Director of Public Prosecutions (Cth) v Stretton
[2024] VCC 952
•21 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
CR-23-01911
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| CHRISTOPHER STRETTON |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 & 21 June 2024 | |
DATE OF SENTENCE: | 21 June 2024 | |
CASE MAY BE CITED AS: | DPP (Cth) v Stretton | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 952 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Use carriage service to procure person believed to be under the age of 16 for sexual activity
Legislation Cited: Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004 (Vic)
Cases Cited:DPP (Cth) v Singh [2017] VSCA 146,
Phibbs v The King [2023] VSCA 123,
Gopinath v The Queen [2019] VSCA 172,
TheKing v Bredal [2024] NSWCCA 75Sentence:2 years’ imprisonment, released after 10 months on recognisance of $3,000 to be of good behaviour for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Mr B. Cullen | Office of Public Prosecutions (Cth) |
| For the Accused | Ms E. McKinnon | MCD Lawyers |
HIS HONOUR:
1 Christopher Donald Thomas Stretton, you have pleaded guilty to an offence of using a carriage service to procure a person believed to be under the age of 16 for sexual activity contrary to sub-section 474.26(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is imprisonment for 15 years.
2 You have no prior convictions. You are now 41 years of age. You were aged 40 at the time of your offending. The period of your offending conduct was between 24 May 2023 and 15 August 2023, about 12 weeks.
3 The prosecution tendered and relied upon an amended summary of prosecution opening for plea dated 30 May 2024. I do not propose to go through the whole document, but I will summarise it briefly as follows.
4 On 24 May 2023 you began communicating with a person who you believed to be a 14-year-old female child named Indiana on the encrypted messaging platform Kik.
5 You were unaware at that time that Indiana was portrayed by a covert police operative. The chat between you and Indiana took on a sexual nature from the outset and you gradually introduced increasingly sexualised concepts as the conversations progressed.
6 At first, the two of you discussed mundane topics such as school and football, but you eventually offered to teach Indiana about sexual intercourse, confiding in her about your desire to cheat on your wife. You sent her an image of your penis and detailed sexual acts that you wished to engage in with her.
7 The conversation culminated in you making plans to meet Indiana for sexual activity. You agreed to drive to a specific location in Mornington to where Indiana could more easily travel after truanting from school. You also purchased for her a dress prior to that from an outlet called Supré which you said she could wear when you met.
8
The conversations took place over the period between 24 May 2023 and
15 August 2023, which was the day that you were to meet. The details of the conversation are set out in annexure B to the prosecution summary and show that you had, during that period, chats on the Kik platform on 25 occasions.. During the latter part of that period you were arranging with Indiana to meet her at a location in Mornington, she having agreed to join you after her mother had left for work on 15 August 2023. On the previous day you spoke to her about your concerns that she could be from the police and that you would not be able to see your kids again.
9 You were therefore well aware of the risks that you were taking in meeting her the following day, yet you agreed to proceed with that arrangement.
10 On 15 August, after having taken the day off work without letting your wife know, you drove to the meeting location and upon arrival drove around slowly while attempting to identify Indiana before you met. When that failed you drove around the perimeter of the area, where you were pulled over by police and arrested. You were arrested not far from the place where you had agreed to meet.
11 Police then seized various items from your car including condoms, personal lubricant, a pre-paid debit card, a pre-paid SIM card and two mobile phones, one of which you had been using to communicate with Indiana in secret. The other was your personal mobile phone.
12 You subsequently told police that '[Your] life is screwed all for trying to get a root, for trying to get a bit of action. What have I done?'
13 You participated in a recorded interview and you told police that you had attended the meeting location to engage in sexual intercourse with Indiana, believing that she was 14 years old, and drove around the area first to try to identify her. You told police that you had used the same Kik account for about 10 years.
14 You first messaged Indiana in a Kik chatroom meant for people living around Melbourne, which you used to seek out physical intimacy with others. You told police that you sent Indiana a ‘selfie’ which you falsely purported to be of yourself, but which depicted a man of similar appearance. You denied deceiving Indiana otherwise. You also admitted to sending her an image of your erect penis.
15 You said you had purchased a dress from Supré for Indiana as a gift. You bought a new SIM card which you used in your wife's old mobile phone to speak to Indiana, and other females that you had met online, so as to avoid being detected by your wife.
16 You admitted that in order to meet Indiana without being caught, you took the day off work without telling your wife about what you were doing on that day. You searched for Airbnbs and hotels in Mornington in which you could engage in 'physical intimacy' with Indiana, which you said you were ‘not getting at home'. You specifically looked for hotels with a spa because ‘Indy’ wanted one.
17 You said the lack of intimacy in your marriage led you to seek out sexual intercourse with others you had met online, although you were not specifically trying to meet children.
18 You said that you had no intention of engaging Indiana in sexual intercourse, nor pressuring her into it, but you also stated that you intended to have Indiana perform oral sexual intercourse on you or 'just fondle' your penis.
19 You said that you could not remember why you had a pre-paid debit card in your car at the time of the arrest, but said that it had probably been there for a while. You claimed that the condoms and personal lubricant had remained in the car since you had last cheated on your wife about a year ago. You went on to say that you owned the car that you were in although your wife occasionally drove it.
20 Upon review of your mobile phone, police located a contact named Indy alongside the relevant Kik chat with Indiana. The internet search history indicated that you had recently searched, among other things, the names of various schools in Mornington, bus routes associated with Indiana's travel on the day of your arrest, 24-hour hotels in Mornington and Supré gift cards and dresses.
21 Other searches included Indiana's purported first and last names, attempts to find her Instagram account, and the phrase 'Young girl saying let it be a surprise', which Indiana had sent to you in a voice message after you repeatedly asked her for pictures of herself in the Supré dress.
22 Turning to matters personal to you. Your counsel provided me with a comprehensive outline of submissions dated 30 May 2024, and yesterday provided me with an outline of further submissions to which I have referred this morning in discussion with her. I was also provided with a letter from the ANZ Bank identifying the outstanding mortgage on your home and the regular repayments of that mortgage. That became Exhibit 2 at the plea hearing.
23
Exhibit 3 is a psychological report dated 28 May 2024 from a
Dr Matthew Barth.
24 Exhibit 4 is a report from psychologist Mr Peter Hanley concerning the treatment that you had been receiving from him in relation to overcoming, or at least dealing with, the factors which led you to engage in this contact with a young female.
25 Exhibit 5 is a letter from Diane Hamilton, who has known you for 35 years and has been in a relationship with your father for 20 years.
26 Exhibit 6 is a letter from Lauren O'Meara, a friend of you and your wife, Michaela.
27 Exhibit 7 is a letter from Michaela Stretton, which I must say is extremely frank and supportive of you in many respects, whilst in no way minimising the effect of your conduct on the marriage and family, and referring to the possible consequences on the family of your conduct.
28 Exhibit 8 is a report from Professor Mark Cook AO, dealing with the epilepsy of your wife, and also a letter dated 1 February 2024 which is part of Exhibit 8. It is clear that your wife does suffer from epilepsy and that the circumstances of this offending and the fallout from it will put her in greater jeopardy of further epileptic fits.
29 Exhibit 9 is a letter from Dr David Polmear concerning your wife's medications and further evidence of her epilepsy.
30 Exhibit 10 is a document headed 'Progress Notes', also made by Dr Polmear, dealing with the health consequences of you being arrested for these matters and the various medications prescribed for you to ameliorate the symptoms of, amongst other things, depression. Along with that document is a Mental Health Management Plan for you dated 21 August 2023 from Dr Ruyu Yao.
31 Exhibit 11 is a letter dated 6 June 2024 from your employer officially terminating your employment.
32
Dealing first with the psychological report of Dr Barth, who identifies various aspects of your personality, your upbringing and education, your relatively low self-esteem and other factors which go some way to explaining your conduct. He gives a useful history of your family, childhood, education, employment and, in more recent years, your marriage to Michaela and your three children, aged seven, five and three. The report refers to your concerns about the effect of your offending upon them and their future and of the financial constraints that the family has been under.
33 Dr Barth identifies the various symptoms of adjustment disorder with mixed anxiety and depressed mood as being reactive to your arrest and your being charged with this offence. He notes that you have made good progress in sex offender treatment with Mr Hanley. Indeed, Mr Hanley's report supports that. I note in passing that it is commendable that you have sought that treatment and that you have engaged in 18 sessions with Mr Hanley. Clearly, you have made progress.
34 Mr Hanley is frank in his assessment of you and, whilst identifying and stressing the remorse that you feel for your conduct and your self-loathing, he also notes that there is an exception to the progress that you have made in that you were continuing to express feelings of entitlement, resentment and frustration. He balances that against what he describes as a more positive note: that you had demonstrated a sense of responsibility for the choices and problems that precipitated your offending, including black-and-white thinking, a sense of entitlement, interpersonal defensiveness, poor self-awareness and problems with empathy. He notes that you have been willing to challenge your thoughts during therapeutic dialogue and have completed written exercises aimed at deepening your understanding of your offending and the consequences of sexual violence towards children.
35 He notes under the heading of 'Recommendations' that, notwithstanding your efforts in the treatment, your problems with distorted thinking, emotions, relationships and impulse control appear to be deep-seated and will require further engagement in treatment to be comprehensively addressed.
36 I repeat that it is commendable that you have faced up to those issues and have sought to deal with them with the professional help that I have referred to.
37 You have never sought to contest the allegation. You admitted your conduct to police quite frankly. Not seeking to contest the matter is consistent with the remorse that you have expressed through your dealings with your psychologists. I accept that you are remorseful and that you will carry with you a great burden of the harm that you have done to yourself, your career, your wife, your children and other members of your family and that that will be a significant burden during your period of incarceration.
38 I take all those matters into account in determining an appropriate sentence and reducing the period that you will be required to serve.
39 It is not suggested that there is any excuse for your conduct, or that any of the factors that you discussed with your psychologists, or indeed your wife, have given you any excuse or mitigation for your conduct. It is the fact that you have now come clean and you have discussed it frankly that provides some mitigation, and that you have sought to address the issues leading to that conduct is also mitigatory.
40 The fact that the child who you believed you were speaking to was actually a police operative does not provide any mitigation and it is not suggested by your counsel that it does.
41 Your counsel suggested that the conduct is in the middle range of offending of this nature. That might well be so; it is very hard to put a precise label on it, but I note that it continued for a period of about 12 weeks, all with the same intention. You had plenty of opportunity to reflect on your conduct during that time and to desist. Rather than do that, you sought to progress the relationship to a point where you believed that you had persuaded your victim to meet you for sexual activity. That makes the offending at least in the middle range.
42 The maximum penalty, as I have already indicated, is 15 years' imprisonment. I have been referred to case law identifying current sentencing practice. Many of the sentences seem to me to be remarkably lenient for an offence which carries a maximum term of imprisonment of 15 years and has the potential to cause very significant harm to child victims. However, I am bound to pay heed to current sentencing practice and I shall be doing so.
43 You have no criminal history. You have been a hard worker. Although you did not do as well as you might have done at school, you are perfectly capable and at least of average intelligence. There is no reason why you should not resume a full working life. I accept entirely that the publicity occasioned by your court appearance will have made that more difficult. It will have imposed some further burdens on your family and made your period of incarceration more difficult to bear. I accept that is part of the extra-curial punishment that arises from this kind of offending.
44 Your wife's physical ailments and the anguish that you have caused her and other members of your family will be a very significant added burden to you.
45 Your counsel submits that in addition to those matters I have already referred to, your reactive depression and anxiety will make your time in prison more onerous, invoking one of the principles that arise from a case referred to, in a shorthand way, as Verdins. The prosecution has not sought to suggest that that principle does not apply in that way.
46 There is no doubt that this is a case where the factor of family hardship does come into play in two ways: the hardship on your family and the burden you will carry during your period of incarceration. You have lost your job and it will be difficult for you to pick up the pieces when you finish your term of incarceration. It will be very difficult for your family in many respects. All of those are matters that need to be taken into account in reducing the period of imprisonment that you will actually have to serve.
47 Your counsel has invited me to apply the principle of mercy and I think that submission is well made. I need to punish you adequately for your offending: s16A sub-s(1) of the Crimes Act 1914 (Cth) requires me to do that.
48 I am also required by s17A of the Crimes Act 1914 (Cth) to consider whether there is some punishment other than a term of imprisonment that is appropriate and only to impose a term of imprisonment if none other is appropriate. I am satisfied that there is no sentence other than a term of imprisonment that is appropriate.
49 Your plea of guilty is an early one and you deserve credit for that, not just because of the utilitarian value in reducing the burden on the justice system, but also in terms of its expression of remorse for your offending. You cooperated with police. I think that you have good prospects of rehabilitation.
50 I have to denounce conduct of this kind in addition to punishing you adequately for the offending, and I have to consider the extent to which others should be deterred from committing similar offences by the sentence that I select in your case.
51 I think it is unlikely that you will offend again. You will have learnt a very tough lesson from this. The principle of individual - or specific - deterrence has little relevance in this case, but I do think that deterring others from committing this sort of offence is important. Young people, people under 16, need to be protected, not just from predators but from themselves. Therefore this kind of offending is offending that should attract a sentence that has that capacity to deter others.
52 I am conscious of the need to assist you in your rehabilitation as far as possible. That is desirable from your point of view, but it also offers a measure of protection to the community if you can be rehabilitated rather than remain a risk to other young people.
53 I note that you will be required to be subject to the reporting obligations of the Sex Offenders Registration Act 2004 (Vic) for a period of eight years.
54 Your counsel had submitted that a long community correction order would be appropriate, or a recognisance release order, that is, a term of imprisonment is imposed but an order is made for the release on terms, either immediately or after you have served some part of the sentence in prison.
55 Section 20(1)(b)(ii) of the Crimes Act 1914 (Cth) requires that you serve part of a term of imprisonment that is imposed in custody, unless I am satisfied that there are exceptional circumstances. You heard the dialogue this morning between me and your counsel when we discussed that. Whilst your counsel had pointed out to me that there were factors that, at least technically, might nudge the circumstances into the realms of exceptional circumstances, I think realistically Ms McKinnon could not press that submission beyond that which she has done. It was submitted on behalf of the prosecution that, although there are significant mitigating circumstances, they do not amount to exceptional circumstances within the meaning of the section to which I have just referred. I am not satisfied that there are exceptional circumstances, which means that I must order that you serve part of a term of imprisonment in actual incarceration.
56 It is necessary for the court to impose sentences that are consistent throughout the Commonwealth, because this is a Commonwealth offence. I have been given assistance by both counsel. I was provided with a schedule of comparative appellate cases, and I have used that in part to determine an appropriate sentence in this case consistent with current sentencing practice.
57 I noted earlier in my sentencing remarks that some of the sentences that have been imposed, and indeed upheld by the Court of Appeal, seem to me to be lenient. I am not saying that to frighten you, but simply to indicate that there does seem to be a variety of sentences. I have noted in particular DPP (Cth) v Singh [2017] VSCA 146, Phibbs v The King [2023] VSCA 123 and Gopinath v The Queen [2019] VSCA 172.
58 I have also had a reference to TheKing v Bredal [2024] NSWCCA 75, in which a Crown appeal against sentence involving a recognisance release order for Commonwealth offences, including an offence of using a carriage service to groom a person under the age of 16 years, where the sentencing judge imposed what in shorthand is a wholly suspended sentence. That order was upheld by the Court and the appeal by the Crown against the inadequacy of sentence was dismissed.
59 Ultimately, having concluded that there are no exceptional circumstances to justify my wholly suspending your sentence, I am required to impose a sentence that has a component of actual incarceration.
60 I now proceed to sentence and indicate that I have given consideration to each of the sub-sections of s16A(2) of the Crimes Act 1914 (Cth) that appear to me to be relevant, and have done my best to apply fairly the submissions of your counsel as to the matters that mitigate your sentence and enable me to give a sentence that appears to me to be more lenient than might otherwise have been the case.
61 Christopher Donald Thomas Stretton, for the offence of using a carriage service to procure a person believed to be under the age of 16 years for sexual activity, you are convicted and sentenced to imprisonment for a period of two years. You are to be released on recognisance for a period of two years in the sum of $3,000 after having served 10 months of that sentence. The total effective sentence is therefore two years' imprisonment with a requirement that you serve 10 months. And I declare 18 days of pre-sentence detention as time to be reckoned as served on that sentence.
62 I order that you be released after having served 10 months of that sentence, provided you give an undertaking to be of good behaviour during that period of two years during which the order is in force. The sum of $3,000, which would be the recognisance, is not money that you have to pay unless you breach the terms of the undertaking to be of good behaviour during that period.
63 You are required therefore, once you have completed your term of imprisonment, to be of good behaviour. That means that you must not commit another criminal offence punishable by imprisonment during the period of the recognisance release. If you do, you can be brought back to this court and you may have to serve further time and potentially will lose your recognisance.
64 If you complete the period of your release without breaching the terms of the order, then that is the end of the matter.
65 I need to record that you will be the subject of the reporting restrictions imposed by the Sex Offenders Registration Act 2004 (Vic) for a period of eight years, given that this is a Schedule 2 offence under that Act and it is a single offence to which you have pleaded guilty.
66 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have sentenced you to imprisonment for a period of three years with release from that sentence after having served 20 months on recognisance of a similar kind for a period of two years.
67 You will be required to sign two documents. One is the Acknowledgment of having received the details of your obligations under the Sex Offenders Registration Act, and that is a document that I have already signed. You will also be required to sign a copy of the Recognisance Release Order to which I have referred. It will be emailed to the prison and you will be asked to sign that.
68 The Commonwealth sentence that I have imposed starts today. The pre-sentence detention of 18 days that I have referred to is to be deducted from that sentence.
(Short adjournment.)
69 HIS HONOUR: I understand that there was something else that I needed to say.
70 MR CULLEN: Apologies, Your Honour.
71 HIS HONOUR: There is a mandatory requirement of additional conditions that are now to be incorporated into the recognisance release order. If we make the supervision period 12 months and the period during which you must undertake and complete the sex offenders' program, 12 months, would you have anything to say about that?
72 VOICE: No, Your Honour.
73 MR CULLEN: No, Your Honour. And in fact, the condition regarding the sex offender treatment program can be omitted completely, if that would be preferable, because the treatment program can be determined by CCS instead.
74 HIS HONOUR: I think we'll do that, because he has already had treatment from Mr Hanley, and presumably he will continue to have that treatment. He has done it voluntarily. I really don't see the need to extend that.
75 MR CULLEN: Yes, Your Honour.
76 HIS HONOUR: So if it can be omitted, then all well and good. You will draft up the final version now, will you, please?
77 MR CULLEN: Yes, Your Honour.
78 HIS HONOUR: And I think we can get him back on at 1.30, so unless there's anything else that I need to attend to now ‑ ‑ ‑
79 MR CULLEN: No, Your Honour. We've found that's all.
80 HIS HONOUR: - - - we can take it that I'll make that order formally, and explain it to him, and that that then can be finalised. Are you happy with that?
81 VOICE: Yes, Your Honour.
82 MR CULLEN: Yes.
83 HIS HONOUR: Yes. All right.
84 MR CULLEN: I'll just write that now.
85 HIS HONOUR: All right. Well, we'll adjourn until we can get the link, which hopefully will be at 1.30.
(Short adjournment.)
86 HIS HONOUR: Mr Stretton, can you hear us all right?
87 OFFENDER: Yes, Your Honour.
88 HIS HONOUR: Mr Stretton, in telling you about the terms of the recognisance order on which you'll be released, I omitted to tell you about some mandatory conditions that need to be included. I will just read them to you now. In addition to the condition that I spoke of before about being of good behaviour, you must report to the Korumburra Community Corrections Centre, located at Court House, 24 Bridge Street, Korumburra, within two clear working days of the date of this order, if released forthwith, or otherwise within two clear working days upon release from custody.
89 So you don't need to do anything until you are released from custody. But you must report to that centre within two clear working days of your release. Secondly, you must report to and receive visits from a community correction officer or officers. And thirdly, you must notify an officer at the specified community correction centre of any change of address or employment within two clear working days after the change. I think that's all, is it not, Mr Cullen?
90 MR CULLEN: I also ask Your Honour to explain the consequences of the breach of the conditions. I wonder if that caution may be helpful, to reiterate any breach of these conditions - - -
91 HIS HONOUR: Yes. Any breach of the conditions will put at risk the forfeiture of your recognisance, but also enable you to be brought back to court for me to reconsider the sentence that I have imposed, and to increase the sentence, if circumstances require it. Do you understand all that?
92 OFFENDER: Yes, Your Honour.
93 HIS HONOUR: I will sign the order now, and then it will be provided to you for signature. Sorry we had to bring you back. But now, I think that is completed. And I thank counsel.
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