Director of Public Prosecutions (Cth) v Clayton
[2019] VCC 1591
•26 September 2019 (amended 11 October 2019)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW CLAYTON |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 September 2019 |
| DATE OF SENTENCE: | 26 September 2019 (amended 11 October 2019) |
| CASE MAY BE CITED AS: | DPP (Cth) v Clayton |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1591 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – use carriage service to procure a person under 16 years of
age for sexual activity – use a carriage service to cause child
pornography to be transmitted to self – use a carriage service to groom
a person under 16 years of age for sexual activity - sexual penetration
of a child aged under 16 years – fail to comply with reporting
obligations – plea of guilty
Legislation cited: Criminal Code (Cth), ss 474.26(1), 474.27(1), 474.19(1); Crimes Act
1958 (Vic), s 49B(1)
Cases cited: Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361; Crouch (a
pseudonym) v The Queen [2019] VSCA 30
Sentence: Total effective sentence of 6 years and 8 months’ imprisonment with a
non-parole period of 4 years and 7 months.
Section 6AAA declaration: 9 years and 3 months’ imprisonment with a
non-parole period of 7 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr P Darby | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K Ballard | James Dowsley & Associates |
HIS HONOUR:
1Andrew Clayton, you have pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age for sexual activity, Charge 1, for which the maximum penalty is 15 years' imprisonment; one charge of sexual penetration of a child under the age of 16 years, Charge 2, for which the maximum penalty is 15 years' imprisonment; one charge of using a carriage service to cause child pornography to be transmitted to yourself, Charge 3, for which the maximum penalty is 15 years' imprisonment; five charges of using a carriage service to groom a person under 16 years of age for sexual activity, Charges 4, 5, 6, 7, 8 for which the maximum penalty is 12 years' imprisonment; and nine charges of failing to comply with your reporting obligations contrary to the Sex Offenders Registration Act2004 (Vic), which each carry a maximum penalty of five years' imprisonment, Charges 9 to 17.
2The circumstances of your offending are detailed in the prosecution opening which was tendered on the plea as exhibit 1. I annexe a copy of that document to these sentencing reasons. In brief, the circumstances of your offending are as follows.
3On 17 September 2012, you were sentenced in the County Court of Victoria at Melbourne for two charges of using a carriage service to groom a person under 16 for sexual activity and three charges of using a carriage service to procure a person under 16 for sexual activity. As a result of your plea of guilty to those charges, you were required to comply with reporting obligations under the Sex Offenders Registration Act2004 for the rest of your life.
4From at least 1 January 2018, you maintained and operated Facebook accounts in the following names: Andy Kirby, Sam Paydon, and Kirbs Samuel. The profile picture for the Kirbs Samuel account was a picture of yourself aged around 12 or 11. None of those Facebook profile names had been reported to Victoria Police as was required by your status as a registrable offender, and these are the facts that underpin Charges 9 to 11.
5Between 1 January 2018 and 14 June 2018, you used those Facebook accounts to communicate with six adolescent girls, all under the age of 16.
6In contravention of your reporting obligations, you failed to report to the Commissioner your online contact with those children and these facts underpin Charges 12 to 17.
7Eliza Hart[1] was 14 years of age at the time of your offending against her. In around January 2018, you found Eliza on Facebook and for several months thereafter you had regular conversations with her via Facebook Messenger. On a number of occasions, you also attempted to video call her but, generally, she declined such calls.
[1] Eliza Hart is a pseudonym.
8You engaged in these conversations with the intention of procuring Eliza Hart to engage in sexual activity with yourself. You used sexualised language, you requested nude photographs and you asked this victim to be in a relationship with you. You also asked her to masturbate on the video chat function on Facebook messenger. This is the offending of Charge 1.
9Using the Snapchat Max feature, you discovered where Eliza lived and you then persuaded her to meet you in a local park. On at least five occasions, you and Eliza met in person at Kalora Park in Narre Warren North.
10During these meetings, you sought to have intimate physical contact with Eliza. On the first occasion Eliza pushed you away and left the park.
11On the second occasion that you met Eliza you sexually penetrated her vagina with your fingers for approximately three minutes.
12On the third occasion, you took Eliza to a location in the park behind a small hill where the risk of you being seen would be minimised. You then proceeded to insert your penis into her vagina and had sexual intercourse with her. You were not wearing a condom and at this stage, did not ejaculate. You then removed your penis from Eliza’s vagina and you then directed your victim to get on her knees and inserted your penis into her mouth. At your direction, she performed fellatio on you until you ejaculated.
13On the fourth occasion that you met Eliza in the park, she was with her younger sister who was in a pram. On this occasion, you put Eliza on your lap, moved her hands away, removed her pants and then inserted a finger into her vagina. When local children arrived in the park you moved to a different location. However, it then started to rain and Eliza went home, not wanting her sister to get wet.
14On the fifth and final occasion that you met Eliza at the park, you removed Eliza's pants and then inserted your penis into her vagina and had intercourse with her. Before ejaculating, you removed your penis from Eliza's vagina and asked her to perform fellatio on you. When she refused, you masturbated yourself until you ejaculated. This occasion is the charged act in Charge 2 which is representative of the five acts of sexual penetration.
15On a separate occasion, after you had first met Eliza in person, you sent the victim messages on Facebook Messenger asking her to masturbate over a video-chat function. During a video call with you, Eliza did masturbate, including inserting her finger into her vagina. In doing so, you caused child pornography to be transmitted to yourself, and those facts underpin Charge 3.
16Your second victim, Carmen Lowe[2], was 14 years of age at the time of your offending. On or around 22 April 2018, you began a conversation with her on Facebook using the profile you created in the name, Kirbs Samuel. You communicated with Carmen and continued to do so until at least 13 June 2018. It ended when the victim stopped replying to your messages.
[2] Carmen Lowe is a pseudonym
17During your online conversations with Carmen, you asked her age, you asked for photographs of her either nude, or in her underwear, and you suggested that you meet in person. You also made threats to Carmen of self-harm if she did not do as you asked. You said these things to make it easier to procure Carmen to engage in sexual activity with you and these are the facts that underpin Charge 4.
18Your third victim, Ashlee Watts[3], was 13 years of age at the time of your offending. You initiated contact with Ashlee via Facebook in about May 2018 and during your online conversations you asked your victim how old she was, where she lived and to send you a nude photograph of herself and suggested that the two of you become “friends with benefits”. The victim then blocked you and had no further communication with you. You said these things to make it easier to procure Ashlee to engage in sexual activity with yourself, and these facts underpin Charge 5.
[3] Ashlee Watts is a pseudonym
19Your fourth victim, Eve Miller[4], was 13 years old at the time of your offending. On or around 1 June 2018, you added Eve on Facebook and then began sending her messages. During your conversations with her, you asked the victim how old she was, to which she responded ‘thirteen or fourteen’.
[4] Eve Miller is a pseudonym
20You asked the victim if you could talk more; if she would show her face; if she would video-call you; and if she would send nude photographs or “bra pictures” of herself. You also threatened to kill yourself when the victim said she did not want to call you. You said these things to make it easier to procure Eve to engage in sexual activity with yourself, and these facts underpin Charge 6.
21Your fifth victim, Annie Bishop[5] was 13 years of age at the time of your offending. You initiated contact with Annie via Facebook on or around 7 June 2018. During your online conversations with Annie, you asked her age, where she lived and requested sexualised or nude photographs of her. You said these things to make it easier to procure Annie to engage in sexual activity with yourself and these facts underpin Charge 7.
[5] Annie Bishop is a pseudonym
22Your sixth victim, Leah Harrison[6], was 15 years old at the time of your offending. On or about 9 June 2018, you initiated contact with her via Facebook and during your online conversations with Leah you asked for personal details about your victim to make it easier for you to procure her to engage in sexual activity with you. You also asked Leah to send you nude photographs of herself, suggested that she meet with you in person and to not disclose the details of your proposed meetings to the victim's mother. You also asked the victim about her sexual history and offered her money in exchange for nude photographs of herself. These are the facts which underpin Charge 8.
[6] Leah Harrison is a pseudonym
23None of your victims have provided a Victim Impact Statement but there is a well-established presumption of harm from such offending.
24I turn now to your personal circumstances.
25You were born on 27 November 1989 and you are now 29 years of age. You were aged 27 at the time of this offending. Your personal history is a tale of significant abuse and significant disadvantage. You are the younger of two children, born to your parents. You were born in Swan Hill. At age 4 or thereabouts, you were the victim of sexual abuse committed upon you by your father.
26Your father served a term of imprisonment for his offending against you and he was then deported to his native New Zealand. Your mother remarried and had two further children. Your mother's new partner subjected you to physical violence, which it seems your mother did nothing to prevent.
27At age 12, you were removed from the family and after a period in care, lived with your aunt, Wendy, and her partner, Geraldine. When their relationship ended, you continued to live with Geraldine who provided you with a home, love, civility and support.
28At age 18, you returned to live with your mother and her husband. You were compelled to live underneath the house on a carpeted piece of dirt floor, being isolated from the family. At meal times you were summonsed by a thump on the floor above your head and were told that if you were late, your food would be given either to your siblings or to the family dog.
29At school, you were subject to bullying and to verbal harassment and you experienced significant problems establishing friendships with your peers. You left school at the end of Year 11 and subsequently completed a Certificate in Event Management. You worked for three years at the MCG in security and were then employed on a casual basis setting up events and forklift driving.
30At the age of 17, when you were volunteering for Carols by Candlelight, you came to the notice of Graham McCoubrie. He saw your hesitancy in social situations and the challenges that social situations seemed to present to you. He took you under his wing and he and his wife eventually invited you to live with them, which you did for a period of time.
31The McCoubries provided you with support and with guidance. Exhibit 6AC on the plea was a letter from Mr McCoubrie. Upon closer reading, this, it seems, was a document provided to the Court in September 2012 for your earlier appearance for offending against adolescent girls. Mr McCoubrie, I am told, became your administrator and guardian under a VCAT order due to your problems handling money and in managing your affairs.
32Not surprisingly, given your history, you entered adulthood lacking in many interpersonal skills.
33Your childhood, I accept, clearly had scarred you. You had two significant relationships but in both relationships there have been issues around physical intimacy.
34You have prior Court appearances. Most relevantly, as already referred to, in September 2012 for a total of five offences of using a carriage service to groom and/or procure a child under the age of 16 for sexual activity, you were sentenced by Her Honour Judge Douglas to 15 months' imprisonment with an immediate recognisance release order upon the condition of you continuing your treatment with your then psychologist, or as otherwise directed and referred by your general practitioner.
35You were also made a registrable offender under the provisions of the Sex Offenders Registration Act2004 and the period of registration was for the remainder of your life.
36On 8 December 2014, you were dealt with by means of an adjourned undertaking for failing to comply with those reporting obligations. It is most unfortunate that upon your conviction you did not engage in any sex offender treatment program.
37I make it clear, Mr Clayton, that you are not to be punished again for matters for which you have already been dealt with by the courts. However, those prior matters have direct impact upon my assessment of the need in your case for specific deterrence and my assessment of your prospects for rehabilitation, and of the need to protect the community from you.
38Provided on your plea was a report from Martin Jackson, a consultant clinical neuropsychologist, dated 3 May 2019, exhibit 3AC; and a report from Dr Matthew Barth, clinical psychologist, dated 25 July 2019, exhibit 4AC.
39Mr Jackson had available to him various documents from earlier treating psychologists and psychiatrists that had been provided to the Court in September 2012. He detailed your pre-existing diagnosis of long-standing depression and of autism-spectrum disorder (ASD), as well as confirming your tragic upbringing and confirming the supportive intervention of Mr McCoubrie.
40Mr Jackson noted that you were clearly quite uncomfortable discussing this current offending. When asked why you had offended again, you stated, 'I don't remember doing it' or alternatively, that you were in a depressed state.
41As part of his neuropsychological examination, Mr Jackson administered various assessment tests. You obtained a full scale IQ of 80 placing you in the low-average range. However, there were variations noted by Mr Jackson, ranging from your verbal comprehension and working memory scores which placed you in the borderline range, to your processing speed score which placed you in the average range. Mr Jackson observed that it was very difficult to establish what symptoms of ASD you were actually experiencing and you were unable to identify upon what basis the earlier diagnosis of Asperger's had been made.
42He stated there was no indication that there had been any worsening of your mental health symptoms in terms of your depression and anxiety, nor of your social behavioural symptoms, since the previous assessments had been conducted with you in 2012.
43He noted, however, that at the time of this offending, as with the offending in 2012, you had been in a long-term relationship with a partner who had her own intellectual challenges.
44In response to a question directed to a connection between your cognitive impairments and your offending behaviour, Mr Jackson stated:
'He is concrete [and] does see things in a very black and white way, but there is no evidence scientifically of the connection between offending behaviour and concrete thinking per se.
…
His problem with abstract and logical/problem solving and thinking would certainly limit his ability to manage his criminogenic needs and wants. However, his criminogenic needs and wants are a separate disorder on their own, and they are not associated with his cognitive problems, nor are they associated with his mental health issues or Asperger's Syndrome.'
45He added:
'It is also concerning that on this occasion, Mr Clayton's offending appears to have escalated from previously being grooming over the internet to actually now meeting and having sexual activity. This is a major concern, in that there apparently has been an escalation in his behaviour … this is not related to his Asperger's Syndrome, his mental health problem or his cognitive abilities per se. It's an issue of criminogenic needs and wants, which he now appears to be more likely to act upon.'
46He concluded:
'Mr Clayton would certainly find a term of imprisonment more onerous than a person who does not suffer from his cognitive, behavioural and mental health impairments.
…
Imprisonment per se would not worsen his diagnosis. It may increase the symptoms of mental health issues and his ability to manage in prison may certainly be affected by his Asperger's Syndrome (in terms of social relationships, not reading body language etc) but imprisonment itself won't make his diagnosable conditions worse.’
47Dr Barth, in his report noted that:
'Mr Clayton has a history of significant mental health issues due to several traumatic incidents which have occurred during the course of his life, his social isolation and his ongoing difficulties establishing health connections with others. He continues to present as a psychologically vulnerable person.'
48Dr Barth confirmed that you met the diagnostic criteria for a major depressive disorder, and as to your cognitive functioning he confirmed a profile consistent with a diagnosis of Autism Spectrum Disorder.
49To Dr Barth, you appear as, 'a very unsophisticated man who approaches the world in a very ‘concrete’ fashion'. Inter-personal communication presents particular challenges for you. Dr Barth estimated that you were likely to be of low-average – below-average intelligence range.
50He reported that you were adamant that your primary attraction is directed towards adult women and you denied to him any attraction to pubescent or pre-pubescent children. Nonetheless, in Dr Barth's view, your current charges clearly raise serious issues with regards to your inter-personal and sexual adjustment.
51Dr Barth detailed how you have a strong desire for an emotional and sexual connection with others, but have little capacity to maintain the healthy intimacy necessary to provide an ongoing context for such activity, and thus, you have resorted primarily to pornography use and to initiating sexual behaviour with under-age females as a dysfunctional and harmful coping mechanism to compensate for your lack of intimacy.
52Dr Barth stated:
'Mr Clayton's sexual adjustment has been significantly impacted by his social and intimacy deficits. He has found comfort in the internet where he can engage in sex chat without the usual inhibitions, anxieties and intense fear of rejection that he would experience in real life.'
53In short, you resorted to the internet as a means of sexual connection. When you are online, you are not overwhelmed, as you might be if you were chatting to someone in the real world.
54He continued:
'his deep sense of inadequacy about his ability to establish sexual connections with adults, has contributed him to seeking out sexual contact with young adolescent females who pose less of a threat to his fragile self-esteem, who are less likely to discern his significant social deficits and thus, he is more likely to have an enhanced sense of control over these experiences.
…
Their youth and naivety posed even less challenge to his fragile self-esteem which in turn facilitated his exploration of deviant fantasy material with them that had become more intense over time.
…
The other main difficulty with regards to sexual matters has been Mr Clayton's confusion about the sexual development of young people. While he described himself attracted to ‘age peers’, he has extended this term to include teenagers who are well below the age of consent. This led him to attribute a precocious sexual maturity to young adolescents and to view those in their early teens as being more advanced in their sexual development than is accurate. These views formed the foundation for prominent ‘offence-supporting cognitions’ regarding young people that assisted in facilitating his offending. Notwithstanding his denials, the nature, duration and context of Mr Clayton's offending conduct, clearly points to the presence of a deviant sexual arousal pattern with regards to pubescent female children.
In summary, these factors indicate the presence of significant psychosexual pathology in Mr Clayton’s case and are sufficiently severe to warrant a diagnosis of ‘other specified paraphilic disorder, hebephilia’
55Dr Barth conducted a comprehensive assessment of your risk of sexual reoffending, using the Static 99R, the risk for sexual violence protocol and his own clinical judgment.
56The results indicated that, in Dr Barth's opinion, you pose a high risk of sexual recidivism. Dr Barth added that provided you participate actively in sex offender treatment, this risk may ultimately reduce but he was clear that the complexity of your needs mean that:
'Comprehensive and integrated treatment and support is urgently warranted if his risk of reoffending is to be reduced in the long term. Without such treatment and, more importantly, positive engagement and progress by Mr Clayton, I would be very guarded about his rehabilitative prospects in the community. Indeed, it is most regrettable that he did not participate in sex-offender treatment following his offending in 2012.'
57That is a regret that I would echo. Dr Barth finally notes that you have expressed a willingness to engage in specialist treatment to enhance your understanding of your offending. You also clearly require treatment to address your emotional issues and to resolve your traumatic childhood, the impact of which is clearly still present with you.
58I also note that Dr Barth's assessment in 2019 is in contrast to the optimism that informed the assessments conducted upon you, and the Court's decision and sentence upon you, in 2012.
59Mr Darby, learned counsel for the prosecution, submitted that general and specific deterrence and protection of the community were the primary sentencing purposes in your case.
60He submitted that your offending consisted essentially, in a course of conduct over a period of five months, and involved six child victims. As such, an immediate and significant term of imprisonment was required with a non-parole period.
61In addition, your offending manifested a complete disregard for the reporting obligations of which you were fully aware. He further submitted that you had very relevant prior convictions for online offending of a similar nature and this index offending represented a progression from grooming to contact offending as reflected in Charge 2.
62He submitted that the State offences and the Federal offences should each attract a respective degree of cumulation and further, that there should be cumulation between total effective sentences for both the State and Federal matters.
63On Charge 2, you fall to be sentenced as a serious sexual offender, although Mr Darby on behalf of the Director did not ask for a disproportionate sentence.
64Ms Ballard, learned counsel on your behalf, rightly accepted that this was serious offending and that the only appropriate disposition was an immediate term of imprisonment. But in mitigation of that sentence, she urged me to have regard to your early plea of guilty, the value of which she submitted, was significant. Not only did your early plea bring with it utilitarian benefit of saving the community the time and cost of a trial, but it also spared your victims the trauma of having to give evidence. It facilitated the course of justice. It was, she said, indicative of remorse and she submitted, should bring with it a significant discount.
65She acknowledged your status as a serious offender on Charge 2 and your assessment as being of a high risk of reoffending, but she reminded me that the prosecution did not seek a disproportionate sentence in your case.
66She urged upon me the principle of totality and she submitted that your offending was absent many of the aggravating features so often encountered.
67In Charge 2, there was no relationship of authority or a family connection that was used so as to overcome the will of your victim. She submitted this will be your first time in custody. She submitted you were an inherently vulnerable person and that you would remain so in the prison context. Prison would be more burdensome for you, and I accept that submission.
68Whilst recognising the risk that you present and the gravity and volume of your offending, she submitted that you are not without hope or redemption. She submitted that weight must be given to the circumstances of your childhood and the deprivation and abuse to which you were subjected. The impact of such social deprivation, she rightly submitted, does not diminish with time.
69Mr Clayton, over a five month period, you used social media to seek out adolescent girls and these children were sought out by you because they were the object of your sexual interest.
70Your use of social media was in direct breach of your reporting obligations. You found what you were looking for and once your victims had accepted your friend request, you subjected them to sexualised conversation and demands, at times threatening self-harm if they did not comply.
71It is clear from the communications, that your purpose was to groom them; that is, to make it easier for you to procure them to engage in sexual activity with you.
72In relation to your first victim in time, Eliza Hart, you achieved your purpose. You met up and engaged in penetrative sexual acts with her on no fewer than five occasions and then you went back online seeking other conquests.
73Sexual offending against children will always be viewed by the courts as serious offending. There is an absolute prohibition on sexual activity with a child which is founded upon a presumption of harm, and that prohibition is intended to protect children from the harm that is presumed to be caused to them by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is indeed, for this reason, that a child's consent is more accurately referred to as apparent or ostensible consent.
74Sexual activity between adults and persons under the age of 16, can have a lasting impact upon the emotional and psychological wellbeing of the victims of such offending, and this absolute prohibition on sexual activity with a child can be seen as having two purposes, the first is to protect children from the harm caused by premature sexual activity, and to that end, to protect them from their own immaturity.
75On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if they are subjectively attracted to the idea of participating in it, and secondly, and in order to advance protection, the prohibition is designed to deter those who might contemplate sexual activity with a person under 16. The law also criminalises those acts done in preparation for contact sexual offending with children, and those acts are often online steps taken to facilitate meetings, taken to facilitate the contact offending which you have in view.
76Your victim in Charge 2, Eliza Hart, gave consent to the sexual activity which, of itself, is not and can never be, a mitigating factor. Nor can that consent be considered in isolation. Rather then, the Court will need to investigate the circumstances in which that consent came to be given.
77As their Honours said in Clarkson[7]:
‘In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such, but upon the circumstances in which the consent came to be given. '
[7]Clarkson v The Queen; EJA v The Queen (2011) 32 VR 361 at [5]
78Your made contact with your victim on Facebook and you then persuaded her to meet you. She consented to the sexual activity in the terms I have described, although she seems to have been a somewhat passive participant.
79As indicated above, such consent cannot be viewed by the court as meaningful. In your virtual presence and personal interaction with the victim, I accept there was no overbearing or operative disparity in age, or other inter-personal attributes so often encountered and there was no breach of a position of trust of authority; but you were, however, nearly twice the age of Eliza.
80Your dealings with Ms Hart were insistent and persistent, and they were driven solely by your desire, never pausing to contemplate the impact of your actions upon your victim. Thus you reduced her to an object.
81Mr Clayton, I accept that you have had a childhood to which no child should be subject. I accept that your childhood experiences have left you, as an adult, ill-equipped to deal with the challenges of interpersonal relations. I accept that, for you, adult females are intimidating, too complex for you to negotiate, and that children do not present such a challenge for you, and I accept that initially you retreated into the online world as a refuge.
82However, the online world provides a very fertile ground in which predators can roam, and you, Mr Clayton, became a predator. Your threats of self-harm demonstrated in my view, your readiness to manipulate your victims as did your using of a profile photo showing you at age 12 or 13. You preyed upon pubescent children because you saw them as objects to exploit for your own sexual gratification.
83In sentencing you, I must have regard to a range of different factors. I have taken into account the matters set out in s16A(2) of the Crimes Act 1914 and s5 of the Sentencing Act 1991.
84In short, I have regard to the nature and circumstances of the offence, your personal circumstances and the circumstances of your victims. I have had regard to the degree of contrition (Federal) or remorse (State), that you have shown. I must give effect to principles of both general and specific deterrence. I must also express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.
85I must take into account the presumed effect that your crimes have had upon your victims and I must have regard to current sentencing practices as determined and described by the Courts of Appeal for the kind of offences you have committed and the maximum penalties imposed by Parliament. I have to try to balance your personal circumstances with the circumstances of your offending as I find them to be.
86Clearly, principles of general and specific deterrence, denunciation, just punishment and protection of the community are to the forefront in this sentencing exercise.
87Charge 2 is a representative charge and I have regard to the principles applicable to such charges re-stated in the case of Crouch (a pseudonym) v The Queen [2019] VSCA 30.
88On Charge 2, I am required to sentence you as a serious sexual offender and ordinarily that means that I would be required to impose a sentence that is cumulative, that means starts after the other sentences have ended, upon the other sentences.
89The prosecution has not sought to persuade me that I should impose a disproportionate sentence and I do not propose to impose a sentence that involves total cumulation.
90It is the duty of the Court, by law, to impose no longer sentence than is necessary in all of the circumstances, and it seems to me that justice can be done in this matter and the public can be adequately protected by a measure of concurrency that I think adequately deals with all of those sentencing considerations.
91I have had regard to all of the matters so ably argued by your counsel, Ms Ballard. For the avoidance of doubt: to your early plea of guilty; to your long-standing depression and your autism spectrum disorder that will make prison more burdensome for you; to the physical and social deprivation of your childhood; that you are still a relatively young man; that this will be your first time in custody; to the principle of totality; to the need not to pass a sentence upon you that is crushing; and to the continued support of Mr McCoubrie, who I note, is here in Court again this afternoon.
92I give such weight as I can to your personal history, for which you are not to blame, Mr Clayton. However, on the material in front of me today, a very different picture of you now emerges than was apparent on the material in front of Her Honour in 2012. Your sexual attraction to adolescent females appears to be entrenched. You present as a high risk of reoffending and, I find the community needs protection from you. I have moderated the orders for cumulation that I would otherwise have made, but nonetheless the gravity of your offending is such that it can only be met by a substantial term of imprisonment.
93If you would stand please, Mr Clayton.
94On Charge 1, using a carriage service to procure a person under 16 years of age for sexual activity, you are sentenced to a term of imprisonment of two (2) years and ten (10) months;
95On Charge 2, sexual penetration of a child under 16, you are sentenced to a term of imprisonment of three (3) years and ten (10) months;
96On Charge 3, using a carriage service to cause child pornography to be transmitted, you are sentenced to a term of imprisonment of eighteen (18) months;
97On Charge 4, using a carriage service to groom a person under 16 years of age, you are sentenced to a term of imprisonment of twenty-one (21) months;
98On Charge 5, using a carriage service to groom a person under 16 years of age, you are sentenced to a term of imprisonment of eighteen (18) months;
99On Charge 6, using a carriage service to groom a person under 16 years of age, you are sentenced to a term of imprisonment of twenty-one (21) months;
100On Charge 7, using a carriage service to groom a person under 16 years of age, you are sentenced to a term of imprisonment of twenty-one (21) months;
101On Charge 8, using a carriage service to groom a person under 16 years of age, you are sentenced to a term of imprisonment of sixteen (16) months.
102On Charge 9, 10 and 11, failing to comply with reporting obligations, you are sentenced to an aggregate sentence of nine (9) months' imprisonment;
103On Charges 12, 13, 14, 15, 16 and 17, failing to comply with reporting obligations, you are sentenced to an aggregate sentence of twelve (12) months' imprisonment.
104I order that four (4) months of the aggregate sentence on Charges 9, 10 and 11 and four (4) months of the aggregate sentences on Charges 12, 13, 14, 15, 16 and 17, run cumulative to each other and cumulative to the sentence on Charge 2.
105This makes a total effective State sentence of four (4) years and six (6) months’ imprisonment. I fix a State non-parole period of three (3) years.
106In respect of the Commonwealth offences, I order that the sentences commence on the following dates. The sentence in relation to Charge 1 is to commence two (2) years and ten (10) months from today. The sentence in relation to Charge 3 is to commence sixteen (16) months before the expiration of the sentence imposed on Charge 1. The sentence in relation to Charge 4 is to commence nineteen (19) months before the expiration of the sentence imposed on Charge 3. The sentence in relation to Charge 5 is to commence sixteen (16) months before the expiration of the sentence imposed on Charge 4. The sentence in relation to Charge 6 is to commence nineteen (19) months before the expiration of the sentence imposed on Charge 5. The sentence in relation to Charge 7 is to commence nineteen (19) months before the expiration of the sentence imposed on Charge 6. The sentence in relation to Charge 8 is to commence fourteen (14) months before the expiration of the sentence imposed on Charge 7.
107These start dates give effect to orders for cumulation as follows: two (2) months of the sentence on Charge 3, two (2) months of the sentence on Charge 4, two (2) months of the sentence on Charge 5, two (2) months of the sentence on Charge 6, two (2) months of the sentence on Charge 7, and two (2) months of the sentence on Charge 8 run cumulative to each other and cumulative to the sentence on Charge 1.
108This makes a total effective Commonwealth sentence of three (3) years and ten (10) months. The Commonwealth sentence is to start two (2) years and ten (10) months from today, and I fix a Commonwealth non-parole period of one (1) year and nine (9) months.
109Your global total effective sentence is one of six (6) years and eight (8) months, and you must serve an overall period of four (4) years and seven (7) months before you are eligible for parole.
110Had you not pleaded guilty, pursuant to section 6AAA Sentencing Act 1991 (Vic), you would have been sentenced to a total effective sentence of nine (9) ears and three (3) months with a non-parole period of seven (7) years.
111Pursuant to section 18(4) Sentencing Act I declare that you have served 469 days of the sentence that I have passed upon you, and I direct this be entered in the records of the Court.
112On Charge 2, you are sentenced as a serious sexual offender and I direct that this be entered into the records of the Court.
113HIS HONOUR: Now Ms Ballard, custody management issues?
114MS BALLARD: Nothing that Corrections are not already aware of, Your Honour. Thank you.
115HIS HONOUR: All right, then. Well look I will note his vulnerabilities.
116MS BALLARD: Yes.
117HIS HONOUR: Are you on medication at the moment - do you mind if I speak directly to Mr - - -
118MS BALLARD: No, no that's fine, Your Honour.
119HIS HONOUR: Are you on medication on the moment Mr Clayton?
120OFFENDER: Yes I am, Your Honour.
121HIS HONOUR: Are you taking a - is it Citalopram.
122OFFENDER: No, it's Fluvoxamine.
123HIS HONOUR: All right.
124OFFENDER: Fifty milligrams in the morning and 150 at night.
125HIS HONOUR: All right, and that is to manage your anxiety and your depression, is it?
126OFFENDER: Yes, that is correct.
127HIS HONOUR: All right, so I will make that known and say that he must be monitored for that. All right, you can take a seat now before we go. Now, any other matters that I can assist with Mr Darby?
128MR DARBY: The Sex Offender Registration.
129HIS HONOUR: That is right, we need to do that, that is for life as well.
130MR DARBY: For life.
131HIS HONOUR: Mr Clayton, you need to sign notice that you are - because this is another conviction recorded against you, there are new obligations under the Sex Offender Registration Act, so you are required again to be - you are a registrable offender for the rest of your life, so it sits side by side your reporting obligations that are already in force. The law is such that I need to make it clear to you that you have new obligations, even though effectively they are the same.
132Mr Clayton, you will receive treatment whilst you are in custody. I encourage you to engage in that treatment and do everything you can to do with that and if at all possible, to be able to put your childhood to bed, and to realise that as an adult you are not that childhood, but you can still have your own life.
133OFFENDER: Yes, will do Your Honour. Thank you.
134HIS HONOUR: All right, thank you very much. Would you go with the officers. Thank you, officers.
135OFFENDER: Thank you.
136HIS HONOUR: Thank you both for your attendance. You have a good weekend, all right, and to everyone. All right, I'll stand down.
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