Director of Public Prosecutions (Cth) v Delaney
[2020] VCC 242
•5 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No CR-19-01583
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| CALLUM VICTOR DELANEY |
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2020 | |
DATE OF SENTENCE: | 5 February 2020 | |
CASE MAY BE CITED AS: | DPP (Cth) v Delaney | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 242 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – one charge of procuring a person under 16 years of age for sexual activity using a carriage service – one charge of possessing two imitation firearms without exemption as a non-prohibited person – offender placed advertisement on internet site for males under the age of 18 – online communication with undercover police officer – offender believed he was communicating with a 15 year old male – serious example of the offence – no prior criminal history – offender experiences symptoms of PTSD after being assaulted at work – very strong prospects of rehabilitation – low risk of reoffending – general deterrence a paramount sentencing consideration.
Legislation Cited: Criminal Code (Cth), Control of Weapons Act 1990, Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004, Sentencing Act 1991
Cases Cited:Director of Public Prosecutions (Cth) v Singh [2017] VSCA 146, The Queen v Fuller [2010] NSWCCA 192, Kada v The Queen [2017] VSCA 339, R v Hani Taouk (1992-1993) A Crim R 387
Sentence: Imprisonment for a period of 12 months to be released forthwith on a recognisance of $2000, to be of good behaviour for a period of 3 years and complete Sex Offender Treatment Program.
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr D Sagnelli | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr B Johnston | Balmer & Associates |
HIS HONOUR:
Introduction
1 Callum Victor Delaney, you have pleaded guilty to one charge of procuring a person under 16 years of age for sexual activity using a carriage service contrary to s 474.26(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment.
2 You have also pleaded guilty to a related summary charge that, as a non-prohibited person you possessed two imitation firearms without exemption contrary to s 5AB(1) of the Control of Weapons Act 1990 which carries a maximum penalty of 2 years imprisonment.
3 You have no prior criminal history.
Circumstances of the offences
4 A prosecution opening was tendered on the plea which may be summarised as follows:
5 On 19 January 2019, using a profile in the name of ‘Dave Jacobs’, you created a post on an internet site called ‘Sexting Forum’. The post read as follows: ‘Young melb top for bottom. Nobody over 18 please. SC: delaniator. Melb only. Aus only’.
6 On 8 March 2019, having observed the post on Sexting Forum, a Covert Operative officer attached to the Joint Anti Child Exploitation Team (‘JACET’) contacted you via Snapchat.
7 Your Snapchat ID was ‘Delaniator’ and your display name was ‘Snake’. The covert operative purported to be ‘Jason Sanders’ a 15 year old male.
8 The conversation continued, at varying intervals, until 19 March 2019.
9 Details of a number of communications between you and the police operative have been reproduced in the prosecution opening. As such I will only briefly summarise the relevant conversations in these sentencing reasons.
10 On 8 March 2019, during the first conversation, Jason told you that he was a 15 year old from Glen Iris. You responded that you were a 24 year old from Mernda.
11 You and Jason then discussed your sexual experiences. Jason was interested but of limited experience. You sought to reassure him. In doing so, you expressed an interest in young, inexperienced males as sexual partners, whom you said you had experience with. The conversation in parts was explicit with reference to oral and anal sex.
12 Jason asked where this could happen. You responded, ‘Dunno. Maybe somewhere quiet in my car. Could always just talk and drive and see how it goes. U could feel me up while I drive.'
13 You again suggested catching up with Jason. Jason asked you what you had in mind. You responded, 'Just chat and see maybe u might wanna suck my dick. And even take it haha.'
14 You suggested that you were on leave as of the following week and that you and Jason should meet after Jason finished school.
15 Later that day, Jason told you that he was in the city and was at Southern Cross train station. You responded that you were at Melbourne Central Station. Having enquired how long Jason was going to be there for, you suggested, ‘maybe we could catch up in the toilet or something haha […] maybe just play with each other.'
16 When Jason expressed concerns about having sex in that environment, you responded that you had ‘fucked a 16 year old in public toilets a few times’ and that you were not caught because you had been quiet. You then described those encounters in detail.
17 You indicated that you were hopeful to be able to catch up with Jason that night, work commitments permitting, but that, if not, you would want to do so the following week, ‘maybe at the beach’.
18 On 11 March 2019, whilst discussing plans for the upcoming weekend, you said you were hoping to catch up with your ‘new friend’ Jason, if he was still keen.
19 You asked Jason for a photograph. You also asked if it was easier for him to meet on Wednesday or Thursday. In this context you offered to pick him up with your car, near Chadstone shopping centre or Jason’s school.
20 To avoid detection by teachers and parents, you suggested to meet ‘near [Jason’s] school’, not ‘right out the front’, but rather ‘a few streets away’, because you didn’t ‘wanna draw attention’. You also indicated you could return Jason home by 6 pm. While you were involved in the conversation about meeting away from the school, I accept the submission by your counsel that when the conversation is viewed in context, the idea was initially suggested by Jason.
21 On 13, 14 and 18 March 2019, on each day, you sent further requests for Jason to send his photographs. On 13 March 2019, you asked Jason, ‘So we still catching up today? If u can’t it’s all good we can do it tomorrow or something. Just let me know.’
22 On 19 March 2019, after indicating that you had a day off mid-week, you had a conversation with Jason reminding him that he did not send a photo.
23 In response, Jason sent a photo whilst standing in front of a mirror, wearing only underwear. You responded that the photo was cute.
24 On 20 March 2019, Victoria Police attended your home to execute a search warrant. Two imitation firearms were retrieved, both located in the drawers of a bedside table located inside the bedroom occupied by you and your partner.
25 On your bed, Police found and seized an Apple mobile phone registered in your name.
26 You were cautioned and participated in a field interview, stating amongst other things that you used the website Sexting Forum ‘trying to speak to other people’; that you had posted on that forum ‘looking for younger guys’; and that you had a Snapchat account under the name of ‘Delaniator’ and you were the only person using it, through your mobile phone.
27 You were arrested and transported to the Mernda police station, where a record of interview was conducted. You stated amongst other things that:
· you had used Sexting Forum a few weeks before;
· you had included your Snapchat (‘Delaniator’) as contact information in your last post on Sexting Forum, when you were seeking to make contact with younger people;
· you thought 22 was the upper age limit for your prospective contacts included in that post;
· you had not included a lower limit, but you realised you should have done so;
· two days prior, you had exchanged messages and photos on Snapchat with a person called ‘Jason’, who was either 15 or 16;
· you ‘probably shouldn’t have talked to’ Jason;
· you initially had sexualised conversations with Jason, and discussed meeting in person;
· the purpose of the meeting was sexual in nature;
· since meeting ‘wasn’t something that [you] wanted to do’, you told Jason that maybe you should have just chatted instead;
· the meeting eventually ‘fizzled out’ because you kept ‘cancelling it’ and you were ‘pretty sure’ that in the end you were the one who cancelled it for good;
· there were no discussions about meeting where Jason went to school;
· you had met in person with people that you had conversations with on other apps, but not Snapchat;
· the people you met with were 17 and 18 years of age;
· during the chats with Jason you were lying when you said you had met with people younger than that;
· you lied about this in order ‘to make [Jason] feel better’;
· speaking with Jason was a ‘stupid decision’; and
· you had purchased the two imitation firearms years before and kept them in your bedroom for self-defence, alongside a baseball bat.
28 In relation to the related summary charge, enquiries revealed that, as of 20 March 2019, you were not authorised to possess, carry or use imitation firearms.
Nature and gravity of offending
29 Procuring a person under 16 years of age in order to engage in sexual activity is recognised by Parliament as a serious offence which is reflected in the maximum penalty of 15 years imprisonment. Further, the seriousness of the offence has been reinforced in recent decisions in the Court of Appeal. In Director of Public Prosecutions (Cth) v Singh[1] the Court noted:
These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, 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. It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment. Deterrence, both general and specific, is the paramount sentencing consideration. It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.[2]
The seriousness of the offence under s.474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of noncustodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.[3]
[1] [2017] VSCA 146.
[2] Ibid at [45] (citations omitted).
[3] Ibid at [64].
30 In this instance you were informed in the early stages that the recipient of your communications was 15 years old. Thus, you were aware from the outset of the age of the person that you then continued to communicate with. The communications relied on by the prosecution occurred between 8 and 19 March 2019 and it is clear that on many occasions the conversation was about sexual contact or speaking about meeting. I accept however that the communications were over a relatively short period of time, were not of a highly depraved kind and did not contain any threats of violence or exchange of explicit material.
31 In this case the recipient was a police operative. In that regard I note that while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.[4]
[4]The Queen v Fuller [2010] NSWCCA 192 at [35]. See also s 474.28(9) of the Criminal Code (Cth).
32 Further, it was submitted on your behalf that as you believed you were communicating with a 15 year old, you were speaking with a person of an age that is close to the age of consent. Again, while this is not a mitigating factor, I accept that the offence would be aggravated if the recipient was younger.
33 It was also submitted on your behalf that you did not specifically advertise for a person under the age of 16 as your profile read ‘no one over 18’. Further, that it was the police operative that introduced the idea that he was 15 years old. The concept of entrapment was raised by your counsel at the plea. I will discuss this submission further below, however, what is clear is that despite the fact that the age was introduced by the police operative, you knew at the outset that the person you were dealing with was 15 and you continued to engaged in sexual conversation with a view to meeting that person for sexual contact.
34 It was also pointed out that once arrested, your devices were seized and there was no illegal material found.
35 While your offending it is not in the worst category, in my view it still represents a serious example of an offence of procuring a person under 16 to engage in sexual activity which was conceded by your counsel.
Personal circumstances
36 You are 30 years of age and were 29 at the time of the offending.
37 You have a positive relationship with your parents. You are the youngest of three. You have a brother aged 33 who is a serving police officer and a sister aged 36 employed in sales and marketing.
38 You grew up in Somerville and attended the local primary school, completing Year 12 at Flinders Christian College. Upon leaving school you completed an Advanced Diploma of Justice and obtained employment at Metro Trains where you worked for some seven years. You left that employment following an unprovoked violent attack in September 2017 when you were seriously assaulted at work. You were checking tickets at a train station speaking to a young woman when her partner charged at you and king hit you. While you did not suffer any serious physical injuries, you have suffered psychologically as a result of that assault.
39 You left work following the assault and did not returned to that employment until March 2019, however, as result of these charges you were stood down and now having pleaded guilty to these offences, your employment with Metro Trains will be terminated. In June 2019 you obtained work with a road construction company where you are involved in traffic management.
40 You have been in a relationship with your partner Luke Merieca for the past seven years. He is a similar age to you. Together with your partner you built a house in Mernda and you have a substantial mortgage.
41 A report was prepared by clinical psychologist Carla Lechner and tendered on the plea. Ms Lechner provides a detailed history and summarises her findings from psychometric testing and clinical observations. I have taken the contents of that report into account.
42 Following a test in relation to post-traumatic stress disorder (PTSD) Ms Lechner confirmed the presence of symptoms of PTSD and is of the view that you suffered these symptoms immediately after the assault at work. She is of the view that the symptoms may have lessened in their intensity, however, you still continue to experience a moderate to severe level of symptoms. In relation to depression, your score on psychometric testing placed you in the moderate range being consistent with your presentation at interview.
43 In relation to your risk of reoffending, Ms Lechner points out that there is no specific measure in relation to this type of offence, however she points to research by other preeminent psychologists in relation to the field of online offending. In Ms Lechner’s view with reference to such material, she assessed your risk of reoffending as low. Further, she notes that you do not demonstrate symptoms of sexual deviance, psychopathy or substance abuse.
44 Ms Lechner also observes that you are a person low in mood and appear to have chronically low self-esteem related to your appearance and your identity as a gay man. It is that trait that Ms Lechner attributes to your attraction to online apps and chat rooms where you engage in sexual talk.
45 While there is no causal connection between your PTSD and the offending behaviour, Ms Lechner opines that you would benefit from trauma focused counselling in order to address specific symptoms related to your PTSD and more general psychotherapy with respect to identity and self-confidence issues.
46 A report was also tendered from consultant psychologist Ann Sebire who has seen you over the past three years. This counselling initiated as a result of your assault at work, however, since your arrest in relation to these matters, you have been seeing Ms Sebire on a fortnightly basis alone and on occasion, with your partner.
47 Ms Sebire states that you have demonstrated clear insight into the severity of the charges including the fact that your involvement in this kind of criminal activity can have serious and detrimental effects on children.
48 A number of references were tendered from immediate and extended family members. They all speak of your remorse, the fact that your conduct is entirely out of character and that you have already suffered enormously by losing your job and losing family members on your partner's side. Your partner expands on this, pointing out that you are no longer able to have contact with his nieces and nephews where prior to being charged, there had been very positive relationships in the past.
49 You wrote a letter to the court where you express your shame and explain the enormous effect your conduct has had on you and your relationships. You do, however, acknowledge that your immediate family and your partner remain supportive of you and will continue to do so.
Sentencing considerations
50 As the charge to which you have pleaded guilty is a Commonwealth charge, I am required to take into account a number of matters pursuant to s16A of the Crimes Act 1914 (Cth). Mr Sagnelli who appeared on behalf of the Commonwealth Director of Public Prosecutions, highlighted a number of the matters in s16A(2) that must be given weight and I have taken those matters into account. In cases such as this it was submitted, and I agree, that general deterrence must be the paramount sentencing consideration. Further, as noted above in Singh, in relation to offences of this nature, matters in mitigation carry less weight.
51 I take into account your plea of guilty which was entered at the committal mention stage. Your plea was entered at the earliest opportunity, and as such demonstrates your acceptance of responsibility, has saved the time and expense of a trial and has therefore facilitated the course of justice.
52 After considering the psychological materials, I accept that you have developed insight into your offending. As to genuine remorse, I accept the observations of Ms Sebire whereas noted above, she is of the view that you have genuine insight and appropriate remorse.
53 As to your prospects of rehabilitation, in my view in light of the steps you have taken in response to this offending by continuing counselling, together with the support you have in the community, your prospects are able to be assessed as very strong. You have no prior criminal history, no drug or alcohol issues to contend with and you have been in continuous employment save for the time following your assault. You also enjoy the continued support of your partner and your family. Further, you are committed to maintaining your counselling in order to further improve your insight and reduce your risk of reoffending.
54 Specific deterrence is also an important consideration in relation to this category of offending, however, for the reasons already noted in relation to your ongoing treatment, your lack of prior criminal history, your low risk of reoffending and your excellent prospects of rehabilitation, in my view specific deterrence need not carry great weight in the sentencing equation.
55 Mr Johnston who appeared on your behalf, submitted that entrapment is a relevant feature of the offending to be taken into account in mitigation.
56 Entrapment may be taken into account as a relevant sentencing consideration.[5] However, the authorities establish that the focus should be on how the circumstances of police involvement bear upon culpability. In my view what occurred in this instance was that the police operative simply provided you with an opportunity, of which you took advantage.
[5] See Kada v The Queen [2017] VSCA 339 and R v Hani Taouk (1992-1993) A Crim R 387.
57 While it is true that the police operative initiated contact with you, it was in response to your advertisement for seeking a sexual partner ‘aged 18 or below’. As noted above, in the early stages of contact you were aware of the age of the person you were communicating with, which was 15. Further, the sexualised conversations and discussions in relation to meeting were initiated by you, again after you were aware the other person was 15 years of age. Once you knew of the age you could have desisted, but you did not. Thus in the circumstances I do not accept that the so called entrapment in this instance reduces your moral culpability.
58 Mr Johnston submitted that a community correction order is in all the circumstances within range and able to meet the relevant sentencing considerations. Mr Sagnelli submitted that an immediate term of imprisonment is called for.
59 While accepting the limitations on the utility of the provision of comparable cases, both Mr Johnson and Mr Sagnelli provided me with a number of appeal decisions and sentences of this court which I have taken into account.
60 The offending is serious offending and in my view, pursuant to s 17A(1) of the Crimes Act 2014 (Cth), I am satisfied that no other sentence is appropriate other than a term of imprisonment. However, I am also of the view that the relevant sentencing considerations are able to be met by a sentence that will allow you to remain in the community to continue your rehabilitation including undertaking the Sex Offender Treatment Program.
Sentence
61 Mr Delaney please stand.
62 Callum Victor Delaney, on Charge 1, use a carriage service to procure a person under 16 for sexual activity, you will be convicted and sentenced to 12 months imprisonment.
63 Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I direct that you be released forthwith upon giving a recognisance in the amount of $2000 and to be of good behaviour for a period of 3 years. Further, that as a condition of the recognisance release order you must complete the Sex Offender Treatment Program.
64 Further, the offence to which you have pleaded guilty is a Class 2 offence pursuant to the Sex Offenders Registration Act 2004 and is a registrable offence. You will therefore be required to comply with reporting obligations for a period of 8 years.
65 In relation to the related summary charge, you will be convicted and fined $600.
66 Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 18 months' imprisonment to be released on a recognisance release order with conditions after serving a period of 6 months.
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