms Boston, for the prosecution, a number of differing sentence "structures", mindful of the complexities when sentencing in Commonwealth offences.
68 I turn to the report of Mr Cummins, dated 11 April 2018. He assessed you on 8 March 2018. Mr Cummins referred to admissions made by you in the record of interview, although simultaneously repeating that you thought the Facebook account was “fake”. You remembered, however, communicating with Tyler.
69 Mr Cummins referred to you not being required to undergo any offence-specific treatment since your arrest while waiting for these proceedings to be finalised.
70
Mr Cummins referred to your background and history, much of which was contained within the written outline provided by your counsel. Further information included that, upon your entering Australia with your then fiancée, you separated after approximately 12 to 18 months in Australia. Most recently you have been living in rented accommodation with Ms Gabrielle Kook, a
full-time pastor from your previous church, the Bendigo Church in Richmond.
71 Further details were provided regarding your adoptive family and siblings. You referred to being raised in a loving and caring family unit and were never a victim of emotional or physical domestic violence. You appeared to be, according to Mr Cummins, unsure whether you had been subject to any sexual abuse. However, in the interview, you commented openly on being confused about your sexuality. I discussed that with your counsel.
72 Your education and work history were set out within the report of Mr Cummins and I will not refer to that again. You described that the day after you were questioned by police, you terminated your employment with Deakin University, out of a sense of guilt, shame and embarrassment.
73 According to the report of Mr Cummins, you did not refer to any chronic physical or medical conditions, any excessive use by you of either alcohol or drugs, nor any hospitalisation in a psychiatric ward or psychiatric hospital.
74 Mr Cummins referred to a history of a number of intimate relationships from age 18 (see paragraphs 28–29 of his report). Your fiancée with whom you arrived in Australia, found out you had an interest in "guys" and found out you were communicating with an adult male about sexual matters on Facebook and broke off the engagement. Since that time you had been confused about your sexuality. You told Mr Cummins you knew you needed to learn more about your sexuality and said you were motivated to receive such treatment.
75 In the past two years you had been a member of the Encore Church in Hawthorn. You described having advised some of the senior members of the church of this offending, confirmed at your plea hearing before me, including the presence of Pastor Leyton.
76 You also described to Mr Cummins a business plan you had been contemplating over the previous three years, to establish a business for people with ‘creative minds’. I note the observations of Mr Cummins referable to you suggesting ‘a purchase of the ABC studios’. That appeared to be, according to Mr Cummins, indicative of fantasy or wish, as opposed to a realistic option.
77 Mr Cummins, referring to the materials available to him, stated that as soon as you were interviewed by police, you expressed guilt, embarrassment, and a degree of shame regarding your offending. This was not consistent necessarily with your answers, as I discussed with Mr Van Arkadie. It was some time into the interview that you made some admissions. You suggested you became involved in your offending as a result of being confused about your own sexuality.
78 Whilst that may or may not be so, that did not explain, in my opinion, your preparedness to engage in the conversation with both Tyler and the covert operative, who you believed to be under age.
79 You eventually acknowledged in your interview you behaved inappropriately when communicating with Tyler and also in communicating with the covert operative. You said you thought that operative was most probably not underage, but admitted you continued communication with this person who was purporting to be an underage male. You now accept the covert operative was under age.
80 Mr Cummins conducted a risk assessment. Using the Static-99R, you fell into a low-risk category. Using the Risk for Sexual Violence Protocol assessment tool, he observed that, regarding your sexual violence history, there was chronicity, diversity and escalation of your sexual offending. He also observed your offending involved psychological coercion, a breach of trust and an abuse of power. Also there was physical coercion, in the sense that the complainant Tyler said, when interviewed, that he felt uncomfortable regarding the communications he had with you.
81 In the opinion of Mr Cummins, at the time of your offending and his assessment, you had problems with self-awareness and he thought your offending behaviour was indicative of you having boundary issues and engaging in distorted thinking. You also, at the time of the offending and now, reported problems with stress and coping. Further, at that time and now, you were confused regarding your sexuality. This was effectively upon your self-report, as I discussed with Mr Van Arkadie.
82 You did not report any physical or emotional abuse as a child, although it appeared unclear to Mr Cummins whether or not you had been sexually abused at any time. I note you did not, at any time, however say to Mr Cummins you had been so abused.
83 Mr Cummins concluded your offending was paedophilic/hebephilic, in the context of you being sexually confused and sexually curious. In his opinion, however, when describing your offending in that way, he observed that may be your attempt at rationalisation/defensiveness on your behalf.
84 Mr Van Arkadie did not submit that any of the principles in R v Verdins & Ors[3], would apply in your case and on the material before me, that was an appropriate concession.
[3] (2007) 16 VR 269
85 Mr Van Arkadie did submit, however, that consistent with general sentencing principles, I could take into effect or take into account that you had difficulty with coping skills and were immature, that you might also suffer some anxiety referrable to possible (yet to be confirmed) deportation.
86 I accept that submission to a degree and I can take those matters into account when sentencing you and in mitigation of sentence, consistent with general sentencing principles.
87 Using the Static-99R and RSVP assessment tool, Mr Cummins ultimately concluded, your current risk of re‑offending was low-moderate.
88
In the opinion of Mr Cummins, it was imperative that you participated in
offence-specific treatment and general counselling, focusing on your confusion regarding your sexuality. I agree.
89 He said you presented at interview as genuinely remorseful and motivated to participate in offence-specific treatment.
90 You presented as relatively immature for your age. He thought there was a nexus between you being confused about your sexuality and offence behaviour. I discussed my concerns regarding that conclusion with your counsel and the transcript will reveal that discussion.
91 There was a reference from Pastor Annie Leyton, dated 17 April 2018, before me. She has known you for over three years as a member of the Encore Church in Hawthorn. She described you as a very active member of the community and that you were respected within the church community. You helped in a variety of roles. She described you as an exceptionally hard worker, with a demeanour that is always calm and even. In her opinion, you brought great maturity and sensitivity to leadership roles you held within the church. She was surprised to hear of your offending, as you had never exhibited any predatory or inappropriate behaviour. She described you as trustworthy, dependable and socially appropriate within the church community.
92 I also received a reference from Teni St John, a co-ordinator of the Children’s Program at Encore Church. She has known you for over five years, developing a strong relationship with you over the past three years.
93 You had spoken to her of your offending and expressed remorse for it. You resigned from working with students and from the employment with Deakin.
94 You had been a reliable support and assisted arrangements regarding her aunt’s death.
95 These charges were out of character.
96 She said you had shown care for others and were loved by many. You were a trusted and valued member of the Church community. She would continue to support you.
97 The victims of your offending (Tyler and his parents) have also suffered considerably as a result of your offending. Their statements are eloquent and it is difficult to do justice to them in these brief sentencing remarks. I have, however, read them.
98 Turning to the Victim Impact Statement from Tyler, who described the impact your offending had had on him. He said he was 12 when he went on an excursion with his school in Grade 6 and met you on that excursion, as you were one of the adults in charge of the group. He started to follow you on Instagram and after a while you sent him messages through Instagram. He described the messages as started off talking about Adidas and Nike "stuff" and then the content made him feel very uncomfortable. He said he told you he was 12, but you continued to send messages, which made him feel uncomfortable. Tyler said he did not know what to do or say. He did not tell his parents because he felt embarrassed and was hoping it would go away. He said, through primary school, he was very confident and very social with friends and trusted adults in his life to prevent him from being harmed in any way. He said he no longer had confidence and did not have many friends and he did not hang out with anyone anymore. He felt safer at home on his own. He had trouble with high school and had been in a bit of trouble, being rude and disrespectful to others. There were many teachers and adults that he needed to trust and to do that, he tried not to think about your offending.
99 He had trouble trusting and respecting adults. He did not go out with his mates much and did not want to talk about what happened. After meeting you, he said he did not have as much confidence as before, nor did he have as many friends. He stayed at home, playing with his PlayStation and did not trust anyone.
100 There was also a Victim Impact Statement from Tyler’s parents. Since that school excursion and Tyler meeting you, they had noticed a few changes in him. He was not as confident as he once was, nor did he eat as much as before. He had also been disrespectful towards adults and did not trust people anymore. They described the impact your offending had on Tyler and said it had made it difficult. Prior to your involvement with him, Tyler had been popular and positive at primary school, worked well with others and was a respectful child. He did not have as much confidence as now. He liked to keep to himself and did not socialise with his mates anymore. He also had anxiety problems when it came to simple, everyday things. Tyler, in the past, had spoken about attending university when he was older, but now was no longer interested. He does not want to speak about what you did. They described how difficult it was as parents to watch and see their son go through this and not being able to help him, unless he actually wanted help. They tried to show him that parents can be trusted and were there to help if he needed to talk.
101 The authors expressed concern about how an adult at university of any kind could do that to an innocent child; that Tyler had to mature faster than a child should and they never wanted this to happen to anyone else’s child.
102 There had been an adverse impact of your offending on Tyler’s relationships at home, at school and the cricket club. He had been in trouble at school regarding respecting teachers and other students and in trouble with his attitude towards adults at his cricket club. At home it felt as if Tyler has lost respect and trust in people and that saddened the family.
103 Again, as I stated during the course of your plea hearing, Tyler 's mother is to be credited for bringing this to the attention of the police.
104 The impact of offending on a victim is a relevant sentencing consideration (s5 Sentencing Act 1991). I am conscious, of course, I must not allow the effects upon a victim to swamp the sentencing process.
105 The prosecutor, Ms Boston, provided a written outline of submissions for sentence. She referred to s16A(2) Crimes Act 1914 (Cth) and the matters to be taken into account that are relevant and known, as well as any other matters when sentencing you.
106 Turning to the objective seriousness of Charge 1, Ms Boston referred to the maximum penalty of seven years’ imprisonment and referred to DPP (Cth) v Watson[4], wherein the Court stated:
“The expanding breadth of offending and increased maximum penalties reflects the gravity with which the legislature views this form of offending in the area of child pornography.”
[4] [2016] VSCA 73 at [33]
107 Ms Boston referred to the courts having repeatedly referred to a term of imprisonment as being ordinarily expected for offending, both in relation to Charges 1 and 2. I discussed that in some detail with her.
108 Turning to the objective seriousness of Charge 1, she submitted relevant to its assessment of seriousness, it was that the complainant, Tyler, was just 12 years of at the time of your offending and it was you who instigated the conversations of a sexual nature. She also submitted yours was not an isolated communication, rather you conversed with him for a total period of seven weeks, before sending multiple, indecent communications over the course of five days, the latter being specifically the basis of Charge 1. Ms Boston also referred to your offending ceasing only when Tyler’s mother discovered the indecent communications. Further, the two Victim Impact Statements that were before me, she urged, demonstrated that your offending had caused actual harm. I agree these matters are relevant when assessing the objective seriousness of your offending and I did not understand your counsel to suggest otherwise.
109 Turning to Charge 2, the prosecutor referred to the maximum penalty applicable, being 15 years’ imprisonment. Regarding this type of offending, I was referred to DPP (Cth) v Singh[5], in which the Court stated:
“The seriousness of the offence under s.474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature, liable to be kept secret from third parties. The maximum penalty for the offence is very substantial.”
[5] [2017] VSCA 146
110 Addressing the objective seriousness of that offending, Ms Boston referred to your initial friend request being sent to you by the covert operative, however, you then taking control of the conversation and driving it in a sexual direction. Further, that the discussion occurred over a one month period and escalated to meeting for sexual activity and that you attended that planned meeting. Further, Ms Boston referred to the lack of naivety on your part, in that you instructed the covert operative to purchase a webcam and to use a secret web application. You also instructed digital penetration and masturbation. In addition, you told the covert operative not to tell his parents. Again, these are all relevant matters, in my opinion, when assessing the objective seriousness of that offending and again, I did not understand your counsel to disagree with the prosecution submission in that regard.
111 As I discussed with counsel, in the decision of R v Fuller[6] in relation to
Charge 2, it did not relate to an actual child victim. As noted in Fuller, the absence of such a victim does not mitigate your offending.
[6][2010] NSWCCA 192 at [35]
112 Turning to matters relied upon in mitigation of your sentence, Ms Boston referred to the prominence of general deterrence when sentencing for offences of this kind and that is no doubt correct. Your prior good character, whilst still relevant, is given less weight to this type of offending.
113 Ms Boston conceded there are a number of matters that you could rely upon in mitigation of sentence, specifically your pleas of guilty to the offences and the stages at which they were entered. I agree, as I have stated. Further, you did not have any prior criminal history and I am also aware of that. She also submitted you had reasonable prospects of rehabilitation, not excellent and from my discussion with her, ‘reasonable’ and ‘guarded’ seemed to mean the same.
114 Ms Boston did not accept that you were remorseful for your offending. In that regard she specifically referred to your actions from the time of your offending. At the time of your arrest, you denied attending McDonald’s to engage in sexual activity, rather, referred to feeling ‘ripped off’ and ‘set up’. Further, she submitted, you had not demonstrated an understanding of the impact of your offending upon the victims of it. In addition, you had not engaged in any counselling since your arrest. I addressed those matters with her. Ms Boston expressed some concern about your assertions to Mr Cummins regarding your remorse and submitted the existence of remorse had not been established. As I understood it, however, Ms Boston did not disagree with my conclusion that there was some remorse shown by you, although in a limited sense.
115 Ms Boston submitted Verdins' principles were not being enlivened in this case and as I said, Mr Van Arkadie did not rely upon Verdins at all.
116 In relation to the submission that your time in custody would be more burdensome as a result of the prospect of your deportation to New Zealand, she submitted that, based on Konamala v R[7], there was no real prospect of you being deported to New Zealand and if you were, that is where most of your family lived, so you would, in essence, be returning home. (See in particular Konamala, paragraphs 35-37).
[7][2016] VSCA 48
117 I accept, however, you will likely be anxious regarding your future in Australia.
118 Ms Boston referred to my only being able to impose a sentence of imprisonment, if satisfied imprisonment is the only appropriate sentence and, of course, I am very much conscious of that.
119 Turning to the purposes of sentencing, Ms Boston referred to general deterrence being the paramount sentencing consideration for this type of offending. That is so.
120 The prosecution submission on sentence was that an immediate term of imprisonment was required for your offending. As I understood her submissions, were I to impose a sentence of three years or less and order some part of it to be served by way of a custodial sentence, the remainder could be served by way of a recognizance release order. Ms Boston did not disagree with that "structure" as falling within the appropriate range of sentence for your offending.
121
Ms Boston referred to comparative cases and use thereof and referred to in
R v Pham[8]. I discussed that decision with her. In brief, when sentencing for a Commonwealth offence, I must have regard to sentences that have been imposed in other States and Territories. The criminal justice system must be fair and systematic fairness necessitates reasonable consistencies between sentences imposed in various States and Territories. In that regard I was referred to a number of authorities, specifically R v Gajjar[9], DPP (Cth) v Hizhnikov[10], R v Fuller[11] and DPP (Cth) v Singh[12], in particular referrable to procuring (Charge 2).
[8] (2015) 256 CLR 550
[9] [2008] VSCA 268
[10] [2008] VSCA 269
[11] ibid
[12] ibid
122 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account general deterrence, which is an important consideration in sentencing for these matters.
123 In my opinion there is also the need for specific deterrence when sentencing you, as your offending relevant to each charge occurred over a number of days, involving multiple communications and two victims (Tyler and a covert operative).
124 There is also the need to protect the community from you and bear in mind the likelihood of your re‑offending. I note the assessment by Mr Cummins of your falling into the low-moderate range risk of sexually re‑offending. You have a number of matters you need to work through in counselling and until that is successfully achieved, I will remain concerned about the need to protect the community from you.
125 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
126 I have carefully considered this matter. I do not believe that to impose a community correction order, would be an appropriate disposition in this case. In my opinion a term of imprisonment, together with a recognizance release order is the only appropriate disposition.
127 On Charges 1 and 2, you are convicted and sentenced to 24 months' imprisonment and I direct that you be released on a Recognisance Release Order after a period of 9 months' imprisonment.
128 The Court orders upon your release under paragraph 20(1)(b) Crimes Act 1914 (Cth), after serving nine months of that term of imprisonment, upon you by giving a recognisance of $1,000 in the following conditions:
· That you be of good behaviour for 15 months. That is 24 less nine is 15. So you do your nine months. I will come to the PSD in a minute. After the nine months, you are in the community for 15 months. You have to be of good behaviour for that 15 month period;
· Also you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 15 months;
· You will 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;
· That you report to Carlton Community Corrections Centre, 444 Swanston Street, Carlton by 4pm, two days after you are released.
· That you report to and receive visits from a Community Corrections officer or officers;
· That you notify an officer at the specified Community Corrections centre, I am about to specify it, of any change of address or employment within two clear working days after the change;
· You are not to leave Victoria, except with the permission of an officer, that Community Corrections officer, at that specified, yet to be specified, Community Corrections centre; and
· That you obey all lawful instructions and directions of Community Corrections officers.
129 Now I will just stop it there, I have not finished yet.
130 Mr Prosecutor.
131 MS STEVENS: Yes, Your Honour.
132 HIS HONOUR: Have I covered the conditions?
133 MR STEVENS: Yes, Your Honour.
134 HIS HONOUR: And the document you have got there? I should have.
135 MR STEVENS: Yes, Your Honour.
136 HIS HONOUR: Now, just to give some assistance, upon release, where does he go? Where is he living? Has he got a nearest Community Corrections office?
137 MR VAN ARKADIE: Your Honour, he's currently - or he was currently living in Maribyrnong, but I'm not sure as to whether or not that address will be still available to him in nine months' time.
138 HER HONOUR: No.
139 MR VAN ARKADIE: If I can approach the dock and perhaps - - -
140 HER HONOUR: Just - something, you just make sure - just ask him, where can he get to, ASAP after release? Which Corrections - where does - just which suburb is he is likely to be in?
141 MR VAN ARKADIE: I can approach the dock?
142 HER HONOUR: And I know it will change, but he has got to then go to that particular office, then change.
143 MR STEVENS: If I can assist just briefly, Your Honour.
144 HER HONOUR: Sure.
145 MR STEVENS: Often there's no specific Corrections centre nominated.
146 HER HONOUR: Yes.
147 MR STEVENS: The Carlton Community Corrections centre would be the one that would normally be - - -
148 HER HONOUR: If it is not. We will see how we go.
149 MR STEVENS: Yes.
150 HER HONOUR: See what the answer - all right, we are not talking about the sentence yet thanks, I just want to know where he can get to. Default position is Carlton.
151 MR VAN ARKADIE: Your Honour, he's instructed that he's likely to be around the Hawthorn area, so perhaps Carlton is - - -
152 HER HONOUR: I think we will leave it at Carlton, yes, all right. So can you make sure that that condition refers to - have you got an address for Carlton?
153 MR STEVENS: I don't presently, Your Honour.
154 HER HONOUR: We need that.
155 MR STEVENS: Perhaps your - - -
156 HER HONOUR: But as soon as you finish your sentence, you will need to go to the Carlton Corrections centre by 4 pm on two days after your release. Now, I know I have said you have to serve nine months, you have got some PSD to come off that, but sometimes if there are lockdowns, the number of days changes, so I am not going to set an actual date, but it is within two days of you being released, whenever that happens to be, all right?
157 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these two charges and been found guilty of them, I would have sentenced you to a term of imprisonment of three years and ordered a non-parole period of two years. Now that is if you had pleaded not guilty. Very different now. All right.
158 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent ten days in custody (which is up to and including yesterday, which is 2 May 2018) by way of pre‑sentence detention and I direct that that be entered into the records of the Court. So basically, it is not wasted time. I have sentenced you to nine months, that ten months comes off it - - -
159 ASSOCIATE: Ten days.
160 HER HONOUR: - - - so you have got approximately eight months and 20 days, give or take, all right, to go.
161 Now my associate, in a moment, is going to approach you with two documents for you to sign. Firstly, that recognizance release order, which means that you agree to those conditions that we have just been discussing, good behaviour for 15 months and all those other conditions. And also she will ask you to sign for documentation, telling you about the Sex Offender Registration Act. You are not being asked if you want to be on that Act or be on that order, I have made that order. It is just ticking the box for the paperwork. I you do not want to sign it for her, you do not have to, but she has got to ask you, it is her job. So your counsel will assist you with both those documents. Two documents are coming down.
162 Mr Prosecutor, have you sorted it?
163 MR STEVENS: Just about, Your Honour.
164 HER HONOUR: Yes.
165 MR STEVENS: I am about half a minute away.
166 HER HONOUR: Keep going. Ten PSD, up to - is that correct? Do you agree ten days, up to and including yesterday?
167 MR VAN ARKADIE: Yes, Your Honour.
168 HER HONOUR: Well let's not guess. Every day counts when you are in.
169 MR VAN ARKADIE: Yes, Your Honour.
170 HER HONOUR: What date did he go in, Ms Jackson? We want to make it right.
171 MR VAN ARKADIE: Last Monday, Your Honour.
172 HER HONOUR: Well what date was that? Work it out and include yesterday, but not today.
173 MR VAN ARKADIE: Yes, Your Honour.
174 HER HONOUR: Ten days yesterday, but double-check it.
175 MR VAN ARKADIE: Yes, Your Honour.
176 HER HONOUR: Agree on ten days?
177 MR VAN ARKADIE: Yes, Your Honour.
178 HER HONOUR: All right, so that is correct. Now how are you going? Are you nearly there? I do not think it is a case of asking him if he consents to this order, but - - -
179 MR STEVENS: Yes, Your Honour.
180 HER HONOUR: - - - you may as well, because if he does not consent, it sort of binds me a bit, does it not? So I guess - I am not sure. I will ask the prosecutor if he has to be asked if he consents.
181 MR STEVENS: Well, given - he has to sign the order, Your Honour.
182 HER HONOUR: So I guess he is, yes.
183 MR STEVENS: He would have to, yes, consent.
184 HER HONOUR: Well you have to ask him then.
185 MR STEVENS: Yes, I have completed that order, Your Honour.
186 HER HONOUR: Excellent. Thank you very much. If I could just have a quick look at it first.
187 MR STEVENS: Yes, Your Honour.
188 HER HONOUR: You do not have to pay the $1,000 unless you breach the recognizance, all right?
189 MR STEVENS: That is correct, Your Honour.
190 HER HONOUR: No, I was talking to - sorry.
191 MR STEVENS: I apologise.
192 HER HONOUR: Yes, I am aware of that. All right. So he does not have to pay the 1,000 unless he breaches the order. Fifteen months, yes, that is correct. Total of 24, nine to serve, yes, that is correct. All right, you can go back to your client and go through that with him. Try not to take too long, but as long as you need.
193 MR VAN ARKADIE: Thank you, Your Honour.
194 HER HONOUR: You can see him later downstairs if you want to.
195 MR VAN ARKADIE: Yes, Your Honour. Thank you, Your Honour.
196 HER HONOUR: All right, got both those documents, Ms Jackson, signed?
197 ASSOCIATE: Yes.
198
HER HONOUR: Yes, all right. Anything further from your perspective,
Ms Jackson?
199 ASSOCIATE: No, Your Honour.
200 HER HONOUR: No, no other orders were sought?
201 MR STEVENS: No, Your Honour.
202 HER HONOUR: No, all right. Now the structure of the sentence accords with Commonwealth practice, is that so?
203 MR STEVENS: Yes, an aggregate sentence is available.
204 HER HONOUR: I was advised that I could make an - I cannot remember the discussion, but that an aggregate sentence was possible, was doable?
205 MR STEVENS: It is, Your Honour.
206 HER HONOUR: Yes, excellent, all right. Nothing further? No, excellent. Thank you very much. Thanks, Mr Botting, you need to go out, thank you.
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