Director of Public Prosecutions (Cth) v Castillo
[2024] VCC 789
•31 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 23-02169
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN CASTILLO |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Shepparton |
DATE OF HEARING: | 29 May 2025 |
DATE OF SENTENCE: | 31 May 2024 |
CASE MAY BE CITED AS: | DPP (Cth) v Castillo |
MEDIUM NEUTRAL CITATION: | [2024] VCC 789 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Use carriage service to procure a person believed to be under 16 years of age, attempt to use a carriage service to engage in sexual activity with a child under 16 years of age, related summary charges, possess prohibited weapons - plea of guilty
Legislation Cited: ss16BA,16AA,16AA(c),16A(2), s16A(2H) Crimes Act (Cth) 1914, Sex Offenders Registration Act (Vic) 2004, 6AAA Sentencing Act (Vic) 1991
Cases Cited:
Sentence: Imprisonment, total effective sentence – 4 years, non-parole period – 2 years and 6 months, fine, SORA 15 years, forfeiture order.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms H. Baxter | Office of Public Prosecutions |
For the Accused | Ms A. Sharpley | Leanne Warren & Associates |
HIS HONOUR:
1Nathan Castillo, you have pleaded guilty to one charge of using a carriage service to procure a person believed to be under 16 years, and one charge of attempting to use a carriage service for sexual activity, with a person under
16 years of age. In relation to both those offences, you agreed to have taken into account in sentencing, two offences of use a carriage service to solicit child abuse material, pursuant to s16BA of the Crimes Act 1914[1]. In addition, you pleaded guilty to the state offence of possessing prohibited weapons, namely three throwing knives and a sword.[1] s16BA Crimes Act (Cth) 1914
2The facts of your offending are set out in Exhibit A, the revised summary of prosecution opening for plea. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporated those into these reasons for sentence and I sentence you on the basis of the facts set out therein. Briefly stated, between 19 November 2022 and 25 January 2023, you spoke with an online undercover officer, who purported to be a 14-year-old female. In your conversations, you transmitted communications with the intention of procuring the undercover officer for sexual activity. That is the basis of Charge 1. And you attempted to engage in sexual activity with that undercover officer, the basis of Charge 2.
3Between 19 November 2022 and 25 January of 2023, you solicited child abuse material from the undercover officer. On 28 June of 2023, Victorian police officers executed a search warrant at your Mooroopna residential address and located three throwing knives and a machete, together with some electronic devices. In more detail, on 19 November 2022, the officer received a message from a Chatiw user platform named 'Shaved and Horny'. That was you.
4You told the officer that you were from Perth and that you were 26 years of age. That officer told you that she was 14, nearly 15 and you replied, 'Oh so young'. The conversation moved to a Google chat site, and you provided your Google chat username to the officer. The correct details were provided. You asked the officer to provide a photograph of herself and she sent you a photograph. You sent three selfies in return. You told the officer that if she were not so young, you would ask her to come over and you could chill together and had some fun, because the officer is cute and had a nice body.
5You asked the officer if she was home alone and wanted to trade some pics, 'like naughty ones'. When she said she did not have any, you asked her to take some. You sent an image depicting the genital area of a male, the underwear being pulled down exposing an erect penis. Us said 'Like if we're alone, you could touch it and I would teach you'. You told the undercover officer that 'I'm really horny now, you should take your pyjamas off. And because I'm horny, I want a picture of you wearing nothing'.
6On 19 November between 10.48 and 10.56 pm, you directed the officer to how successfully join a video call, before suggesting that use Google Meet platform for the video call. You pointed the camera at your groin area and began rubbing your penis from outside your underwear for about thirty seconds. You recommended using an alternative video conferencing platform and sent a link for the officer to join.
7Upon joining the link, you pointed your video camera towards your groin area for the second occasion and you continued to masturbate your penis from the outside of your underwear. You told the undercover officer that she should start by getting naked. She pretended that her screen was frozen. You were lying on your bed, the camera was pointed at your groin and your underpants were down, exposing your penis and you were touching your penis. You told the officer to send pictures.
8On 17 January of 2023, you asked the undercover officer again to send a picture and on 25 January 2023, you requested a nude video, you wanted her to send you a nude. She reminded you that you were heaps older than she was and that she was only 15, to which you responded, 'That's okay, I like that, sexy young body, show me your tits'.
9You repeated your requests for her to show you her naked body and you threatened her saying that I will tell your school and your parents, 'Send me a picture, show me your body'. You told the officer to take her shorts and T-shirt off and you called her a liar and threatened again to tell her mother. You called her a 'lying cunt' and said 'It's too late now, you should've done what I demanded’ and that she is now ‘fucked'. That is where the conversation ultimately ended.
10On 28 June of 2023, a search warrant was executed at your residential address in Mooroopna. You participated in a record of interview but made effectively a no comment record of interview. You complied with an order to provide passwords and pin numbers to access your mobile phone and social media accounts. The offence to which you have pleaded guilty are serious criminal offences. Parliament has declared that Charge 1 has a maximum penalty of
15 years' imprisonment and Charge 2, a maximum penalty of 20 years' imprisonment.11Pursuant to s16AA of the Crimes Act, Commonwealth[2], Charge 2 is a mandatory minimum sentence of five years imprisonment. The scheduled charges you wanted taken into account have a 15 year imprisonment maximum penalty and the state's weapons offence has a two year imprisonment maximum penalty. In relation to the mandatory minimum gaol term, the High Court has indicated that such sentences operate as a yardstick for an offence in the least serious circumstances. Pursuant to s16AA(c)[3], the mandatory minimum can be reduced by up to 25 per cent to reflect a plea of guilty and a further 25 per cent, to recognise cooperation with the authorities.
[2] s16AA Crimes Act, (Cth) 1914
[3] s16AA(c) Crimes Act, (Cth) 1914
12Turning to your personal circumstances, you are now 27 years of age, being born in July 1976 at Dandenong. Your history is set out in Exhibit 2, the psychological report of Jeffrey Cummins. Your biological parents separated when you were six. Both were substance abusers. Your mother was imprisoned apparently for murder, and you have had nothing to do with her. Your father re-partnered, and you were raised by your father and stepmother. You have a younger half-brother.
13You described a tough childhood, where you suffered physical discipline, had food withheld as a punishment and were subjected to cold showers and sleeping in the garage. You lived under strict rules that were not applied to your younger brother. At times, you lived with your grandparents to escape this regime. You lived at Cranbourne with your father and stepmother until May of 2023, when you moved to the Shepparton area to be with your partner Alex. You were living at Cranbourne when you committed the offences for which I am to sentence you.
14You were apparently a good student. You completed Year 12, then attended TAFE where you completed a certificate in massage therapy. You did a year of arts at Monash University before completing a three year health science degree at Victoria University. You then studied nursing. You were finalising that degree when you were arrested. These offences mean you will be unable to work in nursing and will be unable to work with children.
15This represents a form of extra curial punishment for you, and I take that into account in sentencing you. You had found employment at Woolworths, and remained there until you left that work, knowing that you are about to serve a term of imprisonment. You have suffered two bouts of cancer; when you were 21, testicular cancer and at 24, you battled thyroid cancer. The partial loss of your thyroid gland has seen you require medication permanently, even though you now are in remission.
16You have been in a relationship with your partner Alex since July of 2022. You were friends at high school before that. You were in that relationship when you committed these offences that I am to sentence you for. There is no reason given or explanation offered, as to why you committed these serious offences. Clearly, you suffered from some form of deviancy that may be treated in the sex offenders' course whilst you are in prison. You have indicated a preparedness to undergo such treatment.
17Your partner has stood by you and says she will do so while you are in custody. She provides some stability in your life and enhances your prospects for rehabilitation. You have no prior or subsequent criminal history. You enjoy the support of a group of friends you met whilst working at Woolworths. Those friends attended court on your plea and provided references which are Exhibit 3, and your partner Alex also provided a reference. Those references speak highly of you and attest to your otherwise good character. And I take them into account in sentencing you.
18Both the prosecutor and your counsel made submissions as to how serious your offences were as examples of that particular offence. There were only two significant relevant conversations between you and the undercover officer, and you are to pay a heavy penalty for those two phone calls. And although you were persistent in the second call, the level of sexual conversation was less disturbing than what is often seen in these courts. The contact was clearly restricted to electronic communication and no contact offending was planned or likely.
19There was no real young victim in this case and your offending and although your offending was raw, basic, and unsophisticated, you openly disclosed your true identity and were easily identified and subsequently arrested. On the other hand, you made a number of unsavoury threats and comments and solicited child abuse material, that in my view, elevates the seriousness of your offending to a level above low level examples of these types of offences. Your visible masturbation during the video connections elevates the seriousness of your conduct.
20I take into account in your favour, your pleas of guilty. Your pleas were indicated at the earliest opportunity and have resulted in significant utilitarian benefit. You have spared the community the time and expense of a criminal trial and have demonstrated acceptance of responsibility for your conduct. I also accept that this demonstrates remorse for your conduct.
21Although you have exercised your right to make a no comment record of interview, you did comply with your legal obligations to provide access, pins, and passcodes to your devices. This in my view represents very low level cooperation. You were complying with your legal obligations; however, it does represent some cooperation. I take into account your prior good character and lack of criminal record. The authorities make it clear, however, that this has less weight in the sentencing process for offences such as yours.
22I take into account in a general way, your tough background and good work history. As I said, I have also taken into account the loss of your nursing career, as an extra form of punishment. Mr Cummins assessed you to be low-moderate risk of offending. That risk will be reduced by your completion of the sex offenders course in custody. Overall, I regard your prospects of rehabilitation as good. You have good support from your partner and friends and solid work history.
23Your medical issues will make your time in custody more onerous than it would be for someone without your medication requirements and I take that into account in sentencing you. I have had regard to all the matters listed in s16A(2) of the Commonwealth Crimes Act[4], in arriving at an appropriate sentence in your case. I regard general deterrence, specific deterrence, denunciation and just punishment as significant sentencing factors in your case. I must also protect the community from you and promote your rehabilitation.
[4] 16A(2) Crimes Act (Cth) 1914
24The need to protect children online makes general deterrence the most significant factor. The mandatory minimum provisions demonstrate how seriously offending such as yours is viewed. I am, however, prepared to give you the maximum credit for your plea of guilty and reduce the sentence to be imposed by 25 per cent pursuant to s16A(2) of the Crimes Act[5]. I am also prepared to reduce the sentence by five per cent to recognise your minimal cooperation with authorities, pursuant to s16A(2H) of the Act[6].
[5] 16A(2) Crimes Act (Cth) 1914
[6] s16A(2H) Crimes Act (Cth) 1914
25Your counsel properly conceded that this court must impose terms of imprisonment on the indictable offences in your case. On all charges you are convicted. Would you stand up please?
26On Charge 1, use a carriage service to procure a person believed to be under 16 years of age, you are sentenced to be imprisoned for 18 months. On
Charge 2, attempting to use a carriage service for sexual activity with a person under 16 years, you are sentenced to be imprisoned for three years and six months. On the related summary offence of possessing prohibited weapons, you are fined $500.27I order that the sentence imposed on Charge 1 commence today and I order that the sentence imposed on Charge 2, commence in six months time, that is
1 December 2024. That in my view leads to an effective term of imprisonment of four years. I order that you serve two years and six months before being eligible for parole. I declare that two days, not including today, have already been served by way of pre-sentence detention.28Pursuant to the Sex Offenders Registration Act[7], you are to report under that Act for fifteen years and finally, I make the forfeiture order sought by the prosecution. Are there any other orders required Ms Baxter?
[7]Sex Offenders Registration Act (Vic) 2004
29MS BAXTER: Just the s 6AAA statement.
30HIS HONOUR: Yes, 6AAA[8]. But for your pleas of guilty, I would have imposed a total effective term of imprisonment of six years, with a non-parole period of four.
[8]6AAA Sentencing Act (Vic) 1991
31MS BAXTER: The court pleases.
32HIS HONOUR: Anything else Ms Sharpley? Very well thank you, I will terminate the links and thank you, you can take him back from where he came. All right, I will adjourn sine die. Sorry, something this court should acknowledge, and I do so, today is my tipstaff's last day of service after many years of service as a tipstaff and publicly acknowledge and thank him for his service, not just to me, but to other judges, and for me in the last month. Thank you, Mr Hanko. I will stand down.
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