Director of Public Prosecutions (Cth) v Toy
[2019] VCC 2112
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01582
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY DOUGLAS TOY (also known as ASHLEY DOUGLAS JANSEN) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 5 December 2019 | |
DATE OF SENTENCE: | 17 December 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Toy | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2112 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of procuring a person under 16 years of age for sexual activity using a carriage service and one charge of using a carriage service to solicitor child pornography – offender aged 47/48 years believed he was communicating with a 14 year old girl but was a covert police operative – very extensive criminal history but not for child pornography – long term substance abuse and also Anti-Social personality disorder consequent upon childhood abuse – history of recidivist offending and breach of Community-Based dispositions and parole – offender only released from custody 5 months prior to commencement of offending – offending over 7 ½ months whilst offender was homeless and heavily abusing methamphetamine – offender assessed as unsuitable for treatment conditions as part of a Recognisance Release Order
Sentence: Total Effective Sentence 37 months with a non-parole period of 18 months – Sex Offenders Registration with reporting for 15 years (Class 2 offences) – s6AAA declaration: 4 years and 6 months’ imprisonment with non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr B Stevens | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Offender | Mr J Fitzgerald | Victoria Legal Aid |
HER HONOUR:
1 Ashley Douglas Toy, also known as Ashley Douglas Jansen, you have pleaded guilty to one charge of procuring a person under 16 years of age for sexual activity using a carriage service, which carries a maximum penalty of 15 years’ imprisonment. You have also pleaded guilty to one charge of using a carriage service to solicit child pornography, which also carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are summarised in the Crown Opening Upon Plea (Exhibit “A”). For a period of 7 ½ months from August 2018 to April 2019, you used various messaging services to communicate in a depraved sexual manner with a person whom you believed to be a 14 year old girl. You initially befriended her on Facebook, where the profile clearly displayed a picture of a young looking female described as being a 14 year old Melbourne girl. You were then aged 47 years and turned 48 years a couple of months later. In fact, the person with whom you were communicating was an undercover police operative attached to the Victoria Police Joint Anti Child Exploitation Team.
3 Charge 1 spans the period from 20 August 2018 to 5 April 2019. From the date upon which you befriended the person whom you believed to be a 14 year old girl, you immediately displayed a sexual interest in her. You communicated with her on Facebook as well as voice calls via Messenger, and text messages and voice mail by mobile phone. From the outset, your communications were of a crude and depraved sexual nature. On some six occasions, you sent photographs of your penis with very explicit messages about what you wanted her to do with it and what you wanted to do to her, which included oral and vaginal sex. You told her that you were in your thirties and, when she said it was a big age gap between that age and the age of 14, you assured her that you were okay with that. You told her that you wanted her to masturbate your penis, and, when she said she would not know what to do, you assured her that you would teach her.
4 Your communications were, at times, very persistent and, on some days, you attempted to call her on multiple occasions. When she did not answer, you left voice mail messages. On one occasion when she texted that she was in class, you responded by sending a photo of your penis with a crude message. Over a period of three days in January 2019, you had a prolonged exchange with her and sent a video of yourself lying down, without disguise, whilst masturbating yourself to ejaculation. On 11 February 2019, you sent another video of yourself, without disguise, standing up and masturbating. Over a period of four days in March 2019, you sent photos of your penis to her, asked her to send you photos, conveyed to her what acts you wanted to do to her sexually, attempted to call her and left voice mails of a sexual nature. Over 31 March to 1 April 2019, you asked her to watch you masturbating and ejaculating. On 2 April 2019, you attempted to video call her and, again, invited her to watch you masturbating. You then started to urge her to meet you and, when she responded that she was in school that day, you encouraged her with multiple aberrant suggestions about what you were going to do to her.
5 In response to repeated requests from you, she confirmed that she could meet you at Frankston Railway Station on 5 April 2019. You video called her twice at 3.41am, and when she did not answer, you sent her two audio messages, complimenting her and stating that you were masturbating your penis in anticipation of meeting up with her, when she would be doing it.
6 Although the undercover police operative sent a photo of a sign in the vicinity of the railway station advising that she had arrived there, you did not turn up for the proposed meeting.
7 Charge 2 comprises your conduct where, on multiple occasions, you requested that she send photographs of herself, often referring to wanting to see her “looking sexy” or “hot”. On 13 December 2018 and 21 and 23 March 2019, you asked her to send photographs of herself with specific lewd requests for “something horny” such as her “pussy” or a photograph of her naked.
8 A warrant for your arrest was taken out on 11 April 2019. You were ultimately arrested on 16 May 2019 in the Mornington area and were remanded in custody. No record of interview was conducted.
9 On 24 May 2019, a filing hearing was held and the matter was listed for a committal mention on 9 August 2019 on which date you indicated your intention to plead guilty to the charges so that the matter proceeded by way of hand-up brief.
10 You are currently aged 48 years, having been born on 1 October 1971. You come before the Court with an extensive criminal history, having appeared in Magistrates’ Courts in Victoria on many occasions from 15 November 1988 to 31 May 2017. Your offending involves many offences for dishonesty, criminal damage, driving charges, assaults, possessing illicit drugs, trafficking in heroin, possessing a controlled weapon and also a charge of indecent assault on 15 May 2000 and contravening a Family Violence Intervention Order on 31 May 2017. Over the years the dispositions of the Court have been fines, Community-Based Orders which have been breached, sentences of detention in a youth training centre, ranging from 14 days to 12 months, a suspended sentence of imprisonment, which was breached, and immediate custodial terms of imprisonment, ranging from 1 month to 15 months. The latter sentence was the last sentence imposed in Victoria before the commission of the subject offences.
11 You also have prior appearances in the Townsville Magistrates’ Court in Queensland between 1991 and 1999 for offences of dishonesty, assault, drug offences, breaching bail and driving offences. In that State you have had court dispositions by way of fines, a Community Service Order, which was breached, and actual custodial sentences of 4 months and 12 months’ imprisonment in 1995, and another 6 months’ imprisonment in or about 1998.
12 In New South Wales you also have some Magistrates’ Court appearances in 1997, 1998 and 2000 for driving offences, dishonesty offences, assaults, escape and failing to answer bail, for which you have been fined.
13 In plea on your behalf by Mr Fitzgerald, the Court was told that you had a sad and disruptive childhood. You were born as the first child to your parents on 1 October 1971 and had one younger sibling, a brother. Your family were living in Darwin when Cyclone Tracey hit. Soon after that, your parents separated, after your father apparently had formed an intimate relationship with a close friend of your mother. You moved back to Melbourne with your mother and younger brother, while your father remained in the Northern Territory. It seems that you were exposed to a series of different sexual partners of your mother and were generally neglected and left to look after your younger brother. When you were about seven years old, your mother re-partnered and had two more children by her new partner, who was verbally and physically violent towards you. You often ran away from home and, from about age 13, you went to live with your maternal grandparents in Mount Martha, whilst your siblings continued to live with your mother. You experienced bullying at school and ultimately left school at the age of 14 years to work as a labourer. However, you commenced using cannabis and alcohol and later, heroin, in your teens and found yourself in trouble with the law from a relatively early age.
14 After completing a period of detention at a youth training centre in 1990, your counsel stated that you left Melbourne and, in Sydney, had a brief relationship with a woman by whom you have a daughter. You then moved to Townsville where your father was living and hoped to reconnect with him, but did not really get on with him. You worked in Townsville for a time and had another brief relationship with another woman by whom you have a son. You then met another woman and formed a relationship with her and had another son. Your third partner, and mother of your third child, died of leukaemia in 1996. You were not capable of caring for your son who went to live with his maternal grandmother. Thereafter, it seems that you have spent much of your life in a self-destructive way, resorting to heavier use of drugs and alcohol. You became an habitual user of amphetamine and ice in your thirties and, since your return to Victoria in about 2000, you have been in and out of custody. Whilst at liberty you have, at times, returned to live with your maternal grandparents.
15 Mr Fitzgerald stated that, at the time of this offending, you were homeless and engaging in heavy drug use, particularly methamphetamine. You have no contact with your father or your mother or any of your siblings. Nor do you have any contact with any of your three children. There was nobody in court to support you.
16 Tendered at the plea hearing was a report from Mr Simon Candlish, psychologist, dated 19 October 2019 (Exhibit “1”). I found the report to be a detailed and careful report. Mr Candlish noted your history of psychological and physical abuse as a child and stated that, in order to protect yourself, you appear to have sought a tough and intimidating persona. You engaged with negative peers from your early teen years, and had your first contact with the criminal justice system at the age of 16 years. He also noted a history of long term substance abuse, namely, marijuana, binge drinking and speed and heroin from your teenage years. In your thirties you began injecting methamphetamine and became a daily user of it, often in conjunction with alcohol, as you enjoyed the sense of being “awake” and energised. He noted that you had not engaged in any employment of significance since working as a brickies labourer in your teens. You have now been on a disability pension for the last 10 years, in part apparently for epilepsy relating to your chronic substance abuse, although you ceased taking medication for your epilepsy some years ago. You have had no drug rehabilitation of any sought, apart from having attended Odyssey House as a teenager.
17 Mr Candlish, expressed the view that your significant emotional and physical abuse as a child laid the foundation for dysfunctional coping, such as emotional detachment and a guardedness towards others, including the avoidance of closeness and intimacy. He thought this contributed to your vulnerability to substance abuse, which you used for stimulation, as well as avoiding your thoughts and feelings. You associated with negatively-influencing peers as a way to feel protected, meeting your need to appear intimidating, and developed drug dependency very early, which contributed to your criminal behaviour. He noted your limited history of socially-normative behaviours, such as employment, stability, sustained intimate relationships and prosocial friendships. He considered that you demonstrate a history of personality impairment since your adolescence and meet the criteria for an Anti-social Personality Disorder. He considered that this, and your related substance abuse, accounted for your history of failing to conform to social norms and your persistent offending behaviour. However, he noted that you had no prior history of sexual offending, with the exception of exposing your penis whilst drunk, which apparently occurred in 1990, albeit that you were ultimately sentenced in 2000.
18 Mr Candlish did not consider that you had an attitude supportive of sexual offending, or a history indicative of sexual deviance. He stated that you acknowledged the wrongfulness of sexualised interactions with underage females and the harm of such behaviour, and referred to your own children in the context of acknowledging the immorality of your behaviour. He also stated that you felt shame and self-loathing over what you did and the fact of now being categorised as a sexual offender against a child. He considered that your offending occurred in the context of methamphetamine abuse and resultant disinhibition and poor consequential thinking, in combination with your personality impairment and destabilised life. He considered your offending to be situational in nature, rather than reflecting an enduring interest in children or paraphilic behaviour.
19 He noted that testing showed you to have poor self-knowledge and confusion over your own thoughts and beliefs, as well as difficulties forming goals and an inadequate access to an internal, separate sense of self. Overall, on testing, he found you to fall into the “possible less serious psychopathic” range. However, he noted no presence of prior chronic sexual offending or diversity, or escalation or physical coercion in sexual offending. He stated that the fact that your communications with the person whom you presumed to be a 14-year-old girl became sexual within a very short period of time was less consistent with protracted grooming than being fuelled by your increased sex drive, perhaps as a result of methamphetamine use.
20 Mr Candlish stated that, on applying the Static-99 R Actuarial Risk Assessment, you attained a score of above-average risk for being charged or convicted of another sexual offence. However, he considered that this risk level was elevated by your chronic general offence history and, thus, appeared to over-estimate your risk for sexual offending. On applying the Risk for Sexual Violence Protocol, he concluded that you appear to require low case prioritisation to manage your specific risk for sexual offending and, overall, he considered you to fall into the low-risk category for sexual recidivism. However, he noted a general low level of protective factors associated with your personality issues and destabilised lifestyle. He stated that, if you did decide to re-offend in a sexual manner, you might engage in the same type of offending for which I must sentence you, and such offending was likely to result in psychological harm to the victim. Overall, he did not consider that you reveal ongoing attitudes supportive of sexual offending and did not appear strongly motivated towards pursuit of underage females to meet your sexual needs, and showed recognition that your behaviour was wrong and harmful. He noted that you have no history of sexual compulsivity or pattern of issues with sexual self-control and that you did not attempt to minimise your behaviour. In this sense, he considered that you showed good prospects for rehabilitation of your sexual-offending-related behaviour, albeit that your lifestyle issues, personality impairment and substance abuse issues continued to impact on your risk of general offending.
21 He considered that you might benefit from discussions with a general practitioner or psychiatrist about the suitability of antidepressant medication and drug-dependency medication. As far as psychological intervention was concerned, he did not consider that you were currently motivated to engage in therapeutic intervention designed to increase your insight. If motivated, he considered you would benefit from rehabilitation regarding your substance-abuse issues and treatment exploring your childhood and the impact that this had on you as an adult, as well as exploring your interpersonal relationships, communication skills and capacity for emotional expression. He considered that you would benefit from some sort of employment that might help you develop a social identity and an avoidance of negatively-influencing peers, and should avoid any online communication and social media associations with any females under the age of 18 years.
22 Mr Fitzgerald made a plea of your behalf in which he sensibly acknowledged the seriousness of your offending, notwithstanding that there was no actual victim, as distinct from a covert police operative. It is well-established that this is not a mitigatory factor and, indeed, such covert operations are necessary to detect this increasingly prevalent trend of older males preying upon underage children on the internet in this invasive and appalling way. The law presumes harm to children from being exposed to explicit and depraved sexual conduct before they even understand their own sexuality and place in the world. People who offend in this way against children must generally expect a term of imprisonment. Denunciation of such conduct, and emphasis upon the principles of general deterrence and appropriate punishment must be the predominant sentencing principles.
23 You do not have a prior history of sexual offending in this way, and Mr Candlish mentioned that the immediacy of your sexualised communications was less consistent with the protracted grooming behaviour that one often sees in child pornography cases. I note that you did not use threats or intimidation and that, unlike many other cases, you used your own name. Indeed, you feature undisguised in the repugnant videos which you sent. Further, following your arrest, police found no child pornography in your possession or electronically stored. Whilst these are not mitigatory factors, to my mind, they support Mr Candlish’s thesis that your conduct was a product, not only of your antisocial personality traits, but also of being heavily stimulated by the use of methamphetamine. I here note that, in the past, you have engaged in age-appropriate sexual relationships. I accept Mr Candlish’s analysis that you experienced arousal whilst engaging in the fantasy of sexualised interaction. I also accept that, despite your depraved communications and encouragement to meet up with the person whom you believed to be a 14 year old girl, you actually did not intend to do so. This accords with the lack of escalation of conduct, as noted by Mr Candlish when assessing you pursuant to the RSVP guidelines.
24 It is to your credit that you pleaded guilty to these offences at the earliest opportunity. Although you do not have sophisticated insight, I accept that you have demonstrated some remorse, not only by your early pleas of guilty but your acknowledgment of the wrong of such sexual interactions with underage females, the harm it can do, and the considerable shame you feel by having entered this category of criminal offending. These sentiments were expressed, not only to Mr Candlish, but also to Havovi Panthaki from Melbourne Community Correctional Services, who assessed you to see whether you would be suitable for management by Corrections Victoria if you were given a Recognisance Release Order. This report dated 5 December 2019 I have marked as Exhibit “C”. You are entitled to a significant discount upon your sentence by reason of the utilitarian value of your plea, and also my assessment that it is motivated by some remorse.
25 Mr Fitzgerald urged that the Court make a disposition which would enable some form of therapeutic intervention, as it seems that, other than some time at Odyssey House some decades ago, you have not engaged in any treatment for your substance abuse or for your underlying psychological problems from your childhood or to address your antisocial personality traits. It was for this reason that I had you assessed by Community Correctional Services. Unfortunately, the report indicates that you are not suitable for supervision by Corrections Victoria pursuant to a Recognisance Release Order. The author of the report noted that, in the past, you have been the subject of seven Community-Based Orders, one parole order, one community work permit and one Intensive Correction Order. Of these orders, seven were contravened and cancelled, and three were completed.
26 The report notes that, back in 2001, you did complete a parole order but were considered unsuitable for a further parole order. Your counsel told the court that following your conviction for contravention of a Family Violence Intervention Order and other offences on 31 May 2017, you were sentenced to an aggregate term of imprisonment of 15 months with a non-parole period of nine months. However, you were not granted parole and served the whole sentence. You were released from custody on 22 March 2018, and the offending for which I must sentence you on Charge 1 began within five months, namely 20 August 2018.
27 The author of the Corrections report noted your lack of engagement with drug treatment in the past and the fact that you seemed to accept your illicit drug use as part of your life and did not appear to have motivation to change the situation. I here note that Mr Candlish also reported that you did not appear to be motivated to engage in any therapeutic intervention designed to increase your insight. He stated that you have historically relied upon dysfunctional coping strategies, such as avoidance and distraction, often by way of substance abuse.
28 The Corrections report noted that you had been unemployed for the better part of your life, and homeless for the last 10 years, with no family or pro social supports and no residential address. The only contact phone number you were able to provide was for your elderly grandparents who live in Mt Martha, but you reported that you were not really speaking much with them. Accordingly, the author of the report concluded that your past history of non-compliance, your lack of social supports, apparent lack of motivation but a need for intensive intervention and ongoing support, was such that you are an unsuitable candidate for Corrections to supervise you pursuant to a Recognisance Release Order.
29 I am conscious that the lack of nurturing, abuse and general disadvantage that you suffered in your childhood is an enduring factor, and you have effectively developed antisocial personality traits in response to your dysfunctional upbringing, which have become entrenched with habitual substance abuse, long-term unemployment and homelessness, and a general lack of direction and motivation in your life.
30 Yours is a tragic picture of a wasted life, and I note that you told Mr Candlish that you are continuing to use Buprenorphine and some stimulants in prison and have been trying to access a Methadone program in prison without success. I further note that you were recently moved from Ravenhall to Melbourne Remand Centre due to having assaulted another prisoner.
31 A judge who passes a sentence of imprisonment with a non-parole period must always do so on the understanding that the prisoner may have to serve the entire term of imprisonment. In your case, given your entrenched antisocial personality disorder and your apparent lack of awareness of your problematic personality, and the fact that you have not been deemed appropriate for parole in the past, I am very mindful of this factor.
32 In sentencing you, I take into account that, whilst you have been in custody, you have undertaken some educational courses on alcohol, cannabis and ice. You have also undertaken courses on traffic control and implementing a traffic management plan through Kangan Institute. Certificates for these courses were tendered as Exhibit “2”. It is to your credit that you have engaged with such programs, given that you effectively have not undertaken any education since leaving school at age fourteen. Also, as previously mentioned, you have shown a reluctance to engage in any substance abuse treatment or rehabilitation, so it is noteworthy that you have been prepared to attend drug education courses.
33 Although I do not consider your offending to be in the worst category of these offences, it is bad enough. Overall, your conduct on Charge 1 spanned almost eight months and, although there were gaps in your communications from time to time, there were other times when your level of persistence was very intense indeed. This took the form of repeated attempts to call on any one day and twice included communications when you were advised that she was at school. You also sent audio messages at 3.41am when one would normally expect a school girl to be sleeping.
34 Your offending on Charge 1 included some six occasions of sending unsolicited photographs of your penis and two occasions of you sending a video of yourself masturbating, despite minimal response or encouragement from the person with whom you believed you were communicating. Thus, your offending conduct is appropriately described as persistently attempting to entice the recipient of your communications into sexual activity, and you used Facebook, Instagram, SMS and voice calls for this purpose. Your communications were gravely aberrant and suggested that you wished to engage in various forms of penetrative sexual activity with the recipient. You were aware that the profile of the recipient showed that she was 14 years old and, hence, you were well in excess of three decades older, which represents a huge disparity in experience and power.
35 On Charge 2, the offending occurred over a period of three months during which you sought child pornography material from the recipient of your messages on multiple occasions. The gravity of this charge is not simply requesting naked photographs of a child or photographs of her vagina, but actually encouraging her to create child pornography, which is a vile and exploitative thing to do. It is something which strikes at the essence of a child’s identity before that identity is fully formed and often leaves a legacy of guilt and self-loathing, impaired self-esteem and confusion in a child. Children must be protected by the law and this conduct must strongly be denounced and deterred.
36 The maximum penalty of 15 years’ imprisonment which Parliament has prescribed for each offence reflects how seriously this conduct is regarded. I have already referred to the necessity of imposing sentences which will deter others from committing similar offences. In the light of the period of your offending, there is also some need to emphasise specific deterrence and, overall impose appropriate punishment. I have taken into account the need for consistency in Federal sentencing and noted sentences imposed across Australia in cases involving charges of this nature, albeit that no two cases are ever the same and other sentences are primarily useful as yardsticks to illustrate the possible range of sentences available. It is my obligation to arrive at a sentence of a severity appropriate in all the circumstances of the offences. I have taken into account such of the matters listed in s16A(2) of the Crimes Act 1914 as are known to me and I have already referred to your relevant personal circumstances.
37 In all of the circumstances, I am of the view that there is no appropriate sentence for each charge other than a term of imprisonment. Although I had considered the possibility of a sentence involving a Recognisance Release Order, having received the report from Community Correctional Services, I no longer consider that to be an appropriate sentence. Given your long history of non-compliance with Court orders and your significant personality, psychological and substance abuse issues and total lack of support in the community, I consider that a Recognisance Release Order would be setting you up to fail. You have not previously committed offences involving child pornography, but your lengthy criminal history and failure to engage in community-based sentencing dispositions rehabilitation, your entrenched substance abuse and antisocial personal traits cause me to be very guarded about your prospects of rehabilitation.
38 Although I agree with Mr Candlish’s opinion that the likelihood of you engaging in this same form of offending in the future is probably relatively low, if you again find yourself homeless and regularly abusing methylamphetamine or other drugs, this is likely to increase your risk of reoffending. I do note that Mr Candlish states that there appears to have been some reduction in the severity of your antisocial personality traits as you have aged. He comments that research literature recognises that personality disorder traits tend to decline in both frequency and severity with advancing age. As you are now aged 49 years, it can only be hoped that this will be true in your case, particularly if you have a period of enforced abstinence from illicit drugs. Whilst the material before me tends to indicate that you do not need to undertake a sex offenders program, you do need intensive counselling psychologically and treatment for your substance abuse. As you will be in custody, I have no power to mandate that you receive the opportunity for such treatment. All I can do is strongly recommend that you be referred to the Specialised Offender Assessment and Treatment Service as soon as possible and that a determination be made as to your mental health and substance abuse assessment and treatment needs and, also, as to whether you do need to undergo any other program relating to sexual offending. Whether you are given parole is out of my hands. In the event that you are granted parole, I emphasise the need for very intensive supervision and support to help you re-enter the community.
39 On Charge 1, procuring a person under 16 years of age for sexual activity, you are convicted and sentenced to be imprisoned for a period of 31 months to commence this day.
40 On Charge 2, soliciting child pornography, you are convicted and sentenced to be imprisoned for a period of 18 months to commence 19 months after the commencement of the sentence imposed on Charge 1.
41 The total effective sentence imposed this day is 37 months’ imprisonment. I direct that you serve a period of 18 months before becoming eligible for parole.
42 I declare a period of pre‑sentence detention of 215 days to be time reckoned as already served under the sentences imposed this day.
43 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years and 6 months’ imprisonment with a non-parole period of 3 years.
44 Charge 1 and Charge 2 are both Class 2 offences within the meaning of the Sex Offenders Registration Act 2004 (Vic). As you have been found guilty and sentenced on two Class 2 offences, you become a registrable offender under that Act and you will be required to comply with the reporting obligations set out in that Act for a period of 15 years. I will have my Associate hand to you a document which sets out those obligations. Would you please acknowledge receipt of it by signing your name.
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