Director of Public Prosecutions (Cth) v Graham
[2024] VCC 718
•20 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01779
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| V |
| LACHLAN (ALLIE) GRAHAM |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2024; 20 May 2024 |
DATE OF SENTENCE: | 20 May 2024 |
CASE MAY BE CITED AS: | DPP (Cth) v Graham |
MEDIUM NEUTRAL CITATION: | [2024] VCC 718 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Intellectual Disability; Identify as Transgender; Possess Child abuse material; Fail to Comply with Reporting Obligations; Use a Carriage Service to Groom Person Under 16 Years; Relevant Prior Criminal History
Legislation Cited: Sex Offenders Registration Act2004 (Vic); Crimes Act 1914 (Cth); Sentencing Act1991 (Vic); Criminal Code (Cth); Crimes Regulations 2019 (Cth)
Cases Cited:Muldrock (2011) 244 CLR 120; Clifton v The King [2024] VSCA 82; Chenhall v The Queen [2021] VSCA 175; Worboyes v The Queen [2021] VSCA 169
Sentence: Total Effective Sentence of 3 years; Recognisance Release Order
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | Mr A. Sprague | Mr M. Challen Commonwealth Director of Public Prosecutions |
For the Accused | Mr S. Ghattas | Angus Cameron Lawyers |
HIS HONOUR:
1Allie Graham, you now identify as being transgender and thus I will refer to you by your chosen name and pronouns. Your birth name was Lachlan Graham. That is the name on the three charges on the indictment, also on the Prosecution Opening and your prior criminal history.
2You have pleaded guilty to the three charges. The first is a State offence of failing to comply with your Sex Offenders Registration Act[1] obligations. The second and third charges are Commonwealth offences, one being using a carriage service to groom a child under the age of 16 and the last being possession of child abuse material.
[1]Sex Offenders Registration Act2004 (Vic)
3Interaction of State and Commonwealth offences means that there are complications in the sentencing process. There are also complications in the Commonwealth offence where mandatory sentencing has been inserted. However, some situations allow for a lesser impact of the mandatory sentencing, which in turn allows for the unique Commonwealth sentencing option of a recognisance release to open up.
4Complications do bedevil Commonwealth sentencing. It is hard enough for those who are meant to be experts, such as sentencing judges like myself, let alone allowing ordinary members of the public to follow the sentencing process. That leads me to state the sentence I intend to impose at the outset rather than what is usual at the end of the reasons. There are in my view, good reasons for this approach as it will bring clarity that will enable both you and members of the public to more easily understand the sentence I will impose.
5Your understanding of these matters is important as you have an intellectual disability which is relevant to the exercise of the sentencing discretion. It is important that you understand what it is that is going to happen. The sentence I will order you do is one of imprisonment for three years. The length of the imprisonment will allow for a recognisance release order. I will order that you be released on a recognisance release after serving 300 days. That figure is just beyond what you have served thus far on remand. In other words, your sentence of actual incarceration will be just two weeks or so beyond the time that you have served to date. Thereafter, you will be subject to the supervision of Corrections Victoria and required to undergo appropriate sex offender's programs.
6The offences on the indictment are concerning. I need to refer to the broad context so as to properly outline the gravity of these crimes. You were born in August 1997. At age 18, you committed offences of soliciting child abuse material and using a carriage service to groom a child under the age of 16. After a long delay, you ultimately pleaded guilty and were sentenced by Judge Fox, as she then was, of the County Court of Victoria, on 20 December 2019. The sentence she imposed was a two-year community corrections order with treatment and supervision. By mandatory operation of the Sex Offenders Registration Act, you were to be registered for 15 years. I have read the sentencing remarks of Judge Fox which outlined your offending with a young friend, and also your personal circumstances, including your intellectual disability.
7You came before the County Court again in 2021. I was the sentencing judge when you pleaded guilty to a charge of sexual penetration of a child under the age of 16. The facts of that offending were that you twice sexually penetrated with a child who was 13 years and eight months. You were 19 years and 10 months at that time. Ultimately, I placed you on a two-year community correction order with the condition that you be subject to a justice plan given your intellectual deficits. I will return to those sentences and how you went on those orders in due course.
8However, each of those orders required you to be registered and comply with Sex Offenders Registration Act obligations. You have not always complied. You were before the Magistrates' Court in 2023 for non-compliance and were placed on an adjourned undertaking for two years. As it turned out, you again failed to comply by creating email addresses and usernames that were not reported to the police at your annual review in January 2023. There were also new usernames and emails created after that review. The timeframe of these breaches of your obligations were from February 2022 to May 2023. There were a number of email addresses, mainly created in July of 2022.
9This failure to advise of newly created emails, usernames and user identities is a serious offence against the Sex Offenders Registration Act. You are monitored because of your dangerous use of the internet, especially in respect of inappropriate communications with children. These new usernames and emails created risks of the kind you are familiar with, notwithstanding your intellectual deficits. On 10 April 2023, in a targeted operation, you received communications on Facebook from an undercover police officer posing as a child. You should have refrained from any communications, but you did not.
10Your initial communications in the following days acknowledged that she was a child, and you were an adult, and the pair of you should wait until she was 17 before taking up any romantic connection. You explained to her that you were transgender. The conversations then became sexualised as early as 27 April 2023. You sent explicit photographs and a video asking for photographs of who you thought was Charlotte, first dressed in a bikini and then with other requests that were sexualised. Over the following days, the conversations became more explicit as you sought photographs of Charlotte and sent more photographs or videos of your genitalia. The conversation moved into you saying you wanted to have sex with Charlotte.
11These facts which I have just set out, is a very generalised summary of the conversations between you and the undercover police officer posing as Charlotte between 10 April and 8 May 2023. I have read the annexure of the opening setting out the communications in more detail. That is, the communications between you and who you thought was a child at the time. There are, as I have said, many concerning aspects to those conversations. The police then came to where you were living on 9 May 2023. They seized two mobile phones. Upon digital interrogation of the phones, what was found was a video, or one video twice, of a female child who was sexually penetrating herself digitally.
12You were arrested and then bailed from 10 May 2023 with strict conditions. There was concern about your compliance with the bail conditions and you were re-arrested on 14 August 2023 and then remanded in custody where you have remained. The time that you have spent in custody is reckoned as 285 days. You have been housed throughout in a male prison, all moving to the complications in sentencing that arise from your prior matters.
13I note, as I have mentioned, your failures to comply with the Sex Offenders Registration Act are in this instance significant. These were no idle oversights. You have multiple personal difficulties, including isolation and your intellectual difficulties, but you are aware of your obligations. You have been warned and given chances. These breaches are too serious just to let them be dealt with as before. A significant penalty must be imposed. As to the most serious offence, the using of the carriage service to groom a child, you have the relevant prior conviction for this offence dealt with by Judge Fox.
14This prior conviction means that s16AAB of the Commonwealth Crimes Act[2] is brought into play. It means that you are liable to the mandatory minimum penalty of four years' imprisonment. There are aspects of the Commonwealth Crimes Act that allow for some amelioration of that mandatory minimum term which can be engaged. I will refer to them and to the prosecution's sensible approach to these shortly.
[2]Crimes Act 1914 (Cth)
15To continue with the offending, the charge of possession of the child abuse material, being a single video, maybe a copy of it as well, is troubling. It is an appalling image, but relative to most offenders who have charges of child abuse material and have collected child abuse material, usually over many months or years, you had one video. The common scenario is of huge numbers of downloaded videos and images of the most distressing kind. Despite the graphic nature of this video, in my view, your crime ought to be seen at the lowest end of the scale of this dreadful crime of possession of child abuse material.
16As to the grooming offence, I note you did not hide that you were an adult. You commenced by saying any actual sexual conduct should wait until Charlotte was 17 and beyond that, there was none of the usual inducements or threats or arrangements for meeting up. It remains a serious offence, but not the most serious compared to others.
17As to your personal circumstances, you are now 26. Your upbringing is replete with concerning disadvantages. I take the liberty to quote at length the very careful and concise summary of your personal circumstances provided by your counsel in his written submissions. He said from paragraphs 3 to 5 the following:
Ms Graham is 26-years-old having been born in Swan Hill and is Ms Graham is one of 12 siblings and has little contact with them.
Ms Graham suffered a traumatic birth having been born not breathing and having to be resuscitated. She was delayed in her developmental milestones, especially with speech which did not develop until 4-years-old.
Ms Graham's childhood was marked by significant disadvantage, having had at least 40 different residential placements during her childhood.
18I pause here and interpose there is a reference in Dr Ong's report to 50 different residential placements. Your counsel goes on at paragraph 6:
Ms Graham's mother passed away in a fire when Ms Graham was 7-years-old. The information available suggests that she was the victim of a homicide perpetrated by a domestic partner. Ms Graham is currently estranged again from her father, Ian Graham. Ms Graham’s father has previously served a custodial sentence for sexual offending against a minor.
Ms Graham is diagnosed with an intellectual disability and attention deficit hyperactive disorder. Ms Graham attended Swan Hill Specialist School to receive focussed (sic) care in relation to these diagnoses.
19However, I add in, that education was difficult and too short.
20Immediately before you were on remand you were supported by NDIS and were residing in supported accommodation. This is a significant positive development.
21I also had the considerable benefit of the expert report written by the highly respected forensic psychiatrist, Dr Kevin Ong. He has provided reports in the past. He has seen you five times and authored reports in 2013, 2015, two in 2019 and again in 2021. A current report is dated 19 December 2023. Dr Ong again noted your well-documented intellectual disability and the previous diagnoses of ADHD and attachment disorder. He also emphasised your significantly impoverished childhood and adolescence. There was very limited appropriate guidance from adults during your childhood, he noted, together with limited education, mainly in specialist schools.
22The counselling and treatment that followed the previous child sex offending has had limited impact. It was noted that you have offended whilst in the midst of treatment programs. Dr Ong offered these opinions at paragraph 71:
It is my opinion that Ms Graham's offending is driven by a combination of poor problem solving and decision making, as well as difficulty in retaining and enacting knowledge regarding appropriate sexual relationships. This is a function of (her) intellectual disability, and is exacerbated by (her) attention deficit problems.
23Dr Ong goes on:
(Ms Graham) does not give a history consistent with sexual deviancy such as a paraphilia (for example, pedophilia) (sic). Rather, (her) victim selection appears to be borne out of opportunity rather than preference.
24He also adds:
Apart from intervention such as relationship and social skills counselling, as well as the potential of medication to treat ADHD, it would be imperative that (Ms) Graham maintains stable accommodation. This would allow (her) to potentially engage in more meaningful and structured recreation or occupation, as well as a reactivating (her) NDIS package. The latter would allow more support and therefore structured activity to keep (her) gainfully occupied.
25This afternoon, your counsel confirmed that there is NDIS support for stable accommodation upon your release. As to the two previous community correction orders, the first community corrections order, which was imposed by Judge Fox, was completed. The second community corrections order, which I imposed, was the subject of a breach hearing due to the Magistrates' Court sentence for failing to comply with your Sex Offenders Registration Act obligations. In the end, I confirmed the order and made no further order.
26Your intellectual disability remains relevant to sentencing. The High Court in Muldrock[3] and the confirmation of the Muldrock principles in the Court of Appeal decision in Clifton[4], make clear that intellectual disability does operate to lower moral culpability. That is, despite all your experiences and counselling, you remain unable to fully understand the consequences of being fixated on a connection with someone on social media, and especially that sexualising the communication with a child must not occur. Your maturity and capacity are enduringly limited and thus it remains appropriate to ameliorate what findings there are as to the level of your moral culpability.
[3] (2011) 244 CLR 120.
[4]Clifton v The King [2024] VSCA 82
27This in practical terms means the punishment of appropriate severity to the crimes ought be less than would be the case absent your intellectual disability. Likewise, as explained in Muldrock and Clifton, your intellectual disability means that you are not the ideal or appropriate vehicle to send a message of deterrence to others. These two sentencing purposes are the most prominent and remain weighty but must be appropriately moderated in your case. Your intellectual disability also makes gaol harder for you.
28On the other side of the same coin as it were, your intellectual disability and your incapacity to show restraint or permanently absorb the lessons about appropriate communications, means that protection of the community, that is, especially protection of young children online, is at a heightened level in your case. There was no dispute between the parties that the only appropriate sentence was one of imprisonment. That recognises the gravity of these repeated offences, in particular the grooming offence. That conclusion also flows obviously enough from the mandatory minimum sentences that are required for the grooming offence as a consequence of your previous conviction for that offence.
29The parties' written and oral submissions set out that pursuant to s16AAC[5], the mandatory term of four years as prescribed by s16AAB would be reduced by up to 50 per cent on the basis of an accused pleading guilty and co-operating with authorities. Calculations are that a plea of guilty can reduce the mandatory term by up to 25 per cent and likewise for co-operation. Your counsel urged that I should find that your second record of interview about breaching bail was co-operative. The prosecution contends this is insufficient to engage this aspect of s16AAC. I agree with that submission.
[5]Crimes Act 1914 (Cth)
30The discounting of the mandatory term that is available to you is for your plea of guilty. It is a valuable plea given where the lists of the County Court were. That is, at that time still struggling due to the effects of the pandemic. Thus, the principles in Chenhall[6], a Commonwealth child abuse material case, and Worboyes[7], have some application in providing a degree of augmented utilitarian benefit for your plea. It was an early plea. It is an expression of taking full responsibility and thereby remorse within the limits of your maturity, intellectual disability and personality difficulties.
[6]Chenhall v The Queen [2021] VSCA 175
[7]Worboyes v The Queen [2021] VSCA 169
31With respect to the mandatory provisions, I do consider that your plea of guilty reduces that requirement by 25 per cent from four years to three years. By operation of the Commonwealth sentencing regime, a sentence of three years' imprisonment can be imposed with a recognisance release. The release can be immediate or after some time is served. For release to be immediate, given the new provisions of s20(1)(b)(iii), I would have to be satisfied that exceptional circumstances exist. In a practical sense, a finding of exceptional circumstances is unnecessary because you have already served 285 days.
32I do note that the circumstances put forward as to your intellectual disability, your now transgender status as identifying as female but housed in a male prison, and the difficulties of commencing hormone therapy, would likely establish exceptional circumstances. However, the nature of these repeated crimes operates against there being a sentence of immediate release without any part of the sentence being actually served. A recognisance release, after serving the 285 days or thereabouts, is an appropriate global sentence, providing there is the significant period of supervision and sex offender treatment in the remaining time.
33The prosecution argues that such a sentence is within range. Your counsel would seek a lesser sentence to be expressed, recognising that you have done 285 days. What is sought is your immediate release. In the end, the sentencing purposes as expressed in the Commonwealth Crimes Act and for the State offence in the Victorian Sentencing Act, are only satisfactorily met if a sentence of imprisonment is imposed. The mandatory minimum being rightly reduced, the appropriate sentence thereby is a total sentence of three years with a recognisance release after serving 300 days. The recognisance release will be for two years and there is a requirement to do the sex offenders course and be supervised by Corrections Victoria.
34There are details regarding this on the recognisance release document that I have been provided and the prosecutor will shortly ensure that that is properly articulated. The sentence that I would impose is for Charge 1, the State sentence for failing to comply with your obligations under the Sex Offenders Registration Act, I impose a sentence of two months' imprisonment. For Charge 2, the grooming offence, three years' imprisonment. For Charge 3, the possession of child abuse material, four months' imprisonment.
35The sentences on Charges 1 and 3 will operate in practical terms as concurrent so the Commonwealth sentences commence today. The State sentence, likewise, but it runs concurrent with the Commonwealth sentence on Charge 2. I would declare that you have served 285 days of the sentence that I have just imposed, that is, three years with a recognisance release after 300 days. There being 15 days left to ensure that there is sorted out the appropriate release in terms of the housing and re-settlement. The recognisance release itself will be in the sum of $100 and the conditions of the recognisance release are those that are set out in the draft order and recognisance release provided by the Commonwealth which we will go through shortly.
36Had you pleaded not guilty to these offences, then the Commonwealth mandatory sentencing would have come into play. The sentence that I would have imposed would be for five years with a minimum of four years, due to the mandatory sentencing provisions. Now is there anything else required apart from going through the recognisance release, Mr Sprague, and is everything thus far orthodox or in order?
37MR SPRAGUE: Yes, Your Honour, I have nothing to add or raise.
38HIS HONOUR: Right. So, the order of the court under s20(1)(b) is after serving 300 days of a term of imprisonment, the offender giving security by recognisance in the sum of $100. To comply with conditions that the offender (a) be of good behaviour for a period of two years. That is beyond that. Does that make sense?
39MR SPRAGUE: Yes, Your Honour.
40HIS HONOUR: There is nothing in (b) or (c) or (d), but under (e) the mandatory conditions – she be subject to the supervision of a probation officer being appointed by the Deputy Commissioner at Corrections Victoria and the sex offender management for a period of two years. To obey all reasonable directions of the probation officer or nominee. Not to travel interstate or overseas without written permission. To undertake such treatment and rehabilitation the probation officer or nominee reasonably directs. She is to report to the Community Corrections Centre. Report to and receive visitors from the Community Corrections officers and notify them of any change of address or employment within two working days. She is to attend for assessment and, if assessed suitable, treatment for the sex offender programs to reduce her risk of reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee. Is that the appropriate sub-section or is it sub-s(m) – attend and undertake and complete within a period of – do I add something in there because it is within a period of two years?
41MR SPRAGUE: It would seem that the assessment would need to occur again. So (l) would be the appropriate.
42HIS HONOUR: Yes, okay, but if she is to undertake and complete it, it should be a lengthy one. They ask for it usually more than 18 months and I am providing that.
43MR SPRAGUE: Yes, Your Honour.
44HIS HONOUR: I cannot see any further conditions unless someone tells me that. So ‑ ‑ ‑
45MR SPRAGUE: No, Your Honour, we will just check the location, the appropriate Community Corrections location.
46HIS HONOUR: Yes. Thank you.
47MR SPRAGUE: Your Honour, it would seem the alternatives are either Sunshine or Melbourne and I have spoken to Mr Ghattas and it would seem that Melbourne would be the closest.
48HIS HONOUR: Okay, that makes sense, and they will sort it out. So that Corrections office is in Melbourne requiring attendance in two clear working days. Now that is at the Melbourne Justice Centre, 50 Franklin Street in Melbourne. Now because of the recognisance release there needs to be acknowledgement that it has been explained to her the purposes in effect, the consequences that may follow, which I will get to, and that the order may be discharged or varied under s 20AA of the Crimes Act, that she agrees that she is bound by it and agrees that she has been given a copy of it which my associate or my tipstaff can do.
49Is it possible that your instructor can produce now a recognisance release in the terms that I have just described so that it can be provided ultimately to Ms Graham a copy and one that I have signed and one that she ultimately by oral consent can indicate that she understands?
50MR SPRAGUE: Yes, Your Honour, that can be prepared in electronic form if that is the ‑ ‑ ‑
51HIS HONOUR: Yes, sure, it is.
52MR SPRAGUE: Yes, Your Honour.
53HIS HONOUR: I have just got to – because of connections to the prison and the like – and Mr Ghattas, you help here if you think it needs to be further explained. So, Ms Graham, I have ordered that you serve imprisonment for 300 days, you have already done 285, you will be released but it will be on a recognisance release. It is not that dissimilar to the corrections order that you have been on before. You have got to be supervised, and you have got to do programs that they tell you to do. So the purpose of it is both punishment, but it is also to help you further understand that you just cannot breach your obligations under the Sex Offenders Registration Act, you cannot set up internet names or usernames or get on PlayStation or any of those devices or any of the social media platforms without telling them, just have one, just whatever you need but do not have secret ones, do not create new ones. That will see you back and in trouble.
54So the consequences that may follow if you fail without reasonable excuse to comply with this is that you will come back before me for breach of this recognisance release and I can assure you, I can tell you clearly, that it will not work out the same way. You will end up doing a long period of gaol. Where you stay is a matter for Corrections, not me. All right? So that is important that you understand that that is what will happen if you do not comply with the order – that is, do the courses, do not commit offences, do not breach the order, be of good behaviour. So do you agree that with this order that you are bound by it and you will do the order?
55OFFENDER: Yes
56HIS HONOUR: Okay. You will get a copy of it and I will note on it that you gave your consent, in verbal consent in this hearing. Is that satisfactory to you,
Mr Ghattas, representing her?57MR GHATTAS: Yes, it is, Your Honour.
58HIS HONOUR: Very kind. Thanks very much. All right, when the order is provided to my staff – I will just check with them.
59MR SPRAGUE: It is just being prepared now, Your Honour. If I can indicate as well and I raise this because – and this occurs where a hearing is being undertaken remotely or with the person who is to sign the form remotely, on the form under the Crimes Regulations, it does specify that where the recognisance is signed by the offender, it is to be witnessed by someone else. On the prescribed form, that is listed as either a registrar, a clerk or a Justice of the Peace. So I am not sure whether there is the ability for that to occur in custody, but I just raise that as being on the prescribed form.
60HIS HONOUR: Yes, all right. Mr Ghattas, can you ensure as far as you can, my staff will in sending it to Corrections or whatever they are – as someone who such a signature can be taken – in front of such as a Justice of the Peace or what are the other categories?
61MR SPRAGUE: The others listed are either registrar or clerk. Usually, the associate is present in court and that is the easier way.
62HIS HONOUR: I know, yes I know, but it – what I normally do is correction orders and say that oral consent was given in the digital or in the remote hearing, but you say these regulations under which this is done, the Crimes Regulations 2019, means that there has to be a signature, not one where I say she gave her oral consent and it is one that has to be signed before someone else?
63MR SPRAGUE: We have noted on the form, Your Honour, that oral consent was given in open court.
64HIS HONOUR: Yes.
65MR SPRAGUE: And it may be sufficient if that is then signed by someone who fits with those categories as having been witnessed but that consent was given.
66HIS HONOUR: Yes. Okay, well my signature will be signed to as witness to that, that is fine.
67MR SPRAGUE: Thank you, Your Honour.
68HIS HONOUR: All right, we will do it that way. Are you satisfied with that,
Mr Ghattas?69MR GHATTAS: Yes, Your Honour.
70HIS HONOUR: Thank you. So that order will be forwarded to my staff and dealt with in the way that was just described. I will put my signature to the court orders and any other aspect of this order that I must and that will be forwarded to the parties and through you Mr Ghattas to the accused. All right.
71MR GHATTAS: Yes, Your Honour, thank you.
72HIS HONOUR: I thank counsel for their assistance with complicated sexual offending under Commonwealth and State law. If there is nothing further, then I will end this hearing, the remote hearing that I am involved in and you can talk to your client if you need to be for a short while, Mr Ghattas.
73MR SPRAGUE: As the court pleases.
74HIS HONOUR: Thank you.
75MR GHATTAS: Thank you, Your Honour.
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