Director of Public Prosecutions v Alexander
[2018] VCC 789
•1 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-17-02432
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA ALEXANDER |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 1 June 2018 |
| CASE MAY BE CITED AS: | DPP v Alexander |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 789 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Office of Public Prosecutions |
| For the Accused | Ms K. McFarlane | McFarlane Criminal Lawyers |
Pages 1 - 13
HIS HONOUR:
1Joshua Alexander, you have pleaded guilty to ten charges of procuring a minor for child pornography. Four charges of using a carriage service to transmit indecent communication to a child under 16. And one charge of knowingly possess child pornography. Those crimes carry maximum penalties of ten years, seven years and five years respectively.
2You pleaded guilty at an early stage, to a settled indictment and you must get the benefit of that. You are now 29 years of age. You have no prior convictions and as I understand it, no matters pending. You made, certainly partial, admissions to police when interviewed and I accept that your plea of guilty is accompanied by appropriate remorse and of course, there is a significant utilitarian benefit to it. Because of the nature of the offending you will be placed on the Sex Offenders Register and I advise you that the reporting conditions will be for life. Ms McFarlane, if you could accompany my associate to the Dock to get that signed.
3MS McFARLANE: Yes, Your Honour.
4HIS HONOUR: I also accept that in this situation there has been a significant delay between you being interviewed and charged, by reason of technical investigations that police had to make and I take into account that you spent that time in a situation of anxiety over the potential outcome of these matters, and that you have in effect, as they say, had it hanging over your head.
5Because of the sentences I intend to impose, you will be sentenced as a serious sex offender on Charges 5 to 15 inclusive, other than Charges 4, 8 and 11, which are Commonwealth matters which as I understand it, do not attract the provisions of s.6.
6Next pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.
7A summary of the offence has been tendered by the Crown. It is a very detailed and lengthy document which I do not propose to read in its entirety. I do propose however, to read significant portions of it which show the seriousness of the offending that took place. I suspect that there is an element of not quite grasping how wrongful what you did, was.
8In any event, you were aged between 21 and 27 years at the time of the offending and you are now, as I have said, 29. At the time of your arrest you were living in Traralgon with your partner and you were working as a primary school teacher. What brought the matters to a head was on 13 June 2015, a 15 year old girl went to the police in Queensland to report online contact with a person who turned out to be you. That gives rise to one of the charges. It appears from what you told the psychologist, that when you were then interviewed a month or two after that, in the August of 2015, that you had desisted from that period of time on.
9I do not, again, have to go through all the dates but the offending clearly, the first of the charges relates to December 2009 and the last date that I can see, relates to between dates going back to June 2015, when that girl reported the matters to the police.
10You are also, as has been indicated, pleading guilty to a charge of knowingly possess child pornography and I will come to that in due course.
11Charge 1, relates as I said, to 2009. The victim in that matter was 13 years' of age and you told her that you were 19. You, in contact with her, quickly engaged in conversation of a sexual nature and you made comments to her such as, "What about my hard cock. I want to finger you so bad. The way you're talking, you need a dick up you. Can I please see your tits babe, my cock is so hard". When she asked what you were doing, you responded, "Wankin'". That conversation apparently, it is a small part of it, went on for some hours on that day. That is a procuring charge.
12Charge 2, is a 13 year old again. It became apparent that you had talked with her previously and the indecent communications contained within that were, "Fuckin' hottie" and "Had a fuck buddie for a while" and other matters. I might indicate that the indecent charges I am simply going to give a month on each, all concurrent, because they pale into insignificance compared to some of the other charges. That conversation was in July 2010.
13The next is Charge 3. Again, a 13 year old with you claiming that you were 14. In terms of the comments and conversation with her, you in endeavouring to get her to send you photographs said, "So you don't show your bra". When she refused to show it you asked, "Anything I can do to change your mind". She's then lifted up her top to show you her bra, to which you replied, "Hey hey so sexy". That came after a significant number of questions and obvious pressure from you for her to do such a thing. It then went on.
14We turn to the photograph of you, as I understand it, "Probably touching yourself looking at my pic. Something else of mine wants a kiss" was the comment you made. You asked her what she would do if you showed her your "thing". She replied that she would, "Show you hers". The conversation went on from that, with you obviously asking for photographs and you and her said on numerous occasions that you missed each other, and you agreed to be her boyfriend. You of course had told her, as indicated, that you were 14.
15At one time she was told you that she received a bad news that her horse was dying and your response was, "You will have to ride me instead". Other questions to her in terms of her obtaining this material, "Where you want my knob?" "Will you stand up and undo your jeans". Again, as with the previous victim, "And wankin' 'cause I'm so horny for you". "Will you show bra or tits?" and similar questions going on from there.
16Charge 4, relates to a 15 year old and these are ages that were told to you over whichever device you were communicating on. That was a charge of indecent communication where you were simply talking about tits and comments like that, and I have already indicated what I am going to do with those charges.
17Charge 5, is again a procuring. You were then told that - she told you that she was 16. You responded to her with, "I'd love to fuck you". You then asked to be shown tits. You asked to see photos of her in her bra and underwear and you then replied, "You in your bra and underwear and then, can I see under your bra, babe? My cock is so hard for you and if you took your bra off, I would come". And, "You get me hard enough to come and I'll take cock pics". You told her to put her hand down her panties and to rub her “pussy”. That conversation went for hours.
18Charge 6. Again, you claimed to be 16 years of age. She was 14. On numerous occasions you asked her if you could see her naked and she continually refused. Again, it is a question of asking continuously for these photographs. At one stage you said, "Would you show me your bra. Now I want to see your bra". And later on you said, "I want to fuck you so bad, babe, are you gonna show me your bra? When we do meet up, are we gonna mess around?" And, "'Cause I really wanna fuck you, babe".
19In that scenario I point out that I accept that at no stage was there any real possibility of you meeting in a physical sense, any of these girls. On 24 May 2011, you had an argument with her and she begged you to give her another chance, asked what she could do to make it up to you. You responded, "If you want to make it up to me, I want to see you in bra and underwear". And "You said you would make it up to me. If you really want me, you will do it".
20You told her that she either needed to appear on camera with her bra off or in her bra and underwear and she agreed and complied with that. You then commented to her, "If you slide your hand down the front of your underwear now, you can treat me". And she begged you not to make her do that. You told her that if she did, you would stop asking her to do things on camera.
21Charge 7, the same sort of thing. A 14 year old, again playing on her vulnerabilities. "I think you're sexy, baby. You're not fat to me". "Can I see you on cam? Will you take your top off on cam?" She said that she had pictures for you but you probably would not like them, but you asked her in any event to send them to you and you asked, "Would you let me see your tits on cam?" You said, "You want to see a pic of my hard cock?" She has continued to tell you that she is having a difficult time in her life and you stated to her, "Please help me come, babe and I'll dream about you" and, "Lift up your top haha". You made similar comments to her on subsequent occasions as well. That went on for some time.
22Charge 8, was a 15 year old. She did not want to video chat because she thought she looked horrible and you again, made indecent comments to her.
23Charge 9, is a 16, you said you were 18. You asked her to show you things and to take photos. You said, "Your looks, legs and boobs look amazing". "I just want to slide my hands around your waist and slowly undo those shorts. What have I got to do to see them? Or is that a no-no?" You said to her, "What a nice arse". "That if I was there now, would you want me to come?" "Just undo the front of your shorts and leave them on". "Can I have another peek at those amazing tits then, if you're gonna keep". You had on numerous occasions, conversations with her asking what sexual acts she performed, describing what she had done sexually. You engaged in a number of conversations with her, the longest which apparently was something like an hour and thirty five minutes.
24Charge 10, on 24 January 2011 you engaged in conversation with a girl. You initially started in a three way conversation and you wanted to keep talking to her. During that call you repeatedly asked her to show you her breasts, and what occurred after that is in my view, the most serious of all this offending and I will read it in some detail.
25Despite numerous requests by the victim for you to stop asking her to show her bra and breasts, you persisted until she agreed. You then asked her, "Do you show pussy on cam?" "Because I wanna see pussy". You then sent a picture of yourself to her, asking her to do the same. You then messaged her, "When are you gonna show pussy. I showed cock". It seems in response to that that she did ultimately show her breasts on camera.
26On 11 February you sent a message saying that if she did not show her breasts immediately, you would tell everyone she had done it before. You then stated, "You still haven't shown me your tits". "Shirt up, I want to see all of them". When she told you to stop asking her to do that you replied, "If you don't show me when I want to see them, I'll put pics of your amazing tits on Facebook". She then showed you her breasts.
27She became concerned about the pictures being disseminated by you. She asked you not to post pictures of her breasts on Facebook. You responded, "I won't as long as you show them on cam when I ask". She asked you to promise and you responded, "Only if you do stuff on cam when I tell you to, okay".
28On 17 February you told her to strip for you on camera. When she refused, you told her that you would tell her boyfriend that she had stripped for you, if she did not do it immediately. You then said, "You will show me whenever I want to see, or I will tell him. I won't if you strip whenever I want you to and so if I tell you I want to see your tits, you gotta show me". She then did as you had asked and showed. You then told her to show what was under her shirt and lift her bra, and your response to her being suborned into doing that, was calling her your "naughty little slut".
29On 25 February you again asked her to show you her breasts. She refused. You told her to, "Do as she was told". You then engaged in a video call with her, during which you told her to strip naked. You said, "Open your legs and sit the laptop between them so I can see that sexy pussy". You then asked her to touch herself and see, "How many fingers she could fit". It appears that in these circumstances that girl complied with this.
30You also asked her to send videos of her having sex or giving oral sex. There is further conversation with her about, "Can't wait to fuck" her, "Going to finger you", and all those sorts of matters. You clearly you tried to tell the police these were somehow comforting conversations you were having. You clearly just intimidated that girl into doing what you wanted her to do.
31Charge 11, is the indecent communication. Again the same sort of comment.
32Charge 12, and in May of 2011 you in contact with a girl who was particularly, and has put in a victim impact statement as I understand it, vulnerable and had been running away from home as a result of being bullied at school. She was living in Morwell and it was a hard time for her. You would comment on her pictures and made her feel special, like she was the only girl you were talking to and that you were there for her.
33She told you in fact that she was 14 years of age, when she really was 13, and you told her that you were 18. There is one of these video conversations, you asked her to show you her body. She showed you her vagina briefly whilst still wearing underwear, and unbuttoning her school dress to show her breasts. You told her that you would show her your face, if she showed you her breasts or vagina. That you would then tell her that the camera was not working.
34She also remembers you asking her to put her fingers in her vagina and asking if she had toys. At one stage you asked her to meet you near a primary school and then you suddenly went off line, and advised her later that you had had to go away and could not access the internet. She talked about running away from home and you stated that you were in Sale and could pick her up from Morwell. Again, you asked her to send pics. I do not have to go through all that detail.
35You again made a number of indecent comments to her, such as, "Bet you give good head". "You swallow?" And, "Good girl". Again, there was indications of you saying that effectively, masturbation while you were watching or talking to her. Her mother discovered the communications. She, when finally interviewed by police, told them that the whole thing made her, "Feel embarrassed and disgusted and I'm really disappointed in myself". As indicated, I have read her victim impact statement and it has clearly had a devastating effect on her. She was in a very difficult period of time in her life and you simply abused her for your own gratification.
36The next is the girl who went to the police in 2015. She had told you that she was 15, turning 16 and you had told her that you were 16 years' of age. She said that you continually asked her to show pictures and ultimately, she did. You sent a photo of a person purportedly to be someone called Josh Austin, with a shirt pulled up, stomach exposed and another of a male which is, from what I understand not you, laying on a couch fully naked with his penis exposed. That photo was sent to her to try and convince her to send a naked photo of herself. Her mother discovered the communication and that would appear to have been, so you told the psychologist, what brought about an end to all this.
37One back in 2014, the result was a number of indecent communications and again, I do not need to go into the detail of those because I have indicated what the penalty is going to be.
38When police investigated they ultimately seized equipment of yours and found child pornography. The analysis of your Facebook account came up with something in the order of 177 solo or sexual acts between children, four child adult penetrations and a very significant number of no sexual activities. So that so far as the child pornography is concerned, I have certainly seen worse than that and might well have been dealt with in the Magistrates' Court.
39In the computer, and this is a bit difficult for me to deal with because you claim it has not been used for some years, there were something in the order of 16 solo sex acts between children, one adult non penetration and four child adult penetrations.
40What is of real concern with the child pornography that was found was that, the investigators saw 36 videos that depicted young girls masturbating and in some instances using hair brushes as sexual aids, which I note is something that you had mentioned to certainly more than one of the victims.
41And three further images were located where young pre-pubescent girls took pictures of their genitalia and sent images of them holding notes, to you that read, "Property of Josh". "Talk dirty to me". And, "Joshie, fuck my pussy".
42When you were arrested you made admissions to police, to a large extent and did claim that you had not kept any photographs. You did make admissions that there would probably be child pornography on equipment and in my view, gave an explanation which just minimised and showed a lack of comprehension or refusal to admit at least, the severity of what you had done.
43You said to police, "You'd start talking to someone you feel comfortable with or they start flirting and you flirt back or vice versa and it was just kind of progress from that. It wasn't just that I just went on. I want to make it clear. I just didn't go on to just do - talk sex and that's it - like - that wasn't any of the intention".
44Well the material, of which I have just read a small part, would seem to indicate very much to the contrary.
45As I indicated to your counsel, it is serious offending indeed and only a significant custodial sentence could be applied in such a situation. Of course, general deterrence becomes a very important factor of this. Specific deterrence is debatable. You have come across as a medium to high risk, risk of reoffending although I suspect you will not be doing this again. There must also of course, be denunciation and an appropriate punishment.
46To your credit, as I have indicated, you have no prior convictions. You have a good work record. You, having left school, were able to get a tertiary education and you became concerningly, I must admit, a primary school teacher. As I understand it, certainly the later of these offences occurred whilst you were actually teaching and I find it hard to believe that in doing the Bachelor of Education, you were not educated as to the dangers to girls of this sort of sexual subjugation.
47You have, as I have indicated, a good work record since this offending. You have lost your employment which is only to be expected, but you have been working as a barista, looking at taking over a business that is, as I understand it, owned by your father.
48Your partner, who you have been with now for some five or six years on my calculation, has remained with you and you have her support. You do have good family support. You have been seeing a forensic counsellor, Mr Burrows who is known to me, who has been giving you education if it can be called that, insofar as sexual offending and there is a report from Dr Barth, a psychologist, on file.
49What essentially is being put is that you are and were an immature man with a lack of insight and you apparently lived with your parents, until you moved out with your partner, when you were 23 years of age.
50You had difficulty at school. You were bullied and had a great deal of difficulty socialising. Apparently, the bullying was personalised and because of weight issues, as indicated, you left school and were able to continue some education and you were employed in several positions in hospitality before becoming, ultimately, a teacher.
51You went through the relationship situation with Mr Barth. I do not think I need to go through that and, again as I have indicated, you told him that you had ceased the chatting activities when you were charged with the current matters. I suspect that was when you were interviewed, rather than charged as there was something of a 12 month gap.
52You have clearly used pornography since your teens. You have long standing issues with self-esteem and it is Mr Barth's view that, and you described it to him, as this conduct as serving the purpose of alleviating poor self-esteem, also providing sexual gratification. You said to him, "It made me feel wanted. They [that is the complainants] were easy to talk to and I could be the cool teenager. Not like the one I was at school. It was just so shameful. What I did was very wrong, all of it was wrong".
53As it was indicated and I do not have to go through it all again, it went a lot further than just talking. There were threats involved with certainly one of them, and one can only guess at the damage that has been caused to some if not all of those girls. There is no diagnosis of paedophilia and it seems to be Mr Barth is saying, that you have difficulty, confusion about sexual development of young people. As I say, that is his opinion. I give weight to it but it is a bit hard to translate bullying into what you did to these girls. That report speaks for itself and I have taken the whole report into consideration.
54The prospects of your rehabilitation are really up to you and the risk of you reoffending whilst described as moderate to high, I think is probably going to be pretty low, in the end. I have before me and have read and taken into account a reference from your father and also a reference from your partner. At the end of the day, Mr Alexander, it is in my view serious offending indeed. People who are likeminded to do this, and it has become, and I very rarely talk about prevalence, but it is a form of offending which can be hard to detect and likeminded people must be deterred.
55Accordingly, I sentence as follows.
56Charge 1, six months.
57Charge 2, one month, concurrent. That sentence to start today.
58Charge 2, six months.
59Charge 4, one month, concurrent. That sentence to start today.
60Charge 5, six months.
61Charge 6, nine months.
62Charge 7, six months.
63Charge 8, one month, concurrent. That sentence to start today.
64Charge 9, six months.
65Charge 10, 18 months.
66Charge 11, one month, concurrent. That sentence to start today.
67Charge 12, 12 months.
68Charge 13, six months.
69Charge 14, six months.
70Charge 15, nine months.
71I direct that two months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 5, three months of the sentence imposed on Charge 6, two months of the sentence imposed on Charge 7, two months of the sentence imposed on Charge 9, four months of the sentence imposed on Charge 12, two months of the sentence imposed on Charge 13, two months of the sentence imposed on Charge 14 and three months of the sentence imposed on Charge 15 be served cumulatively upon each other and upon the sentence imposed on Charge 10.
72In this given situation, because of your previous lack of prior convictions and your subsequent, I accept genuine, attempts to rehabilitate of the term that you can become eligible for parole at a significantly earlier stage, than would otherwise have been the case.
73But in the end, the total effective sentence is one of three and a half years. I direct that you serve 18 months before becoming eligible for parole and there is one day of PSD.
74Pursuant to S.6AAA of the Sentencing Act, just so that you understand the benefit of your having pleaded guilty and cooperated, but for your plea of guilty I would have sentenced you to be imprisoned for a period of five and a half years, with a minimum term of four.
75Are there any other orders I have to make?
76MS WARREN: No, Your Honour.
77MS McFARLANE: No, Your Honour.
78HER HONOUR: No, very well. Yes, thank you.
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