Director of Public Prosecutions (Cth) v Stanley (a pseudonym)
[2020] VCC 898
•19 June 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS(Cth) |
| v |
| RUSSELL STANLEY (A PSEUDONYM)[1] |
[1] To ensure no identification of a victim of sexual offending or family violence, these reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the offender and all victims. A schedule of substitutions will be retained by the Court for future reference.
---
| JUDGE: | HER HONOUR JUDGE CARLIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 May 2020 |
| DATE OF SENTENCE: | 19 June 2020 |
| CASE MAY BE CITED AS: | DPP (Cth) v Stanley (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 898 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Sexual exploitation of female children aged 11-16 over the internet; persist breach of family violence intervention order; similar prior offending on sexual exploitation charges; offender has mild intellectual disability; reduced moral culpability on some charges; prospects of rehabilitation guarded
Legislation Cited: Criminal Code (Cth); Family Violence Protection Act 2008 (Vic); Sentencing Act 1991 (Vic); Commonwealth Crimes Act 1914 (Cth)
Sentence: Three years and nine months imprisonment with none parole period of two years; aggregate $3000 fine on family violence charges; sex offence registration for life---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms K. Breckweg | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms S. Buckley | Victoria Legal Aid |
HER HONOUR:
Introduction
1Russell Stanley, between 12 February and 24 July 2019 you, a then 27-year-old man, used your mobile telephone and social media accounts to sexually exploit eleven people you believed to be girls aged between 13 and 16.
2Your offending was detected because unbeknownst to you, one of the people with whom you were communicating was a covert police operative from Queensland. When it was discovered you were based in Victoria, Queensland Police referred the matter to Victoria Police. You were arrested in Ararat on
25 July 2019 and interviewed. Examination of your mobile phone prior to interview revealed that you had been in contact with a number of females, including, in breach of a Family Violence Order, your ex-partner.3At the conclusion of the interview you were charged in relation to your communications with the Queensland Police operative and your ex-partner and remanded in custody, where you have been ever since.
4Later forensic analysis of your mobile phone revealed that you had four Facebook/Facebook Messenger profiles; one Snapchat account[2]; and an Optus mobile phone account. Multiple chat logs extracted from these accounts exposed your offending in relation to the other ten people who appeared to be girls. Of those ten people, one was identified as another covert police operative, this time from South Australia, six were established to be young girls and three were never identified.
[2] Snapchat is a mobile telephone application in which users can communicate via text message, exchange of images and voice calls. By default, images exchanged via the app can only be viewed for for a short time before becoming inaccessible. However, text messages are stored in the app’s data and – unless deleted – can be accessed at a later time.
5On 29 May 2020 you pleaded guilty before me to the following:
Four rolled up charges of transmitting indecent communication to a person who was, or you believed to be, under the age of 16, using a carriage service, contrary to sub-section 474.27A of the Criminal Code (Cth), being Charges 1, 3, 7 and 10. These charges comprise your sending of indecent and sexualised messages to four different people, one of whom was the Queensland covert operative.
The maximum penalty for this offence is seven years' imprisonment.
Four charges of Persistent Contravention of Family Violence Order, contrary to sub-section 125A(1) of the Family Violence Protection Act (Vic), being Charges 2, 4, 6 and 18. These charges relate to four separate periods of less than 28 days during which you messaged or called your ex-partner on three or more occasions.
The maximum penalty of this offence is five years' imprisonment.
Five charges of using a carriage service to groom a person who was, or you believed to be, under 16 years of age for sexual activity, contrary to sub-section 474.27 of the Criminal Code (Cth) being Charges 5, 9, 11, 13, and 14. These charges comprise sending messages to five different people, one of whom was the South Australian covert operative, for the purpose of enhancing your prospects of a sexual liaison.
The maximum penalty for this offence is 12 years' imprisonment.
One charge of causing child pornography material to be transmitted to yourself using a carriage service, contrary to sub-section 474.19(1)(a)(ii) of the Criminal Code (Cth), being Charge 8. This charge relates to you persuading your 16-year-old victim to send you photographs and a video of her masturbating.
The maximum penalty for this offence is 15 years' imprisonment.
Two charges of using a carriage service to menace, contrary to
sub-section 474.17(1) of the Criminal Code (Cth), being Charges 12 and 17. These charges comprise messages you sent to two different people in which you threatened the boyfriend of one of them and encouraged the other to carry out her threats to kill herself.The maximum penalty for this offence is three years' imprisonment.
One charge of procuring a person under 16 years of age for sexual activity using a carriage service, contrary to sub-section 474.26 of the Criminal Code (Cth) being Charge 15. This relates to your making plans to meet up with your 15-year-old victim in order to have sexual intercourse.
The maximum penalty for this offence is 15 years' imprisonment.
One charge of using a carriage service to engage in sexual activity with a person under 16 years of age, contrary to sub-section 474.25A(1) of the Criminal Code (Cth), being Charge 16. This relates to an occasion where you coerced your 15-year-old victim to masturbate during a telephone call with you.
The maximum penalty for this offence is 15 years' imprisonment.
6After a plea on your behalf, it now falls to me to sentence you for your conduct. Your counsel, Ms Buckley, submitted that a recognisance release order was within range on the Commonwealth offences and appropriate in your case. Such a sentence is only available if the total effective head sentence does not exceed three years, otherwise a non-parole period must be imposed. The prosecutor, Ms Breckweg, submitted that a sentence involving a non-parole period was within range on the Commonwealth offences.
7As you have been charged with both State and Commonwealth offences your sentencing is governed by two different Acts with largely coincidental sentencing criteria. In sentencing you on the State offences I must take into account the factors set out in s.5(2) of the Victorian Sentencing Act 1991, whilst on the Commonwealth offences I must have regard to the factors set out in s.16A(2) of the Commonwealth Crimes Act 1914. These factors are not exhaustive. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
Circumstances of Your Offending
8The agreed Summary of Prosecution Opening tendered on the plea as Exhibit A sets out the circumstances of your offending in detail. In summarising your conduct in these remarks, I will adopt the Crown suggested pseudonyms for the complainants of the Commonwealth offences to protect their identity as child witnesses and victims of sexual offences or as undercover operatives. I will also adopt a pseudonym for your ex-partner to protect her identity as a victim of family violence.
9On 10 February 2019, you initiated contact via Facebook Messenger with a Facebook profile appearing to belong to a 14-year-old girl named Kaitlyn Keegan[3]. Kaitlyn was in fact the Queensland Police covert officer. You gave Kaitlyn your mobile number and continued the conversation via text messages.
[3] A pseudonym.
10On 12 February 2019, you told Kaitlyn she was cute. She told you she was
14 and you said you were 24. You both agreed that the age difference did not matter. You then sent Kaitlyn a number of sexually charged and indecent messages. Using crude language, you questioned her about masturbation, told her how much you enjoyed cunnilingus and sex and told her that you wanted to perform cunnilingus on her. You also told her that you owned six farms throughout Australia and that you were getting your ‘plane’ ready.11Similar exchanges occurred between you and Kaitlyn on 22 and
25 February 2019 during which she reinforced the fact she was 14 and you told her, ‘there is only one way to learn’, after she indicated her sexual experience was limited. In crass terms you discussed the sexual activity that might occur between you.12Your communications with Kaitlyn between 12 and 25 February 2019 constitute Charge 1 - indecent communication to a child you believe to be under 16.
13Between 2 and 22 April 2019, you communicated with Rebecca Dovey[4], via your Snapchat account. She told you she was 15 years old. The conversation was sexualised from the outset. You told her she was, ‘cute as fuck xx'; asked whether she was a virgin and whether she liked to fuck or have someone go down on her. You asked about the size of her breasts, sent her a photo of an unknown female (or females) and suggested a threesome. At one point you told her that you would be back soon, and you were just getting your ‘plane’ ready. After Rebecca refused to engage you told her she was ugly and to delete your Snapchat contact.
[4] A pseudonym.
14Your communications with Rebecca constitute Charge 3 – indecent communication to a child you believe to be under 16.
15From 22 May to 4 June and again from 20 June to 10 July 2019, you communicated with Hasna Aswad[5], via Facebook Messenger, intending to facilitate a sexual encounter with her. Hasna’s identity has never been confirmed, however, when you told her you were 21 she said she was 15 and too young for you. Not deterred, you proceeded to try and persuade her to break up with her boyfriend by professing your love for her and promising her happiness and a lavish lifestyle. You told her you owned six farms and houses around Australia, and she could have anything she wanted. You also introduced heavy sexualised talk, such as asking in crude terms about the size of her breasts and vagina and describing what you would do during sexual intercourse with her. You also sent her images of unknown females and asked if she wanted a threesome.
[5] A pseudonym.
16This conduct constitutes Charge 5 - Grooming a child under 16 for sexual activity.
17Between 15 and 29 June 2019, you communicated with Mariam Gale[6] via Facebook Messenger. You told her you were 22 years old and she said she was 13. You told her that her profile picture was, ‘hot as f***’, and asked if she was wearing underwear. You said you could still have fun even though she had a boyfriend. You again bragged that you owned six farms and a ‘plane’ and could give her the best lifestyle ever and whatever she wanted. You said: 'I bet your boyfriend couldn’t afford to go and pay $95,000 for a ute like I did’. You asked about her virginity, told her you were horny and asked if she was horny too. You also sent her photographs of unknown females with whom you claimed to have had a threesome, saying that had she, ‘played [her] cards right’, she could have been involved.
[6] A pseudonym.
18This communication with Mariam constitutes Charge 7 – indecent communication to a child you believed to be under 16.
19I disregard the abusive messages that were subsequently sent to Mariam from your Facebook Messenger account as they are not the subject of any charge and although it seems unlikely, they purport to be from one of the women depicted in the photographs you sent her, not you.
20On 15 June 2019, you initiated contact with Elise Cortes[7] via Facebook Messenger. Elise was a 16-year-old female with an intellectual disability, although there is no evidence that you knew that, and I therefore do not regard it as an aggravating factor. You communicated with Elise until 18 June 2019 via Snapchat, including by voice calls. You told her you were 27 and she said she was 16.
[7] A pseudonym.
21On 16 June 2019, you asked her to send you photographs and videos via Snapchat of her genitalia and her masturbating herself, which she did. As she was sending you the images you were instructing her precisely as to what she should do to herself.
22This conduct constitutes Charge 8 - causing child pornography material to be transmitted to yourself.
23Between 19 and 20 June 2019, you communicated with Angela Coppi[8] via Facebook Messenger. Angela’s identity has never been confirmed, but she told you she was 15 years old and you replied that you were 25. You then proceeded to try and facilitate a sexual liaison by gaining her trust, complimenting and romancing her and enticing her with your purported wealth, again referring to the fact you were getting your plane ready. Using crude language, you bragged about the size of your penis, told her you were horny and described what sexual acts you would perform on her.
[8] A pseudonym.
24This conduct constitutes Charge 9 - grooming a child under 16 for sexual activity.
25Between 9 and 24 June 2019, you communicated with Kristen Maier[9] via Facebook Messenger. Kristen’s identity has never been confirmed but her Facebook profile displayed her age as 14 and she told you she was 15. You told her that you were 25. On 21 June you asked about her virginity and told her about your sexual experiences in crass terms. You also bragged about the size of your penis and asked about the size of her vagina. The next day you asked her to call you on your mobile number as you were leaving Facebook.
[9] A pseudonym.
26This communication constitutes Charge 10 - indecent communication to a child you believe to be under 16.
27Between 23 and 27 June 2019, you communicated with Mirabelle Racine[10], a
13-year-old girl, via Facebook Messenger, text messages and voice calls. In response to you saying that you were 25, she said that she was 12 years younger.[10] A pseudonym.
28The messages you sent Mirabelle were designed to win her trust and affection and thereby increase the chance of you having a sexual encounter with her. You complimented and romanced her by professing your love and pretending that you really cared for her. You told her you owned a plane and six farms and tried to manipulate her into leaving her ‘cock head’ boyfriend, by saying you could offer her more than he could, that you would wait for her and that you did not just want her for sex. When she told you that she was in hospital after stabbing herself three times in a suicide attempt you said, ‘I’m here for you, babe x’.
29Your exchanges with Mirabelle were often explicitly sexual. You asked her about her breast size, told her she made you horny and when she indicated she was masturbating, asked her for details. At one point when she said she was in a car headed for school you said 'sexy schoolgirl’.
30Your conduct in sending these messages to Mirabelle constitutes Charge 11 - grooming a child under 16 for sexual activity.
31On 23 June 2019, you gave Mirabelle your mobile phone number and then spoke to her on the phone. It appears another person - seemingly Mirabelle’s boyfriend – joined the conversation because shortly after the call concluded you sent Mirabelle a number of threatening messages including:
‘tell him I’ve got 2 bullets with his name on them’;
‘I own a farm near Perth so he better watch out’; and
‘He has no idea who he is fuckinh [sic] with’.
32You also said that you were part of the German mafia.
33These threatening messages constitute Charge 12 – using a carriage service to menace.
34On 28 June 2019 you initiated contact via Facebook Messenger with a Facebook profile appearing to belong to a 14-year-old girl named Abby Ibbott[11]. Abby was in fact a South Australian Police covert officer. You told her you were, ‘way older’, than she was. You communicated with Abby until 9 July 2019, promoting the idea of a sexual encounter. As with your other victims, you enticed her with your purported riches, romanced her and introduced explicit sexual talk including asking her about her breast size, dress length and neck kissing. You also sent her a photo of an unknown female you described as a 15-year-old virgin. You said you had shown her, ‘how to do it’, and wanted to, ‘teach’, Abby as well. You asked Abby to call you on your mobile number.
[11] A pseudonym.
35Your messages to Abby constitute Charge 13 - grooming a child you believe to be under 16 for sexual activity.
36Between 29 June and 1 July 2019, you communicated with a girl called Lien Yao[12], initially via Snapchat and then mobile telephone text messages and voice calls for the purpose of facilitating a sexual encounter with her. She told you she was 14 and on one occasion indicated her mother was around as she texted. Your communications via Snapchat have been deleted but Lien recalls you telling her that you were also 14 and after some pleasant conversation asking her for nude photographs, telling her that you were horny and sending her photographs of you masturbating your partially hidden penis. You repeatedly asked Lien via text messages to call you if she was in bed and to cuddle you. You told her that you wanted to have fun, promised her that she would, ‘love it’, and encouraged her to masturbate whilst talking to you. You also said that you did not care just about sex and that you really wanted to get to know her.
[12] A pseudonym.
37Your communications with Lien constitute Charge 14 - grooming a child under 16 for sexual activity.
38Between 5 and 24 July 2019, you communicated with a girl called Kika Sommers[13], via Facebook Messenger, Snapchat and mobile telephone text messages and voice calls. She told you she was 15 after you said you were 24. Your conversations were sexualised from the outset with you suggesting Snapchatting from bed and asking about Kika’s breast size, neck kissing, and masturbation. In crude terms you told her that you were aroused and detailed the sexual acts you would do to her, including digital, penile and oral penetration. You also repeatedly professed your love for her and promised her gifts, such as phone credit, a phone and a laptop.
[13] A pseudonym.
39Your conversations progressed to planning an actual sexual encounter. As Kika lived in South Australia, you told her you would travel there on Friday, 12 July, to meet up and have sex. You asked how you could avoid being detected by her parents and when she suggested bringing her sister and boyfriend to dinner that night you said that you wanted it to be just about, ‘me and you xx’. On 10 July 2019, you confirmed that you were coming and that you were bringing, ‘a shit load of stuff’, you had bought for her.
40As it happened, you did not arrive on the 12th and did not tell Kika that you were not coming. Messages sent to you from her phone indicate she was expecting you. Days later, you gave her the excuse that you had had an accident in your ‘plane’.
41Your communications in arranging this meeting constitute Charge 15 - using a carriage service to procure a person under 16 for sexual activity.
42After your no-show on the 12th, your messages to Kika became nasty. Between 13 and 14 July 2019, you sent her photographs of unknown females and told her they were better looking than she was. You said that you were giving them the gifts you had promised her and that you had engaged in various sexual activities with them. When Kika replied, ‘fuck off Im not in the mood I wanna die’, you did not relent. Rather, you said, ‘go fucking do it’. When Kika said, ‘I’m fucking trying my best to kill myself [...] and I’m going to leave a death note so u wil get put in jail for making me suicidal and telling me [to] kill myself’, you simply replied, ‘good’.
43This conduct constitutes Charge 17 - use a carriage service to menace.
44Charge 16 - using carriage service to engage in sexual activity with a child under 16 relates to an occasion when Kika masturbated whilst talking to you on the telephone. The evidence for this charge comes from Kika’s interview with the police in which she detailed telephone conversations with you. Your conduct in the lead-up to this incident has not been separately charged but is agreed to be the context in which it occurred. Kika described initially having feelings for you but complaining when you sent her photographs of your penis and videos of you masturbating. You pestered her for naked photographs of herself and threatened to travel to South Australia and shoot her and her family if she did not do as you asked, even saying you had killed before. Worried that you might be serious, Kika sent you photographs of another female, pretending it was her and ultimately complied with your request that she masturbate whilst talking to you on the telephone.
Charges. 2, 4, 6 and 18: Persistent Breach of Family Violence Order
45On 13 December 2017 the Horsham Magistrates’ Court issued a family violence order which prohibited you from contacting Victoria Angliss[14] for a period of five years. The order was served on you two days later.
[14] A pseudonym.
46Detailed analysis of your mobile phone and social media accounts revealed that you and Ms. Angliss were in frequent contact by way of messages and phone calls. Sometimes Ms Angliss initiated the contact and sometimes you did.
Ms Angliss told police that she believed she was allowed to contact you despite the order and the two of you in fact resumed living together for two to three months after the order was made. Your messages were generally of a romantic or sexual nature.47The four charges relate to four separate periods of less than 28 days during which you messaged or called Ms Angliss on three or more occasions as follows.
Between 25 March and 12 April 2019 there were 29 messages and two
calls [Charge 2];Between 10 and 27 May 2019 there were 73 messages and three
calls [Charge 4];Between 14 June and 12 July 2019 there were 26 messages [Charge 6];
Between 14 and 24 July 2019 there were 143 messages and
23 calls [Charge 18].
Gravity of Your Offending and Moral Culpability
48Viewed globally, your Commonwealth offending was objectively very serious. Over a five-month period you targeted 11 individuals you believed to be aged between 13 and 16 for your own sexual gratification. Your conduct was predatory, premeditated and potentially corrupting. It was also sexually and emotionally exploitative. You used salacious, graphic and offensive language. You sent and encouraged the sending of sexually explicit images and promoted sexual activity and sexual encounters. You ingratiated yourself with your victims and manipulated their emotions by lying about your age, your wealth and your feelings for them. When things did not go your way you resorted to insults, threats and cruelty.
49On an individual basis your Commonwealth charges were also serious. After Charge 3 they were committed whilst you were on a Community Corrections Order for unrelated offending.
50The offences of transmitting indecent communications to a child, your charges 1, 3, 7 and 10, and engaging in sexual activity with a child under 16, your Charge 16, were introduced into the Commonwealth Criminal Code in 2010 with maximum penalties of seven and 15 years respectively. At the same time the maximum penalty for the offence of procuring a child under 16 for sexual activity, your Charge 15, was increased from 10 to 15 years. These changes unequivocally reflect the seriousness with which Parliament regards on-line sexual exploitation of children.
51Moreover, your Charges 1,3, 7 and 10 were rolled up charges representing many instances of indecent communications, each of which could have been charged separately.
52It is true, as Ms Buckley submitted, that your offending lacked a number of potentially aggravating features. It is also true that you did not conceal your identity, that your communications with some individuals were relatively brief and that the child pornography charge occurred on a single isolated occasion. However, your crimes were still serious examples of the offences charged. Further, much as the presence of an actual victim does not aggravate those charges in which a child victim has been identified, the lack of an identified, ‘real’ victim does not lessen the gravity of the others.
53Clinical neuropsychologist, Susan Carey, assessed you as having a mild intellectual disability with an IQ of 70. She described you as having moderate difficulties with your speed of information processing and executive functions but normal basic attention and working memory. She believed you were likely to be slower in your thinking and decision making than an unimpaired individual and that you have a reduced ability to think clearly and make calm, reasoned decisions. However, she did not consider your intellectual disability to be causative of your offending and did not doubt that you understood the wrongfulness of your actions.
54I accept that your intellectual disability reduces your moral culpability for the sexual exploitation offences to some extent. Clearly, you are not to be treated the same as a person with no intellectual impairment. However, the cunning displayed in your offending belies naivety. You were well aware that you should not target young girls on-line for sexual purposes. Lest there be any doubt about that, in 2013 you were convicted and placed on a Community Corrections Order for transmitting an indecent communication to a 10-year-old girl in like circumstances. Further, when arranging to meet Kika Sommers in South Australia you specifically asked her how you could avoid being detected by her parents. You also rejected her suggestion that you meet her sister.
55Your conviction in 2013 not only proves your awareness of wrongdoing, it increases your moral culpability for these offences.
56Ms Buckley frankly conceded that your intellectual disability would have been of more significance to the Commonwealth charges if your offending had not been so premeditated. Nevertheless, she submitted, and I accept, that it may explain the way in which you responded to perceived insults or rejections and therefore have more of an effect on your moral culpability for the charges of using a carriage service to menace.
57Relying on Ms Carey’s report, Ms Buckley further argued that your intellectual disability had a direct causal relationship with your State offences of breaching the Family Violence Order and that your moral culpability was, in relation to those offences, significantly reduced. Ms Carey’s opinion was not strong on this point. She considered that your disability, ‘may have contributed to aspects of this offending’, and further, that, ‘on balance', your capacity for understanding all aspects of the Family Violence Order was reduced.
58You told the police during your interview, and repeated to Ms Carey, that you believed it was permissible for you to respond to your ex-partner, as long as you did not initiate the contact. Given your ex-partner told police the same thing, I accept this to be your understanding, but it does not explain why you initiated contact with her. There is no dispute that you knew you were not allowed to do that, and I was informed that the charges are made out without regard to the occasions where you were responding to Ms Angliss. Whilst not irrelevant, I am therefore not satisfied that your intellectual disability significantly lessens your culpability for these offences. That said, given the context in which the breaches occurred and the nature of your communications I do accept
Ms Buckley’s submission that the objective gravity of these offences is at the lower end. Upon reflection, Ms Breckweg conceded as much, abandoning any submission that a custodial term was warranted.Current Sentencing Practices
59One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices. The reason is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles. Whilst no two cases are ever the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
60The prosecutor referred to a number of intermediate appellate sentences for on-line sexual exploitation of children, none directly comparable to this case. I have had regard to those cases but am cognisant that ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Background and Personal Circumstances
61Your background and personal circumstances were set out in detail in the Outline of Plea Submissions and Ms Carey’s report, marked as Exhibits 1 and 3 on the plea respectively.
62Very briefly, you were born in Horsham and grew up in regional Victoria. Your parents separated when you were between three and six years old and you mainly lived with your mother and two brothers. You moved in with your father when you were 14. You were not subject to abuse or neglect.
63You had delayed early milestones and ongoing academic difficulties at school, consistent with your mild intellectual disability. You attended a mainstream school with the assistance of integration aides. You undertook the Victorian Certificate of Applied Learning (VCAL) until the end of Year 11, but it appears you failed three out of four subjects. You report being socially isolated and bullied at school.
64You started a Certificate II in automotive pre-apprenticeship in around 2010 but were asked to leave because you could not keep up. You have completed certificates in general education and human services and have a white card for working in the construction industry.
65You have worked in several jobs including as a gardener, sheep shearing and tractor driving. You also volunteered for around seven years at Pioneer Hill, an open-air museum in Swan Hill.
66You have received support from various disability support organisations throughout your life. You have been in receipt of the Disability Support Pension since around 2013 and you were approved for the National Disability Insurance Scheme (NDIS) whilst in custody. You have an NDIS plan in place but have so far been unable to avail yourself of it. Your NDIS funding will continue to roll over and remain available to you on your release from custody.
67You met Ms Angliss, the subject of the family violence charges, in October 2016. You moved in together in early 2017 and had a son in August 2017. This was your first relationship. The relationship ended in late 2017. You have not had contact with your son for over two years.
68Prior to your incarceration you were living a relatively transient lifestyle. After separating from Ms Angliss, you lived in Naracoorte, South Australia, Swan Hill, Beaufort and Ararat.
69You report struggling to live independently from your family throughout your life and hope to gain more independence on your release from custody.
70Since being remanded on 25 July 2019 you have worked full time in maintenance and completed certificates in traffic management, food handling and occupational health and safety. You were also undertaking the ATLAS course prior to the COVID-19 pandemic, which taught you skills in transitioning from custody back into the community.
71Your family have remained supportive of you. Your father and brother were visiting you in custody prior to the suspension of personal visits. You continue to have phone contact with them.
72Upon release from custody you intend to live with your father, who will be your carer, and will have the benefit of a disability worker from the Department of Health and Human Services. Your father is looking at housing in Ballarat to enable you to be close to services.
Impact of Your Offending
73Only one of your identified child victims, Rebecca Dovey, submitted a victim impact statement. Not unusually, her statement covered matters and incidents beyond the charge to which you have pleaded guilty. I am obliged not to rely on any impact that cannot be directly attributed to your offending and I have been careful not to do so. Suffice to say your offending has profoundly impacted Rebecca’s trust of men.
74Even without victim impact statements from your other five identified child victims, your conduct was such that I presume it has harmed or will harm them in some way. This a legal presumption based on the rationale that children will be harmed by premature sexual experiences, whether in person or over the internet, and must be protected from themselves and immature judgment. In this regard it is relevant to note that the victim of the single charge of causing the transmission of child pornography, Charge 8, was vulnerable not only because of her age but because of her intellectual disability.
75I make no assumption of harm in relation to the unidentified victims or the covert police officers.
76Your ex-partner also submitted a victim impact statement. However, as it appears to relate to other unspecified conduct rather than your breaches of the Family Violence Order, I am not able to ascertain the impact of your offences on her.
Plea of Guilty, Cooperation and Remorse
77You pleaded guilty to all offences at the Committal Mention. You are to receive a significant discount for the fact you pleaded guilty at such an early stage. In so doing, you facilitated the course of justice and took legal responsibility for your crimes. You also spared young witnesses and your ex-partner the experience of coming to court to give evidence. The fact the case against you was strong does not detract from the utilitarian value of your early plea of guilty.
78I note that Ms Carey said that you expressed remorse. Despite that, I am not satisfied that you are truly remorseful. Your repeating of behaviour you knew to be wrong militates against a finding of remorse. You repeated behaviour for which you were sentenced in 2013, not once, but eleven times.
79Similarly, denying or minimising conduct tends to undermine a claim of remorse. When you were interviewed by police in July 2019 you essentially denied engaging in sexual conversations with young girls, indeed, you appeared to suggest that your ex-partner may have been responsible for your social media communications. Further, when Ms Carey assessed you on 7 April 2020 you told her that you were trying to make new friends and did not realise at the time that what you were doing was wrong. These claims were clearly false. You also blamed alcohol for your behaviour, as you did when interviewed in relation to your prior on-line sexual offending.
80The fact I have not been persuaded that you are remorseful simply means you do not get the benefit of an additional discount in your sentence.
Your Character and Risk of Reoffending
81You have been sentenced on three prior occasions between 2013 and 2019. Although limited, this criminal history is concerning because you have not been deterred by the experience of being detected and punished. Indeed, you attended the Magistrates Court on 18 January 2019 for offences of dishonesty and were sentenced for those same offences on 8 May 2019 to a Community Corrections Order. These court appearances did not deter you from committing the present offences which commenced just after your January appearance and continued after you were placed on the Corrections Order.
82Your prior conviction for transmitting indecent communications is particularly worrying. The summary for that offence reveals the same modus operandi as the instant offences. When interviewed by police on that occasion you denied knowing that your victim was 10 and, as mentioned, attributed your actions to being drunk.
83It was outside Ms Carey’s professional expertise to provide an opinion on your risk of recidivism, however, having regard to the foregoing, I would assess your prospects of rehabilitation as guarded at best. It is to be hoped that tailored sex offender treatment might assist you.
The Burden of Imprisonment
84There is no evidence that your intellectual disability will increase the burden of imprisonment for you. To the contrary, Ms Carey was of the view that you were coping reasonably well in custody and further, that it was unlikely prison would adversely affect your cognitive functioning.
85Nevertheless, I take into account the fact that imprisonment during the
COVID-19 pandemic is generally harder than at other times. This is because of heightened concerns about contracting the virus and the suspension of prison visits and various rehabilitative programs and activities. In your case not only was there a COVID-19 scare recently at the Hopkins Correctional Centre where you are remanded, but also your father and brother have not been able to visit you since March 2020. Further, you have not been able to continue in the ATLAS program, nor receive recommended occupational therapy services.Purposes of Sentencing
86The purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort, but where appropriate, must not be more severe than is necessary to achieve the sentencing purposes.
87Further, where there are multiple charges, as here, the sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. This is particularly important in this case, since although you offended against a number of individuals, many of your crimes were overlapping. I have sought to ensure that your overall sentence is proportionate by making the individual sentences largely concurrent.
88Without detracting from the other sentencing purposes, appellate courts throughout Australia have emphasised the paramount importance of general deterrence in sentencing for offences involving the on-line sexual exploitation of children and child pornography. These offences are internationally prevalent and hard to detect given the anonymity afforded by the internet. There is an increasing need to protect children from on-line sexual predators and sexual abuse.
89Further, your prior convictions, particularly your prior conviction for transmission of indecent communication to a child, directly engage the principles of specific deterrence and community protection.
90Overlaid on these important sentencing principles, however, is the need for your punishment to be just in light of your intellectual disability. Your disability reduces the significance of denunciation to the sentencing process and requires some moderation of the principles of general and specific deterrence, although they remain important. At the same time, it is important not to crush your prospects of rehabilitation. Ultimately, community protection is best achieved by your rehabilitation.
91After carefully weighing the competing principles, in my view, only a sentence involving a non-parole period is appropriate for your Commonwealth offending. However, I consider that a relatively short non-parole period is appropriate in light of your intellectual disability and the desirability of enhancing your rehabilitative prospects.
92For reasons already discussed, I do not consider the state offences warrant a term of imprisonment and I propose to deal with you by way of a fine. This is not to say that breaches of intervention orders by means of communication are not serious, rather, it is to recognise the relative gravity of your offending in context and in light of your mitigating factors.
Sentence
93If you could please stand, Mr Stanley. In fact, Mr Stanley, having asked you to stand, I actually cannot see you if you are standing.
94OFFENDER: No.
95HER HONOUR: So I think it is better if you sit down.
96OFFENDER: Okay.
97HER HONOUR: On the four charges of persistent breach of Family Violence Order, Charges 2, 4, 6 and 18, given the similarity in offending and proximity in time of all offences, I have decided to impose an aggregate penalty. That is, one penalty for all offences. If I were sentencing you on these offences alone I would have considered a Community Corrections Order, but given the sentence I will be imposing on the Commonwealth matters, that is not an option. Instead, I convict and fine you an aggregate of $1000. Your lawyers will explain your options in relation to this fine, but it may be that you wish to convert it to imprisonment, in which case, you will not spend any extra time in custody.
98On the remaining charges which are all Commonwealth, I sentence you as follows. I have, and I will now have handed to counsel, prepared a diagram which I think will assist counsel to follow the sentences I am imposing as I impose them:
on Charge 8 I convict and sentence you to 32 months' imprisonment, which is to commence today;
on Charge 15 I convict and sentence you to 32 months' imprisonment, which is to commence one month from today;
on Charge 16 I convict and sentence you to 32 months' imprisonment, which will commence two months from today;
on Charge 11 I convict and sentence you to 30 months' imprisonment, which will commence five months from today;
on Charge 14 I convict and sentence you to 30 months' imprisonment, which will commence six months from today;
on Charge 5 I convict and sentence you to 24 months' imprisonment, which will commence 13 months from today;
on Charge 9 I convict and sentence you to 24 months' imprisonment, which will commence 14 months from today;
on Charge 13 I convict and sentence you to 24 months' imprisonment, which will commence 15 months from today;
on Charge 17 I convict and sentence you to 12 months' imprisonment, which will commence 28 months from today;
on Charge 12 I convict and sentence you to eight months' imprisonment, which will commence 33 months from today;
on Charge 7 I convict and sentence you to seven months' imprisonment, which will commence 35 months from today;
on Charge 1 I convict and sentence you to six months' imprisonment, which will commence 37 months from today;
on Charge 3 I convict and sentence you to six months' imprisonment, which will commence 38 months from today;
on Charge 10 I convict and sentence you to six months' imprisonment, which will commence 39 months from today.
99So the total effective Commonwealth sentence is 45 months' imprisonment or three years and nine months, and in respect of that sentence I set a non-parole period of two years.
Presentence Detention
100I declare that you have served a total of 330 days pre-sentence detention, not including today, in respect of that sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
Meaning of non- parole period
101I am required to explain to you the meaning of the non-parole period that I have set. So as I have said, the total effective sentence is three years and nine months but the non-parole period is 24 months or two years. The fact I have fixed a non-parole period of two years does not mean that you will be released after two years. Rather, that is the earliest date at which you may be released. It is up to the relevant authorities as to whether you are released at that time or at any time before you have served the full sentence of three years nine months.
102If you are released before three years nine months you should know the following:
·You will still be undergoing sentence, but you will be serving it in the community – on parole - instead of prison;
·You will be released subject to conditions;
·The conditions may be changed or your parole may be revoked;
·If you breach the conditions of parole, your parole may be revoked and you will be liable to serve the rest of your sentence.
Discount for Pleading Guilty
103I am not sure if I am obliged to do this in respect of Commonwealth sentences but I will do it in any event. I am going to indicate to you the discount that I have given for the fact you have pleaded guilty. I have already told you that you get a reduced sentence for pleading guilty. If you had not pleaded guilty to the Commonwealth charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of five years with a non-parole period of three years.
Sex Offender Registration
104You have been found guilty of more than three Class 2 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic), they being charges 5, 8, 9, 11, 13, 14, 15 and 16. This means that you will be required to comply with the reporting obligations under that Act for the rest of your life. The Sex Offenders Registration Act provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations. I will ensure that you will be provided with that notice. It will be sent to you whilst you are in custody. Even though you do not have a copy of that document at the moment, I will give you just an idea of what is involved on being a registered sex offender.
105You are required to report to Victoria Police within seven days of being released from custody, and there is a telephone number on the reporting document that you have to call once you are released. You will then be required to go to your nominated police station each year to make an annual report. You have to give details of your addresses, occupation, vehicles, internet provider, social media usernames, passwords and the like. You have to notify of changes in your personal details. You have to notify of intended travel interstate and seek permission to travel overseas. It is all set out in detail in the document that you will receive. You should know that failure to comply with your reporting obligations is a criminal offence. So, if you do not comply you will be charged and you will be brought back to court and dealt with for that offence.
106So, Mr Stanley, as I said at the outset, I know that some of the language I used has been technical, but to sum it up, you have been sentenced to a fine in relation to the breach of intervention or family violence orders, and you have been sentenced to a total of three years, nine months, with a non-parole period of 24 months in relation to the Commonwealth offences, and you have become, or you are a registered sex offender for the rest of your life. Do you understand all of that?
107OFFENDER: Yes, Your Honour.
108HER HONOUR: All right, thank you. I am just going to ask counsel, I do not know if you have had enough time to consider the sentence I imposed on the Commonwealth offences.
109MS BRECKWEG: Yes, I have, Your Honour. I do not have an issue with it.
110HER HONOUR: All right, Ms Buckley?
111MS BUCKLEY: Nor do I, Your Honour.
112HER HONOUR: All right. Well, is there anything else I need to do?
113MS BRECKWEG: No, Your Honour, no.
114HER HONOUR: All right. Thank you very much to counsel for your assistance.
115MS BRECKWEG: Thank you, Your Honour.
116HER HONOUR: And we will now adjourn the court temporarily and cut off the video links. I will leave the Bench.
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