Director of Public Prosecutions (Cth) v Dean
[2019] VCC 40
•30 January 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01928
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD DEAN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2018 | |
DATE OF SENTENCE: | 30 January 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Dean | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 40 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentence – Guilty plea – Use a carriage service to procure a person under 16 years of age for sexual activity (charge 1 ) and use carriage service to transmit indecent communications to a person under 16 years of age (charge 2) – offender interacted with covert operative posing as a 14‑year-old girl with the intention of engaging in sexual activity – Transmitted four images that were indecent
Sentence: Community Corrections order imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Cth DPP | Mr J Grant | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J Lavery | Docherty Legal |
HER HONOUR:
1 Richard Dean, you have pleaded guilty to two charges:
· Charge 1, of using a carriage service to procure a person believed to be under 16 years of age for sexual activity, for which the maximum penalty prescribed by Parliament is 15 years’ imprisonment, and
· Charge 2, use carriage service to transmit indecent communication to a person believed to be under 16 years of age, for which the maximum penalty prescribed is seven years’ imprisonment.
2 You admitted your criminal record. It is of little relevance to my sentencing you today. There is an entry that is somewhat dated. On 12 February 2004, at the Bendigo Magistrates’ Court, you received a “without conviction”, adjourned undertaking of 12 months duration in respect to a charge of recklessly causing injury and unlawful assault charge. You complied with that undertaking and the charges were then dismissed on 25 February 2005.
3 I will now proceed to sentence you on the basis of the prosecution opening that was tendered at the plea hearing.
4 Charge 1 relates to a period between 11 April 2018 to 4 July 2018. It involved you contacting “Emily James”, a 14 year old girl, on Facebook. During the period, you used your Facebook contact to procure her for sexual activity. The Facebook profile of Emily James was set up and operated by Detective Senior Constable Ousley of Victoria Police Joint Anti Child Exploitation Team, as part of their covert online operations. The Facebook chats were annexed and marked as Exhibit A in the prosecution opening for plea.
5 Early on in your contact with Emily you were informed by her that she was 14. You initially contacted Emily and befriended her on 11 April 2018. On 17 April 2018, she informed you she was 14, notwithstanding your knowledge that she was under the age of 16, you persisted in conversing with her on Facebook. Those conversations progressed in a manner whereby you suggested phone sex, asked to see her breasts, and asked questions about intimate personal details of a sexual nature, as is set out in full particular in the prosecution opening.
6 You continued over the course of almost three months to have sexual conversations with her, in which you repeatedly made sexual remarks, stating that you would like to have sex with her, requesting naked photographs and also asking her if she would like to have sex with you.
7 Between 20 May 2018 and 22 May 2018, you and Emily James discussed her travelling by train from Melbourne to Bendigo to have sex with you. You told her that you could have sex in your car and that you would bring a condom so that she would not get pregnant. You asked her if she thought it would be wrong to meet up, and you told her that she did not have to believe that it is wrong.
8
On 14, 22, 25 and 27 June and 3 July 2018, you discussed with Emily James the possibility of her travelling to Bendigo so that you could have sex together. You said on 3 July 2018 that if you did meet up, that you could not get caught. You both agreed that Emily James would travel by train to Bendigo after you had finished work on 4 July 2018. However, on 3 July 2018, you told
Emily James that your mother was in hospital, so you could not meet her, so the planned meeting did not eventuate. All those facts constitute (Charge 1, the procure charge.)
9 During a conversation on 17 April 2018, Emily James told you that she had not had sex before, to which you replied “So you’ve never seen a cock?” and “Do you want to?” You then sent her two photographs of your erect penis and wrote “Our secret baby”. On 16 May 2018, you again sent two pictures of your erect penis to Emily James and the fact that you transmitted those four images constitutes Charge 2, transmission of an indecent communication.
10 On 5 July 2018, police executed a search warrant and you were arrested. They seized your black Telstra smart phone. Forensic examination later revealed you had deleted all data from your Facebook chat logs with Emily James.
11 In your formal record of interview you confirmed that you were a regular user of Facebook. You had had one or two conversations on Facebook with people that had become sexual. You said that Emily James had sent a friend request to you and that your chats with her were sexual “maybe once”. You said falsely that Emily James was 16 and that you only spoke to her once about coming to Bendigo a month earlier. You said that you told her not to come to Bendigo. You initially denied sending pictures of your penis to Emily James, but then you admitted that you had sent such an image. You stated that you could not recall your conversations on 17 April, during which you were asking about having sex with Emily James and you told police you deleted all messages relating to her.
12 These offences Mr Dean are very serious and that is reflected in part, having regard to the maximum penalty that has been prescribed by Parliament. The offences were introduced to protect young people from sexual predation on the internet. You believed, during the course of your discussions with Emily James that you were communicating with a 14 year old female and the fact that you were communicating with a covert operative does not reduce the seriousness of the offending. You willingly engaged in such conversations once contact was established. You were the one who initiated the arrangements to meet the victim for the purposes of having sex. However, it is acknowledged that you did resile from the actual meeting and took steps to cancel the arrangements.
13 Overall, I consider your moral culpability to be high. There was a significant age difference, you being 46 and the Emily James whom you believed was only 14 years. The messages you exchanged were sexually explicit and offensive.
14 Objectively, Charge 1 is a serious example of the type of offence it represents. Given the period over which the offending occurred, the age differential that I have highlighted, the fact that the contact was not an isolated occasion and that you persisted in trying to arrange a meeting with another person, whom you believed to be a 14 year old child, for the purposes of having sex.
15 However, it is significant that you did cancel the proposed arranged meeting and did not recommence communications thereafter.
16 There was no deceit on your behalf, that is, you did not seek to hide your true identity and you did not seek to provide inducements to the victim.
17 Therefore, I consider your case can be distinguished from conduct at the higher end of the spectrum represented in this type of offending.
18 I consider that Charge 2 falls at the lower end of the range of seriousness represented in the broad spectrum of cases often seen with this sort of offending.
19 In sentencing, there is a real need for the court to emphasise general and specific deterrence. General deterrence is acknowledged to be the primary sentencing consideration for this kind of offending,[1] and in these sorts of cases, less weight is accorded to mitigating factors such as prior good conduct.[2]
[1]DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69, 74 [26]; R v Gajjar (2008) 192 A Crim R 76, 81 [27]
[2]Gajjar (2008) 192 A Crim R 76, 81 [28]
20 By way of background, you are 46. You live in Bendigo with your widowed mother, your father having died in 2010 from health-related problems.
21 You had an unremarkable childhood. You are one of three siblings.
22 You were diagnosed with epilepsy from birth until age nine.
23 You left school at Year 9, having experienced problems with literacy. You continue to have issues with writing. You are described as having a low-average range of intellectual ability.
24 You have been in employment over the past eight years. You are currently working as a cleaner with a local Bendigo business.
25 You moved out of home at aged 17, but have returned there to live on an intermittent basis over the years.
26 You developed a stutter when you were an adolescent that caused you to be self-conscious in your relationships with your peers, specifically females. You experienced communication difficulties in your adult intimate relationships and have poor self- esteem.
27 You are currently a single man.
28 I have taken into account all the matters put on your behalf in mitigation.
29 You were cooperative with the police at the time of your arrest and made some relevant admissions.
30 The plea has real utility. The plea was entered at an early stage in the proceedings at committal mention on 19 September 2018. Your plea indicates a willingness on your behalf to accept responsibility for your conduct. You now acknowledge what you did was wrong. You spared the court and the state the inconvenience and expense of a trial. You have facilitated justice and your sentence will be discounted accordingly.
31 I accept that you did come to the realisation when arrangements were actually put in place for Emily James to travel to Bendigo, that you had gone too far and that it was at your instigation that all further contact ceased. That is reflected in you deleting all communications from your telephone and not making any further attempts to contact or meet with Emily James following the cancellation of the meeting on 3 July 2018.
32 Mr Lavery, your counsel, acknowledged that you understood that you were plainly in breach of the law. You made poor decisions and you continued to have interactions with a girl who was known to you to be underage. He relied on the fact that your actions did not have an impact on an actual young person. However, the lack of a real victim is not a mitigating circumstance in cases of this nature.
33 Notwithstanding your actions, I accept that you have shown appropriate remorse and that you are truly ashamed for what you have done.
34 You have also suffered a degree of indignity of having all your details, and the details of your crimes reported in the local rural newspaper. Your offending is known to others in the community.
35 I have had regard to the report prepared by Dr Simon Kennedy, clinical and forensic psychologist. He assessed you on 1 November 2018 and his report dated 4 December 2018 sets out his findings.
36 You explained to him that your motivation for the offending was because you were lonely. You do have some friends, but not a lot of female company. You reported difficulties with anxiety and depression.
37 Dr Kennedy notes that you have an alcohol use disorder, with a binge-drinking cycle that has been present over time, and also a history of depression. He says that it is likely that the depressive component to your presentation is also affected by personality function to some degree.
38 In his conclusion, he finds that you require assistance as the sexual offending is driven by your mental health problems and personality vulnerability factors. He considers that depression was a likely factor in the offending, at least partially.
39 He considers you require further treatment and possibly anti-depressant medication via a psychiatrist, and also assistance via a clinical psychologist with expertise in the area of sexual offending and personality difficulties.
40 He assessed your risk, according to the sexual violence protocol as being moderate currently prior to treatment. You present with some insight into your difficulties, but do require further assistance to prevent reoffending.
41 He considers that you would benefit from a long standing sex offender program in a group format. Your sexual offending risk was rated at moderate, and/or potentially low moderate, with appropriate treatment and good response to treatment to reduce risk factors.
42 Risk factors were identified as being loneliness, depression and alcohol abuse, as well as cognitive difficulties with borderline cognitive functioning.
43 You are a lonely and isolated man who suffers from documented depression. Without medical advice, you ceased your prescribed medication for depression for a considerable time before the offending. You now appreciate the folly of doing that and you have recently seen by your general practitioner and you have recommenced on medication.
44 You are not dismissive of the need to address what it is that drove you to commit these offences and you are prepared to take assistance so that you do not engage in this sort of behaviour in the future again.
45 You do have a mobile phone, a new one, and you have not installed Facebook or accessed Facebook since the crimes have been discovered. You do not have access to a computer at your mother's home. You appreciate the dangers and risks of revisiting such behaviour and you are open and amendable to treatment.
46 Ms Elyse Crosswell the clinician who prepared the pre-sentence clinical assessment report dated 14 January 2019, confirms the offending occurred in the context of you being bored, isolated, lacking an understanding of the problematic nature of your behaviour, low self–esteem and feelings of inadequacy, a lack of healthy sexual outlets and problems instigating and maintaining intimate relationships.
47 She agrees with Dr Kennedy that overall you present as falling in the moderate risk category for reoffending.
48 She too recommends you are suitable for a Sex Offence Specific Treatment Program in the community and she nominated the SOATS Better Lives Program – Moderate –low intensity, in combination with case management in consultation with SOATS.
49 She further recommended that a referral for counselling for problematic alcohol use, be included in such an order, given alcohol did play a role in the offending.
50 Having regard to your conduct, your acceptance of responsibility and openness for treatment, I consider that you do have good rehabilitation prospects and they will be further enhanced by undertaking the programs that have been identified as being suitable.
51 Mr Lavery sought a disposition that enabled you to remain in the community.
52 On behalf of the Crown, Mr Grant sought an immediate custodial term of imprisonment in relation to both charges.
53 I have had regard to the submissions of the prosecutor in relation to sentence and have been guided by the decisions that he provided. They do provide guidance with respect to the appropriate sentencing principles and also a useful yardstick against which to sentence. However, as has been stated, comparable cases do not mark the outer bounds of the sentencing discretion, although they may establish a range of sentences which have been imposed, so there is a yardstick against which to examine a proposed sentence.[3]
[3]Nguyen v The Queen [2016] VSCA 198 [71]
54 Each of the cases provided represents more serious examples of the kind of offending that is reflected in your charges.
55 Mr Dean, both of the charged offences were introduced by Parliament and are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue.[4]
[4]Ibid [25].
56 Offending of this nature is hard to detect and has the potential 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 penalties that can be imposed reflects the seriousness with which Parliament views the offending.
57 It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment.[5] Deterrence, both general and specific, is the paramount sentencing consideration.[6] It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.[7]
[5]Gajjar (2008) 192 A Crim R 76, 85–6 [61]–[64] (Maxwell P, Nettle and Weinberg JJA); Hizhnikov (2008) 192 A Crim R 69, 74 [27] (Maxwell P, Nettle and Weinberg JJA).
[6]Hizhnikov (2008) 192 A Crim R 69, 74 [27].
[7]Gajjar (2008) 192 A Crim R 76, 81 [28].
58 That is not to say that an immediate term of imprisonment must be imposed in every case of offending against ss.474.26 and 474.27A of the Criminal Code Commonwealth.
59 As was acknowledged by the Victorian Court of Appeal in DPP v Singh, [8] it is clear that there will be some cases where it is open to a Sentencing Judge not to impose a term of imprisonment.
[8][2017] VSCA 146
60 Section 17A(1) of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence unless it is satisfied, after having considered all other available sentences, that no other sentence is appropriate in all the circumstances of the case.[9]
[9]This principle of ‘parsimony’ is likewise found in s 5(4) of the Sentencing Act 1991.
61 Having regard to my findings, in terms of objective seriousness of your offending, your antecedents and the matters put in mitigation that I must have regard to, including the pleas of guilty and cooperation with law enforcement, and all the factors set out in s.16A(2) of the Crimes Act 1914 (Commonwealth) to which I have been referred, I do not consider that a sentence of imprisonment is the only appropriate sentence.
62 It is not in dispute that a Community Correction Order is an available non-custodial option.
63 I consider that the need for general deterrence and specific deterrence can be provided through the imposition of an appropriately crafted Community Correction Order that addresses your underlying offending behaviour through your participation in the Specialised Offender Assessment & Treatment Service, that is the (“SOATS”) program and case management through Community Corrections and also the other conditions of supervision and treatment and assessment for alcohol problems. In all the circumstances, I will impose a Community Correction Order.
64 Could you please stand and I will announce the formal court orders in respect to the two charges. The first charge, Charge 1 procure and Charge 2, the transmission charge, you will be convicted and ordered to serve a Community Correction Order of two years duration with the special conditions that be supervision, 200 hours of unpaid community work, assessment and treatment for alcohol abuse and offence specific programs, namely the specialised offender assessment and treatment services program.
65 I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
66 Upon your convictions in respect to Charges 1 and 2 on the indictment, both are Class 2 offences under the Sex Offenders Registration Act 2004, (Victoria) (“SORA”) and are registrable offences.
67 Upon your sentence, you become a registrable offender as defined in the SORA legislation. You are required to comply with reporting obligations as set out in that Act. In respect to the two Class 2 offences, you are required to report for 15 years.
68 In accordance with s.6AAA of the Sentencing Act 1991 (Victoria), I state that but for you plea of guilty, I would have sentenced you to two years imprisonment, to be released after serving nine months on a recognisance release order.
69 My associate will approach you shortly. I have signed the order for the Community Correction Order and also the notice under the relevant SORA legislation which I ask that you acknowledge receipt of, so if you could attend to that Mr Lavery with my associate, - - -
70 MR LAVERY: Yes, Your Honour.
71 HER HONOUR: - - - that will be appreciated. My associate will provide copies to you and then once you receive those, you will be free to go. Thank you. Thank you gentlemen. We can adjourn.
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