Director of Public Prosecutions (Cth) v Venugopal

[2022] VCC 1843

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00625

DIRECTOR OF PUBLIC PROSECUTIONS (Cth)

v

Pradeep Venugopal

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2022
DATE OF SENTENCE:	20 October 2022
CASE MAY BE CITED AS:	DPP (Cth) v Venugopal
MEDIUM NEUTRAL CITATION:	[2022] VCC 1843

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — possess or control child abuse material obtained or accessed using a carriage service — plea of guilty — early plea — class 2 offence — COVID-19 — letter of apology — remorse — no criminal history — parental abuse — childhood abuse — prospects of rehabilitation — risk of reoffending — exceptional circumstances — presumption of harm — general deterrence — imprisonment — recognisance release order — sex offender registration

Legislation Cited:      Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Kelly [2000] 1 QB 198; R v Tootell; Ex parte Attorney-General (Qld) [2012] QCA 273; Adamson v The Queen (2015) 47 VR 268

Sentence:                  Total effective sentence of one year to be released immediately on recognisance of $2000

Section 6AAA declaration: total effective sentence of one year to be released on recognisance after serving six months

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APPEARANCES:	Counsel	Solicitors
For the CDPP	D Holmes	Commonwealth Director of Public Prosecutions
For the Accused	P Dunn KC	Balot Reilly Criminal Lawyers

HER HONOUR:

1Pradeep Venugopal, you pleaded guilty to one charge of possess or control child abuse material obtained or accessed using a carriage service contrary to the Criminal Code Act 1995 (Cth). The maximum penalty is a term of imprisonment of 15 years.

2Tendered as exhibit 1 was a ‘Summary of Prosecution Opening’. In brief terms, the circumstances of your offending were as follows. Your offending was committed on 20 August 2021 and involved your possession of an Apple iPhone 11 Max which contained seven video files which have been categorised as child abuse material.

3On 20 August 2021, members of the Joint Anti Child Exploitation Team attended at your home for the purpose of executing a warrant pursuant to the Crimes Act 1914 (Cth). During this time, police located your iPhone and seized it. You freely identified the phone as being yours and provided the passcode to police to allow them to access it.

4Subsequent analysis of the phone occurred at a later date, and seven video files containing child abuse material were located.

5The first depicted a prepubescent female child sleeping while an adult male masturbated over her face. The adult male then ejaculates into the child’s face.

6The second depicts a prepubescent male child who is naked from the waist down and an adult woman. The woman is performing oral sex on the child. These two files were categorised as category 1.

7The third file depicted a pubescent female child naked from the waist down, masturbating and lifting her top to expose her breasts.

8The fourth file depicted two prepubescent female children, each naked and both kissing while intertwining their tongues together.

9The fifth file depicted two naked prepubescent to pubescent female children, one performing oral sex on the other.

10The sixth file depicted a female child, prepubescent to pubescent, dancing and lifting her top to expose her breasts and rubbing her tongue over her upper lip.

11Finally, the seventh file depicted a prepubescent female child in sexualised underwear, dancing and thrusting her genitals towards the camera.

12All of these files were categorised as category 2.

13On 22 September 2021, police attended at your home where you were put under arrest for the possession of child abuse material. You were taken to the Australian Federal Police Melbourne headquarters and participated in a record of interview. You gave a ‘no comment’ record of interview, as was your right. At the conclusion of the record of interview, you were charged with the possession of child abuse material and released from custody after giving an undertaking of bail.

14Charge 1 is a class two offence under the Sex Offenders Registration Act2004 (Vic) and is a registrable offence. Upon sentence, you will be a registered offender as defined in the Act and, having been found guilty of a single class 2 offence, you will be required to comply with the reporting obligations as set out in the Act for a period of eight years. I make that order.

15A plea hearing was conducted before me yesterday. Mr Holmes appeared to prosecute and Mr Dunn KC appeared on your behalf. I refer to the following matters which were raised with me at your plea and which are relevant to the sentence which I am about to impose.

16I begin with your plea of guilty. You pleaded guilty to the charge on the indictment at a committal mention on 22 April 2022. This is a plea at the earliest opportunity. It carries significant utilitarian value and I give it the full mitigatory effect discussed in the case of Worboyes v The Queen.[1] I also accept that your plea is indicative of remorse on your part.

[1] [2021] VSCA 169.

17In my view, your remorse has also been demonstrated by a number of factors. First, you were cooperative with investigators and freely gave them the passwords to your telephone. Secondly, you regularly attend upon psychologist Dr Paul L Grech and psychologist and sexologist Vikki Prior. You have freely engaged in psychological therapy for an ongoing period since your offending.

18Next, multiple character references have been tendered on your behalf and they speak of your remorse about the offending. And finally, you wrote a letter of apology to the Court, which I accept is a sincere expression of remorse on your part. All of the above lead me to conclude that you have demonstrated full and insightful remorse going well beyond your plea of guilty.

19I now turn to your antecedents and your character. You have no criminal history. You are 40 years old, having been born in September 1982 in Mumbai, India. Your family was of the high Brahmin caste, although you lived in relatively modest circumstances.

20Your family life was not happy as your father was an abusive and critical man. The abuse wore your mother down and she was, in turn, sometimes a neglectful parent. You suffered childhood sexual abuse by a neighbour when you were around 10. The abuse continued for some time but you did not disclose it. Indeed, you did not disclose it until your sessions with Ms Prior.

21Your parents ensured that you and your brother had a good education and you repaid their commitment to your education by achieving a degree in engineering, specialising in IT. You are a qualified IT specialist and have had a number of positions with large companies.

22You met your wife at university. She is also a Brahmin and a highly qualified IT professional. Both families approved of the marriage. You came to Australia with your wife in 2013 on skilled migrant visas. You were both able to obtain senior IT positions.

23Your marriage was not a happy one. Your wife did not want sexual intimacy with you. The relationship was platonic. In Australia, the relationship broke down. You decided that to try to save your relationship, you should have a child. Your daughter Anika was born in June 2017. But, in any event, you separated from your wife in 2018.

24You went on to have a more successful relationship with a woman called Julie. You were doing well with your new relationship and in your career when COVID struck in March 2020. The stresses of lockdown led to your relationship with Julie breaking down, and you were made redundant in April 2021. Mr Dunn submitted that it was in this situation you offended. You used pornography and on the limited basis set out in the prosecution opening, looked at child pornography.

25I turn now to consider the gravity of your offending. Mr Dunn submitted this case involved a very small amount of child exploitation material with no allegations of production or distribution.

26Mr Holmes, for the prosecution, submitted the material remained highly depraved and even though a relatively small number of files were in your possession, this was not one-off offending. He submitted that access to child pornography is regarded as very seriously morally depraved conduct that is harmful to children, and in circumstances where there was not an insignificant number of files possessed, the possession should not be seen as an isolated incident or an aberration.

27Turning to your prospects of rehabilitation, defence submitted that you have done everything imaginable to redeem yourself and to rehabilitate from your unlawful behaviour following your arrest, including attending upon a clinical psychologist and sexologist in more than 20 sessions.

28The defence submitted that you have good prospects of rehabilitation, taking into consideration the following: the psychological treatment in which you have participated which, as I have already stated, included attendances upon both a psychologist, Dr Grech, and a sexologist, Ms Prior; the remorse, which I have already discussed; your plea of guilty; and your lack of prior or subsequent offending.

29Psychologist and sexologist, Ms Vikki Prior, noted in her extensive report that it is highly unlikely that you would reoffend and you possess no threat to the community. She states that you have gained significant insight into your long-term tendency to shut down emotions, which you have been doing since your teens, and your habit of disconnecting from your emotional environment and distracting yourself with an addiction to masturbation and internet pornography. Ms Prior opined that, in these circumstances, she did not believe that a custodial sentence would benefit the progress you have made, and noted that you would benefit from continual, regular therapy to assist you to better understand the impact of a childhood spent exposed to violence and abuse. Dr Grech was also of the opinion that you pose a low risk of reoffending.

30Defence also urged me to consider the impact of COVID‑19, and that if I were to impose a sentence which involved a period of immediate custody, it would be more burdensome in the circumstances of COVID-19, and that would prevent you to have meaningful access to contact with your daughter and family.

31Turning to the prosecution’s submissions on sentence, the prosecution submitted that having regard to the nature and circumstances of the offending, the need for general deterrence and the material relied upon in mitigation by you, the appropriate sentence is a term of imprisonment with an immediate release. The prosecution submitted that upon release, a recognisance release order is an appropriate exercise of the sentencing discretion.

32When the offence charged is a Commonwealth child sex offence, for immediate release by way of a recognisance release order, the offender must establish that exceptional circumstances exist before the court can order immediate release. What constitutes exceptional circumstances for this purpose is not defined in the legislation. Case law, however, provides some assistance as to what may amount to exceptional circumstances. In considering a like provision within the Penalties and Sentences Act 1992 (Qld), the Queensland Court of Appeal observed that:

We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[2]

[2] R v Kelly [2000] 1 QB 198, 208 (Lord Bingham of Cornhill CJ), quoted in R v Tootell; Ex parte A-G (Qld) [2012] QCA 273, [18] (Holmes and Fraser JJA and Henry J).

33The prosecution submitted, in light of the nature of the offending and in order to achieve the paramount sentencing purpose of general deterrence, as well as principles of specific deterrence, denunciation and protection of the community, a term of imprisonment is warranted. The prosecution accepted, however, that given the relatively low number of files possessed, in combination with your early plea and lack of criminal history, it is open to me to find exceptional circumstances.

34Turning now to my conclusions, Mr Venugopal, you need to understand that there is a harm caused to children by offending of the kind in which you have participated. There is an intrinsic harm caused by sexual offences involving children. In the case of Adamson v The Queen, this presumption was said to apply equally to cybersex offences as well as to contact offending.[3] Possession of child pornography creates a market for the continued corruption and exploitation of children, and there is a paramount public interest in the protection of children, as children are exploited to supply the market. The harm done to children exploited has been described as profound, exacerbated by the continued circulation of images on the internet indefinitely.

[3] (2015) 47 VR 268, 282–4 [23]–[27], 293 [56]–[58].

35General deterrence is the primary sentencing consideration for offending involving the online exploitation of children, given the vulnerability of children online and the need to protect children from sexual abuse. Where general deterrence is the primary sentencing principle, an offender’s personal mitigating factors such as good character, age and prospects of rehabilitation must be given less weight than might otherwise be the case. General deterrence is the paramount sentencing consideration for offending of this kind and matters in mitigation must be weighed against that fact and balanced with the sentencing purposes of denunciation, just punishment, specific deterrence, and protection of the community.

36Having said that, I accept what really was the joint submission of the parties that the offending warrants a term of imprisonment, but exceptional circumstances are made out and there should be an immediate release.

37Having said all that, I intend to sentence you in the following. You are convicted and sentenced to one year imprisonment, to be released forthwith on a recognisance release order to be of good behaviour for one year, on a recognisance of $2,000. There will be mandatory conditions to the order, and I will go through that.

38You are to be of good behaviour for one year. You are to be subject to the supervision of a probation officer at Correctional Services and a sex offender management officer for a period of one year. You are to obey all reasonable directions of the probation officer and sex offender management officer, or his or her nominee.

39You are not to travel interstate or overseas without the written permission of the probation officer, and you are to undertake such treatment and rehabilitation programs as are offered to you and reasonably directed to you.

40You will need to report to Melbourne Community Correctional Services at 50 Franklin Street in Melbourne by 4pm on Monday 24 October. You are to report to and receive visits from Community Corrections officers, and you are to notify an officer of any changes of address or employment within two clear working days. You are to attend for assessment and, if assessed suitable, to partake in treatment for sex offender programs or programs to reduce reoffending.

41Mr Venugopal, you are not going into custody. You are not going to prison. I am sure that is a relief to you. I have sentenced you to one year imprisonment, but what I have done is this: you are to be of good behaviour for a year, so that one-year imprisonment does not go away. It hangs over your head. So, if you were to commit further offending, it could potentially be reactivated. You are to be of good behaviour for a year on a recognisance of $2,000. You do not have to pay that money today. That is another thing that might come crashing down upon you if you were to reoffend.

42There are a number of conditions of that order that I have gone through with you. The first important thing that you need to understand is that you have got to report to Correctional Services, Franklin Street, Melbourne, by 4 pm on Monday, and then you will be under the supervision of Corrections, which means that they will have some control over your life, effectively. You will need to obey all their reasonable directions and if they are of the view that you need to participate in programs, you will have to do so.

43If they want you to report to them or they want to visit you, you will have to agree to that. You will have to give them information about your life. If you want to travel, if you want to change your job or if you want to change your address, you will have to talk to them about it first.

44Also, as a consequence of what you have done, you are going to be a registered sex offender for eight years. So, there will be an order in relation to that.

45I declare that there has been no pre-sentence detention in this matter. I make the Sentencing Act 1991 (Vic) s 6AAA declaration that but for the plea of guilty, I would have sentenced Mr Venugopal to a term of one year imprisonment, but I would have directed that he serve six months by way of immediate custody.

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