Director of Public Prosecutions (Cth) v Cranston

[2024] VCC 1585

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00984

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

DALE CRANSTON

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JUDGE:	Her Honour Judge Blair
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2024
DATE OF SENTENCE:	12 September 2024
CASE MAY BE CITED AS:	DPP (Cth) v Cranston
MEDIUM NEUTRAL CITATION:	[2024] VCC 1585

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Transmit indecent communication – solicit child abuse material – undercover operative – online chat platforms – early plea of guilty – situationally motivated offending – extra-curial punishment – low risk of reoffending – remorse – excellent prospects of rehabilitation

Legislation Cited:      Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:

Sentence:                  Community Correction Order for a period of 20 months; Registrable offender pursuant to SORA for 8 years

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr A. Sprague	Commonwealth Director of Public Prosecutions
For the Accused	Mr A. Cameron	Angus Cameron Lawyers

HER HONOUR:

1Dale Cranston on 10 September 2024 you were arraigned and pleaded guilty to one charge of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age, contrary to s.474.27A(1) of the Criminal Code (Cth),[1] and one charge of using a carriage service to solicit child abuse material, contrary to s.474.22(1) of the Criminal Code (Cth).[2]

[1] Criminal Code Act 1995 (Cth) s 474.27A(1).

[2] Ibid s 474.22(1).

Circumstances of offending

2The agreed circumstances of your offending are set out in the Amended Prosecution Opening for Plea dated 3 September 2024 and what follows is a summary of this. You had been a regular user of the ChatIW online chat forum via your Apple iPhone. On 23 February 2024 you accessed ChatIW and at approximately 8:00pm you initiated a private chat with Rachel. [3] Unbeknownst to you, you were communicating with a Queensland Police Online Covert Operative (“OCO”) purporting to be a 14-year-old female child residing on the Gold Coast, Queensland.

[3] A pseudonym.

3Police were later able to identify you via a webtrace that identified your number as the private number that called Rachel’s phone, your Snapchat profile had your birthday and phone number, and through Telstra subscriber details that listed your service in the name of your wife with your home address.

4You initiated communication with Rachel on ChatIW by writing “Hey”, “How r u”. Rachel replied “Hey”, “Im good”, “hru”. During your initial message exchange on ChatIW, Rachel told you that she was “14 now”. You replied “…ur too young to be here” and asked “where r ur parents”. Notwithstanding your apparent concern as to Rachel’s young age, you continued to communicate with her, such communication becoming indecent.

5You told Rachel that you were “naked, jerking my hard cock”, and asked her “U wanna hear me cum”. You asked for her mobile number and said “I need u to say hi daddy” during the mobile phone conversation. You then attempted to call her at 8:48pm. At 8:58pm you successfully called the mobile phone number provided by Rachel. This phone call was 26 seconds in duration and was answered and recorded by the OCO purporting to be Rachel. During the phone call, you said: “Hi, baby. How are you? Will you suck on my cock? Yeah. You wanna suck on it? Say, "Yes, daddy." Come on you dirty little slut. It feels so good. Yeah, you liked that, didn't you?”.

6You re-engaged in chat with Rachel on Chat IW, and asked, “Did u like” and “Did u get excited”. The communication then moved to messaging on the Snapchat platform. You requested a picture of Rachel, stating “Show me a pic of u”, and said “Show me u and I’ll show u what I’m doing”. When Rachel refused and said she hadn’t sent a picture before, you said “Ok bye”, “It’s just a pic of ur face, It’s that simple”, and “Well u can’t follow instructions so I can’t trust u…U do as I ask then I’ll send.” Rachel then sent a photograph with the face of a young female, purporting to be the 14-year-old Rachel.

7After receiving that photo, you messaged Rachel saying, “Want a sausage”, then sent her an indecent photograph of yourself depicting your erect penis. After Rachel messaged in response to the photo, you said “U can’t show anyone tho ok.” Charge 1, use carriage service to transmit indecent communications.

8Your communications with Rachel continued on Snapchat, you asked Rachel where she was in the house. When Rachel said she was downstairs, you said, “Ok quickly go to ur room and take a pic of ur tits for me”. Rachel said she couldn’t as her mother was nearby, and you replied “Ok”. Charge 2, use a carriage service to solicit child abuse material. Communication between you and Rachel then ceased.

Arrest and interview

9On 15 March 2024, the police attended your residence and executed a search warrant. You provided your phone and police also located three Apple iPhone devices in the master bedroom. You provided police access to each device. Analysis of your phone showed that the indecent image you had sent to Rachel was saved in a photo gallery that was hidden and password protected, and the phone had an active Snapchat application.

10You were arrested and agreed to participate in a record of interview that commenced at your home and later continued at a police station. You made admissions, including that:

(a)   You used the ChatIW account, Snapchat account, and phone number involved in the offending, the phone number was one you have had for 12 to 14 years;

(b)   You recalled sending the indecent image to Rachel and that the photo was probably taken a year prior to the offending;

(c)   You agreed, when shown messages, that you had acknowledged Rachel was 14 years old; and

(d)   You had asked Rachel not to show anyone the photo because you probably knew it was the wrong thing.

Procedural history

11On 15 March 2024 you were charged and released on bail to appear at a filing hearing on 22 March 2024. The hand up brief was served on 3 May 2024 and you pleaded guilty at the first listed committal mention on 14 June 2024. You were committed to the County Court on this day and your plea was listed for hearing on 10 September 2024.

12As indicated you were arraigned before me on this day, your plea proceeded and I ordered an assessment be undertaken by Corrections as to your suitability to undertake a Community Correction Order. You have been assessed as suitable for such an order.

13I consider your plea of guilty to be a plea entered at the earliest opportunity, that is, just 3 months after your arrest and less than 4 months after your offending. Further, your plea was entered in the context of your substantial admissions, concessions as to wrongdoing and your acceptance of responsibility for your offending behaviour, voiced by you in your record of interview.

14Your plea has significant utilitarian value as you have spared the court the time and cost of protracted pre-trial proceedings and a trial. In addition, I consider your plea is evidence of your desire to facilitate the course of justice. I find that your plea also demonstrates your remorse and contrition for your offending, an issue I will return to in the course of my sentencing reasons. I propose to allow an appropriate discount for your plea.

Personal circumstances

15You are currently 38 years old. You were born in Johannesburg. Your father worked as a car sales manager and your mother was employed in sales with a jewellery company. You also have a younger brother, who is now aged 34 years.

16Growing up you lived with your family in South Africa until you were aged 14. Your parents moved your family to Southport in England as a result of safety concerns arising from death threats received by your father.

17School life commenced for you in Johannesburg, where you enjoyed primary school and were an active participant in class. You completed your secondary schooling in Southport and then went on to attend the University of Liverpool. You graduated in 2008 with a Bachelor of Sport and Health with Honours.

18At university you played cricket and were on the pathway to a professional cricket career however, you became distracted during university and did not realise this goal. In 2008 you decided to travel to Australia. You arrived in Australia on a six-month working holiday visa and worked as a labourer whilst playing cricket for the Ferntree Gully Cricket Club. On your second night in Australia, you met your wife. This relationship motivated you to extend your visa.

19Together, you and your wife, travelled back to the UK whilst you waited on a more permanent visa. You were married in Australia in 2012. Upon your return to Australia, you completed training in scaffolding, forklift driving, working at heights and in confined spaces. You worked in the building industry, scaffolding for four to five years. Following this you worked in a café with your father-in-law and you also worked in a bottle shop.

20More recently, at the age of 32, you started your own maintenance business which you were operating at the time of your offending. As a result of referrals and your community connections your business was running successfully. However, due to media attention from this matter, your business has suffered considerably.

21Notwithstanding the offending and the resulting significant pressures it has brought, your wife has stood by you. She appeared with you at the plea, is again with you today and also wrote a letter on your behalf. I acknowledge that this has been a very difficult test for your marriage. It has also been very difficult for you to tell your two children, who are now aged 10 and 12. Your family routine has changed considerably since the offending, as has your involvement in the local community including your attendance at your children’s sporting events.

22An important factor, in my view, is that you have been extremely open with family and friends about your offending. You maintain a strong relationship with your parents, who visited from England earlier this year. Although you have largely been ostracised from your local community, you have maintained some friendships and several testimonials from friends and family were tendered on your behalf.

23The author of one testimonial who has known you for several years detailed that after talking with you at length about your offending he has determined that what occurred was an aberration that will not be repeated. Further he said “Put simply I believe Dale has learned a valuable lesson from this procedure and with support can recover to being a sensible and valued member of the community.” Your mother-in-law wrote that she has discussed the situation at length with you and that you are remorseful, you are seeking help and that she fully believes that this was a one-time act which you regretted instantly. The testimonials as a whole speak of you as remorseful, trustworthy, reliable and responsible. It is clear that you have been open with each of them about your offending and have not sought to minimise your actions.

24I accept the submission of your counsel that the fact you were able to call in aid testimonials from several people and you have maintained the level of support you enjoy, in the face of your offending, is a testament to the good person you have been throughout your life. To the extent I am able in light of the nature of your offending, I take into account your otherwise good character.

Psychological report Jeff Cummins

25A psychological report authored by Mr Jeffrey Cummins was tendered on your plea. Mr Cummins had assessed you both in person and also via phone conversation. It is apparent from the contents of his report that you were very open with him about your addiction to adult pornography and online sexual role playing in the lead up to the offending. You also disclosed that you have accessed adult pornography regularly since you were 17 years old, and this had continued throughout your relationship with your wife. You described an increase in your use of chat rooms to engage in online sexual encounters during times of high stress and anxiety.

26In Mr Cummins assessment, you do not have a specific sexual deviance. He considered that your offending behaviour was situationally motivated and opportunistic. Further, he considered that at around the time you offended you were at times feeling depressed and anxious concerning issues with your wife’s mental health and the impact this had upon your intimate relationship.

27Mr Cummins undertook a thorough risk assessment by way of both the Static-99R and the RSVP. It was his view, having administered such testing, that your risk of committing a further sexual offence is low – moderate, trending low. Mr Cummins noted that you have been engaged in treatment with a psychologist in your local area. As at the date of his assessment you had participated in six consultations and were engaged in working on your offending behaviour. Further, he noted that you were agreeable to participating in offence specific treatments and that it would be prudent for you to undertake such treatment.

Matters in mitigation

28Your counsel in a persuasive and thorough plea has submitted that I should impose a Community Correction Order by way of disposition. His submission was predicated on the principles of parsimony and proportionality given the fact that your offending fell towards the lower end of the scale of seriousness for offending of this type. He raised several powerful factors in mitigation.

Remorse

29Mr Cameron submitted that you are extremely remorseful for your offending. This submission was supported by various sources of evidence. First, your plea of guilty. Second, your extensive admissions in your record of interview. Third, your expressions of remorse repeated in the psychological report of Mr Cummins, each of the letters tendered on your behalf, and your own letter to the court. Fourth, when being assessed by Corrections the assessing officer noted that you accepted responsibility for your actions and expressed appropriate remorse and shame for your offending. And lastly, I watched you during the plea and could see that you have taken this matter extremely seriously.

30In my view the most significant expression of your remorse is that you have participated in counselling with Ms Shona Dutton, psychologist. You have engaged in such treatment of your own initiative and cost. Mr Cranston, you have taken the very important step of accepting responsibility for your offending, you are undertaking treatment to deal with the difficult issues that led you to offend, and you are now abstinent from online chat forums and the viewing of adult pornography. I accept that your remorse is both profound and genuine.

Rehabilitation

31Your counsel submitted that you have excellent prospects for rehabilitation given you do not appear to have a specific sexual interest in children, the offending was opportunistic and situational, Mr Jeff Cummins’ assessment that you represent a low moderate, trending low, risk of sexual re-offending. Further, you have sought treatment already and you are willing to engage in additional offence specific treatment as mandated by the court. Importantly you have been compliant with strict bail conditions and have taken active steps to remain absent from online chat forums and desist from the viewing of adult pornography.

32Other factors relied upon include, your plea of guilty, your openness to your family and friends about the offending, your profound and real remorse and your lack of prior history. You enjoy the support of your wife, your parents and some friends and family in your local community. You have a solid work history and have demonstrated a strong work ethic over many years. All of these factors bode well for your rehabilitation and for all of these reasons I accept the submission of your counsel that your prospects for rehabilitation are excellent.

Extra-curial punishment

33Mr Cameron also submitted that you have suffered a significant level of extra-curial punishment since your offending was made public. There has been media publication of your case, which in this day and age has been far reaching. Reports have made their way to your parents’ hometown, which only has a population of 2000. There has also been significant social media attention.

34The DFFH became involved with your family and required that you have only supervised contact with your children, and although you were able to remain at the family property, you were to live in the bungalow.

35Your home has been vandalised, and your small business has largely collapsed. You no longer have your Working With Children Check, that you held for 10 years without incident, and you have not able to be involved in sporting clubs and attend your children’s sporting events as you have in the past.

Deportation

36I have taken into account that you are not an Australian citizen. However, there has been no evidence before me that would indicate that you will ultimately be deported. I accept that your concerns and the uncertainty that surround this prospect are matters that are relevant and are matters to which I can have regard.

Nature and gravity of offending

37In sentencing for Commonwealth offences the court is required to have regard to the matters as set out in Part 1B of the Crimes Act, in particular s.16A(2), which sets out a non-exhaustive list of factors where relevant and known.[4] The court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

[4] Crimes Act 1914 (Cth) Part 1B, s 16A(2).

38The maximum penalty is an important yardstick when considering the objective seriousness of any offence. In your case the maximum penalty for charge 1 is 10 years imprisonment and for charge 2 the maximum penalty is 15 years. Clearly any child sexual offending is inherently serious. An immediate term of imprisonment is ordinarily imposed for offending involving the online sexual exploitation of children as there is a paramount interest in protecting children from sexual abuse and exploitation. General deterrence assumes importance as there is a need to deter others from engaging in inappropriate sexual contact with children on the internet.

39The prosecution submitted that your offending should be categorised in the low to middle range for offending of this nature. Mr Sprague submitted you were the one to initiate contact, when you were told the purported victim had a stated age of 14 years you continued to communicate highly sexualised concepts, in very graphic terms. Further, he submitted that after receiving an image of the face of a girl who appeared to look under 18 you requested child abuse material (“CAM”).

40Although your offending occurred on a single evening and was of a confined duration, Mr Sprague submitted that your use of several different platforms, including a mobile phone conversation, demonstrated a level of persistence and deliberateness on your part. Your engagement in real time indecent communications was said to be further evidence of this. In addition, Mr Sprague pointed to the significant age and power differential between you as a 37 year old male and the purportedly 14 year old girl, who told you she was inexperienced in sexual matters and who indicated that she had not engaged in such conversations and had not ever sent a naked image of herself.

41Mr Cameron on your behalf, submitted that your offending was absent almost all the aggravating features that are usually associated with offending of this nature. This included that the person with whom you were communicating, was not a real child and you did not receive any CAM. Further, the purported victim being 14 years of age was not the youngest victim seen by the courts in these matters. Despite a thorough search of devices located by the police under warrant, no other CAM was located in your possession. You requested a single image, you did not request your victim engage in sexual activity, your request for CAM was not for distribution, and there has been no suggestion of profit. It was important, submitted Mr Cameron, that you ceased the communication of your own volition.

42On the basis of the circumstances in your case and the absence of aggravating features your counsel submitted that your offending was of low objective gravity and that was also made plain, when measured by looking at other cases.

43I accept in your case the offending occurred on one day, with the two offences committed within just half an hour, in the context of your use of the online chat forum ChatIW. I consider it to be relevant that to register on ChatIW a person must declare themselves to be over 18, and you had been using the forum to engage in adult female online sexual encounters. Further, I consider it to be relevant that you took no steps to disguise your identity and the offending was easily and promptly able to be traced by police. You provided police with the details to access your devices and in this way co-operated with law enforcement authorities.

44Mr Cranston it appears to me that you did not seek out an underage person, rather you started to communicate with someone who later told you they were 14 years old. Your response by saying to Rachel, “you shouldn’t be here” and “where are your parents?” indicated that you had a belief that she was underage and yet you went on to communicate indecently. Over the course of the short conversation you had, you used 3 different platforms, including a voice phone call. Your language was sexually explicit, crude and grossly indecent. Additionally, you sent a photo of your erect penis and after received a face photo of a young person under 18 you asked for a picture – “a pic of your tits for me”. When the picture was not forthcoming you desisted from further communication.

45The combination of factors relevant to your offending I have just detailed, lead me to conclude that your offending is towards the lower end of seriousness for offending on this nature. The main features of your offending that lead me to this conclusion, are the circumstances of how the communication began, the short duration, the relatively low level indecency and that you ceased offending of your own volition.

Sentencing considerations

46In sentencing you, I must give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community, and I have already referred to some of these principles in the context of this offending. Rehabilitation is also a relevant sentencing consideration.

47In my view, specific deterrence has little role to play in the sentencing matrix given the very prompt and direct consequences you have experienced in relation to your offending. This is evidenced within the report from Mr Cummins and within the testimonials. It is apparent that you have learnt your lesson. I accept that this is the case particularly in view of you having been ostracised by your community and the very significant and detrimental life changes that you have experienced in the aftermath of having been arrested, charged and publicly shamed.

48I take into account the principles of parsimony and proportionality. I am required to impose a sentence that is of a severity appropriate to all the circumstances of the given offence.

49I must have regard to current sentencing principles for offences of the kind that you have committed, and I have done so. I was provided with comparable cases by both counsel that I have considered, however, plainly, each case will be different and will depend on the nature of the offending and also on the circumstances of the offender. The way in which these particular offences can be committed are varied, making a comparison quite difficult.

50The relevant sections in the Act provide that an offender sentenced to imprisonment for a Commonwealth child sex offence can only be released immediately on a recognisance release order if there are exceptional circumstances.[5]  

[5] Ibid s 20(b)(iii).

51In your case the prosecution submitted that a term of imprisonment was warranted and that it would be appropriate to be ordered by way of a recognisance release order. The prosecution made no submission as to the existence of exceptional circumstances. However, Mr Sprague fairly submitted that the prosecution did not submit that exceptional circumstances did not exist and that this was otherwise a matter for the court to determine.

52Your counsel, Mr Cameron submitted, primarily as a result of the low objective gravity of your offending, that imprisonment, being a sentence of last resort, was not warranted, in the compelling circumstances of your case. Mr Cameron’s secondary submission was that if the court considered imprisonment to be appropriate then it should be imposed by way of a RRO where you were released forthwith.

53Mr Cameron relied upon a combination of factors already canvassed to satisfy 'exceptional circumstances.' These included that the offending was towards the lower end of objective seriousness. Your very early plea of guilty, admissions in your record of interview and demonstrated genuine remorse. The fact you have no subsequent convictions, your positive prospects of rehabilitation and the steps that you have voluntarily taken to obtain treatment, your assessed low risk of recidivism, your lack of prior convictions, your strong work ethic and employment, your supportive family and friends and the significant extra-curial punishment.

Disposition

54Weighing all matters in the sentencing synthesis, particularly giving appropriate weight to the real need for general deterrence in cases of this type, I have determined that the appropriate sentence in your case is a Community Correction Order.

55Mr Cranston, you are convicted in relation to each of the charges, charge 1 of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age and charge 2 of using a carriage service to solicit child abuse material and I order you are to be placed on a Community Correction Order for a period of 20 months.

56The conditions of this Community Correction Order include that you must

(a)   Perform 250 hours of unpaid community work over that 20 month period; and

(b)   You must submit for assessment and treatment for programs to reduce re-offending;

57With regard to the community work, I propose to offset 100 hours of community work with counselling. That means if you perform 100 hours of counselling, that will be deducted from the 250 hours. I am doing this because I want to provide an added incentive for you to participate in treatment.

58In addition to the conditions that I have imposed, there are standard conditions you must comply with. So first and foremost, you cannot commit an offence punishable by imprisonment over the next 20 months. I expect you won’t ever offend again given your experiences with this matter. If you do in the next 20 months, you will breach the order. If you do breach the order, you will be brought back to me, and I will likely have to re‑sentence you. That could involve sending you to gaol.

59You need to report within two working days to your nearest Corrections office and that will be Pakenham Community Correction Service and you must report there by 2pm on Monday 16 September 2024.

60You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.

61I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved?

62OFFENDER: Yes.

63HER HONOUR: And do you consent? Do you agree to doing an order?

64OFFENDER: Yes.

65HER HONOUR: I indicate pursuant to s 6AAA of the Sentencing Act,[6] that had you not entered a plea of guilty I would have sentenced you to a term of some 12 months, to be released on a recognisance release order forthwith. Mr Cranston, that is an indication for you that by accepting responsibility and entering a plea of guilty as you have, and cooperating, it has resulted in an important sentencing discount, as you can see.

[6] Sentencing Act 1991 (Vic) s 6AAA.

66The charges comprise a single registrable Class 2 offence in accordance with s. 34(3)(a) of the Sex Offenders Registration Act.[7] Upon being found guilty of the charges you will be a registerable offender under the Act and will be required to comply with reporting obligations for a period of 8 years.

[7] Sex Offenders Registration Act 2004 (Vic) s 34(3)(a).

67Mr Cranston, that is a mandatory order and a mandatory term.

68You will also receive paperwork that explains to you what your obligations are. You will be required to sign it, acknowledging receipt of that paperwork. In very broad terms, you will have to attend an appointment. You will have to disclose and provide many details and particulars, phone numbers, car registrations; it is quite detailed. And you will be under an ongoing obligation to advise of any changes and also annual obligations to meet with the relevant agency. So it really is important. Can I indicate this court does deal with people who have breached those orders. It is really important that you understand it and that you comply with it, and that you have a system in place to ensure that you do that.

69I make the forfeiture order sought by the prosecution.