Director of Public Prosecutions (Director of Public Prosecutions) v Frangou
[2022] VCC 1651
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-01967
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW FRANGOU |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2022 | |
DATE OF SENTENCE: | 7 September 2022 | |
CASE MAY BE CITED AS: | DPP (Director of Public Prosecutions) v Frangou | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1651 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Child abuse material – transmitting – possession - whether exceptional circumstances established so as to avoid the imposition of imprisonment – low risk of reoffending – positive prospects of rehabilitation
Legislation Cited: Criminal Code 1995 (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic).
Cases Cited: Minehan v The Crown [2010] NSWCCA 140; Mouscas v The Queen [2008] NSWCA 181; The Crown v Booth [2009] NSWCCA 89; The Crown v Gent (2005) 162 A Crim R 29; The Crown v De Leeuw [2015] NSWCCA 183; DPP v Garside [2016] VSCA 74;
DPP v D’Alessandro [2010] VSCA 60; Smith [2010] VSCA 215; Stroempl (1995) 105 CCC (3d) 187.
Sentence: Section 20(1)(a) Recognisance Release Order of 1 year’s duration in the sum of $2,000.00 with a $5,000 pecuniary payable to the Commonwealth Director of Public Prosecutions. Section 20(1)(b) Recognisance Release Order of 2 years and 6 months duration in the sum of $2,000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Brown | Ms. K. Holdsworth |
| For the Accused | Ms. T. Bolton | Mr. M. Fraser |
HER HONOUR:
0
Mr Andrew Frangou, you have pleaded guilty to three charges; namely, using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code; using a carriage service to access child abuse material contrary to the same section of the Criminal Code and, thirdly, possessing child abuse material obtained or accessed using a carriage service contrary to section 474.22A of the Criminal Code. The maximum penalty for each offence is
15 years imprisonment.
1The facts alleged are contained in the prosecution opening and are not in dispute. The opening includes relevant extracts from Skype and email communications which on the Crown rely on. While I do not intend to recite those conversations in this decision, I have read them. I have also read the entirety of the conversations which have been made available since we were last in court together.
2I did so - that is, read the entirety of the conversations - so as to understand the context of the samples provided in the prosecution opening. There are hundreds of pages of communications, both with the communicants referred to in the prosecution opening, and with others. The child abuse conversations are as referred to in the prosecution opening. The balance of the conversations frequently relate to sexual matters in general.
3You have held yourself out to be a bisexual man participating in an array of exotic adventures while looking after aging parents. These are communications where a variety of adult sexual conduct is discussed. The conversations, in total, span 12 months with the transmit and receive offences being committed between November 2019 and October 2020.
4Child abuse conversations continued with the communicants referred to below for a few days, up to a few weeks. The child abuse portion of the conversations was not the majority by a long shot. With that observation, I will now turn to a description of each offence.
Charge 1 - Use carriage service to transmit child abuse material
5This is a rolled-up charge comprising of communications that occurred between 29 November 2019 and 11 June 2020 using the internet application Skype. Email was also used. During those communications, you purported to be the father of Em, aged 11, Sandi, aged 13, and Zach, aged 16
6Using the Skype account travasb, you communicated with other users and on 29 November 2019, with a user named simaus15. During the course of exchanges with that user, you transmitted child abuse material in the form of text. You pretended to be the 13-year-old female child who was your purported daughter, and, in that persona, that is, the 13-year-old child, you sent text messages suggesting sexual activity.
7Next, regarding conversations with Skype user graynomadfnq_1. On 8 December 2019, you used the same account to transmit child abuse material in the form of text in which you described, in detail, your delight at having sexual activity with that purported 13-year-old daughter. The recipient was apparently excited by this conversation. On 12 December 2019, using the same Skype account, you again transmitted child abuse material in the form of text during those exchanges.
8Next, communications with Skype user ulucky1972. On the same day, 12 December, you were pretending to be the father of a 16-year-old son. Your communications discussed your sexual activity with that fictitious person. The conversations detailed and read show the apparent excitement of the recipient of those text conversations.
9Further, on 4 April 2020, using the email account [email protected] with the display name Travas Boutsis, you transmitted an image of child abuse material to a ‘Father Graham’ at the email address fgsm666@gmail.
10You commented on the images of his penis viewed by you and you said your fictitious family members and you loved them. You also responded by sending an image of a pubescent boy who you held out to be your son. That person was wearing only a pair of white underpants and had an obvious erection. This image has been classified as child abuse material and was located by investigators on your Seagate external hard drive in a folder entitled 'Zach'. This is reflected in Count 3.
11On 11 June 2020, using the same email address, you transmitted child abuse material to an unknown person with the email address [email protected] by sending an email with the same photo and similarly representing that that person was your son.
Charge 2 - Use carriage service to access child abuse material
12Again, this is a rolled-up charge comprising communications that occurred between 27 July 2020 and 28 October 2020 using email.
13
Firstly, regarding the dla address, you communicated with a a person who called himself Dave Lambert. On 27 July 2020, using the same email account, you accessed a video file of child abuse material during an email exchange with
Dave Lambert.
14The email sent to you contained a video attachment file, being one minute and 36 seconds in duration. It depicted a pubescent boy lying naked on his back. During the video, the boy pulls his legs over his head and begins to gyrate on the couch. His testicles and anus are clearly visible. This video has been classified as child abuse material. Two days after receiving the video, you replied and expressed approval of the child in the image.
15Next, regarding communications with somebody who called themselves Davesinmore1 in a Gmail address. On 28 October 2020, using the same email account as above, you accessed an image file of child abuse material in the course of an email exchange with an unidentified person using that address.
16The email attached a photo of a pubescent girl naked above the waist, wearing only a black chocker necklace. That has been classified as child abuse material. You responded, expressing approval, and inquiring who she was.
Charge 3 - Possess child abuse material
17On 21 May 2021, when a search was conducted, you were found to possess a total of 76 image files and three video files of child abuse material on six devices. The devices included an Apple iPhone containing seven images classified as child abuse material, a Seagate hard drive containing 66 images, two videos and an Apple iMac computer containing three images with one video being classified as child abuse material.
18The majority of the child abuse material possessed on these devices was in the form of images depicting pre-pubescent and pubescent girls in the approximate age range of eight to 14 years. The sexual activity depicted varied from sexualised posing to full penetrative sexual intercourse with adult males or objects. There were also a smaller number of images of males in the 13–16-year age range. A total of the 17 child abuse material files possessed by you depicted penetrative sexual activity between children and adults comprising 10 images, five GIFs and two videos.
19The youngest child depicted in the material involving sexual penetration with an adult was about six years and two of those files included sexual penetration of a child by an adult with a foreign object being one image depicting a child aged between 13-14 years and another child aged between five and six years. My observation is that these examples are of significant objective seriousness.
20A total of the three files depicted children in solo acts of masturbation and this material depicted three different children aged 14, between 10 and 12 and between 13 and 15. The remainder of the files depicted children aged between eight and 14, posing nude or semi-nude. The number of images and the number of children thereby abused to manufacture these images is less than in some other cases relating to similar offending. However, any image of a young child being sexually penetrated by an object or an adult male's penis is, by definition, a serious and worrying image which right-minded people find cruel, and a matter which right-minded people know, causes lifelong damage on those children.
21I do not, however, find to the requisite standard, that the filing or organisation of those images in files on various devices was for the purpose of future distribution. The image of Zach is the only image that was transmitted, and it is that image that was apparently saved several times. It is possible you may have had an intention to return to that image and transmit it again, but there is insufficient evidence to make such a finding to the required standard. At worst, it shows that the offending was not opportunistic, but it cannot be found that it was either sophisticated or well planned.
22On arrest, you participated in a record of interview during which you admitted ownership of the devices and the use of the [email protected] email address. You minimised the seriousness of any images possessed. Some admissions were made. You offered no explanation for that possession.
23You were arrested on 19 May 2021. You pled guilty on 10 September 2021. The prosecution concede that this is a plea at the first available opportunity. You have no prior convictions of any kind. You have served no pre-sentence detention. All three charges on the indictment are class 2 registrable offences under the Sex Offenders Registration Act2004 (Vic). Accordingly, upon conviction you will be required to comply with the reporting obligations of the Act for life.
Assessing objective seriousness
24Assessing the objective seriousness of a particular offence involving child abuse or child pornography material is the most significant aspect of a sentencing exercise. The case of Minehan v The Crown [2010] NSWCCA 140 identified factors relevant to such an assessment. The factors relevant to your offending are as follows:
1)Whether actual children were used in the creation of material. In the context of your offending, the images exchanged and stored appear to depict actual children. The text conversations were your fantasies that were, according to Ms Allan's evidence (which I will refer to later), the product of a then disordered mind. Such conversations are serious, not because they directly damage the children as the images have done, but because the conversations encourage the recipient and perhaps, yourself, to view such behaviour as normal, thus driving further demand for such images.
2)Next, the nature and content of the material including the age of the children and the gravity of the sexual activity portrayed. In your case, it is noted that the images of children include penetrative images of children by adult males.
3)The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. In this regard, of course, penetrative images are especially serious. You possessed several such images, but no other form of cruelty is referred to.
4)The number of images or items of material. In the case of possession, the significance lies more in the number of different children depicted. In this case, there are less than a hundred images, apparently discrete images rather than copies. I note, however, references to copies of the Zach image. The indication is, that in each group, there were up to three different children involved. In the context of offences of this nature, the number of children is relatively small. The text conversations about fictitious children were relatively few.
5)In the case of possession, an offender's purpose, whether for his/her own use or for sale or dissemination. There is one image that was transmitted to you and one image received. The rest of the images appeared to be for your personal gratification. I find this because the Skype chats apparently ceased in October 2020 and the images were located some six months later in the absence of any evidence of transmission. An inference can be drawn that they were, therefore, largely for your personal viewing. It may be that they were kept for a significant period of time. I acknowledge that the charge relates to possession on a single day.
6)In a case of dissemination or transmission, the number of persons to whom the material was disseminated or transmitted. In your case, the images were transmitted to two others. The conversations were with several others. In the context of offences of this nature, the level of distribution is modest.
25I find the degree of planning and sophistication to be low and, as I have observed, the method of storage does not reflect sophistication as there was no apparent purpose to it. There is no evidence of any payment or any other material benefit nor any direct connection between you and those who are responsible for bringing the material into existence. The other Minahan considerations are not relevant or do not apply to you.
26
My finding, therefore, is that each offence is below mid-range objective seriousness for the offences charged and Charges 1 and 2 are well below
mid-range objective seriousness.
Personal circumstances
27I now turn to your personal circumstances. It is now an appropriate juncture to address the issues in your life, as they existed at the commencement of offending and assess what effect, if any, those circumstances had on the commission of the offences.
28You report that during the period of offending, you were going through a particularly anxious and stressful period of your life. You were, I am told, working full-time and the health of your wife and both of your parents began failing from about 2017 onwards. The journey for your wife in particular has been long and, no doubt, arduous.
29The chronology prepared by your counsel sets out a timeline of significant life events which, he submits, provides the start of an explanation for your offending.
30Your early life relationships reflect a person who enjoyed a fulfilling and supportive family life. As I noted, from 2017 or thereabouts, there was an extra requirement on your time and emotions while your wife's treatment was ongoing. Your employment included interstate trips and significant responsibility. From 2018-2019, your parents became ill and both your sister and yourself shared live-in arrangements in order to support them.
31Your father was suffering early dementia signs and he presented with special management difficulties. He refused supported accommodation despite it appearing to have been objectively necessary. In March of that year, your wife's health declined again, and your father-in-law also became ill. Throughout 2019, you provided assistance to your parents and parents-in-law on a regular basis. Your parents, in particular, were a major and time-consuming concern. Your wife was still unwell and, apparently, you felt the burdens of that care personally.
32By October 2019, when your offending apparently began, you had just returned from a reportedly difficult trip to Italy with your wife and father-in-law where you attempted to assist in his financial affairs. I observe that you attempted to communicate with some of your communicants on Skype, an exotic, and perhaps, embellished version, of that trip. This was not a communicant with whom you were involved in child abuse conversations.
33On return, you again lived, from time to time, with your parents. Your father passed away in January 2020 and you stayed with your mother each weekend as her home care package did not cover weekends. You cut down your work hours in order to care for her and other family members. I observe your family resources were, and still are, stretched. During this time, COVID restrictions made both care and work more challenging.
34You were also involved in organising your mother's financial and other interests so that she could be properly cared for in supported accommodation. Objectively, I find you were under a great deal of personal stress. It is submitted that during that period of offending, you were suffering from unusually high levels of anxiety. You commenced treatment with psychologist Tracey Allen in August 2021, and, in September of that year, you pled guilty.
Observations of Psychologist report
35Ms Allen's observations, to which I will now refer, explain the relationship between this anxiety, your responses to that anxiety and, in a way, the cognitive distortions which arose over time during the period of offending. That is not to say that your stressful domestic situation caused the offending. Your maladaptive responses to it, to the anxiety, and your failure to seek help when such a need was obvious, however, allowed the cognitive distortions (whereby you thought the offending was harmless) to exist and subsist.
36
Ms Allen has specific expertise in treating sexual offenders and in clinical mental health management, in both a custodial and non-custodial setting. She holds a Bachelor of Science in Psychology and a Master of Criminal Psychology
(Forensic Psychology). Her CV, attached to her reports, sets out that, over a period of about seven years, she was actively involved as a senior clinician in various areas where mental health concerns coincided with criminal offending. Her specific sexual offender experience was between 2009-2010.
37It is not disputed that she is competent to administer and interpret the tests carried out and that she has significant expertise in the area of treatment for child sexual assault offenders, including those who offend in the way that you have. However, Ms Allen is also your treating psychologist. While there is no prosecution challenge to her expertise to conduct a risk assessment profile, nor any challenge to her opinions, any opinions which arise as a result of her psychological treatment of her client must be accepted with caution. As a treating psychologist, her independence and objectivity must be a consideration for any court in considering those opinions. It is a consideration that this court will keep in mind.
38Ms Allen reported that, as a result of 17 one-on-one treatment sessions, you have made gains and now recognise your behaviour was out of keeping with societal norms. She observes that your understanding of both the harm your actions caused and the reason for this maladaptive response to anxiety, in general, has improved over time. Over the 17 sessions with you, she assessed you to be a reliable historian.
39Ms Allen opined in oral evidence that:
Mr Frangou does not fit the definition of presenting with paedophilic disorder, notwithstanding the nature of the conversations and the possession of child abuse material.
40This conclusion was not challenged. Her reasoning was that such a definition requires conduct consistent with engaging in child abuse material with an intensity over a period of six months or more. She observed that your engagement was intermittent. Looking at the totality of the offending, it ranged over a period of about seven months (Count 1) and a further three months (Count 2), with the possession charge detected a further seven months later. All in all, the offending spanned between October 2019 and May 2021 - a period of about 18 months.
41As referred to at the commencement of this decision, I have had the benefit of reading 11 months' worth of text conversations in total. I accept that the child sexual conversations were, in that context, intermittent and occasional. The child abuse conversations were not the only topic talked about and the individual conversations themselves were short. They did not contain any more detail than that included in the prosecution opening.
42Other topics included adult sexual matters of all varieties, perhaps fantasy, as concerned the child abuse material. Topics also included caring for parents and holidays. I therefore accept that the timespan over which the conversations occurred is not a significant feature of the offending.
43I observed Ms Allen to be appropriately sceptical of Mr Frangou's assertion that he did not believe he had a sexual attraction to children. She suggests that this is an area that ought to be explored further.
44
I now turn to the consideration of risk of reoffending. Ms Allen opined that
your behaviour is more in line with what she referred to as an intermittent paedophilic curiosity, combined with a cognitive distortion related to anxiety, personality issues and, importantly, in my view, an apparent inability to seek professional help for same.
45Ms Allen assessed your risk of reoffending using the RSVP profile, both at the commencement of therapy and in recent times. She is of the view that your risk of reoffending in similar ways has reduced from moderate, at the time of your arrest, to low. Positive features in your background; including your reported low engagement with the material accessed; your ongoing relationships with your wife; the absence of any criminal history; the absence of any contact sexual offending; your self-awareness and your open acknowledgment of your guilt and shame undoubtedly played a significant role in that assessment. Your pro-social attitudes in general, your age and, importantly, your current responsiveness to treatment, are also relevant to such a finding.
46She confirmed the risk conclusion using another risk profile tool called Risk Matrix which she indicated has a moderate predictive accuracy. So, we have two risk assessments and they both agree with each other. I found Ms Allen's evidence to be as objective as possible, considering her treatment obligations. She was sceptical when appropriate and was not overwhelmed by the need to present the best case for you, her client. She concluded that you are highly responsive to treatment and are willing to continue. It will ultimately become a condition of your supervision.
47
The question remains then as to what led you to have involved yourself so disgracefully in such conversations and to have collected child abuse material.
Ms Allen observes that, over time during therapy, you have reflected on your personality type, your apparent self-sacrifice, and your aversion to seeking help. She observes and supports your conclusion that these features of your personality placed you in a position where fantasy conversations with strangers were comforting.
Extra-curial punishment
48I turn now to a consideration of extra-curial punishment. In May 2021, you were arrested. There was, I am told, publicity surrounding these charges. In July of that year, you were asked to leave your employment as a result of that publicity. Although your employment did not involve, I am told, contact with children, I expect the poor publicity would not have been helpful to your employers. I am told also that your bank refused to have you as a client due to the charges and you were required to take your business elsewhere.
49The loss of your employment is a significant loss personally, professionally, and financially. The attitude of the bank is unusual and requires significant reorganisation. These are extra-curial punishments which have resulted in you now being unemployed and, as a consequence, your wife now having to carry the financial burden of the family. In turn, you have stepped in to assist and offer family support at an even greater level. I am told that you look after various extended family members who require assistance.
50These members include your mother who is now thankfully in residential care but still requires assistance with medical appointments and other daily tasks, your father-in-law who has failing health and other extended family members who, to a greater or lesser extent, require assistance, due to their own personal circumstances. Some difficulty would result if you were incarcerated, especially for a long period and, no doubt, as a result, the extra burden would fall on your wife or other family members to support the family. Alternatively, other family members might have to go without support.
Character
51I turn now to a consideration of your character. It is noted that you have no prior convictions of any sort. I have read numerous testaments to your good character. Your prior good character is not, in and of itself, unusual for offending of this nature and is of lesser significance in offences such as this.
52In the case of Mouscas v The Queen,[1] New South Wales Criminal Court of Appeal decision, the court held that the offence of possessing child pornography is frequently committed by persons of prior good character. Since general deterrence is necessarily important, it is legitimate for a court to give less weight to good character as a mitigating factor.
[1] [2008] NSWCA 181.
53As for other relevant personal circumstances, I note you have been married to your wife for over 20 years. She is aware of your offending and remains supportive. Your adult child and other family members are also reportedly supportive. These supports, along with those of other community members, are aware of your offending, are important in assessing your prospects of rehabilitation.
Purposes and principles of sentencing
54I now turn to sentence considerations. Section 16A of the Crimes Act 1914 (Cth) requires a sentence of severity appropriate to the offending to be imposed. The purposes of sentencing are set out in section 16. The important considerations for offences of this nature are general deterrence, punishment, but also, to promote rehabilitation. It is trite to note that, frequently, the general aims of sentencing often pull in different directions.
55
General deterrence is a paramount consideration for offending such as this. In the case of The Crown v Booth,[2] a 2009 Criminal Court of Appeal decision,
Justice Simpson said, and I quote, because it sets out an important consideration in relation to child abuse material, so I will quote it in full:
The possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime. In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often, it is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to children may be, and undoubtedly is, profound. Those who make use of the product feed upon that exploitation and abuse and upon the poverty of children, the subject of the material.
[2] [2009] NSWCCA 89.
56In the case of The Crown v Gent,[3] a 2005 Court of Appeal decision, the court quoted from a statement from the Ontario Court of Appeal decision that is Stroempl.[4] In that decision, the Court said:
The possession of child pornography is a very important contributing element to the general problem of child pornography. In a very real sense, possessors instigate the production and distribution of child pornography and the production of child pornography in turn frequently involves direct child abuse in one form or another.[5]
[3] (2005) 162 A Crim R 29.
[4] (1995) 105 CCC (3d) 187.
[5] Ibid [191].
57Child pornography has been around for a very long time indeed and this decision has been applied in Australian courts many times. It is generally accepted therefore, that a custodial sentence is warranted to satisfy general and specific deterrence requirements. This can take the form of a sentence of imprisonment with a non-parole-period or, in appropriate Commonwealth matters, a custodial sentence with a Recognisance Release Order for release on recognisance after serving a period of that term.
58Section 20(1)(a) of the Crimes Act 1914 (Cth) relates to the release of offenders on recognisance immediately after conviction. Some cases provided by the defence suggest such an outcome. Both prosecution and defence recognise that each case turns on its own facts and that non-custodial options are not excluded. However, there have been many appellate judicial statements on the importance of a custodial sentence for matters of this nature.
59In The Crown v De Leeuw,[6] a 2015 New South Wales Criminal Court of Appeal decision, the Court stated the following proposition regarding sentencing for child pornography offence and I quote ‘[u]nless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted'.
[6][2015] NSWCCA 183.
60The Victoria Court of Appeal has endorsed that statement in the DPP v Garside[7] a 2016 Victoria Court of Appeal decision and, again, following similar expressions of principle in the DPP v D’Alessandro[8] and Smith.[9] In addition, in June 2020, an amendment was passed to the Crimes Acts requiring, in the case of Commonwealth child sex offences, which these are, that immediate release from a custodial term not be ordered unless there are exceptional circumstances. This legislative pronouncement reflects the above considerations.
[7] [2016] VSCA 74.
[8]DPP v D’Alessandro [2010] VSCA 60.
[9][2010] VSCA 215.
61As far as counsel are aware, and far as I am aware, there are no appellate decisions on this particular point since the amendment. I have been referred to Victorian and New South Wales intermediate court decisions. There are some similarities, but those decisions are not binding, as persuasive as they might be. The concept of exceptional circumstances has been considered in other contexts. Although rarely defined in a context such as this, it must mean some feature either in the offending or in the offender which is rare or unusual.
62In some circumstances, exceptional circumstances have been referred to in contexts other than child pornography cases. These exceptional circumstances include either if the offending can, at least in part, be explained by an unfortunately early life or if an offender was immature at the time of offending or if an offender did not realise, due to some cognitive difficulty, the harm that offences such as these caused. Factors also include whether the pornography of pre-pubescent children was sought out as opposed to being downloaded accidently. They further include consideration of whether the pornography, in large part, concerned those of close to legal age or that the offender’s physical and mental wellbeing would be at risk from incarceration. All factors pointing to the offending itself being less objectively serious..
63None of the above potential exceptional circumstances apply to you, sir. Those that do apply, however, are as follows; you are of otherwise good character, you have expressed your genuine remorse and you have good prospects of rehabilitation; that of which is already underway.
64Additionally, exceptional circumstances may be established if, at around the time of offending, there was a noticeable change in your presentation sufficient to seek psychological help, such that you were acting out of character.
65This factor does apply to your circumstances at the time of offending. In the context of this case, I accept that your personal circumstances placed you in a stressful position which you were obviously personally ill-equipped to manage. You did not seek assistance but were clearly acting in an unusual way due to domestic and/or work stressors which were objectively observed to be significant.
66My next consideration is your progress in understanding the serious nature of child abuse material. I observe that those who are apprehended in such circumstances often seek assistance if they are free to do so and I observe they are well advised. A recognition that what you have done is seriously wrong is something that most right-thinking people know instinctively. Doing something to address your accessing of it and your underlying personality deficits is an excellent first step, as I have observed. In and of itself, it is neither rare nor clearly unusual, but it ought to be taken in your favour.
67I also consider your early plea and your involvement in your rehabilitative treatment as an indication of remorse in the circumstances of Ms Allen's report, it indicates good prospects of rehabilitation and a now, low risk of reoffending in the same way.
68Next, I acknowledge the extra-curial punishment and the probable extra burden which will result for innocent family members if you are incarcerated.
69Next, I note that the early plea utilitarian value is enhanced by being entered during COVID-19 circumstances. I acknowledge that an early plea must carry greater weight in mitigation than a plea entered at other times when those circumstances did not exist.
70The primary consideration is to impose a sentence of appropriate severity. Any short-term custodial sentence imposed and required to be served at this stage would have, in my view, dubious benefit to you and dubious benefit to the community. There is little prospect of treatment being available in custody for you and the circumstances in custody are significantly more difficult than at other times. On the other hand, I do acknowledge that a short term in custody may address deterrence requirements and that is something I do take into account.
71However, as your offending is at the lower range of objective seriousness, on balance, all of the above relevant circumstances apply to you and I find that all of those circumstances, taken together, amount to exceptional circumstances, considering the relatively low objective seriousness of the offending.
72I have now received the CCO report prepared after consultation with you. It contains no surprising information. You are assessed, again, as presenting a low risk of general reoffending and, as anticipated, further investigation is suggested to be undertaken to assess any risk of sexually related reoffending.
73Corrections indicate that at least 18 months of supervision is required to ensure any intervention is properly managed. These recommendations are accepted. I propose to further require you to continue treatment with Ms Allen or such alternative therapist(s) as she or Corrective Services direct, for such time as is directed.
74Sentence
75I am going to impose the sentence now, sir, I have indicated. Stand up please. I have indicated that I do not propose to impose a term of custody that will require you to serve a period in custody but listen carefully.
76As noted above, Counts 1 and 2 which are the transmission and receipt of child abuse material, are of below mid-range objective seriousness. Objectively, I find a term of imprisonment is not required for those. I propose to place you on a section 20(1)(a) recognisance in the sum of $2,000.00, to be of good behaviour for a period of one year with conditions as set out in the Community Corrections Report and, in addition, to pay a pecuniary penalty, in the amount of $5.000.00, to the Commonwealth Director of Public Prosecutions.
77In relation to Count 3, I propose to sentence you to a term of imprisonment of three months and order your immediate release on a recognisance pursuant to s 20(1)(b) of the Act in the sum of $2,000.00 for a period of two years and six months.
78Both bonds of recognisance will commence today.
79The conditions of the recognisance for each of the bonds will be as set out in the CCO report. They include that, for the period of those bonds, you must be of good behaviour and not commit further offences.
80They further include that, pursuant to s 48D, you attend offending behaviour programs as directed. My understanding, sir, is that you will perhaps be directed to attend behaviour programs with either Ms Allen or other psychologists after an independent assessment of your presentation. I also order supervision pursuant to section 48E of the Sentencing Act meaning you are to accept supervision from Corrective Services for such time as they direct within the recognisance period.
81In the meantime, I direct that you are to continue your therapy with Ms Allen and/or her nominee if she is not personally available. This is to continue for such time as either she or Corrective Services direct.
82You are also required to report to the Werribee Justice Service Centre at Werribee within two days of today to accept the supervision. You will accept and receive calls from Corrective Services officers. You are to notify Corrective Services officers within two days of any change of address. If you are still moving between your mother's home and your home, simply let them know what your regime usually is. You are not to leave Victoria, except with the permission of an officer of the specified Community Corrections Centre, and again, that is a matter of notice.
83What I propose to do is to sign the order and ask you - you don't have an instructing solicitor here at the moment - - -
84MS BOLTON: No.
85HER HONOUR: - - - to take it to your client. Take your time to discuss it with him. I know that - Mr Frangou, you can sit down now - I know that people in court only half listen to what's going on. Please, I want to make sure that he does understand exactly what he's signing up to and that he agrees, thank you.
86MS BROWN: Pardon me, Your Honour, there's one more thing. Your Honour did refer to the Sex Offender Registration Act obligations in your reasons for sentence but I'm not sure if Your Honour has separately made the order.
87HER HONOUR: I have separately made the order and I've signed it.
88MS BROWN: Thank you. May it please the court.
89HER HONOUR: We'll come back later.
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