Director of Public Prosecutions (Cth) v Rogerson (a pseudonym)
[2023] VCC 295
•2 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| LUKE ROGERSON (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 February 2023 |
| DATE OF SENTENCE: | 2 March 2023 |
| CASE MAY BE CITED AS: | DPP (Cth) v Rogerson (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 295 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 42 charges arising from the Criminal Code (Cth) – using a carriage service to transmit child pornography material – using a carriage service to transmit child abuse material – using a carriage service to access child abuse material - using a carriage service to solicit child abuse material – using a carriage service to make a threat to cause serious harm – using a carriage service to transmit indecent communications to a person believed to be or under 16 years – using a carriage service to procure a person believed to be under 16 years of age – use a carriage service to cause child abuse material to be transmitted to himself – use carriage service to harass – possess or control child abuse material obtained or accessed using a carriage service - use of Instagram and Snapchat to exploit children sexually – Category 2 child abuse material – diagnosis of major depressive disorder – associated features of traumatisation – CISP participation – youthful offender – general deterrence most important sentencing consideration – no criminal history – excellent prospects of rehabilitation – application of Verdins – early plea of guilty - life reporting period
Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Azzopardi v R [2011] VSCA 372; R v Verdins [2007] VSCA 62; Worboyes v R [2021] VSCA 169; DPP v Meharry [2017] VSCA 387; DPP v Watson [2016] VSCA 73; DPP v Ramas [2018] VSCA 290; R v Amarasinghe [2022] VCC; CDPP v Uppiah [2019] VCC 1324; DPP v Hopkins [2023] VCC 847
Sentence:Four years imprisonment with a non-parole period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Ms S. Holmes | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K. Powell | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Luke Rogerson[1], I propose to sentence you to an overall sentence of imprisonment of four years and will fix a non-parole period of two years. I will credit your 33 days of pre-sentence detention as time served.
[1] A pseudonym.
2You have pleaded guilty to 42 charges under the Criminal Code (Cth). These charges arise out of your use of Instagram and Snapchat to exploit children sexually.
3The circumstances underlying these charges are set out in a document entitled 'Preliminary Prosecution Opening for Plea'. This document is Exhibit A. Your counsel agrees with its factual content.
Circumstances
4You used four Instagram accounts and one Snapchat account, each with a false name. I will briefly describe the circumstances of each charge in the order those charges appear in Exhibit A.
Charge 1
5Between 1 July 2017 and 20 September 2019, you sent 104 images to a Snapchat user, and that user sent you nine images. Some of the images are described in paragraph 6 of Exhibit A.
Charge 2
6Between 21 September 2019 and 22 June 2020, you accessed and transmitted about 223 images and videos to the user in Charge 1, and that user sent one image to you. A sample of those images and videos are described in paragraph 8 of Exhibit A.
Charge 3
7Between 23 June 2020 and 6 June 2021, you transmitted about 39 images and videos to two Snapchat users, including the user in the previous charges. Again, samples of the videos and images are described in paragraph 9 of Exhibit A.
Charge 4
8Between 23 June 2020 and 6 June 2021, you accessed about 119 images and videos after speaking with two Snapchat users and a Snapchat group. An example is given in paragraph 9 of Exhibit A.
Charges 5, 6 & 7
9You pretended to be a 14 or 15 year old boy. Between 15 and 19 July 2020, you sent messages to two 11 year old females. Among other things, you asked one of the females to remove her crop top and show more cleavage. You told both you were 'very horny', said you would send an image of your penis and asked them to send images of their vaginas. They blocked your contact, and did so again when you tried to contact using another account. In a further contact, you threatened that they would die and you would find and hurt their families. Both feared you would carry out your threats. Your contact was reported to the police.
Charge 8
10On 10 October 2020, using Instagram, you pretended to be a 14-year-old male. You spoke with a 12-year-old female. She sent you an image of herself with a filter of butterflies on her face. You responded, 'Low key made me even harder' and 'got any in your panties?'
Charge 9
11On 10 October 2020, pretending to be a 14-year-old male, you spoke with a 13-year-old female on Instagram. After telling her you were touching your penis and it was hard, she said she was blocking you, and presumably did so.
Charge 10
12Again, on 10 October 2020, pretending to be a 14-year-old male, you conversed with a 12-year-old female. The conversation revolves around your penis and you touching it. You request she sends you more pictures of herself to enable you to ejaculate.
Charge 11
13On 10 and 13 October 2020 you spoke with an 11 year old female while pretending to a 14 year old male. The conversations were sexualised; mainly about what she was wearing and your request for images.
Charge 12
14On 11 October 2020, while pretending to be a 14-year-old male, you conversed with a 15-year-old male. You sent four images and three videos to the child and received an image of his penis and a video of him masturbating.
15Investigators described the images and videos as Category 2 child abuse material as defined in the Interpol Baseline four tier categorisation system. An annexure to the prosecution brief of evidence describes what each category involves.
Charge 13
16On 11 October 2020 you conversed with a 13-year-old male. At your request, the male sent an image of his penis. Again, at your request, the male sent a video, presumably depicting him masturbating.
Charges 18 & 19
17On 11 October 2020 again you pretended to be a 14-year-old male. You conversed with an eight-year-old male. You made repeated requests for images of the child's sister, the belly of the child's sister, and viewing the child's penis next to his sister. You received an image of two young females. You offered to pay his sister if she touched the child's penis. You asked the child to 'go next' to his sister and you would show your penis.
Charge 20
18On 11 October 2020 you conversed with a 14-year-old male; the brother of the children in Charges 13 and 19. You again pretended to be 14. After being told that the child in Charge 18 was only eight you demanded, repeatedly, images, while threatening you would post his brother's images.
Charge 14
19On 11 October 2020 you conversed with a 14-year-old male. You were again pretending to be 14. During your conversation you sent six images of a child; three of those images are categorised as Category 2. You made repeated requests to be sent images of a penis.
Charge 15
20On 11 October 2020, while pretending to be a 13-year-old male, you conversed with a 12-year-old female. At your request the female sent images of herself; one of which showed her belly, and of herself and her friend. You received images of her belly. You make references to your penis and masturbating while requesting more images.
Charge 16
21On 11 October 2020, again pretending to be 13, you conversed with a 14-year-old male. At your request, the male sent you nine images of naked females. You sent him four images, of which two are Category 2 child abuse material. They are described in paragraph 51 of Exhibit A.
Charge 17
22On 11 October 2020, again pretending to be 13, you conversed with a 15-year-old female. You asked her to send you something 'naughty', which she did. Seven days later there was a further exchange. She asked you to delete an image. You refused, unless she sent an image with her sister and showing the belly area.
Charge 21
23On 12 October 2020 you conversed with a 15-year-old female. You asked if she wanted to trade pictures of girls; she refused. Fifteen days later, you spoke again. Among other things, you asked if she wanted to see you ejaculate. She said no.
Charges 22 & 23
24On 18 October 2020 you pretended to be a 14-year-old male and conversed with a 12-year-old female. During that day, and on 1 November, there were a series of exchanges, mainly from you to her, sending different kinds of images, asking questions, and requesting her to engage in sexual behaviour with her brother. Your threat to post her images was a source of great distress to her.
Charges 24, 26 & 27
25On 25 October 2020 you conversed with a female aged between 13 and 16. While doing so, you sent two images to her. These images had come from a video. You asked her questions and requested images of her. She sent you an image. You asked for more and she sent four more. These five images are described in paragraph 68 of Exhibit A.
26You attempted to converse with her on 26 and 31 October and 8 November. She did not respond. On 12 November she responded.
27On 14 November you tell her you are touching your penis and ask her to view and send an image of her breasts. She says no.
28Later that day you threaten to put her naked pictures on your 'story' and demanded she send you a 'selfie'. You sent her two images, categorised as Category 2 child abuse material and described in paragraph 73 of Exhibit A.
29On 15 December you sent messages to her, some threatening, some wanting images while you masturbate.
30On 9 and 11 June 2021 you send messages, culminating with telling her you will pay '100 if u FaceTime while I cum'.
Charge 25
31On 31 October 2020 you conversed with a 14-year-old female. She told you she was 14. You asked her two questions and made one statement. Each was of a sexualised nature. She told you to leave her alone.
Charge 28
32On 12 and 16 October 2020 you conversed with a 13-year-old female while pretending to be a 15-year-old male. Your conversation was sexualised, including the use of the word 'freaky'. When she sent you an image you replied, 'That made me so hard'.
Charge 29
33On 19 December 2020, while pretending to be 15, you conversed with a 13-year-old male. After speaking about masturbation and asking for pictures of girls, you sent him an image of a girl.
Charge 30
34On 23 December 2020 and 19 and 20 January 2021, you conversed with a 13-year-old female. You asked her if she was 'freaky' and whether she had big breasts.
35On 26 January you sought an answer to your question about the size of her breasts.
Charge 31
36On 26 December 2020 you conversed with a 13-year-old female. You asked her if she wanted to see your penis. You offered to give her a 'shout-out' and then offered her the opportunity to use your PayPal. She rejected each offer.
Charge 32
37On 7 January 2021 you conversed with an unidentified 13-year-old male. You offered him pictures of girls. After the male called you a pervert, you threatened to send his girlfriend an image, saying the male wanted pictures of your naked sister and demanding from him a picture of a penis, presumably his, or pictures of his girlfriend.
Charge 33
38On 28, 29, 31 January and 1 February 2021, you conversed with a 16-year-old female. The conversation involved exchanging sexualised messages, a number of live video chats and receiving videos from the child. At one stage you tell her to masturbate. In the last contact she tells you she did not do everything you told her to do.
Charges 34 & 40
39On 20 January 2021, a police member sent a message to you. He pretended to be a 14-year-old female, 'Emily'.
40On 27 January you conversed with him, pretending to be a 14-year-old male. When 'Emily' tells you she is at school you ask her to go to the bathroom. You want her to see you ejaculate. You want to see her masturbate.
41There are further conversations on 2, 9, 13 February, 22 March and 8 June 2021. They are largely one sided, highly sexualised, and dealing with your masturbation and her masturbation.
Charge 35
42On 25 February 2021 you conversed with a 15-year-old female while pretending to be a 15-year-old male. You sought images of her and she sent two images of her face. You returned to your favourite topic of handling your penis and sought pictures of her belly and bra. It appears she quickly lost interest in you, even though you tried to contact her in March and April 2021.
Charge 36
43On 20, 21 May, and 2, 6 and 11 June 2021, you conversed with a 16-year-old female while pretending to be an 18-year-old male. It appears to be a lengthy conversation, mainly on your side. It is highly sexualised. Judging from your comments and requests it appears the female is doing some of the things you have asked of her.
Charge 37
44On 19 May 2021, and seven other times until 12 June 2021, you either conversed with or contacted a 15-year-old female. This time you pretended to be 17 years old. As with other charges, you instructed her on masturbation; this time using a hairbrush. She sent you a video of her masturbating. The conversations are again highly sexualised.
Charge 38
45On 24 May 2021 you conversed with 14-year-old female, telling her you were a 15-year-old male. You asked for images from her and offered some of yourself, including your penis.
Charge 39
46On 5 June 2021 you conversed with a 15-year-old female while pretending to be a 14-year-old male. You asked her for sexualised images of herself.
Charge 41
47On 12 and 14 June 2021 you and a 13-year-old female conversed. You said you were 15. There is the usual conversation about you masturbating and wanting to see her breasts. At one stage you threaten her if she blocks you. Ultimately, you send her a video of you masturbating.
Charge 42
48On 18 June 2021 the police examined your iPhone and found two video recordings; one of which they classified as Category 2 child abuse material. The contents of these videos are described in paragraph 149 of Exhibit A.
Psychologist
49Jeffrey Cummins is a clinical and forensic psychologist. At the request of your solicitors, he interviewed you on 11 October 2022 and reported[2].
[2] Report dated 18 November 2022.
50At the interview, Mr Cummins noted[3]:
'Mr [Rogerson] declined to speak in any detail regarding his offending behaviour out of a sense of shame, embarrassment, guilt, regret, remorse and, specifically, out of a sense of not knowing what motivated him to engage in the offending behaviour to which he is now pleading guilty. He eventually acknowledged having masturbated while fantasising about some of the victims of his online offending.
He eventually stated he is of the belief he became addicted to engaging in the offending to which he is pleading guilty and the main factor which contributed to his offending was a sense of boredom and the fact he sometimes - perhaps even often - offended while he was under the influence of alcohol'.
[3] At paragraphs 38 and 39.
51You told Mr Cummins of your intention never to re-offend in this way again, with your addiction to child pornography material ceasing with your arrest.
52Despite your assertion you will not re-offend in this way again, Mr Cummins assessed you as a moderate, tending to low-moderate, risk of re-offending sexually. He identified five categories of risk; low, low-moderate, moderate, moderate-high and high. He arrived at this conclusion after interviewing you and having you complete two psychological assessment tools.
53Without testing you formally, Mr Cummins considered you were slightly below average intelligence. He noted your embarrassment, shame and remorse for the offending. He excluded you as suffering from any type of personality disorder and several other common disorders.
54Mr Cummins diagnosed you as suffering from a major depressive disorder with associated features of traumatisation. Its symptoms reoccur from time to time and are of moderate severity. Your father's assault on you at the age of 12 caused the disorder. It was untreated psychologically except briefly, while you were on the Court Integrated Services Program (CISP). You treated its symptoms with alcohol and drugs.
55This disorder requires anti-depressant medicine as part of its treatment. Apart from medicines Mr Cummins considered you require mental health treatment on a one-to-one basis. Without such treatment he expected the disorder would become permanent.
56Mr Cummins also recommended offence specific treatment because he considered at the time of the offending you suffered from the symptoms of hebephilia and paedophilia. He made this recommendation despite your statement you would not re-offend again and accompanied by your expressions of remorse.
57You told Mr Cummins of your erectile difficulties. This led him to identify it, the disorder, and your use of alcohol and drugs as contributing to your offending.
58Owing to your fragile mental health, Mr Cummins expected it to deteriorate while you are in prison.
Personal
59You are now 23. At the time of your offending, you were aged between 18 and 22. You have no prior criminal history. Apart from these charges there are no other charges yet to be determined by a court.
60You have two older sisters, aged 25 and 28. Your father was an alcoholic. He was violent, especially to you. In an incident leading to your parents separation, he threw a glass jar at you. It hit your head, splitting it, necessitating hospitalisation and the insertion of eight staples. Your parents separated as a result of this incident, with your mother evicting your father. You had little contact with your father for 12 months after the separation, and none since then. The separation ended your ambition to become a motocross rider.
61Other consequences of the separation was the loss of your home, most of your family's possessions and the need to move from Beech Forest[4] to Princetown[5]. You changed schools; losing contact with your friends and the life you had enjoyed in Beech Forest.
[4] A pseudonym.
[5] A pseudonym.
62You completed Year 10 but left school during Year 11. After leaving school you started an apprenticeship in plumbing. After four years you were arrested on these matters. There was about six months of your apprenticeship to complete. During 2021 and 2022 you have performed jobs in plumbing, painting and maintenance. Presently you assist your partner's father by working in maintenance two or three days a week.
63You now live with your mother's father in Apollo Bay[6]. You have a close relationship with your mother and your sisters, all of whom are aware of the nature of the charges and support you.
[6] A pseudonym.
64Since you were 14 you have been in a relationship with Imogen[7]. Owing to your bail conditions, you live separately. She still supports you.
[7] A pseudonym.
65When you were nine or 10 a boy, aged about 16, sexually assaulted you on several occasions.
66At 13 you started using cannabis; at 14, drinking alcohol; at 16, using cocaine, ecstasy and amphetamine. Your use of cocaine, ecstasy and amphetamine was heavy between the ages of 18 and 21. During the time of your offending you were drinking alcohol to great excess. You would wake in the morning, after drinking the previous day, and still be affected by the alcohol. When initially on the Court Integrated Services Program you took Campral to counter the effects of your withdrawal symptoms.
67For the last six months you have not consumed alcohol.
Court Integrated Services Program (CISP)
68On 19 July 2021 you were bailed. One of the conditions of your bail related to the Court Integrated Services Program. You remained on the program until January of 2022. Your level of participation was very good.
References
69I have read the documents written by your mother and your employer, who is the father of your partner.
70With your mother's document, two things stand out. First, your father's failure to enter you into a motocross championship deprived you of the opportunity of becoming a Victorian champion at the age of 12. Despite the injury to your head, you trained very hard for the championship and were confident of winning. The failure to enter you was a stunning blow and you never raced again.
71Second, the advent of Snapchat before the start of your offending saw the exchange of personal and intimate details and in some way conditioned and desensitised children, including presumably you, to the seriousness of the issue. This seems to be a theory on why you behaved as you did and I give it little weight.
72Samuel Browne[8] found you a very hard worker with good skills and the right attitude, however he points out if you are convicted, he will need to dismiss you. Since avoiding a conviction is an impossibility in your case, that avenue of employment seems closed to you.
[8] A pseudonym.
Discussion
73Despite your counsel submitting a non-custodial order is appropriate, the proper application of sentencing principles requires sentences of immediate imprisonment for your offending. In arriving at the appropriate total sentence there is a legislative presumption of accumulation on individual sentences. These matters set the scene for the head sentence. As to the period you must serve, I am prohibited from ordering your immediate release from custody unless exceptional circumstances are established. None is established.
74Your offending involved at least 30 children. It occurred over nearly four years. They have the potential to cause much harm to those victims. Collectively, the charges describe a very significant level of criminality.
75Although you pretended to be younger than you were, nevertheless, you were young. Charge 1 pleads an offence occurring between 1 July 2017 and
20 September 2019. You turned 18 on 30 June 2017. Charge 42 pleads possession or control of child abuse material on 17 June 2021, when you were 13 days short of your 22nd birthday. Many of the charges assert offences occurring in the second half of 2020, when you were 21. As I said before, you are now 23. You were, at the time of your offending, and still now are a young offender; young in age, and certainly young in terms of maturity.76An offender's youth is usually a primary sentencing consideration. In Azzopardi v R, Redlich JA sets out the considerations why this is so[9]. First, young offenders are immature and more prone to make ill-considered or rash decisions. Second, young offenders have the potential to be redeemed and rehabilitated. Third, the effect of imprisonment on a young offender is more likely to impair, rather than improve that person's prospects of successful rehabilitation, however an offender's youth may give way to other sentencing considerations; in particular, general deterrence. That is so in your case, for the authorities say very clearly that general deterrence is the paramount consideration in these kinds of offences. Here, your youth becomes a lesser consideration. The demands of general deterrence does not eliminate it as a consideration, but diminishes its importance.
[9] [2011] VSCA 372 at paragraphs 34 to 36.
77Section 16A of the Crimes Act 1914 (Cth) sets out the matters, when relevant, which I must have regard when sentencing you.
78I have already described the circumstances of your offending. Charges 1 to 4 capture the total number of images and videos accessed and transmitted from 1 July 2017 to 6 June 2021, and between you and two other Snapchat users and a Snapchat group. There are 485 images and videos divided unevenly over those charges. The remaining charges concern conversations where you seek or transmit child abuse material. The other parties are aged between 11 and 16. You pretend to be younger than you are. The difference between your pretend and actual age was not large at the start, but it widened as your offending progressed.
79During some of these conversations you harass or threaten the other party. Some of the threats take the form of you saying you will post images received from these children to the public unless they comply with your demands. In one instance you offered money. In Charges 5 to 7 the threats are to do harm to two 11-year-old recipients and their families. This was very nasty behaviour. Charges 19, 22, 34 and 37 were aimed at procuring children under 16 to engage in sexual activity.
80Although only two victims have been identified, one expects many of your conversations adversely affected the children involved, and will continue to do so into the future. It may be supposed some of the images will remain on the internet and be viewable by others. There are no victim impact statements.
81For your offences general deterrence is the most important sentencing consideration. The significance of deterrence, whether general or specific, can be gauged by the maximum penalties for the various offences and the approach demanded by s19(5) of the Crimes Act 1914, as qualified by s19(6).
82As I have said, you have no criminal history. You are determined not to
re-offend in the same manner again. I note Mr Cummins' assessment of your risk of re-offending. You completed the Court Integrated Services Program successfully, you no longer consume alcohol or take illegal drugs. You have the support of your family, your partner, and at least her father; who provides you with employment, but probably no longer. Part of my assessment of your prospects of rehabilitation must flow from the deterrent effect of imprisonment. The prospect of imprisonment concerns you, as it should. The fact of imprisonment should bolster your determination not to re-offend. Overall, your prospects of rehabilitation are excellent.83For these offences, previous good character is given less mitigatory effect. In your case it is a matter of very little weight because at 23 you have not had long to enjoy good character; bearing in mind that between 17 and 21 you were not of good character.
Verdins
84In the case of R v Verdins[10] the Court of Appeal set out six principles relevant to the sentencing of a person with a mental impairment. Your counsel relies on each principle, but less so on principle 2. The Crown concedes the applicability of principles 5 and 6, but not principles 1, 3 and 4.
[10][2007] VSCA 62.
85The principles are:
(i)The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective;
(ii)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served;
(iii)Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender - whether at the time of the offending or at the date of sentence, or both;
(iv)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender and the effect of the condition on the mental capacity of the offender - whether at the time of the offending or at the date of sentence, or both;[1]
(v)The existence of the condition at the date of sentencing, or its foreseeable recurrence, may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health;
(vi)Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
[1] See, for example, Payne (supra) at paragraph 43.
86In relation to principle 1, Mr Cummins diagnoses you as presently suffering from a recognised psychological disorder and deviant sexual disorders at the time of offending. More specifically, he pointed to your inability to appreciate the true significance and severity of your offending. This was linked to your psychological state. It has a minor effect on your level of moral culpability.
87I cannot see any application of principle 2 in your case.
88Principles 3 and 4 operate to mitigate your sentences. The causes of your offending lay in your sexual deviation at the time, your sexual problems with your partner and your consumption of alcohol and drugs as a form of medication for your psychological disorders.
89It is agreed principles 5 and 6 operate to mitigate your sentences.
Maximum penalties
90Most of the offences in the charges have a maximum penalty of 15 years' imprisonment. The offences in 11 of the charges have a maximum penalty of seven years' imprisonment; those charges are 7, 8, 9, 11, 15, 21, 25, 28, 30, 31 and 38. The offence in Charge 27 has a maximum penalty of three years' imprisonment.
Guilty plea
91A chronology of court events appears in your counsel's written outline of submissions. On 22 April 2022, you indicated an intention to plead guilty to these charges at a committal mention hearing. In terms of the timing of your pleas of guilty, it was entered at the earliest reasonable opportunity.
92By pleading guilty you have saved the time and expense of a trial and allowed other trials to be listed earlier than would otherwise be the case. You have spared the two identified victims the burden of giving evidence in a trial. Giving evidence is rarely easy.
93At the present time a guilty plea deserves a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[11], where the court said:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists the courts must, in an endeavour to alleviate the strain on the system, encourage those who are accused to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
[11][2021] VSCA 169 at paragraph 35.
94Your counsel also relies on paragraph 36 of the judgment in Worboyes' case:
'There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards.
'As the judge observed in the present case, a newly sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement through mitigation of sentence to accept guilt'.
95Sufficient of those disincentives still apply to render the paragraph applicable to you.
96Your guilty pleas are evidence of your remorse for the offending. Overall, they entitle you to a very significant discount on the sentence which would otherwise have been imposed if you had pleaded not guilty, but had been found guilty.
Comparable Cases
97The prosecutor drew my attention to three judgments of the Victorian Court of Appeal[12] and provided detailed summaries of each case. My attention was also drawn to three sentencing decisions of judges of this court[13]. I will now state the sentence on each of the 42 charges.
[12] DPP v Meharry [2017] VSCA 387; DPP v Watson [2016] VSCA 73; DPP v Ramas [2018] VSCA 290.
[13] R v Amarasinghe [2022] VCC; CDPP v Uppiah [2019] VCC 1324; DPP v Hopkins [2023] VCC 847.
Sentence
98On Charge 1, I sentence you to 12 months' imprisonment;
99On Charge 2, I sentence you to 16 months' imprisonment;
100On Charge 3, I sentence you to 12 months' imprisonment;
101On Charge 4, I sentence you to 16 months' imprisonment;
102On Charge 5, I sentence you to 24 months' imprisonment;
103On Charge 6, I sentence you to eight months' imprisonment;
104On Charge 7, I sentence you to 16 months' imprisonment;
105On Charge 8, I sentence you to four months' imprisonment;
106On Charge 9, I sentence you to two months' imprisonment;
107On Charge 10, I sentence you to 10 months' imprisonment;
108On Charge 11, I sentence you to two months' imprisonment;
109On Charge 12, I sentence you to 20 months' imprisonment;
110On Charge 13 and 14, I sentence you to 20 months' imprisonment on each;
111On Charge 15, I sentence you to eight months' imprisonment;
112On Charge 16, I sentence you to 16 months' imprisonment;
113On Charges 17, 18 and 19, I sentence you to 12 months' imprisonment on each;
114On Charge 20, I sentence you to 16 months' imprisonment;
115On Charge 21, I sentence you to four months' imprisonment;
116On Charges 22 and 23, I sentence you to 16 months' imprisonment on each;
117On Charge 24, I sentence you to 20 months' imprisonment;
118On Charge 25, I sentence you to two months' imprisonment;
119On Charge 26, I sentence you to 20 months' imprisonment;
120On Charge 27, I sentence you to eight months' imprisonment;
121On Charge 28, I sentence you to four months' imprisonment;
122On Charge 29, I sentence you to eight months' imprisonment;
123On Charge 30, I sentence you to four months' imprisonment;
124On Charge 31, I sentence you to six months' imprisonment;
125On Charge 32, I sentence you to eight months' imprisonment;
126On Charge 33, I sentence you to 16 months' imprisonment;
127On Charge 34, I sentence you to 12 months' imprisonment;
128On Charge 35, I sentence you to eight months' imprisonment;
129On Charge 36, I sentence you to 16 months' imprisonment;
130On Charge 37, I sentence you to 16 months' imprisonment;
131On Charge 38, I sentence you to four months' imprisonment;
132On Charge 39, I sentence you to eight months' imprisonment;
133On Charges 40 and 41, I sentence you to 12 months' imprisonment on each; and
134On Charge 42, I sentence you to 16 months' imprisonment.
135All of the sentences start today, except for the sentences on Charges 7, 12, 13, 14, 24 and 26.
136The sentence on Charge 7 starts eight months from today;
137The sentence on Charge 12 starts 12 months from today;
138The sentence on Charge 13 starts 16 months from today;
139The sentence on Charge 14 starts 20 months from today;
140The sentence on Charge 24 starts 24 months from today;
141The sentence on Charge 26 starts 28 months from today.
142The total effective sentence is 48 months' imprisonment. I will set a non-parole period of 24 months' imprisonment.
143I declare the 33 days of your pre-sentence detention as time served under my sentences today.
Sex Offenders Registration Act
144Under the Sex Offenders Registration Act 2004 you have committed 42 Class 2 offences. You are a registrable offender and must comply with the reporting obligations for the remainder of your life.
Forfeiture
145I will make the forfeiture order in the terms sought.
6AAA
146Although I don't think it is necessary, I would say this; that in the absence of pleas of guilty I would have imposed a head sentence of 64 months' imprisonment.
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