Director of Public Prosecutions (Cth) v Graham
[2019] VCC 2202
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 19-01232
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PERRY GRAHAM |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 14 December 2019 | |
DATE OF SENTENCE: | 18 December 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Graham | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2202 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – State and Commonwealth offences on Commonwealth Indictment - Using carriage service to transmit child pornography – Fail to comply with reporting obligations under the Sex Offender’s Registration Act 2004 (Vic) – Using carriage service to access child pornography – Using carriage service to groom – Using carriage service to solicit child pornography – Possess child abuse material – Relevant criminal record – Relatively unsophiscated offending – Did not seek to hide identity – Period of offending about 9 months – Large volume of material - Highly explicit material – Presumed harm to children - Moral culpability heightened as on specific notice in respect of previous offending
Legislation Cited: Sex Offenders Registration Act 2004 (Vic);
Sentence: Convicted and sentence to Total Effective Sentence 4 years’ imprisonment with a non-parole period of 20 months’ imprisonment – S.6AAA Sentencing Act 191 declaration made – Sex Offender’s registration Life – Serious Sexual Offender in respect of Charge 8
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr S. Moglia | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Offender | Ms D. Dempsey | VLA |
HER HONOUR:
1 Perry Graham, you have pleaded guilty to the following offences:
(a)using a carriage service to transmit child pornography, which has a maximum penalty of 15 years’ imprisonment;
(b)failing to comply with reporting obligations under the Sex Offenders Registration Act 2004 (Vic), which has a maximum penalty of five years’ imprisonment;
(c)one charge of using a carriage service to access child pornography, which has a maximum penalty of 15 years’ imprisonment.
(d)three charges of using a carriage service to groom, which has a maximum penalty of 12 years’ imprisonment;
(e)using a carriage service to solicit child pornography, which has a maximum penalty of 15 years’ imprisonment; and
(f)one charge of possession of child-abuse material, a State offence, which has a maximum penalty of 10 years’ imprisonment.
2 I should add that the second mentioned offence also is a state offence.
3 The maximum penalties reflect the seriousness with which Parliament, whether it be Commonwealth or State, regards the offences.
4 I was told that you were first interviewed by police on 3 September 2018 in relation to breaches of the Sex Offenders Registration Act 2004 (Vic) and your admission to possessing some child-abuse material. You were again interviewed on 18 January 2019 in relation to further offences after devices were examined. During the interviews, according to the prosecution opening, you admitted some offences, or at least aspects of these, but you denied other offending, making excuses and evading questions,. You denied any attraction to young girls, but said that if they wished to go into sexual role play you would, and you could not stop them sending you naked images. When police suggested that engaging in sexual role play online with children under the age of 16 was wrong, and that you should report such contact under your obligations as a registered sex offender, you blamed your counsellor, saying 'well, I’m gunna tell my counsellor that he’s an idiot'. (Record of Interview 3 September 2018 at Questions and Answers 673 to 675)
The basis for Charge 1 – Using a carriage service to transmit child pornography
5 The basis of Charge 1 is as follows. On 21 August 2016, you emailed someone who called themselves 'Hunter' two images which depicted a girl of about 14 years showing her breasts and genitals (a Category 1 image) and a girl of about 15 years penetrating her vagina with an object (Category 2 image). On 23 August 2017, you used the internet to move child-abuse material between your gmail and Yahoo accounts. You sent five relevant videos, (one Category 2, one Category 3 and three Category 4), depicting a girl of about seven giving oral sex to a man, a boy attempting to sexually penetrate young girls, a girl of about five years masturbating a man, a man ejaculating on a girl of about ten years of age, and a girl of about 12 years giving oral sex to a man.
6 Between 20 May 2018 and 4 June 2018, you used a chat site called 'KIK', to chat with someone who called themselves 'Ally'. 'Ally' said she was 16 years old. On 3 June 2018, you transmitted a sexualised fantasy description of you having sex with your fictitious daughters.
7 You told police in your record of interview on 18 January 2019 that you did not remember doing this, but that it sounded like you role playing with friends.
8 Between 20 May and 1 July 2018, you used KIK to chat with a group, including people calling themselves “Bossman”, “Karina”, “Guess Who” and “Steve”. You sent nine images containing child pornography (which fells within Categories 1, 2 and 3). These included boys and girls from toddler age to about 14 years exposing their genitals and engaging in intercourse with each other, and inserting objects into themselves. Comments during the chat included “go younger” and “mmm hot”. You told police you did not remember doing this.
9 On 23 May 2018, you used KIK to chat with “Sophia”, who had asked to see “videos and pics” of “young girls/boys”. You sent a Category 3 image of a penis rubbing a young girl’s vagina. You told police you did not remember this, but that sometimes you could just type without looking at your phone and it would be utter nonsense, which was probably what happened in this particular instance, and that you accidentally sent the images.
10 On 5 June 2018, you used KIK to chat with a person who called themselves “Kelly”. In a message to Kelly, you wrote “What I would do is I would find us somewhere private and get u naked and lick you all over and then fuck you”. Kelly replied “Hmmmm hot, have you done that with little girls before?” You then sent her a Category 2 image of a girl who was about 14 years old inserting a sex toy into her vagina. You told police that this did not sound like you and that you did not remember this.
11 Between 26 June and 1 July 2018, you used KIK to chat with someone who called themselves “Sara T”. You sent her five Category 1 child pornography images. You told police that this sounded like you, but you did not remember doing this.
In relation to Charge 2 – failing to comply with sex offender reporting obligations
12 The basis on which I sentence you is as follows. On 17 June 2015, you were convicted, in this Court, of sexual penetration of a child under the age of 16. You were sentenced and placed on the Sex Offenders Register, pursuant to the relevant legislation, which required you to report relevant details for 15 years. In August 2016, you pleaded guilty, and were convicted of six breaches of these obligations by failing to report online user names or email addresses.
13 I was provided with the prosecution opening and sentencing remarks, dated 17 June 2015, of His Honour Judge Jordan of this Court.
14 Between 5 April and 13 July 2018, you failed to report online contact with a 16-year-old girl, who used the user name “Popcorn_Girl” (there is a further reference to Popcorn Girl in respect of Charge 6 which I will come to presently). You said that you did not report the contact because you did not know that you were contacting her.
15 You told police that you knew you had to report pretty much anything to do with young kids and that you had a day to report any contact with a child, including online contact with anyone under the age of 18. You agreed that you had not reported any recent contact because you denied there had been any.
16 You also failed to report your online user name on Skype, admitting that you had the user name for a couple of months and had used it once or twice, but had not reported this to the police.
In relation to Charge 3 – accessing child pornography
17 During the same group chat on KIK, which is referred to in relation to Charge 1, you accessed images of child pornography, which came within Categories 1, 2 and 3. Although you accessed these, you did not transmit them, and I make it clear that I sentence you on this basis in relation to Charge 3.
18 On 26 June 2018, you accessed two Category 1 child pornography images, which were sent to you by Sara T, depicting a girl of about 12 years and another girl of about six years.
19 On 11 July 2018, you accessed three images you received from someone who called themselves “Ashley X” during your chat with her on KIK, depicting a girl exposing her breasts (being a Category 1 image), touching her vagina and also an image of a girl masturbating (Category 2). You told police you did not remember this one and perhaps you had a split personality, which you should get checked out.
20 On 12 August 2018, you accessed two Category 1 images, sent to you by someone who called themselves “GP”, during an exchange of images on KIK, depicting girls who were about 15 or 16, exposing themselves. You denied this exchange and said you did not remember it.
21 On 25 August 2018, you accessed two Category 1 images sent to you by “Sara T” during a chat with her on KIK. The two images depict the same girl, who appeared to be about 16 years old. She is seen to be exposing her breasts (a Category 1 image) and touching one of her exposed breasts (a Category 2 image). During the first interview, you admitted contact with “Sara T” and exchanging images, however in the second interview, you told police that you did not recall any of this.
In relation to Charge 4 – using a carriage service to groom – in relation to a person who called themselves “Kim”
22 Between 1 and 24 June 2018, you used KIK to chat with “Kim”, who you thought to be 13 years old. Her profile picture showed a girl who was clearly under the age of 16 years.
23 The chat was explicitly sexual and continued over the course of more than three weeks. You asked Kim to send you photos, to send naked photos, to say if she wanted to see your penis, that you wanted to see her genitals and show you photos of herself touching herself sexually. You asked if she would put on a sex show for some people, doing sexual activity on camera, and whether she would get pregnant to you. She spoke of wearing her school uniform and that she could not use a computer camera because her mum was there.
24 You admitted to police that you remembered Kim and that you thought she was 13 years old and was into the role-play thing. During the first police interview, you agreed that you sent the chat messages, including the overtly sexual ones. However, during the second interview, you said you either did not remember the chat or that it did not sound like you.
In relation to the Charge 5 - Using carriage service to groom – in relation to a person who went by the name “Popcorn_Girl”
25 Between 3 April and 13 July 2018, you used a PlayStation app on your phone to chat with another user “Popcorn_Girl”. During the chat, she wrote that she was 15 years old. You told police you did not remember having contact with “Popcorn_Girl”, although you remembered seeing her name in your friend’s list, saying that perhaps this was because your account had been hacked.
26 The chat involving “Popcorn_Girl” spanned more than three months and by early July, which was late into the period of your offending, you directed the chat to various topics. You asked about her body, whether she was a virgin and whether you could “help her with that”. You sent her a photo of your penis and asked her about it. You pressed her to answer “rude” questions.
In relation to the basis for Charge 6 – being a charge using carriage service to groom a person who went by the name of “Ashley P”
27 Between 11 and 25 August 2018, you used KIK to chat with “Ashley P”. She said she was a 14-year-old girl and you conducted the chat believing her to be that age.
28 The chat spanned two weeks and became sexually explicit, including conversations about vaginal, anal and oral penetration, and getting her pregnant. These descriptions amounted to child pornography. You discussed engaging in sexual activity online. You discussed buying gifts for “Ashley P”, including underwear and sex toys, in return for her providing nude pictures of herself if you did so. You offered to send her live pictures of your penis.
29 You told police that you remembered chatting with “Ashley P” and that it escalated into talk of buying pictures of her and about your belief as to her age. You said you did not remember her writing that she was 14, or the indecent chat. You admitted sending some indecent images to her.
In relation to the basis for Charge 7, which also relates to “Ashley P”– is in relation to soliciting child pornography from her
30 On 11 to 12 August 2018, during your chat with “Ashley P”, you asked her about other girls getting involved. You asked about who the other girls were, whether they were virgins, and you asked for them to send “rude” images, and whether they would have sex with you. You discussed buying things for Ashley P and paying for pornographic images. On 12 August, you asked her to get images of younger girls. She said one girl was 16, and others were friends from school. Later on, she said she had to leave the chat because her mother was telling her to go to sleep.
In relation to Charge 8 – possessing child-abuse material;
31 The basis for this charge is as follows. When police first attended your home on 3 September 2018, you gave them your iPhone 7, saying it contained child-abuse material. When examined by police, it contained the following:
(a) 142 relevant files, consisting of:
(i) 128 Category 1 images;
(ii) 12 Category 2 images/videos; and
(iii) two Category 3 images.
32 You admitted to police that you obtained images sent to you by various users online and that you saved links to them. You said you intended to send these to the moderators on the chat site. You agreed that some images were of children about 13 to 14 years of age, but you had not looked at them all. You said child pornography from your old phone kept downloading to your phone from the iCloud and you could not control this. You agreed that a range of images were of children as young as eight years of age, and were of a sexual nature.
33 On 18 January 2019, police executed a search warrant and seized three further devices from you.
34 A Vodafone mobile phone which was found to contain 26,207 relevant files, consisting of:
·17,963 Category 1 images or videos, 8,666 of which were discrete images or videos;
·7,184 Category 2 images and videos;
·344 Category 3 images and videos;
·638 Category 4 images and videos; and
·78 Category 5 images and videos.
35 The second device that was seized was an iPhone 4 mobile phone and that contained 2,446 relevant files, consisting of:
·1,664 Category 1 images and videos;
·124 Category 2 images and videos;
·336 Category 3 images and videos;
·294 Category 4 images and videos; and
·twenty-eight Category 5 images and videos.
36 A third device seized was a portable hard drive and that contained 51 relevant files, consisting of:
·seventeen Category 1 images and videos;
·eight Category 2 images and videos;
·one Category3 image;
·twenty Category 4 videos; and
·five Category 6 videos.
37 You told police that you found the Vodafone phone, and after looking at the contents of the SD memory card you realised that it contained hundreds of images of child pornography that you were going to delete, but had not done so. Of the images, generally, you said that sometimes KIK could be set up to auto-download images from chat groups and that you were surprised that you seemed to have set it to do so. That completes the factual basis on which I sentence you.
38 Mr Graham, your offending is most serious and warrants a punishment which is appropriate and just in all the circumstances. Further, your conduct must be appropriately denounced. Strong weight must be given to general deterrence in a bid to deter others from offending as you have. Our children are to be protected from offending such as yours, offending which is often difficult to detect and which results in the corruption, not only of the children concerned, but the very fabric of our society.
39 In assessing the seriousness of your offending, I have factored in the following matters:
40 In relation to Charge 1, that this charge covers a period of about two years, although most of the transmission actually occurred over a two-month period in May and June last year. It involved the transmission of material to nine other internet users. I have also taken into account the categories of the material which you disseminated to others, and the number of images that came within these. I accept that you sent a fairly limited number of images, although sending one image is one too many. I also accept that you sent two category 3 images to others and that the rest came within categories 1 and 2. On 21 August 2015, you were sentenced by His Honour Judge Jordan to an 18 month Community Corrections Order. Your conduct in relation to Charge 1 occurred, in part, during the currency of the Community Corrections Order, which is of concern, but I am most mindful of the fact that the breach of the Community Corrections Order has given rise to separate proceedings. In this regard, I have borne in mind the breach report and that although you failed to attend for supervision or community work on 11 occasions, your compliance with the other conditions was considered to be sufficient and the report recommended that no further action be taken in respect of the breach.
41 In relation to charge 2, I note that you have previously committed this same offence so you were on express notice that you had to be meticulous with compliance. Despite this, you had online contact with a girl purporting to be 16year old. Your explanation that you did not report the contact because you did not know you were contacting her is fanciful in my view.
42 Further, I find it hard to accept that you simply forgot to update the authorities in relation to your Skype username-even if it be the case that the user name was similar to those already provided, and you used the same email address to one known to police, you knew very well that you were required to give the details of every different online identity under your reporting obligations. As Mr Moglia said on behalf of the Crown, it might be that the username was a variant of those that you had reported, but this did not mean that the one that you failed to report was readily discoverable by police, and you were well aware of the importance of providing such details, as I have already said.
43 In relation to Charge 3, the period of offending was for three months and involved eight other internet users, five of whom were common to the Charge 1 transmissions. In sentencing you, I have factored in that the number of images accessed was limited and were category 1 and 2 images - although all categories are serious, categories 1 and 2 are not as serious as others. I have also factored in that this charge is limited to your access to images that you did not on-send and I have also taken into account that a number of these images were accessed during the period in which you were transmitting child pornography, which is the subject of Charge 1.
44 In relation to Charge 4, this involved the grooming of “Kim” over a period of three weeks and highly explicit sexual messages and requests for her to engage in sexual activity were sent. Further, you thought she was only 13 years old, which is relevant to your moral culpability. Your counsel conceded that the language that you used in respect of this charge was more graphic and at a higher level than Charge 5, but submitted that without the record of interview where you said that you believed that the child was 13, there would be little basis for proving your guilt. Therefore, she submitted you ought receive an appropriate allowance in your favour for assisting the authorities in this way. However, the prosecution did not accept that they would not have been able to prove the offence without your admission, although they did accept that this assisted them. Both your counsel and the learned prosecutor took me to communications between you and the other party in a bid to elucidate your state of mind as to the age of the person with whom you were communicating. Certainly, the photograph of the person clearly depicts a child, probably even younger than 13 years of age in my view. In the circumstances, I find that the prosecution would have been able to rely on the photograph in order to assist them to prove your state of mind as to the age of the child, but I have given you some allowance, that is in your favour, for your admission as to how old you thought she was, as this was helpful to the prosecution.
45 In relation to Charge 5, this involved grooming “Popcorn_Girl” over a three-month period, and involved explicit sexual messages and requests. Your counsel submitted that the grooming behaviour itself was of far shorter duration than the charge period which you had admitted. She said that you had met this person in the context of online gaming and that a good deal of the communications concerned this. She submitted that the language used during the shorter period toward the end of your communications was not nearly as obscene as it might have been. She also pointed to the fact that the other party was purporting to be at an age which was at the upper end for those who might be considered victims of such an offence. Ms Dempsey told me that you believed the other party was 15 but, in fact, she was 16 years of age the entire period of contact. This was accepted by the prosecution and is another matter that I have taken into account in sentencing you.
46 Charge 6 involved grooming “Ashley P” over a period of two weeks, and the chat descended into repugnant, explicit detail. In relation to this charge, your counsel submitted that the offending involved was at a higher level of seriousness than Charges 4 and 5, in view of the obscenity of the language and the fact that you were told in communications with the other party that she was 14.
47 In relation to Charge 7, this involved soliciting child pornography from “Ashley P”, who you believed to be only 14 years old and it involved soliciting child pornography from her in relation to other girls that she said she knew. Your counsel submitted that the idea of buying gifts and the like was initiated by ‘Ashley P’ and that you were unwilling to oblige in this regard. The learned prosecutor refuted this latter proposition, and said that the conversations did not clearly show this at all - that there was a good deal of toing and froing in relation to what you might do in exchange for the material. On any view of the conversations with Ashley P, even if Ashley P initiated a discussion about payment, it is clear that you continued to converse with her, believing that she was only 14 years old. Clearly, you were the adult in the exchange and you were keen to obtain pornographic images of her friends.
48 In relation to Charge 8, this involved possessing material with thousands of images stored across four different devices. I accept that a good majority of the images and videos came within Categories 1 and 2, but having said that these ran to the thousands. I have also factored in that about half of the Category 1 images and videos were unique, as opposed to duplicates. However, there was a significant number – that is, in the hundreds of Categories 3, 4 and 5 images and videos, which are the most serious categories – although, as I have said, the other categories are serious enough. Your counsel told me that across all categories a total of 13,400 images were unique. Even allowing for this, the total number of images and videos of child exploitation material was most substantial. I was told that you received these images in ‘a job lot’ and that amongst the material found on your devices was adult pornography, which tends to support this. While this might be so, as Mr Moglia submitted, by your plea of guilty you have admitted to having an intention to possess the child exploitation material which is referable to this charge. I also factor in that you did not attempt to sell or distribute any of these images, nor were they in any particular organised order for ease of access.
49 In respect of Charges 4, 5 and 6, you were offending against young girls, or at least people you believed to be young girls, whose ages were fairly significantly less than yours. Your counsel submitted that in relation to Charges 4 and 6, it could not be proven that the other party to the communications were in fact children of the ages that were alleged against you. However, she conceded that your moral culpability was high because you acted on the basis that they were the age that they purported to be.
50 Your moral culpability is heightened in respect of each of the charges, especially the grooming offences, by the fact that you were on specific notice, if you needed to be, that the conduct in which you were engaging was illegal and wrong, because you had previously been sentenced in respect of sexually penetrating a child under the age of 16 years, and had apparently undergone a relevant program attached to a community correction order, as well as being aware of the need to properly fulfil your obligations as a registered sex offender.
51 Your answers in the records of interview were all over the place and smacked of you minimising your culpability and the seriousness of your offending. This aspect is relevant to my assessment of your prospects of rehabilitation, although I must also factor in that you have been prepared to plead guilty to the charges - I will refer to this aspect further in a moment.
52 It was submitted by the prosecution that in respect of each of the charges, including the grooming charges, I ought presume harm in respect of the victims. The defence submitted that I ought not presume harm in relation to Charges 6 and 4, as it was not known whether the other party was, in fact, under the age of 16. Further, she submitted that the other party in relation to Charge 5 was, in fact, 16 years of age, and the only reason that you pleaded guilty to this charge was because you believed she was underage. In relation to Charges 4 and 6, as the prosecution is unable to say that the other party was, in fact, under age, I am unable to presume harm to the other individual. Further, as the other party in respect of Charge 5 was not under age, even though I regard your communications with her as most probably harmful to her, I do not believe that I can factor this in when sentencing you and I do not do so.
However, in relation to the child exploitation material where children are featured, I have no difficulty in presuming harm to these victims, and the fact that you were prepared to access and, in some cases, transmit such abhorrent images, assisting in the evil trade of child exploitation, where the victims have no power to control the dissemination of their images, potentially in perpetuity, to people like you. This also goes for the possession of child pornography charge. Your counsel pointed out a number of aspects of offending of the kind in which you engaged, which were not features of yours, and I have factored in her submissions in this regard. In this respect, I factor in that your offending was relatively unsophisticated and you did not seek to hide your identity as can sometimes occur in offending such as this. Having said this, you were communicating with people who, you might expect, would not raise alarm about your wrongdoing. In any event, the matters raised by your counsel in this context do not amount to matters in mitigation as she conceded – rather, an absence of aggravating features.
53 I take into account your criminal history, as follows:
54 On 17 June 2015, you were convicted of one charge of sexual penetration of a child under the age of 16, and sentenced to an 18 month community corrections order with a requirement that you perform 50 hours unpaid community work and that you be under supervision and treatment. You were registered on the Sex Offenders’ Register for 15 years. In relation to the matter heard in this Court before His Honour Judge Jordan, I have had regard to His Honour’s sentencing remarks and the factual basis upon which you pleaded guilty which was set out in the prosecution opening, being Exhibit C in the hearing before me. You were 18 when you committed this offence, and the complainant was only 14. I note that you served 46 days on remand which His Honour factored in when he sentenced you to a community corrections order.
55 On 24 August 2016 you were convicted and fined an aggregate of $1200 in respect of six charges of failing to comply with reporting obligations in relation to the sex offenders Register.
56 On 31 January 2017, you were dealt with for contravening a community corrections order – the breach was proven and the community corrections order was confirmed.
57 Your criminal history is relevant to my assessment of your prospects of rehabilitation, the weight that needs to attach to specific deterrence and protection of the community.
58 The prosecution submitted that your offending for which I now sentence you had ‘the flavour of a course of conduct’-your counsel accepted this to some extent, indicating that there were links between a number of the offences which was relevant to the question of totality. Without the need to characterise your offending overall as a course of conduct, I am very mindful that, for the most part, it occurred between April 2018 and January 2019, so for a period of about nine months. The only exception to this is Charge 1 which involved the transmission of 23 images over a period of about two years, but most of these occurred over the course of two months. I am also mindful of the fact that some of the alleged victims feature in more than one charge, and the links between some of the charges. I accept that the principle of totality applies to your case. I also understand that the Commonwealth offences acts as a trigger for relevant State sexual offences insofar as the serious sexual offence provisions are concerned, which means that in fact they are only applicable to Charge 8; but the prosecution does not submit that a disproportionate sentence is warranted.
59 I was told by your counsel that, notwithstanding the unlawfulness of your previous offending which was dealt with in this Court in 2015, you regarded yourself as being in a relationship with the victim of that matter. I was told that when you were unable to continue with this unlawful relationship due to police intervention, your world, which was already rather isolated, shrank further, and that you retreated to a virtual world involving online gaming and, eventually, the offending which is now before me.
60 In sentencing you, I allow for a significant discount in the sentence you would otherwise receive because of your early pleas of guilty which have saved the witnesses the time and trouble of giving evidence and have saved the community the time and expense of running contested proceedings. Despite your records of interview being most unsatisfactory in a number of respects, I accept that you made some admissions and I have also factored in that you co-operated with the police in providing them the passwords for your computers. However, remorse and insight as to the seriousness of your offending are not features of your case. Your counsel did not seek to submit otherwise.
61 In sentencing you I take into account your background:
62 You were born in Melbourne, and were aged between 20 and 23 years at the time of the offending for which I now sentence you. You have now just turned 24.
63 You were brought up by your parents in Springvale - you have two younger sisters and you have a younger brother, who is about 20. I was told that you believe that he is also on remand for some reason.
64 Your father migrated to Australia from Vietnam, but you have never met his side of the family who continue to live there.
65 Your father is a sander and is hardworking and your mother performed home duties - they separated when you were 17 years old. You lived in residential care from the ages of 16 to 18, then in accommodation provided by WAYYS, a support housing service. Your removal from your family, for whatever reason, at such an age, must have been traumatic for you. You were then remanded in respect of the previous matter resulting in you losing this accommodation. When you were granted bail, you lived with your mother at her address. Prior to your remand in respect of the matters before me, you were bailed to your father’s address, sharing a one bed room in a boarding house with him. Your bail also enabled you to live at a friend’s place, who you met through working at a market through TAFE. You have had to pay rent when living there, as required by your friend’s father. I understand that you have done this by using a Newstart allowance which you received and also in performing household chores.
66 Your mother still lives in a suburb of Melbourne with your two younger sisters but you do not know where your brother is, although as I say you seem to believe that he was on remand when I heard the plea in this matter.
67 You were educated to Year 9 level and according to the report of Mr Candlish psychologist dated 16 October 2019, which was tendered on your behalf, you were bullied and engaged in aggressive behaviour during your school years, causing injury to others on some occasions, including some teachers, although you said that the latter incidents were accidents. When you were under the care of the Department of Human Services, you attended Swinburne TAFE, studying ‘general education’ but you eventually disengaged. Before your current remand, you were receiving Newstart payments.
68 You have no issues in respect of the consumption of alcohol or illicit drugs.
69 In sentencing you, I take into account the report of Mr Candlish in a general way, as the principles in Verdins are not relied upon.
70 I have had regard to the various tests and assessments that Mr Candlish conducted, and his overall impression that you had at least a moderate to high impairment in personality functioning, ‘with difficulties related to his identity, self-direction and empathy as well as intimacy.’(p.11) He said that the issues with bullying and aggression in your childhood had led to the development of a ‘conduct disorder’. He said that you had traits of an anti-social personality disorder but did not meet all the criteria for this, nor did you meet with the criteria for borderline personality disorder. As the learned prosecutor said, Mr Candlish made some findings which tended to indicate that you were attempting to manage the impression that you were conveying to Mr Candlish; notwithstanding this, Mr Candlish was able to form opinions about you, and I have taken these into account in sentencing you.
71 In the opinion of Mr Candlish, you displayed ‘problematic personality traits’ which would have been present at the time of the offences before me. He said that “this condition is fairly entrenched and less amenable to change. His problematic personality traits have contributed to a number of difficulties related to emotional regulation, poor coping and interpersonal difficulties. These factors appear likely to have relevance to Mr Graham’s decision to sexually offend. Mr Graham appears to be aware that his behaviour was wrong and offended despite this.” (See paragraph 90 of report of Dr Candlish). I must say that this aspect of Mr Candlish’s report has given me some serious cause for concern.
72 He went on to say that sustained exposure to undesirable individuals in a prison setting would place you at risk of being negatively influenced due to your ‘impressionability and youth’. He said that in his view you showed the potential for effective rehabilitation, having indicated a willingness to take part in treatment. However, as I have observed, it is evident that you took part in a sex offenders program in the past, then embarked on the current offending, being aware that what you were doing was wrong. Mr Candlish said that he was unsure as to precisely what the previous program entailed and expressed the view that any program in the future needed to address ‘outstanding areas’ in view of the current offending. No doubt, you will be required to undergo a further sex offenders’ program which needs to be intensive, it needs to be tailored to your current offending and to your personality traits, and also it needs to reinforce the messages which were conveyed last time.
73 It is unlikely that you will receive much in the way of visits from family or friends whilst you are in gaol. In view of your relative young age and vulnerabilities because of your presentation and personality traits as well as the isolation that you have and will suffer, I allow for the fact that time in gaol has been and will be harder for you than would otherwise be the case. I also allow for the fact that this will be your first substantial gaol term. In making the allowance in respect of your personality traits, I make it clear that I do not apply Verdins; nor do I transgress O’Neill in my view. It is simply the case that your presentation due to your personality traits will make you more vulnerable in a prison setting in my view.
74 In view of the nature of your offending, your lack of insight and remorse, your relevant criminal history including your failure to benefit from the community corrections order previously imposed, your personality traits, your fairly limited family and friendship support, and lack of work history, but also bearing in mind you are still quite young and have pleaded guilty to these offences at an early stage and have expressed a willingness to engage in further treatment, I rate your prospects of rehabilitation as being guarded. I must place fairly solid weight on specific deterrence and protection of the community, and I must place strong weight on general deterrence in a bid to deter others from offending as you have.
75 You are still a young man, and whilst not compromising the weight which must attach to other sentencing factors, I believe I must do what I can to maximise your chances of rehabilitation.
76 The prosecution submitted that nothing short of immediate imprisonment with a non-parole period was appropriate in your case. Your counsel submitted that a recognisance release order which had an element of immediate gaol was appropriate; failing this, she submitted that a gaol term with a lengthy parole period was called for.
77 I have considered the matters which are relevant to your case, the various submissions put, including the considerable assistance I received in respect of current sentencing practice. Of course, current sentencing practice is but one matter for me to take into account in sentencing you, and is not a controlling one.
78 In the end, I have come to the view that I cannot do justice to all relevant sentencing principles and the weight which must attach to them unless I impose a sentence which involves a head sentence and a non-parole period. However, in view of your young age and the matters in mitigation in your case, factoring in the matters I have accepted in respect of hardship in gaol, I have decided that it is appropriate to impose a lengthy parole period. It is not for me to say whether you ought be released on parole at the earliest opportunity, however, in my view it would be highly desirable for you to be supervised in the community for as long as is possible.
79 Please stand up
80 You are convicted of each of the offences.
81 Under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is, report, within seven days after your release from custody. Details in writing of these reporting conditions will now be served shortly upon you by my associate and I will ask your counsel to help you to attend to an acknowledgement of the notice and have you sign it.
82 Just before I go on, counsel, I just want to check something that I have previously indicated. I might need to amend. In relation to the breach of the community corrections order, the previous proceedings, that was not in relation to the current proceedings, was it, or it was?
83 MS DEMPSEY: No, it was in relation to the state offences.
84 HER HONOUR: All right. I just realised that so I will amend my sentencing reasons accordingly so that is not recorded there. Is there any objection to that?
85 COUNSEL: No, Your Honour.
86 HER HONOUR: All right, thank you.
87 I declare that you are to be sentenced as a serious sexual offender in respect of Charge 8 only but the prosecution does not ask for a disproportionate sentence in order to give emphasis to protection of the community. However, in my view a degree of cumulation as between a number of the charges is warranted to reflect separate offending, bearing in mind that the way of achieving this is different under the Commonwealth regime, and also bearing in mind the principle of totality. Having said all of this, in order to achieve the total effective sentence that I wish to impose in this matter it has been necessary to express the Commonwealth sentences in the way that I have.
88 You are sentenced to the following periods of imprisonment - I will commence with the State sentences:
89 Charge 2: 12 months' imprisonment
90 Charge 8: 15 months' imprisonment
91 I direct that three months from the sentence on Charge 8 be served cumulatively with the sentence on Charge 2, producing a total effective sentence of 18 months' imprisonment. I do not intend to impose a non-parole period in respect of these charges or that particular aspect of the sentence.
92 In relation to the Commonwealth matters you are sentenced to the following periods of imprisonment:
93 Charge 1: 12 months’ imprisonment which is to commence six months from today
94 Charge 3: eight months’ imprisonment which is to commence today
95 Charge 4: two years’ imprisonment which is to commence two years from today
96 Charge 5: 12 months’ imprisonment which is to commence 12 months from today
97 Charge 6: three years’ imprisonment which is to commence 12 months from today
98 Charge 7: 18 months’ imprisonment which is to commence 18 months from today.
99 In relation to the Commonwealth charges, I direct that you serve 20 months' imprisonment before becoming eligible for parole.
100 On my calculation, in relation to all of the charges before me the effect of the sentence is that it results in a Total Effective Sentence of four years' imprisonment and, as I have directed, a non-parole period of 20 months’ imprisonment as pertains to the Commonwealth offences. I indicate in any event that this is the sentence that I intend to give effect to.
101 If not for your pleas of guilty I would have sentenced you to an overall Total Effective Sentence of seven years' imprisonment with a non-parole period of four years’ imprisonment.
102 I declare that you have already served 34 days in custody and I declare that as having already been served.
103 Take a seat for a moment please, sir.
104 Counsel, does that add up?
105 MR MOGLIA: I’m still looking at the Commonwealth matters, Your Honour. In paragraph 86, directing that three months from Charge 8, which was the 15-month sentence, to be cumulative on Charge 2, which was 12, would be a total effective of 15 I think, unless Your Honour intended three months on two.
106 HER HONOUR: I meant it the other way around, I am sorry, yes. I just switched the numbers. Charge 8 should be the base sentence, yes. Yes, I meant that to be the other way around, thank you. So three months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 8.
107 MR MOGLIA: The way I read it, Your Honour, in terms of your request about whether it seems to add up, it seems to me to add up to four years starting today, but the 34 days effectively comes off the state sentence that's been served and declared or that Your Honour will declare, and so the effect will be from today four years head sentence with 20 months non-parole period, effectively all on Commonwealth offending. I understand that to be the case and that seems to be what Your Honour has ordered.
108 MS DEMPSEY: I was slightly slower getting there but that appears to be my - I agree with that as well.
109 HER HONOUR: You agree with that?
110 MS DEMPSEY: Yes, 34 days obviously declared.
111 HER HONOUR: Is there any difficulty with that?
112 MR MOGLIA: Not from me, Your Honour.
113 MS DEMPSEY: I am just checking that there's no gap between the two.
114 MR MOGLIA: There doesn't seem to me to be any gap.
115 MS DEMPSEY: No, Your Honour, I don't think there is.
116 HER HONOUR: Yes, very well. Thank you. Did you need to have a word with your client or you will see him downstairs?
117 MS DEMPSEY: I can see him in the cells, Your Honour.
118 HER HONOUR: Very well, thank you. Thank you for your assistance, counsel. If we could please have Mr Graham removed, thank you.
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