Director of Public Prosecutions (Cth) v Divekar (a pseudonym)
[2024] VCC 2090
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| SOORAJ DIVEKAR (a pseudonym) | Defence |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2024 | |
DATE OF SENTENCE: | 11 December 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Divekar (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2090 | |
SENTENCE
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Subject:Using a carriage service to transmit indecent communication to a person believed to be under 16 years of age.
Catchwords: Guilty plea – presumption of imprisonment – exceptional circumstances – low end offending – early guilty plea – no criminal record – cooperation with authorities.
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Burton v R [2020] NSW CCA 127; Kristensen v R [2018] NSWCCA 189; DPP (Cth) v Zarb (2014) 46 VR 832; Garside [2016] VSCA 74; Kristensen v R [2018] NSWCCA 189; Burton v R [2020] NSWCCA 127;William Edwards v R [2013] VSCA 188; R v Aniezue [2016] ACTSC 82; R v Pham (2015) 256 CLR 550; Bredal [2024] NSWCCA 75; R v Thompson [2019] QCA 245; Elliot v Harris (No 2) [1976] 13 SASR 516.
Sentence:Seven months imprisonment; immediate release on reconnaissance to be of good behaviour for 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M Kelly | Commonwealth Director of Public Prosecutions |
| For the Defence | Mr T Sullivan | Victoria Legal Aid |
HIS HONOUR:
1Sooraj Divekar[1], you have pleaded guilty to two charges of using a carriage service to transmit an indecent communication to a person believed to be under 16 years of age contrary to sub-section 474.27A of the Criminal Code Act 1995 (Cth).
[1] A pseudonym.
2The maximum penalty for the offence is 10 years' imprisonment.
Circumstances of offending [2]
[2] The circumstances of your offending are set out in Exhibit A: Summary of Prosecution Opening for Plea dated 2 May 2024. They are agreed facts
3On 21 September 2023, federal police came to your home at West Footscray with a search warrant.
4They had intelligence from ACCCE (Australian Centre to Counter Child Exploitation) of irregular communications on an Instagram account linked to you.
5They seized your phone. In it, were indecent Instagram messages between your Instagram account and another user named, “Siobhan” who identified herself as a 13-year-old girl.
6While you denied any conversation with “Siobhan”, you admitted the phone and the Instagram account were yours. You said you used the account to chat with girls from India. You also gave police the passcode to your phone so they could access the data on it.
7You were charged with using a carriage service to transmit indecent material to a person you believed to be under 16.
8Subsequently, when police reviewed the data on your phone, they found indecent messages between your account and another account, in the name of “Lisa”, who identified herself as a 15 year old girl. Upon this discovery, police charged you with a second count of using a carriage service to transmit an indecent communication to a person you believe to be under 16 years of age.
Charge one
9This offending occurred on 17 September 2023.
10On 16 September 2023, in answer to your questions, “Siobhan” told you she was a 13-year-old girl.
11The next day, you sent her sexualised messages suggesting you had a large penis and wanted to have sex with her. You sent her a video of sexual activity between a man and woman, and an image of an erect adult penis.
Charge two
12This offending occurred between 15 and 20 September 2023 when you exchanged sexualised messages with “Lisa” who, when you asked her age, told you she was 15. On 15 September, you intimated to her you had a large penis and wanted to have sex with her. You sent her an image of an erect adult penis. On 18 September 2023, you sent her two more images of an erect adult penis, one image of a man and woman engaging in sexual activity and video of similar sexual activity.
13By your guilty plea, you admit you used your phone to send a video and an image, and to make sexual comments, which were indecent, to ‘Siobhan” (charge one) and to send four images and one video and to make sexual comments, which were indecent, to “Lisa” and you believed both of them were under 16 years of age.
Objective gravity of offending
14The crimes you committed are serious.
15In relation to charge one, your communications with “Siobhan” were made on a single day and were relatively brief.
16In relation to charge 2, you exchanged more communications with “Lisa”, over a four-day period, and the content of some of them was more graphic.
17Nevertheless, the communications were relatively few and not of the most serious or degrading kind. The same can be said for the images and videos you sent.
18There is no evidence you had any prior relationship with either “Siobhan” or “Lisa” or that you intended to groom or procure either of them for sex [3]; more, there is no evidence either of them was an actual child. [4]
[3] The offending behaviour would have been aggravated if they had been actual child victims or if you had been in a position of trust. See: Burton v R [2020] NSWCCA 127, [17].
[4] Such conduct constitutes a more serious offence under s 474.27. Section 474.27A (1) criminalises the communication of indecent material to a child, via a carriage service, even if the person communicating the indecent material has no intent to groom or procure that child for sex. See: Kristensen v R [2018] NSWCCA 189, [11].
19Overall, in my view, yours was low level offending of the type.
Chronology
20You entered your guilty plea to both charges at an early stage, that is, at committal mention.
Criminal record
21You have no criminal record.
Personal circumstances
22You were born in December 1985.
23Your father was a farmer. Your parents raised you, and your sister, in the Punjab state.
24Your childhood and adolescence were normal and uneventful.
25After you completed your secondary schooling, you came to Australia, in 2008, to study hospitality.
26Since 2009, you have been working at an Italian restaurant in the eastern suburbs. You started out washing dishes and, later, you were promoted to assistant chef. Your employer [5] and your co-workers and friends [6] regard you highly.
[5] Letter of Mr Divekar’s employer (Exhibit 3).
[6] Reference of Mr Divekar’s co-worker (Exhibit 4); Reference of Mr Divekar’s friend (Exhibit 5).
27You are an active member of your Sikh community. You attend your temple regularly and do volunteer work to help others. [7]
[7] Ibid.
28You suffer from a long standing protein disorder which affects your kidneys and lower body musculature. [8]
[8] Report of Terrence Bowles, Clinical Psychologist (Exhibit 1).
29A clinical psychologist, Dr Terence Bowles, assessed you in August 2024. [9]
[9] Ibid.
30Psychometric testing did not reveal any personality disorder. However, you had elevated anxiety, no doubt reactive to this prosecution.
31You told Dr Bowles, when you offended, you were unwell, with the protein difficulty, and convalescing at home. You said surfing the net led you to sites with younger girls. You described your communications as banter where you asked for photos and sent photos you found on the internet in return. You insisted you were not seeking out underage females intentionally. You said you will never send photos again.
32According to Dr Bowles, you were extremely humiliated, regretful and remorseful.[10] Your friends have confirmed you are.
[10] Ibid.
33Dr Bowles believes the best explanation for your actions was “boredom, impulse control and possibly immature sexual experience”. [11]
[11] ibid, page 9.
34In his opinion, it is unlikely you are a paraphiliac or a paedophile. Nevertheless, he recommends a course of behaviour change therapy to minimise the risk of you reoffending. [12]
[12] ibid, page 9.
Defence Submissions
35Ordinarily, persons who commit child sex offences will be sentenced to an immediate term of imprisonment. [13]
[13] DPP (Cth) v Zarb (2014) 46 VR 832, [27]; Garside [2016] VSCA 74 [25], [62].
36Your counsel, Mr Sullivan, accepted a prison sentence is the appropriate sentence in your case.
37Under federal law, a person, who is convicted of a Commonwealth child sex offence, must serve at least part of a sentence of imprisonment which is imposed, unless the court is satisfied there are exceptional circumstances. [14]
[14] Section 20(1)(b)(ii) and (iii) Crimes Act 1914.
38He submitted, in combination:
(a) your low level offending;
(b) the absence of any prior or subsequent offending;
(c) your cooperation with authorities when you were apprehended; and
(d) your early guilty plea and remorse, [15]
constitute an exceptional case.
[15] See written submissions (Exhibit 2).
Prosecution submissions
39In commendably fair submissions the prosecutor, Ms Kelly, submitted the court could find exceptional circumstances.
40Overall, she submitted a term of imprisonment that permits your immediate release on reconnaissance is within range. [16]
[16] Amended Prosecution Plea Submissions dated 29 November 2024 (Exhibit C).
41She provided me with a helpful table of intermediate appellate sentences for similar offences.
42I have regard to the comparable cases [17] to guide me in the relevant sentencing principles and to identify a range of sentences against which to examine your sentence. [18]
[17] Kristensen v R [2018] NSWCCA 189; Burton v R [2020] NSWCCA 127; William Edwards v R [2013] VSCA 188; R v Aniezue [2016] ACTSC 82.
[18] R v Pham (2015) 256 CLR 550, [26].
Consideration
43By s 16A of the Crimes Act1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.
44
I am also required to have regard to the non-exhaustive list of matters in
sub-section 16A(2) of the Crimes Act1914 (Cth) as far as they are relevant and known to the court.
45Because of the seriousness of your child sex crime, a sentence of imprisonment is the only appropriate sentence in your case.
46However, yours was lower end offending of the type.
47There are significant subjective factors which mitigate the sentence I shall impose.
48You were co-operative with investigating police. You immediately admitted the guilty user account was yours and gave police your phone passcode to enable them to access the unlawful communications.
49You entered your guilty plea at the first opportunity. In addition to its utilitarian value, it demonstrates your willingness to facilitate the course of justice, and your remorse.
50You have led an otherwise blameless life. More, you are highly valued in your workplace and your community.
51You have no psychological issue or paraphilic disorder; perhaps you have a degree of sexual immaturity.
52I accept your arrest, charge and prosecution has been a salutary experience and, with appropriate supports, you are unlikely to reoffend.
53Overall, I am satisfied these factors, in combination,[19] constitute exceptional circumstances sufficient to warrant the suspension, by reconnaissance release, of the prison sentence I will impose.
[19] Bredal [2024] NSWCCA 75, [55] – [64]; R v Thompson [2019] QCA 245 (Qld CCA)
54It is not to be forgotten a suspended sentence remains a sentence of imprisonment which involves real punishment. [20]
[20] Ibid, [64]; see Elliot v Harris (No 2) [1976] 13 SASR 516 at 527, per Bray CJ.
55Because you stand to be convicted of a Commonwealth child sex offence I must specify conditions of the reconnaissance that you be subject to the supervision of the probation officer, you obey the probation officer’s reasonable directions, you not travel interstate or overseas without the probation officer’s written permission and you undertake such treatment or rehabilitation programs that the probation officer reasonably directs. [21]
[21] Crimes Act1914, section 20(1B).
56By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
57Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) on charge two, which is the more serious of your two crimes, using a carriage service to transmit indecent communication to a person believed to be under the age of 16, you are sentenced to 6 months imprisonment which is to commence today; and
(b) on charge one, using a carriage service to transmit indecent communications to a person believed to be under the age of 16, you are sentenced to 3 months imprisonment which is to commence two months before the expiration of the sentence I have imposed on charge two.
58Your total effective sentence is seven months imprisonment
59I order your release forthwith upon you giving recognisance of $1,000 to comply with the conditions that you:
(a) be of good behaviour for a period of 18 months;
(b) be subject to the supervision of a probation officer for a period of 18 months;
(c) obey all reasonable directions of the probation officer;
(d) not travel interstate or overseas without the written permission of the probation officer;
(e) undertake such treatment or rehabilitation programs that the probation officer reasonably directs;
(f) report to the Sunshine community Corrections Centre within two clear working days of today;
(g) report to, and receive visits from, a Community Corrections officer or officers; and
(h) notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.
60This means:
(a) you will be released today;
(b) the conditions of the recognisance are that you be of good behaviour for 18 months, in addition to the other conditions I have set out relating to your obligations to the probation officer who will supervise your recognisance;
(c) if you fail, without reasonable excuse, to fulfil the conditions of your order you will be liable to:
(i)be fined for the breach; and
(ii)be imprisoned for the period of seven months which you would have otherwise served in the community.
61While there is some artificiality in the process, I declare, but for your plea of guilty, I would have imposed a sentence of 12 months' imprisonment and ordered your release after serving 6 months.
Sex offender registration
62Charges one and two are class 2 offence under the Sex Offenders Registration Act2004 ('the Act').
63By operation of the Act, you are now a registered sex offender.
64The applicable reporting period is 15 years. [22]
[22] Sex Offenders Registration Act 2004 (Vic) s 34(1)(b)(ii).
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