Director of Public Prosecutions (Cth) v McDonald
[2021] VCC 1740
•4 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00870
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA MCDONALD |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2020 and 27 May 2021 | |
DATE OF SENTENCE: | 4 November 2021 | |
CASE MAY BE CITED AS: | DPP (Cth) v McDonald | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1740 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: use carriage service to procure a person under 16 -- use carriage service to transmit indecent communication to person under or believed to be under 16 years of age – use carriage service to solicit child abuse material – serious offending -- no insight into the potential harmful effects of conduct on young children – presumption of harm -- offending unsophisticated -- plea of guilty at the earliest opportunity – cooperation with police – pleas of guilty have significant utilitarian benefits – remorse – youthful offender—rehabilitation significant sentencing consideration – intellectual disability – sentence of imprisonment to weigh more heavily because of intellectual disability, immaturity and major depressive disorder – extra curial punishment – registrable offender for life.
Legislation Cited: ss 16A, 17A, 20AB, s20AB(4)(c), s20AB(1AA)(a) , 20BQ Crimes Act 1914
Cases Cited: The Queen v Verdins (2007) 16 VR 269; Adamson v The Queen [2015] VSCA 194; Muldrock v The Queen [2011] HCA 39; DPP (Cth) v Walls [2014] VSCA 323; DPP (Cth) v Singh [2017] VSCA 146; The Queen v Barbaro and Zirilli [2012] VSCA 285; Kelly v Saadat-Talab [2008] 72 NSWLR 305; The Queen v Cone(pseudonym) [2019] VCC 2241; DPP(Cth) v Cameron [2020] VCC 1506; Worboyes v The Queen [2021] VSCA 169
Sentence: Community Corrections Order for 42 months with Justice Plan condition.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Stevic | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1Joshua McDonald, you have pleaded guilty to the following:
(1) two charges of using a carriage service to procure a person under 16 years of age, contrary to s474.26(1) Criminal Code (Cth) [Charges 1 and 4];
(2) nine charges of using a carriage service to transmit indecent communications to a person under 16 years of age, contrary to s474.27A(1) Criminal Code (Cth) [Charges 2, 7, 9, 11, 12, 13, 15, 17, 20];
(3) 10 charges of using a carriage service to solicit child abuse material, contrary to s474.22(1) Criminal Code (Cth) [Charges 3, 6, 8, 10, 14, 16, 18, 19, 21, 22]; and
(4) one charge of using a carriage service to menace, harass or cause offence, contrary to s474.17(1) Criminal Code (Cth) [ charge 5].
2A summary of prosecution opening for plea was tendered and is marked Exhibit 1. The matters contained in that summary were not disputed and form the factual basis upon which you fall to be sentenced.
3Your offending occurred over the period 14 September 2019 to 22 January 2020 and involved you using social media platforms to communicate with various persons who were, or you believed to be, under 16 years of age.
4Your offending concerns two identifiable victims and a number of unidentified victims. I shall refer to the two identified victims as Victim 1 and Victim 2.
5Charge 1 relates to you using a carriage service to procure Victim 1. Charge 2 relates to you using a carriage service to transmit indecent communications to Victim 1. Those communications were pictures and videos of your penis.
6In late September 2019, Victim 1’s stepmother discovered sexual messages and images of a penis in a Snapchat communication between you and Victim 1 on Victim 1’s mobile telephone. She reported this to police.
7Investigation showed that on 14 September 2019, you added Victim 1 on Snapchat using the name joshm193. You communicated with Victim 1 from 14 September 2019 to 20 September 2019.
8Your communications with Victim 1 commenced with you falsely telling her that you were 15 years of age. She told you she was 13 years of age. You made a number of requests of Victim 1 that she send you photographs of herself. The communications between you included that you both struggled with depression and anxiety. You advised Victim 1 that you were there to support her.
9During that communication, you also asked her the following:
(a) whether she would take nude photographs of herself.
(b) what her bra size was and whether she was wearing a G-string.
(c) if she masturbated, whether she likes it, when her last time was and how many fingers she could fit in her vagina.
(d) that she try masturbating and show you or film it.
(e) that she video record herself, with her saying: “I want to hear u moan xx it turns me on xx … so please can u video you moaning xx,” and
(f) You told her that you would “… love to suck on ur nipples xxx … and suck on ur clit … I want to put my hard dick in ur vagina and fuck u so hard xxx.”
10Upon you learning that Victim 1 lived in Queensland, you advised her that you could visit, and you said you were willing to drive over 20 hours to do so, “to get to fuck u I’d do anything xx.”
11In a later communication, you asked Victim 1 whether she was a virgin. Upon learning that she was, you told her you were also a virgin and said “so we can both do it … if you agree on it … so we can fuck.” You later told her that you loved her and suggested she fly to Victoria to have sex with you. You offered to pay for her flight. Victim 1 stated that she may be camping in Victoria later in the year. You continued communicating in a sexual manner saying “hopefully we can fuck.”
12In further communication, you requested that she take a video recording of herself masturbating, including with objects such as a brush handle. You also requested that she show you her doing that in a video call. Later messages included you suggesting you fly to Queensland to have sex with her. In one message you stated, “30th of September I fly to you.”
13In addition to the above communications, you used the carriage service to transmit two photographs of your erect penis to Victim 1. This conduct forms the basis of Charge 2.
14Victim 2 was 14 years old at the relevant time. She is known to you as a friend of your younger sister. You met Victim 2 at a youth retreat event. On 30 January 2020, Victim 2’s mother reported inappropriate communications between you and her daughter to the police.
15Victim 2 told police that following a youth council retreat dinner she was with your sister who was sending messages to you via the social media platform ‘Snapchat’. You asked your sister for Victim 2’s phone number.
16Victim 2 stated that you and she engaged in general discussions via telephone and text messages for a period of time, however, you became increasingly aggressive and critical of her friends and boyfriend. Victim 2 attempted to then limit her contact with you.
17On 5 November 2019, Victim 2 sent you an image of a drawing on her arm. It would appear that she had intended for that image to be sent to another friend. You responded by berating her for not being a virgin. You sent her further messages including the following:
(a) TF is wrong with you?
(b) Having sex at 14 that’s what.
(c) Why do you think it’s ok to do that shit at ur age?
(d) That’s the definition of slut; and
(e) Having sex at a very young age is a slut.
18You told Victim 2 “so what you’re too young and there's only one thing u can do to make me stop saying that … U do it with me”. You told her that she had no choice in the matter. This forms the basis of Charge 3. Your messaging continued with you remarking “it’s not rape if you like it” before telling Victim 2 that if she does not have sex with you the only alternative would be to send you nude photographs of herself, in particular her breasts, otherwise you would “expose u like the hoe u r”. This conduct forms the basis of Charge 4.
19Victim 2 continually resisted your requests to have sex with her or to transmit images of her breasts. This, in turn, angered you. In response you sent a number of messages which included the following: “You know that it takes 7 minutes for an average person to bleed out”. This message forms the basis of Charge 5.
20You continued repeatedly calling Victim 2 a ‘cunt’, ‘hoe’, ‘slut’ and ‘sook’. Your communication ended on 6 November 2019 with Victim 2 outlining the offences you had committed during the conversation, stating she would report the matter to police.
21Following the execution of a search warrant at your home address, a download was made of the contents of your mobile phone. The download revealed further offending against various unidentified individuals on Snapchat. A total of 12 conversations were identified as being unlawful.
22On 5 November 2019, you communicated with “User1[1]” telling her you were 15 years old. You told her that Snapchat confirmed she was 14 years old and because she had lied to you she had to make up for it by sending nude photographs of herself. The user declined to send any images. This conduct forms the basis of Charge 6.
[1]A pseudonym.
23On 6 November 2019, you commenced communicating with Snapchat user “User2[2]”. You stated you were 15 years old. The user said she was 13 years old. Your messages stated that you would treat her like a princess, would do anything to make her smile, and that you wanted her and would not be backing off. You went on to criticise a boy the user indicated she was talking to and interested in. You suggested you would be better for her. At one point the user stated she was lying in bed. You asked “u doing anything on ur bed xx … can I come cuddle you xx.” You also said you were “feeling my big hard dick xx” and asked if she would like to see. You pressed her to agree to receive a photograph of your penis. Following repeated requests you then asked her to get in the mood first before asking her about what she was wearing; her bra size; her underwear; and asking if she would send you nude photographs and whether she masturbated. You encouraged her to do so. Your messages continued along similar lines. You offered to send her nude photographs of yourself. You became angry when she repeatedly declined. You suggested she could use the photographs to pleasure herself. Your conversations with User2 ceased on 8 November 2019. They form the basis of Charges 7 and 8.
[2]A pseudonym.
24Charges 9 and 10 relate to Snapchat communications with “User3[3]” on 6 November 2019. Following confirmation from the user that she was 14 years old, you :
(a) asked if she would ever show you what is under her clothes;
(b) asked that she take her bra off;
(c) said you will show her how hard she made you;
(d) said you wanted to suck on her nipples;
(e) suggested she finger herself and told her that her boobs are amazing; and
(f) asked her to show you her fingering herself and to see her “booty”.
[3]A pseudonym.
25Charge 11 relates to communications with Snapchat user “User4[4]” on 9 November 2019.
[4]A pseudonym.
26Following confirmation that the user was 15 years old, you requested an image of her insisting she show her whole face. You later told her that you were “feeling my big hard dick xx” before asking if she would like nude photographs of you. The user declined and did not respond any further.
27Charge 12 relates to communications with user “User5[5]” on 11 November 2019. You told the user you were 15 and she said she was 13 years of age. You noted in your conversation with her that she was a cutie and asked if she had a nice body. As part of a conversation, after discussing her boyfriend, you stated “now disrespecting me like that isn’t a good idea.” You went on to ask questions about nude photographs and whether the user had ever been fingered. When she refused to send you a photograph of her belly, you said she cannot back down or she would face a punishment of having to buy you a Vape and Vape juice. When the user declined to send you the photograph, you stated that what goes around comes around and also called her a slut.
[5]A pseudonym.
28Charges 13 and 14 relate to communications with “User6[6]”. On 1 December 2019, you communicated with the user and offered to either purchase earphones or give the user $250 if she talks to you, gets close and sends pictures of herself. You said that she would owe you and the only way to receive the earphones or have you stop messaging is to transmit images of her “booty and boobs”. The Snapchat user resisted and stated she was only 12 years old, to which you responded “And … send me pics of your booty and boobs then I’ll go.” You later called the user a ‘slut’, ‘side hoe’ and ‘skank’. You provided your residential address and commented “what will u do suck me off then force my cock inside ur vagina.” You repeatedly asked the user if she wanted nude photographs of you. You transmitted images you said were of your penis and requested she reciprocate. The communications ended on 8 December 2019.
[6]A pseudonym.
29Charges 15 and 16 relate to communications with “User7[7]”. You initiated communication with this user on 4 December 2019. Following confirmation the user was 12 years of age, you sent messages which:
(a) asked if the user would have sex with you;
(b) advised that you could fly to QLD and visit her;
(c) asked for more pictures of her “amazing” body;
(d) said you wanted to “see ur vagina on my cock”
(e) requested nude photographs and asked if she would like them in return;
(f) requested she flash her nipples;
(g) asked if she is single, because you want her; and
(h) asked to see her vagina and breasts.
[7]A pseudonym.
30Your communication with this user ceased on 5 December 2019.
31Charges 17 and 18 relate to user “User8[8]” on 9 December 2019. This user advised she was 15 years old.
Your communications with the user included the following:
(a) you told her you would love to kiss her;
(b) you asked what else she would let you to do her and where she would let you kiss her;
(c) you asked for photos of her body while calling her gorgeous and stunning;
(d) you sent an image saying “it will go deep in your vagina xx” and said you want to fuck her for weeks on end;
(e) you told her you love her;
(f) you told her you were horny because of her and asked for sexy body shots; and
(g) you asked for photos “so I can cum on you xx”.
[8]A pseudonym.
32Communications with that user ended on 3 January 2020.
33On 9 December 2019, you commenced communicating with user “User9[9]”. The user confirmed she was 14 years old. You asked her questions including whether she had sent nude photographs before, what type of nude photographs she had sent, whether she has a nice body, how big are her breasts and whether she was wearing a bra and G-string. You requested she flash her breasts, show you her bra and underwear, and you asked for nude photographs before stating you will do something to her if she does not comply and send you nude photographs. You said you were deadly serious and warned her. The communications ended on 10 December 2019 and form the basis of Charge 19.
[9]A pseudonym.
34Charge 20 relates to your communication with “User10[10]” on 15 December 2019. You told the user you were a virgin and on learning the user was also a virgin, you asked if she would like to change that status. The user told you she was 13 years old. Despite that, you asked her if she was wearing a bra, the size of her bra, what underwear she was wearing and if she would like nudes. You transmitted images of yourself and asked “u want it deep in ur vagina xx.” You again offered to send more nudes and the conversation concluded that same day.
[10]A pseudonym.
35Charge 21 relates to communication with “User11[11]”. She advised she was 12 years old at which point you said she was “really gorgeous xx”. You told her you were 14 and asked whether she had sent any nudes, if she would send them, and whether she would reciprocate if you sent her pictures. You communicated to the user “u have amazing boobs xx can you send me more xx”. You later asked whether she masturbated and dared her to send photos of her vagina requesting she spread her vaginal lips and send videos of her fingering herself. In one of your messages you stated, “but that’s not long enough I need a heap of vids xx.” Your communications with the user ended on 15 December 2019.
[11]A pseudonym.
36Charge 22 relates to communications with “User12[12]” on 13 January 2020. She said she was 13 years old. You told her you were 15. The messages included you asking her to “show me more of ur body xx” and requested that she “take them all the way off xx” as you wanted to see her “sexy body”. You offered to send her nude photographs if she would send you a photograph of her breasts, vagina and bottom. You asked whether she would let you insert your fingers or penis into her vagina before asking whether she masturbated, how many fingers she could insert into her vagina and you asked her to do so. You later requested more nude photographs and images, specifically in-between her legs and asked to see her ‘clit’. Your communication ended on 22 January 2020.
[12]A pseudonym.
37On 4 April 2020, you participated in a recorded interview with police. It appears the interview was conducted in the presence of an independent person, Sandra Bampkin. During the interview you made a number of admissions including:
(a) You attempted to befriend underage girls, got emotional and asked for pictures or requested to ask them naughty questions;
(b) You would ask if they are struggling or suffering bullying and you offered to be there for them;
(c) You said you tried not to come across as a creep;
(d) You lied about your age if the girls were young so they would feel comfortable talking to him;
(e) You are the owner of the JoshM193 account and it has not been hacked;
(f) You recalled Victim 1 and admitted to asking questions about G-strings, masturbation and nude photographs;
(g) You recalled Victim 2 and that you said some nasty things including making threats and requesting nude photographs;
(h) You admitted threatening to bash her boyfriend;
(i) You knew Victim 2 was 13 or 14 years old from the outset;
(j) Your parents told you to stay away from her, so you blocked her number;
(k) You claimed you were not threatening to hurt her but that you would confront her about being disrespectful to you;
(l) You requested nudes to “get off”; and
(m) It was wrong to ask Victim 1 for nude photographs because it was her body and she should be able to choose not to share it with others.
38I was informed by the learned prosecutor that both Victim 1 and Victim 2 declined to make victim impact statements.
Personal circumstances
39You are now 22 years of age. You were 20 years of age during the offending period, 14 September 2019 to 22 January 2020.
40At the age of 11 months you were placed in temporary foster care, as your parents were drug users and you were exposed to an environment of abuse and neglect. At the age of three you were adopted by Annette and Craig Riordan, who have cared for you and one of your biological sisters since the age of approximately 11 months.
41At the age of 16 you made contact with your biological parents and a number of your siblings. Such contact has been limited to intermittent phone calls, always instigated by you.
42You described your upbringing with your adoptive parents in very positive terms. Your adoptive family consists of a full biological older sister and four younger adopted siblings.
43You attended Yaapeet Primary School and then Rainbow Secondary College. You had significant learning difficulties which became more acute in secondary school. Despite those learning difficulties, you did not receive any specialist interventions.
44At school you were subjected to persistent bullying which your family reported to the Education Department. Despite your family’s intervention, the bullying continued. You described your experience of school in negative terms.
45Exhibit D4 is a psychological report of Jeffrey Cummins dated 13 October 2020. You saw Mr Cummins on 9 October 2020, accompanied by your adoptive father, Craig Riordan. Mr Cummins was provided with a number of documents concerning your psychological background and noted that in early 2020 you were approved for a National Disability Insurance Scheme plan.
46Your adoptive father Mr Riordan is employed as a farmhand, and your adoptive mother, a qualified nurse, assumes the role of full-time mother to the children. You acknowledged the help and support you received from your adoptive parents. Your older sister is diagnosed with borderline intellectual functioning and is in receipt of a disability support pension.
47With regard to your schooling, you did a Vocational Education and Training course which included working at the Longerenong Agricultural College one day a week, and two days a week with the local shire council.
48You told Mr Cummins the bullying occurred because of your skin colour, size, concentration difficulties, and for being a virgin. You said you had no friends at school and no social life, which caused you to feel depressed and anxious. You said that for two years after leaving school you felt depressed, avoided people, and did nothing with your life. During that time you cut your right arm in a suicide attempt.
49With assistance, you obtained an apprenticeship with a butcher. That lasted six months. At the time Mr Cummins interviewed you, you were working three or four days a week, on a part-time basis, as a farm labourer. You are not currently working, and you are in receipt of the Disability Support Pension.
50Approximately three years ago you were prescribed anti-depressant medication, which you continue to take. You had also been receiving treatment from a psychologist, Melanie Watts, for a period of three years preceding Mr Cummins’ assessment. You told Mr Cummins you have never had a girlfriend or engaged in any sexual activity with a girl. You told him you would like to have a family, that you get lonely but first you want to get yourself “fixed”. In context, this was a reference to your mental and emotional problems. You also acknowledged having anger management issues.
51With regard to your offending, you told Mr Cummins, “something in the back of my head told me it was stupid. I sort of thought it was illegal, but my processing speed is very slow – but I still did it. It will never happen again.” You also stated, “I really wish this hadn’t happened. It was my fault – it shouldn’t have happened. I’m going through depression and feeling lonely. I’ve still got no friends.”
52On mental state examination, Mr Cummins said your overall presentation was consistent with mild intellectual disability. You did not present as having a personality disorder or any psychotic symptoms. It was Mr Cummins’ opinion that you have been suffering a major depressive disorder with anxious distress from at least your mid-teenage years, with the condition being of moderate severity and recurrent in type. You are assessed as being psychosocially immature and severely psychosexually immature. In his opinion, your offending was primarily reflective of a combination of your impaired intellectual functioning, psychosocial and psychosexual immaturity. He considers that you are in need of one-to-one sex offender treatment.
53Mr Cummins undertook a risk assessment and concluded that your current risk of reoffending is “low to moderate”. He considered that at the time of your offending you had problems with self-awareness and were either unaware of, or non-responsive to, the objective seriousness of your offending. You had problems with coping and were feeling lonely and sexually frustrated. He was of the opinion that you were suffering from a major mental illness as a result of your adaptive skills remaining in the intellectual disability range and symptoms of anxiety and depression which are closely linked to your low cognitive function. Despite your statement that you now had a good understanding of the seriousness of your offending behaviour, Mr Cummins thought this was largely based on your fear of incarceration as opposed to you having a rigorous understanding of the objective wrongfulness of your offending.
54Mr Cummins considers that if you were gaoled there is a real and serious risk, because of your borderline intellectual functioning and relatively poor, unsophisticated social skills, that you would be subjected to bullying and intimidation. In those circumstances, your mental health would inevitably deteriorate.
55Mr Cummins gave evidence at the plea hearing. He stated that your age level was several years younger than your chronological age, estimating it at around the 16 or 17 year-old level. He confirmed you need ongoing mental-health treatment. Mr Cummins confirmed what was in his report, particularly your offending being a result of your impaired mental functioning, psychosocial and psychosexual immaturity, and depression. The nature of your communications with others, including the threatening messages, he considered was a result of that immaturity. Your appreciation of the wrongfulness of your conduct, he said, was very much impaired by those considerations, and your intellectual disability.
56With regard to his finding that you represented a low to moderate risk of reoffending, Mr Cummins stated that his expectation was it would reduce significantly with a one-on-one sex-offender treatment program. Mr Cummins reiterated that imprisonment would impact on your rehabilitation, your mental health would inevitably deteriorate, and you would struggle psychologically by reason of your mental health issues. He expected that your depression would increase, as would the risk of self-harm.
57Under cross-examination by the learned prosecutor Ms Brown, Mr Cummins accepted that the Static-99 assessment tool placed you at a high risk of reoffending. However, Mr Cummins explained that the current best practice approach for assessing risk where a person is pleading guilty involves the use of a comprehensive interview coupled with the use of assessment tools Static-99R and RSVP. Putting all of those factors together, he concluded that your risk of reoffending was at the low to moderate level.
58As to your targeting of underaged girls, Mr Cummins considered you were likely selecting persons of that age because it was commensurate with your own psychosexual immaturity. Mr Cummins also allowed for the fact you became sexually aroused in the context of your offending, which he characterised as being hebephilic in type, reflective of a sexual interest in persons who are likely to be post-pubescent but under the legal age.
59Mr Cummins was clear in his evidence that your intellectual disability impacted your ability to be rational about your interaction with the victims of your communications, the inappropriateness of those communications, and the level of your moral culpability.
60Exhibit D8 is a letter dated 1 May 2020 from Ms Wallis. She confirmed she has been treating you since February 2018 for a range of psychological conditions.
61Exhibit D7 is a more extensive report of Ms Wallis. She assessed you on 15 June 2020 administering a number of psychological tests. They revealed low functioning across several domains. You recorded a full-scale IQ of 69. You meet the DSM‑5 criteria for a formal diagnosis of intellectual disability. Whilst there were some areas in which you showed relative strengths, your processing speed IQ of 56 places you in the extremely low range. Your adaptive behaviour composite score of 38 places you in the intellectual disability range. Your score of 20 on the daily living skills domain placed you in the profound deficit range.
62Exhibit D3 is a report from your treating general practitioner Dr Mahmoud, dated 29 July 2019, confirming your history of “debilitating depression and anxiety” and self-harm. Dr Mahmoud stated you take anti-depressant medication and are engaging in psychological treatment.
63Exhibit D5 is a confirmation that you have been approved for an NDIS plan which commenced on 13 March 2020.
64A letter from Courtney Clough, Exhibit D2, of Access Employment in Horsham, speaks of your willingness to look for suitable opportunities in employment. It was through her service that you obtained the butcher’s apprenticeship. However, due to your intellectual disability, you had difficulty with concentration and following through on instructions. Accordingly, your apprenticeship was terminated.
65Exhibit D6 is an earlier report of Ms Wallis dated 19 August 2019, in which she noted your receptive communication is significantly impaired and you struggle to follow instructions, finding it difficult to remember what you had been asked to do. This created particular difficulty in your attempted apprenticeship. Ms Wallis also noted your difficulty in communicating your thoughts and feelings.
66Exhibit D11 is a report of Peter Hanley, psychologist, dated 18 May 2021. As at the date of his report, Mr Hanley had seen you on nine occasions, commencing 9 December 2020, for psychological treatment focussed on addressing your offence-related rehabilitative needs. Mr Hanley stated you presented as a charming and friendly young man with a slow and simplistic thought process, consistent with intellectual disability. He stated you initially lacked insight into the harmfulness of your offending but demonstrated incipient insight into your motivations for engaging in sexual discussions online. You expressed regret for your offending behaviour and told Mr Hanley you wanted to do whatever was needed to address your problems and prevent future offending. You were accepted by Mr Hanley into a sex offender treatment program, involving counselling specifically adapted to address your individual needs. Mr Hanley was of the view you were genuinely committed to the implementation of a relapse-prevention plan. He said you had made very good progress in treatment, demonstrated good developing insight into your offending behaviour and its wrongfulness, and had a remorseful and responsible attitude.
67Your adoptive mother, Annette Riordan, gave evidence at the plea hearing. She said when you first came to live with Mr and Mrs Riordan, at the age of 11 months, you had cigarette-burn scarring.
68Ms Riordan confirmed you suffered a lot of bullying at school because of your indigenous background, and that you were subjected to racial taunts.
69Ms Riordan also stated she has not known you to have any friends or girlfriends. Nevertheless, she said you participated in cricket and football, before COVID put an end to those, and you were also keen on fishing, which you would do with your adoptive father.
70With regard to your day-to-day functioning, Ms Riordan stated, “I do everything.” She referred to your bowel accidents, which cause you much anxiety. These occur on average, she said, a couple of times each week. Mrs Riordan also confirmed your difficulties with processing, stating that you do not always understand what doctors tell you, so she and your adoptive father attend appointments with you. They also manage your finances.
71Your adoptive mother confirmed the services being provided through the National Disability Insurance Scheme, particularly your participation in the sex offenders treatment program with Mr Hanley, and occupational therapy.
Submissions
72At the plea hearing on 20 November 2020, your then counsel, Mr Swan, submitted that I defer sentence to enable you time to engage in sex offender treatment. In the alternative, he submitted that if a term of imprisonment was required, you should be released forthwith on a recognisance release order.
73Mr Swan placed significant reliance on The Queen v Verdins[13] submitting that all six principles have application in your case.
[13](2007) 16 VR 269
74With regard to your offending, Mr Swan submitted that there was no specific evidence concerning video images and pictures, and as such, it was very difficult to determine the nature of material sent to you by the other parties.
75Mr Swan accepted what was stated in Adamson v The Queen[14] at paragraph 30, concerning the harm caused to victims through online communications. However, with respect to the unidentified victims, he submitted there was no evidence they were children, so the presumption of harm cannot apply. Your understanding they were underage does not prove they were in fact children.
[14][2015] VSCA 194
76Mr Swan also relied on your relative youth and the fact you have no previous criminal convictions. Reliance was also placed on the decision of Muldrock v The Queen[15], Mr Swan submitting there is a causal link between your impaired mental functioning and the commission of the offences, notwithstanding your ability to realise the illegality of your conduct. Your moral culpability, it was submitted, is reduced. Furthermore, he was submitted you are not an appropriate vehicle for general deterrence, and there should be moderation of general and specific deterrence. With regard to limb two of Verdins, Mr Swan referred to the treatment suggested by Mr Cummins of a one-on-one sex-offender treatment program with ongoing psychological treatment. There would be difficulty, it was submitted, in obtaining such treatment in custody. This would impact on your prospects for rehabilitation.
[15][2011] HCA 39
77As to the question of remorse, Mr Swan relied on your pleas of guilty, your expressions of remorse and regret during the recorded interview, and your expressions of remorse to Mr Cummins and Mr Hanley. You have, it was submitted, accepted responsibility for your offending.
78With regard to your prospects for rehabilitation, Mr Swan relied on the fact that you have no prior nor subsequent convictions; your young age; your demonstrative remorse; the implementation of an NDIS plan; and the strong support of your adoptive family. He submitted your prospects would be significantly enhanced if you were permitted to undertake appropriate counselling.
79Mr Swan also relied on the fact that you entered your pleas of guilty at the earliest opportunity, and these provide for significant utilitarian benefits. He said that imprisonment should be a sentence of last resort, and that the protection of the community was best achieved through your rehabilitation.
80Mr Swan said he was not able to find a comparable case that shared similar objective and subjective features. He nevertheless referred to the decisions of DPP (Cth) v Walls[16] and DPP (Cth) v Singh.[17]
[16][2014] VSCA 323
[17][2017] VSCA 146
81Ms Brown submitted that there was no evidence of your remorse in circumstances where you were not able to appreciate the impact of your offending. She relied on the decision in The Queen v Barbaro and Zirilli.[18]
[18][2012] VSCA 285
82With regard to the question of harm, there are clearly two victims, and so the presumption operates in respect of them. In relation to the seven persons with whom you communicated in Charges 6 to 22, as I understood Ms Brown’s submissions, it was said that in some cases at least I could draw an inference beyond reasonable doubt that those recipients who provided you with photographs were under sixteen years of age.
83With regard to sentence, Ms Brown submitted that a recognisance release order was appropriate after you served some time in custody. She submitted that having regard to the period of time over which you offended, the number of victims involved, and the entrenched nature of your conduct, a sentence requiring you to spend some time in custody is the only appropriate disposition.
84At the conclusion of the plea hearing, both parties agreed that I should defer sentence to allow you an opportunity to undertake treatment with Mr Peter Hanley. Ms Brown stated that the prosecution may change its view if real progress could be made in one-on-one sex-offender treatment. Accordingly, I agreed to defer sentence and adjourned your matter for further plea on 27 May 2021.
85On 27 May 2021 Ms Miller appeared on your behalf in place of Mr Swan. Exhibits D11 to D16 were tendered on your behalf.
86Notwithstanding the deferral and your participation in further psychological counselling, Ms Brown submitted that it was still the position of the Commonwealth Director that I impose an actual gaol term to be served. However, the further documents tendered on your behalf had not been provided to Ms Brown or her instructors, so further time was allowed for the prosecution to consider those documents.
87On this occasion the possibility of a Community Correction Order (CCO) with a condition that you participate in a Justice Plan was also discussed. The parties were not in agreement as to whether I had the power to make such a sentencing disposition in respect of Federal offences. In the circumstances, your case was adjourned to 21 July 2021 for further plea.
88Before the further plea on 21 July, Ms Millar filed written submissions dated 20 July 21 (exh. D17) and tendered a further psychological report from Mr Hanley (exh. D18) and four reports from behaviour therapist, Jennie Li (exh. D19). However, because of technical issues, the plea was not able to proceed in a satisfactory manner and had to be adjourned. It was agreed that I should seek a pre-sentence report including your eligibility for a Justice Plan notwithstanding the Director’s position that neither were appropriate.
89Since then, I received on 28 July 2021 and considered undated submissions headed “Further Crown submissions on sentence”, and further defence submissions dated 11 August 2021. These documents have been tendered and marked Exhibits P2 and D20 respectively.
90In its further submissions, the prosecution maintained that the only appropriate disposition is a term of immediate imprisonment. In addition to matters previously submitted, it was submitted there is an immediate risk to the community, notwithstanding the period of non-offending since you were charged. It was noted that Mr Hanley considered that a genuine reduction in risk was expected over the medium term, not the short term. Furthermore, whilst noting your engagement with Ms Li of Butterfish Services, it was submitted the benefits from such engagement in reducing the risk of recidivism are yet to be seen.
91Further, the prosecution maintained that I am precluded from attaching a condition to a CCO directing an offender to participate in a justice plan. The following submissions were made:
(i)Part 3BA of the Sentencing Act 1991 (Vic), which contains the justice plan regime, is not prescribed for the purposes of s20AB of the Crimes Act 1914 (Cth).
(ii)The Crimes Act 1914 (Cth) otherwise provides for the sentencing of persons suffering from mental illness or intellectual disability in Division 9.
(iii)Sections 20BS−20BY impliedly exclude the operation of alternative state laws relating to the sentencing of persons suffering from an intellectual disability.
(iv)The Crimes Act provisions were intended to be exhaustive in respect of federal offenders suffering mental illness or intellectual disability and the consequences that flow from such a finding, therefore s68 and s79 of the Judiciary Act 1903 (Cth) do not operate to pick up any state provisions that set out the consequences of such a finding.
92It was further submitted that while Part 1B Crimes Act creates a separate regime for sentencing federal offenders, the effect of s20AB is to supplement that regime with CCOs made under Part 3A of the Sentencing Act 1991 “so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth”.[19]
[19] Section 20AB(3)
93It was submitted that in relation to intellectually disabled offenders, the Justice Plan regime set out in Part 3BA of the Sentencing Act is so close to the regime in Division 9 of Part 1B of the Crimes Act 1914 (Cth), in particular s 20BY, that it can be said that the Commonwealth provisions in Division 9 of Part 1B “cover the field”. In this way, it was submitted, the availability of a justice plan as a condition of a community correction order is inconsistent with the Commonwealth Act.[20]
[20] Ibid [37]
94Thus, it was submitted, that while for State sentencing purposes a Justice Plan may be attached to a CCO (or an adjourned undertaking), it is not so clear that a Justice Plan condition may be attached to a CCO imposed for a Commonwealth offence.
95While there is no direct appellate authority on point, the prosecution relied upon the decision in the New South Wales Court of Criminal Appeal, Kelly v Saadat-Talab,[21] at [27]−[28].
[21][2008] 72 NSWLR 305
96The prosecution further submitted that whilst there was no appeal in the decisions of Cone[22] and Cameron,[23] decisions relied on by Ms Millar, in the first case the Director conceded a community correction order was appropriate, and in the latter case the Director conceded a recognisance release order with the offender being released forthwith was an appropriate disposition.
[22] The Queen v Cone(pseudonym) [2019] VCC 2241
[23] DPP(Cth) v Cameron [2020] VCC 1506
97In response, Ms Millar, in her written submissions dated 11 August 2021, submitted that a Justice Plan is not a sentence, but a condition that may attach to a sentence such as a CCO. Furthermore, s20AB of the Crimes Act 1914 (Cth) is not prescriptive. Ms Millar pointed out that s20AB(1AA)(a) contains a list of sentences or orders that a State court may make in respect of federal offences and noted that ss(1AA)(b) states that in the alternative to the list in (a), a State court may impose a sentence or order which is “similar to a sentence or order to which paragraph (a) applies”. Thus, it was submitted, the list in (a) is not prescriptive or exhaustive.
98Reliance was also placed on s20AB(4)(c) which states that where a court passes a sentence, or makes an order under ss(1) in relation to a Commonwealth offence, the court may also “make any other order that the court is empowered to make”.
Sentencing considerations
99I will deal first with the submission that a justice plan is not available under the federal sentencing regime.
100I have had regard to the competing submissions of the parties and, in particular, the decisions in Cone and Cameron, both decisions of this Court.
101In Cone, Judge Fox, as her Honour then was, rejected a similar prosecution argument. Her Honour analysed the relevant provisions of the Crimes Act 1914 (Cth).[24] At paragraph 51, her Honour stated the following:
“In my view, Division 9 does not expressly or by implication make exhaustive provision for the sentencing of intellectually disabled offenders, nor does it create a Commonwealth legislative scheme relating to the sentencing of intellectually disabled offenders which is “complete upon its face” and which may be “seen to have left no room” for the operation of s.47(2)(b) of the Sentencing Act. Division 9 of the Crimes Act provides one additional option for this Court, which is to convict the offender and impose a program probation order. It cannot reasonably be implied that by enacting Division 9, including s.20BY, the Commonwealth was intending to express exclusively what shall be the law governing the sentencing of intellectually disabled offenders.”
[24]See paragraphs [36]−[54]
102I agree with what is set out in the above passage. I also agree with her Honour’s conclusion that a Justice Plan is not a separate sentencing disposition. As set out in s 80 Sentencing Act 1991 (Vic), a Justice Plan is a condition that may only be imposed if a CCO, or a release on adjournment with or without conviction, is made.
103Judge Tinney, in Cameron, came to a similar view. His Honour said of a similar prosecution argument that it “elevates a justice plan to a sentencing disposition.”[25] It is clear that a Victorian court cannot sentence someone to a Justice Plan. It can only attach such a plan as a condition of two specified sentencing orders.
[25] At [76]
104Whilst neither decision is binding, I agree with the conclusion that a Justice Plan may attach to a CCO when sentencing an offender charged with a federal offence.
105Furthermore, I do not consider that the prosecution derives assistance from the New South Wales Court of Appeal decision in Kelly v Saadat-Talab.[26] I agree with the defence submission that the case is distinguishable. Kelly was concerned with the terms of s 20BQ in Division 8 Crimes Act1914 which, according to Allsop P, comprised on their face an intended regime of treatment in summary jurisdiction of the mentally ill. The terms of s 20BQ are significantly different to the terms of the provisions in Division 9, in particular s 20BY, which section is relied on by the prosecution. A significant difference, to my mind, is that unlike s 20BQ, s 20BY does not contain the words “otherwise in accordance with law”. At [39] Handley AJA stated:
Critically for present purposes s 20BQ(1)(b) provides that a Federal offender who is suffering from a mental illness etc may be dealt with under the section, instead of “otherwise in accordance with law”.
[26] [2008] 72 NSWLR 305; [2008] NSWCA 213
106The analysis of s 20BQ’s terms and history by the Court in Kelly does not readily translate to the provisions in Division 9 of the Crimes Act 1914.
107In my opinion, I am not precluded from attaching a Justice Plan as a condition of a CCO, as contended by the prosecution.
108A Justice Plan dated 19 October 2021 has been filed with the Court. Recommendation 1.1 is that you engage with a Disability Justice Coordinator from the Department of Families, Fairness and Housing for the duration of the order, participating in further planning and services as required. One of the recommendations is that you continue to participate in the sex offender treatment program with Mr Hanley for as long as he deems it necessary.
109The offences before the Court are now almost two years old. You have lived with the offences hanging over you for a considerable period of time. You were first interviewed by police on 4 April 2020. Furthermore, you have been on strict conditions of bail since 15 July 2020. The conditions include that you reside at a particular address and that you not access internet, social media or any online service except for specific accepted reasons. You are also required to notify the informant of any new mobile phone number and corresponding service provider. You have complied with your conditions of bail.
110You first appeared before me on 20 November 2020, at which time sentencing was deferred. During the intervening period, you have continued with your treatment, particularly the sex-offenders treatment program with Mr Hanley. You have also received assistance through other professional organisations. You have complied with all requirements of those treating you. Most importantly, you have not reoffended.
111You have pleaded guilty to all the charges at the earliest reasonable opportunity. You were co-operative with police and made admissions when interviewed. Your pleas of guilty have significant utilitarian benefits, particularly at a time of the COVID‑19 pandemic and its impact on Court lists. As was recently stated in Worboyes v The Queen:[27]
“A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”[28]
[27][2021] VSCA 169
[28] Ibid [39]
112Your pleas of guilty have spared witnesses the ordeal of having to give evidence at trial, and have saved the Court and the community the cost and time required for a trial. I accept also that the pleas reflect some remorse on your part.
113I do find that you are remorseful for your conduct. I consider the evidence of this remorse, in addition to your pleas of guilty and expressions of such remorse to Mr Hanley and Mr Cummins, is to be found in your conduct since being charged, particularly in relation to voluntarily seeking out treatment.
114I have regard also to the fact that when you committed the offences you were a youthful offender who, because of intellectual disability, was operating at a much lower level than a 20 year-old. You are now 22 years old, and rehabilitation is still a significant sentencing consideration,[29] as it is very much in the interest of the community that young persons be rehabilitated.
[29] See s 16A (2AAAA) Crimes Act 1914 (Cth)
115As to the question of rehabilitation, I have regard to the fact that you have no prior nor subsequent convictions, have the support of a good family, and that you have already embarked on the process of treatment and you are developing insight into the harm your offending has, and may have, caused others. I note, however, that according to Mr Cummins there is a low to moderate risk of you reoffending, although since he expressed that opinion you have undertaken a significant period of counselling with Mr Hanley and others. In my opinion you are capable of rehabilitation. I consider that should you continue with the psychological treatment you require, you will have good prospects of rehabilitation.
116Having regard to the evidence concerning your mental state, both at the time of offending and now, I accept the applicability of each of the Verdins principles. There is a causal link between your intellectual disability and depression to your offending. I find that your moral culpability for your offending is substantially reduced. Accordingly, and consistent with Muldrock, I am mindful that the retributive effect and the denunciatory aspect of sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a person with an intellectual disability and to the needs of the community.[30]
[30] Ibid [54]
117In my opinion, having regard to causal link between your intellectual disability and major depressive disorder there should be moderation in the weight to be attached to general deterrence, specific deterrence and denunciation.
118I do not accept the prosecution submission that the extent to which general deterrence be moderated should be reduced by reason of the period of time over which your offending took place, the targeted nature of your communications, and your deliberately lying about your age to the recipients.
119I accept that because of your intellectual disability, immaturity and major depressive disorder, a sentence of imprisonment will weigh much more heavily on you than a person in normal health. I also consider that should you be sentenced to a term of actual custody, you will be particularly vulnerable given your intellectual disability, immaturity and young age. I also find that there is a serious risk of imprisonment having a significant adverse effect on your state of mental health for reasons given by Mr Cummins.
120I accept also that you have suffered extra-curial punishment by reason of your name and photograph being reported in the print media. I was told, and accept, that as a result you lost your employment as a farmhand. You have also received a number of threats. This extra-curial punishment operates to mitigate to some degree the sentence to be imposed.
121The offences to which you have pleaded guilty are serious offences. The nature of the communications you sent bespeak of a grossly immature person with a significantly distorted view of sexuality. You engaged in the communications for your own self-gratification with no insight into the potential harmful effects of your conduct on young children. Your offending was relatively unsophisticated in that you used your own phone and name in the communications.
122In assessing the gravity of your overall offending I have regard to the period of time during which you offended. I also have regard to the maximum penalties that may be imposed, particularly those of 15 years in respect of the procuring and soliciting offences.
123Although Victim 1 and 2 did not make impact statements, the presumption of harm operates. So much is clear from Adamson v The Queen. In relation charges six to 22, the learned prosecutor submitted I could draw an inference, at least in respect to those users who provided you with photographs, that they were in fact children. On the state of the evidence I am not prepared to make that finding beyond reasonable doubt. I am not able, therefore, to find that a child suffered harm in respect to those charges. No evidence was called that would elucidate what is and what is not possible when sending pictures or videos on the Snapchat forum.
124I have had regard to current sentencing practise for similar offending. For such offending, as was said in DPP(Cth) v Singh[31] “[t]he cases show a very wide range of offending and sentencing dispositions for the offence under s 474.26(1) and like offences.” This is no doubt because of the many different ways in which these offences are committed and the different subjective features of each case. As was conceded by your counsel, ordinarily an immediate term of imprisonment is imposed, however, as the cases show not all offenders receive an immediate term of imprisonment.
[31] Ibid [62]
125In determining the appropriate sentence I have had regard to the factors in s 16A Crimes Act 1914 relevant to your case.
126Section 17A of that Act requires that I not pass a sentence of imprisonment unless, after having considered all available sentences, I am satisfied that no other sentence is appropriate in all the circumstances of the case. After careful consideration of the respective submissions of the parties, and all the material filed on your behalf, I am not satisfied that no other sentence is appropriate. In my opinion, it is open to impose a CCO with conditions. I have received a pre-sentence report which finds you suitable for such an order. I consider that such a sentence will achieve the sentencing objectives of deterrence and denunciation, having regard to the moderation required for each of these considerations, as well as just and proportionate punishment, rehabilitation and protection of the community. Because of your treatment needs and the need to punish you for your offending, the order will be for a significant period to best achieve those outcomes. I also intend to impose conditions of supervision and community work notwithstanding the recommendation of the Community Correction’s assessing officer. These are needed in view of the seriousness of your offending.
127You should understand that if you fail to comply with the terms of the CCO I am about to impose, subject to your agreement, you will be brought back before me for re-sentencing. You should also understand that if you commit similar offences in the future that you may be subject to mandatory gaol sentences of at least four years gaol. I would ask that your solicitor ensure you understand these matters.
128Mr McDonald, I am about to read out to you the proposed conditions of the Community Correction Order. I ask that you listen very carefully.
129On each of the offences you are to be placed on a Community Correction Order. The order will last for 42 months and commences on 4 November 2021 and ends on 3 May 2025. You must attend at the Horsham Correctional Services Office within two clear working days after the commencement of this order.
130The mandatory terms that apply to all Community Corrections Orders are: You must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligational requirement prescribed by regulation 17 of the Sentencing Regulations. You must report to and receive visits from the secretary or his or her delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a community corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the secretary or his or her delegate. You must obey all lawful instructions and directions of the secretary or his or her delegate.
131The additions that will apply in addition to those mandatory conditions are: You must perform 180 hours of unpaid community work over a period of 18 months, as directed by the Regional Manager. If you fail to comply with this order, the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work. You must be under the supervision of a community corrections officer for a period of 42 months. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager. You must reappear at court for a review of your compliance with the order as directed by the court. You must attend for review on 19 August 2022 at 9.30 am, at the Melbourne County Court. You must participate in the services specified in a Justice Plan for 42 months.
132The charges to which you have pleaded guilty, save for charge 5, are Class 2 offences. You will be required within seven days of today to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life under s.34(1)(c)(2). I am required to hand you certain documentation which notifies you of your reporting obligations and I will ask the Registrar of the Horsham Court to hand those to you shortly. I will also ask the Registrar to hand to you the proposed conditions of the Community Correction Order. I will ask that you sign and acknowledge that you have received the Sex Offender Register documents.
133I am going to stand the matter down now for 10 minutes. I will ask your solicitor to explain to you the conditions proposed for the Community Correction Order, to explain to you the consequences for any breach of such order including that you may be re-sentenced on the original offences and to explain to you also your obligations under the Sex Offenders Registration Act.
134When you return, I am going to ask whether you accept the conditions of the Community Correction Order. If you do not, I will have to re-consider sentence. I will stand the matter down now and I will resume at 10.40. Thank you.
(Short adjournment.)
135HIS HONOUR: Ms Millar, has your client had explained to him the requirements of the Community Correction Order and the obligations under the Sex Offenders Registration Act?
136MS MILLAR: Yes, Your Honour. My instructor I think is in the back of the court room in Horsham now and they have been through that.
137HIS HONOUR: All right, thank you. Mr McDonald, will you please stand. I understand you have had explained to you all of the conditions that I have imposed on the Community Correction Order. Is that right?
138OFFENDER: Yes, Your Honour.
139HIS HONOUR: Do you consent to being placed on the Community Correction Order for the period specified?
140OFFENDER: Yes, Your Honour.
141HIS HONOUR: Do you understand that if you breach the order, you may be brought back before me to be re-sentenced?
142OFFENDER: Yes, Your Honour.
143HIS HONOUR: All right. Well, before you leave court today, I am going to ask that you sign the order, if you haven't already done so, and also sign the acknowledgment of having received notice of your obligations under the Sex Offenders Registration Act. Okay?
144OFFENDER: Yes, Your Honour.
145HIS HONOUR: All right. Thank you. You may be seated. Pursuant to s6AAA of the Sentencing Act, had it not been for your pleas of guilty the sentence I would otherwise have imposed is a recognisance release order for a period of two years, to be released after serving a sentence of six months. Ms Stevic, are there any others which the prosecution seeks?
146MS STEVIC: No, Your Honour.
147HIS HONOUR: Ms Millar, anything further from you?
148MS MILLAR: No, Your Honour.
149HIS HONOUR: All right. Well, thank you. I will now adjourn this matter. Mr McDonald, I wish you good luck in your rehabilitation and I hope not to see you again other than for judicial monitoring, at which time I will receive a report from the Community Corrections officer who will set out how you've been performing under the order. Do you understand?
150OFFENDER: Yes, Your Honour.
151HIS HONOUR: All right. Thank you. Please adjourn the court.
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