Director of Public Prosecutions (Cth) v Robert
[2020] VCC 1857
•23 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00995
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| BENJAMIN JAMES ROBERT |
---
JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2020 | |
DATE OF SENTENCE: | 23 November 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Robert | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1857 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms R. Fleming | Solicitor for Office of Public Prosecutions (Cth) |
| For the Accused | Mr T. Antos | Joseph Burke Law |
HER HONOUR:
Introduction
1 Benjamin James Robert, you have pleaded guilty to one charge of use a carriage service to procure a person believed to be under 16 years of age, contrary to sub‑section 474.26(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances in which you came to commit that offence are set out in the Prosecution Opening for Plea dated 2 October 2020, which was tendered into evidence in the hearing of your matter and marked as exhibit A. The prosecution also relied on the Prosecution Submissions on Sentence dated 11 November 2020 and attached Table of Comparative Cases (exhibit B).
3 In addition to making oral submissions, your counsel relied on the following documents: Written Plea Submissions dated 6 November 2020 (exhibit 1); report of Pamela Matthews, psychologist, dated 27 October 2020 (exhibit 2); report of Dr Fred Wright, psychologist, dated 23 October 2020 (exhibit 3); and bundle of character references (exhibit 4).
4 Since the conclusion of the plea in mitigation of penalty, I have received from your counsel written submissions in relation to extra-curial punishment dated 11 November 2020 and a ‘Herald-Sun’ article attached, which I will now receive and mark as exhibit 5.
5 My chambers has received an email from the Commonwealth Director of Public Prosecutions in reply to that exhibit, which I will now read into evidence:
“In response to Mr Antos’s written submissions regarding extra-curial punishment following the publication of a newspaper article, prosecution submits that there is no evidence of any effect on the offender or his reputation and this is conceded at [11] of the written submissions. Further, prosecution’s position in relation to [12] is that these are a consequence of open justice, and arise as an ordinary incident and consequence of the offending. Finally it is noted that it is not uncommon for the suburb in which an offender resides to be reported by the media. In the event the Court considers there was a level of extra-curial punishment, the prosecution submits that minimal, if any, weight should be given to this factor in all of the circumstances of the matter.”
6 I will indicate that I have had regard to each of these exhibited documents, and the matters that I have just read aloud, when determining the appropriate sentence in your case.
Circumstances of the offending
7 On 13 February 2020, you engaged in communications with an undercover police officer (“UCO”) from Victoria Police on the social media application, Kik. Your account name was “Brobot” and the display name was “B Rob”. The UCO display name was “Isy Cooper”. The UCO told the offender that she was in “Y8” and was aged 14. You said that you were in your “30s” and that you felt bad because she was young, but from looking at her profile picture, she was gorgeous.
8 During the conversation, you sent the UCO a shirtless image of yourself, wearing grey-coloured pants that were pulled down at the front exposing your genital pubic hair. You then requested a photograph from the UCO, stating “what ever your comfortable with babe.” After receiving an image from the UCO, you said that she had “kissable lips” and then sent another image of yourself, this time the side of your face whilst smiling.
9 You then said that you were “very passionate and sensual” and outlined in detail how you would perform oral sex on the UCO. The UCO replied with “yeah” and you asked her to give you more of a response than “just yeah” as you were trying to give her a “sensual experience”. The UCO confirmed that she had not had sex and you said that you would “leave that part for now.”
10 On 17 February 2020, the conversation turned to meeting together in person. At first, you suggested that you could have lunch at the beach, but later began to outline in detail how you would perform oral sex on the UCO and make her orgasm. You later discussed sharing an image with the UCO, noting that you had taken the image with a view to sending it to her. Shortly after, you forwarded an image of your erect penis with the accompanying text, “ok really hope u r ok with this.”
11 The UCO told you that it was the first time she had received an image like that and you replied “well hoping I’d be the first one to make a meal out of your warm wet pussy and make u cum multiple times, while I have one of my fingers inside u …” The UCO said she had not done that before and would not know what to do. You attempted to reassure her and noted that you did not want to pressure her into anything as you were conscious that she was younger than you.
12 On 18 February 2020, the conversation moved to the messaging application, WhatsApp. Your WhatsApp user identity was displayed as “+61410319010” and the UCO’s user identity was “Isy Rose”.
13 On 19 February 2020, you forwarded an image of yourself taking a photograph in a mirror with your face concealed by the flash and the accompanying text was “yours if you want it [emoji blowing a kiss].” You then asked the UCO what she was wearing and if you could have a “sexy pic” of her. She asked what you meant by “sexy” and you replied “in your shorts and maybe your top … or your top and maybe just your underwear.”
14 You received an image from the UCO showing a young girl wearing shorts and a crop top, with her belly button exposed. You requested another image, noting that you had already sent her explicit images of yourself. The UCO asked what you wanted an image of and you said you wanted to “see something” and suggested she send an image in her bra and underwear, but said it should be something she felt comfortable in sending. You requested to see another image of the UCO and, after you received it, you said that she was “gorgeous” and that you wanted to “slide” your tongue around the UCO’s stomach and down to her “pussy”.
15 On 20 February 2020, whilst you were at work, you told the UCO that you kept thinking about her and how you wanted to give her a “good enjoyable experience” when you met in person. Whilst you were describing what you wanted to do with the UCO, you said that thinking about her and what they could do was making you feel “horny”. A short time later, you forwarded a further image of your penis before sending the following messages: “that’s how hard u make me”, “don’t stress I’m in the toilet”, “I would like for u to play with yourself babe” and “can u believe I’m still jerking off.”
16 On 21 February 2020, you and the UCO agreed to meet at 2.00pm on 27 February 2020 at the Frankston McDonald’s restaurant closest to the beach. You confirmed that you would drive to your meeting, and described the make of your car. You again outlined in detail that you wanted to perform oral sex on the UCO and make her orgasm when you met in person.
17 On 24 February 2020, you asked the UCO what she would like you to bring as this was your first meeting. She asked for chocolate and phone credits.
18 On 25 and 26 February 2020, whilst you were discussing the upcoming meeting, you said you were nervous about meeting the UCO, as you did not want to get into trouble.
19 On 27 February 2020 at approximately 1.56pm, the car that you had described was observed travelling along the Nepean Highway, driving past the McDonald’s restaurant. You then conducted a U‑turn at Davey Street, Frankston, and continued north along the Nepean Highway, again passing the McDonald’s restaurant before parking nearby. At 2.01pm, you received an image from the UCO depicting the inside of the McDonald’s restaurant. You exited your vehicle and walked to a nearby petrol station and purchased a box of Ferrero Rocher chocolates before walking towards the McDonald’s restaurant. You were arrested shortly after by police on Wells Street opposite the McDonald’s restaurant.
20 Your behaviour between 13 February 2020 and 27 February 2020 is the offending referable to Charge 1, of using a carriage service to transmit a series of communications to the recipient, “Isy Cooper”, being someone that you believed to be under 16 years of age, with the intention of procuring the recipient to engage in sexual activity with you.
Arrest, search and interview
21 At the time of your arrest, you were emotional and told police that you were not going to do anything, it is not who you were, you thought it was all just a complete joke, and your life was ruined.
22 You were cautioned and given your rights and searched. During a search of you, police located and seized a black Apple iPhone, a black Samsung mobile phone, and a box of Ferrer Rocher chocolates. You provided police with PIN numbers to both mobile phones.
23 Your vehicle was searched, and police located a black diary, with the UCO’s mobile number written under the date 19 February 2020.
24 You were taken to Cranbourne Police Station and were interviewed. You answered “no comment” to the allegations, but you did state the following:
·you were married and had three children;
·the Apple iPhone was your personal mobile, with the number 0410 319 010;
·you were driving your own 2008 Toyota Aurion;
·you arrived in the Frankston area around 2.00pm, but you would not provide the reason for being in Frankston at the time;
·when asked about the chocolates, you said that they were for your family and that you would “be a good dad and buy some chocolates”;
·you made no comment in relation to having a Kik account;
·you said you did not have a WhatsApp account;
·when shown the image of the male smiling, you stated “it appears to be me, but I didn’t send anything, no”;
·when shown the image of the penis, you denied that it was yours.
25 A subscriber check of the telephone number confirmed that it was registered with you at an address in Clyde. Analysis of your iPhone revealed that the Kik and WhatsApp applications were installed, and the phone number used to communicate with the UCO was saved under the name of “Ian Cooper.” The manual examination of the iPhone by police revealed that you revealed a photo of the inside of a McDonald’s restaurant from the contact “Ian Cooper” on 27 February 2020 at 2.01pm via WhatsApp. This appeared to be the same as the photo sent by the UCO. Police also located a Dropbox application installed on the iPhone, and in the application were a number of photos that were the same as the images sent to the UCO.
Plea of guilty and remorse
26 You were charged on the day of your arrest, and the matter resolved as a plea of guilty to the charge at the second committal mention of the hearing in August 2020. I accept and take into account that this plea of guilty was made at the earliest opportunity and I take the utilitarian benefit of your plea into account, as well as the fact that it acknowledges your remorse, which is a topic to which I will return.
Personal circumstances
27 You are now 40 years of age, and were 39 at the time of your offending. Your parents were both born in Mauritius, and came to Australia before you were born. Your parents are now both retired and were previously factory workers. I am told that you have a large extended family, and have many happy memories of family occasions playing with your cousins. Prior to school, you spent a lot of time with your grandmother, who cared for you while your parents worked and took you to and from kindergarten.
28 You attended Springvale West Primary School, then St James College in Bentleigh for Years 7 to 10, and then St Bede’s College for Years 11 and 12. You were academically average and had no behavioural problems. You were good at athletics, and worked hard academically in your senior years, but I am told that you were disappointed with your final Year 12 score.
29 During your school years, you worked at McDonald’s on the weekends and also some morning and closing shifts mid-week. Once you finished school, you worked in sales for a men’s clothing chain and as a waiter at a bar part-time. You undertook an Advanced Diploma in Public Relations at RMIT, and then went on to complete a Bachelor of Business Marketing at Victoria University, whilst you continued your part-time employment at the menswear store.
30 After finishing your degree, you obtained a sales position with TNT which you retained for six years. You moved onto other positions, including at CEVA Logistics and then to CouriersPlease, which you enjoyed, and during this time, you were promoted to managing a sales team. You were made redundant from this position in 2014, which caused you to feel deflated and lose confidence. In the next five years, you attempted to regain a position similar to that held at CouriersPlease, and returned to CEVA Logistics, however you lost this position when you were charged in relation to these matters.
31 You met your wife, Cheryl, when you were 22 years of age, and the two of you have been together for nearly 20 years. You have three daughters, now aged fourteen, eight and four. Your marriage had been a happy one, but has been challenged by your current matters; nonetheless, your wife has stayed and is supporting you. You have attended marriage counselling with your wife. In the 15 to 20 marriage counselling sessions that you have undertaken, you have been exploring the difference between emotional and physical love. Apparently, your counsellor has identified and assisted you in recognising that you equate attention with love.
32 I understand that you have also consulted Dr Fred Wright, psychologist, who has provided me with a report. Dr Wright observed that you have attended six counselling sessions, and you have been cooperative in your interactions during therapy. You have with him explored the consequences of the loss of your professional employment, and associated loss of confidence in yourself. He has treated you with dialectic behavioural therapy, and recommends that you continue this treatment for your circumstances.
33 Prior to the commission of this offence, you were a man of good character, which I accept and take into account in mitigation of sentence. I have received a bundle of character references on your behalf which I have read and considered carefully.
34 Your parents wrote a joint reference, and told me that when they were told that you were charged with this crime, they were completely shocked. They otherwise describe you as a very responsible adult, loved by all your family and friends, one who loves to make people happy and laugh. Growing up, you were always a good child, kind and responsible who always goes above and beyond to help your loved ones. They describe you as being so very ashamed of your behaviour, and very remorseful of your actions.
35 Your good friend Maddison Creighton told me that she has always found you to be extremely kind, dependable and genuine, with admirable qualities including compassion, empathy, a gentle nature, a willingness to help others, and dedication and love for your family. She also knows you to be very remorseful, upset and ashamed of your actions. She will continue to support you and your family.
36 Your wife Cheryl told me that she was extremely shocked to hear of the charge. She considers you an attentive and caring husband and father, a fun loving dad, who is hard working and always willing to help family and friends out. She also considered you to be upset, ashamed and remorseful. She will do whatever she can and whatever it takes to support you so that you both can rebuild your family again.
37 I accept that your actions have caused you a profound fall from grace, and the consequences which may include your future difficulties in obtaining employment, and participating in your children’s schooling and extra-curricular activities, will be a continuing reminder of the gravity of your conduct and the concerns that the community holds in relation to these types of offending.
38 Since the conclusion of the plea in mitigation of penalty, your counsel has brought to my attention via Exhibit 5 that one newspaper published a report of your criminal proceedings and used an unflattering adjective to describe you. It has since been submitted by your representative that, whilst conceding that there is at present no evidence to suggest how or what actual effect the article has had upon you and your reputation, that the article identified your suburb, there is a greater burden placed upon you and your family within the local community as a result of its publication. It was, therefore, submitted, that this, and the shame that the article brings upon you and your family represents a special burden that is incidental to the sentence I am obliged to pass upon you. It thereby followed that I should allow some mitigation of sentence having regard to the degree of extra-curial punishment that the article has brought, and that the article serves as a partial deterrent from further criminal activity.
39 In reply, the prosecution submitted that the article is a natural consequence of the presumption of open justice, and that it is not uncommon for the suburb in which an offender resides to be reported by the media. In the event that I was to find that there was a level of extra-curial punishment, the prosecution submitted that minimal, if any, weight should be given to this factor in all the circumstances of the matter.
40 In the circumstances I consider that whilst most of the article itself is unobjectionable given our system of open justice, that the use of the expressions, “sicko,” and “child sex fiend” was gratuitous and unnecessary and though it is a matter of some speculation as to the level of readership of this article and the span of time it may be publicly available, I allow some modest mitigation of sentence in the exercise of my discretion to accommodate this fact.
41 You were assessed by Pamela Matthews, forensic psychologist, and she has provided me with a report.
42 As part of her history of you, Ms Matthews reported to Ms Matthews that you would consume alcohol once a week on a Friday night, having a couple of drinks. You report no history of illicit drug use and no history of gambling. You now believe that you suffered low level depression for a long time after your first redundancy, but until now you have never addressed your mental state. You are experiencing feelings of depression and anxiety relating to your current legal matters. You are not on any medication for a physical condition nor for your mental health. I note that the Department of Health and Human Services has obliged you to engage with a psychologist, and that your contact with your children is to be supervised by your wife or the paternal grandparents. You are not to undertake personal tasks with your children, or communicate with your children by text or social media messaging, to abide by your current bail conditions.
43 To Ms Matthews, you presented as depressed and anxious. You are continuously ruminating about your legal matters and the impact that those matters have had upon your family. Whilst you have a desire to punish yourself, you have no intention of acting out on those ideas as it would cause further distress to your family. Ms Matthews considered that your educational and employment history indicate that you are estimated to function cognitively in the average range.
44 Ms Matthews administered empirical testing and noted that your clinical profile revealed no marked elevations that should be considered to indicate the presence of clinical psychopathy. In relation to your transient depression and anxiety over the past six years, in her opinion, those mood states are not accompanied by sufficient symptoms to meet a DSM‑V diagnosis for persistent depressive disorder, nor major depressive disorder.
45 In Ms Matthews’ analysis, after utilising relevant clinical tools, she has opined that you are a Moderate-Low Risk of sexual recidivism. She notes that you present with problems in self-awareness, in that you are not able to proffer an explanation for your interest in the UCO, posting as a 14 year old girl. This to me is not satisfactory. She infers that you have low self-esteem and a fragile sense of self, who has relied on bolstering those aspects of self through self-enhancing behaviours. Your focus on the attention of women as a source of self-enhancement appears to be related to an ambivalent attachment to your mother. In her extrapolation of your circumstances, your two consecutive redundancies in the past six years have seemingly further undermined your self-esteem and sense of self, a psychic wound as such, leading to his seeking self-enhancement via social media. You admitted that your social media activities have increasingly involved sexual chat with strangers. This is the milieu in which your current offending has occurred.
Prospects for rehabilitation
46 I indicate that I share Ms Matthews’ view that, given your lack of criminal history, your good work history in spite of setback, the continued support of his wife, parents and friends, and your engagement in treatment, I consider that you have good prospects for rehabilitation. I also share Ms Matthews’ view that you continues to require treatment related to self-esteem, self-doubt, and the management of your psychosocial stressors, and you would also benefit from engagement in a sex offenders treatment program.
Sentencing principles
47 As has properly been conceded by your counsel, your offending is objectively serious and grave.
48 I accept the prosecution’s submissions, with which no issue was taken by your counsel that offending involving online sexual activity with children is difficult to detect given the anonymity provided by the internet, and that there is paramount public interest objective in promoting the protection of children, as online child exploitation offences are not victimless crimes.
49 You were told from the very outset of your conversation with “Isy” that she was 14 years old and in “Y8”, and you proceeded with an intimate and sexualised conversation with her. Four days later, you are proposing meeting this person whom you believed to be a young teenager, you were suggesting very explicitly performing oral sex on her; then you sent a picture of your erect penis to her. The deeply explicit conversation continued and you requested she send intimate images to you.
50 Within the two weeks that followed your initial conversation, you had agreed to meet explicitly to further the sexual purposes that you had discussed and you were caught by police attempting to meet her with the chocolates that she had requested in your possession. You were 39 years old.
51 It is well-established that it does not mitigate your offending that the person to whom your communications were made was, unbeknown to you, an undercover police officer.[1]
[1]DPP v Gajjar [2008] VSCA 268, [44], [46].
52 It was submitted by the prosecution, and accepted by your counsel, that deterrence, both general and specific, is the paramount sentencing consideration[2] In such cases, less weight, relatively speaking, will be afforded to what might otherwise be significant mitigating factors.
[2]DPP v Singh [2017] VSCA 146, [45].
53 The authorities make it clear that this offence usually merits a term of immediate imprisonment, and that lesser sentencing dispositions should be very rare, though it has been noted that there will be some cases where it is open to the sentencing judge not to impose a term of imprisonment having proper regard to the parsimony principle of sentencing (Crimes Act 1914 (Cth), s17).
54 The prosecution has submitted a sentence involving some immediate custody is necessary prior to your release on a recognisance release order. Your counsel has not conceded that.
55 I must be satisfied, having considered all other available sentences, that no other sentence is appropriate in all of the circumstances of the case.
56 Rehabilitation, of course, remains a relevant sentencing purpose, and I must impose a sentence that, whilst providing for deterrence, punishment and denunciation of your conduct, allows for your continued rehabilitation.[3]
[3]Crimes Act 1914 (Cth), s16A(j)-(k).
57 I accept that the central requirement in imposing a sentence upon your charge is to impose a proportionate sentence that is appropriate in severity in all the circumstances of the offence.[4]
[4]Crimes Act 1914 (Cth), s16(1).
58 I was provided with a table of comparative sentences by the learned prosecutor, including 11 previous intermediate appellate decision cases, which I have considered carefully.[5]
[5]R v Poynder (2007) 171 A Crim R 544; DPP (Cth) v Hizhnikov [2008] VSCA 269; R v Gajjar [2008] VSCA 268; Rampley v R [2010] NSWCCA 293, R v Fuller [2010] NSWCCA 192; R v Nahlous (2013) 273 FLR 232; DPP (Cth) v Walls [2014] VSCA 323; R v Gifford [2016] NSWCCA 302; Meadows v The Queen [2017] VSCA 290; DPP (Cth) v Singh [2017] VSCA 146; Moore v The Queen [2018] NSWCCA 26.
59 I note, of course, that comparable cases serve two purposes: first, they provide guidance as to the identification and application of relevant sentencing principles; and secondly, comparative sentences may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence.[6]
[6]R v Pham (2015) 256 CLR 550, [26]
60 I consider these sentences as yardsticks that may be used to illustrate, although not define, the possible range of sentences available.
61 I note that should I sentence you to immediate custody, it coincides with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus. A sentence would necessarily involve an initial two week isolation period, and you might be deprived of some of the ordinary concomitates of custody, such as face to face visits, courses and employment activities. I take these matters into account in mitigation of sentence and also that this would be not only your first court conviction but also your first period in custody.
Sentencing submissions
62 I have reflected on these submissions exceptionally carefully.
63 Ultimately, I am of the view that to accede to your counsel’s submission would result in the imposition of a sentence which is not of a severity appropriate in all of the circumstances of the offence.[7]
[7]Crimes Act 1914 (Cth), s16A(1).
Sentence
64 On Charge 1, of use a carriage service to procure a person believed to be under 16 years of age, you are convicted and sentenced to two years' imprisonment, to be released after nine months’ imprisonment upon your willingness to enter into a recognisance to be of good behaviour for two years. If you are willing to enter into this recognisance, it will be in the sum of $1,000 and if you are of good behaviour, then you will not need to pay that. Mr Robert, are you willing to enter into that recognisance? Mr Antos, do you need a moment to advise you client, sir?
65 MR ANTOS: If I could approach, Your Honour.
66 HER HONOUR: Yes, of course.
67 MR ANTOS: Thank you for that time, Your Honour. He will address Your Honour now. I do not know if Your Honour can hear him.
68 HER HONOUR: Yes. Thank you, Mr Robert. Are you willing to enter into a recognisance to be of a good behaviour for two years on a promise of $1,000?
69 OFFENDER: Yes.
70 HER HONOUR: Thank you very much. You may be seated, sir.
71 As your charge is a Class 2 offence under the Sex Offenders Registration Act 2004 (Vic), and a registrable offence, you are obliged to comply with the reporting obligations as set out in that Act for a period of eight years.
Section 6AAA Sentencing Act 1991 (Vic) declaration
72 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to two year and six months' imprisonment with release after 15 months on a recognisance release order.
73 Now, that concludes my reasons for sentence. We will wait for the Commonwealth DPP to draw up their recognisance release order. Ms Fleming, are you willing to do that?
74 MS FLEMING: I will send that through to your associate shortly.
75 HER HONOUR: Yes. Thank you. And my associate will then go down into the cells to provide the package of information in relation to the sex offender registration obligations and we will look forward to a signed receipt from Mr Robert and we will also trouble Mr Robert please to sign that recognisance release order.
76 Thank you very much. We will now stand down until 11.30 this morning.
77 MS FLEMING: Sorry, it is 12 - - -
78 HER HONOUR: Thank you.
0
12
0