Director of Public Prosecutions v Allen
[2016] VCC 837
•16 June 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00490
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH GEORGE ALLEN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 3 June 2016 | |
DATE OF SENTENCE: | 16 June 2016 | |
CASE MAY BE CITED AS: | DPP v Allen | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 837 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004 (Vic); Crimes Act (Cth) 1914
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Piechutowska and Mr T. Crouch | Office of Public Prosecutions (Commonwealth) |
| For the Accused | Mr J. Kantor and Mr D. Tamanika | Mike Wardell Solicitors |
HER HONOUR:
1 Kenneth Allen, you have pleaded guilty to one charge of using a carriage service to procure a person who you believed to be under the age of 16 to engage in sexual activity contrary to s.474.26(1) Criminal Code (Cth). The maximum penalty applicable for this offence is 15 years' imprisonment.
2 This crime arises out of events which took place between 17 September 2015 and 8 December 2015. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say that I regard the facts of your offending as most serious indeed.
3 I turn to a brief summary of your offending consistent with the prosecution opening (Exhibit A).
4 You were born on 16 July 1986, were 29 years of age at the time of this offending and are 29 years of age at sentence.
5 You registered on TAGGED under the username “Kenneth A” on 7 August 2014.
6 TAGGED is an online social networking application that enables users to create a user profile, a timeline and newsfeed and to communicate through private messages. The user profile and timeline include the user’s first name and the initial of their surname, a photograph, location, date of birth and other personal information.
7 On 17 September 2015, a Victoria Police online covert operative “KS-AI1” responded to the third message you had sent to the profile of a teenage girl that the operative was using at the time.
8 The public internet profile of the teenage girl showed that she might not actually have been 18 years of age, although I note the profile referred to the "girl" being 18 years of age (see p.32). At the commencement of the communication between yourself and the "girl", the operative informed you KS-AI1 was 13 years of age. This was made known to you on 8 October 2015.
9 Prior to that date, that is prior to 8 October 2015, you sent messages to KS-AI1 on 29 July 2015, 9 September 2015, and 17 September 2015 through the TAGGED in-built messaging facility. Those early communications were set out in the prosecution opening (paragraph 8).
10 Between 8 October and 8 December 2015, communication between you and the "girl" continued via TAGGED.
11 In total, you sent approximately 407 messages to the covert operative during the charged period. A number of extracts from those communications were set out within the prosecution opening (paragraph 10), and I discussed with your counsel, Mr Kantor, the concerning contents of many of your messages.
12 From 8 October 2015 your conversations became sexual. You did not care that the "girl" was 13. You spoke about your “dick size”. You urged her not to let anyone else know about your conversation. You repeatedly asked where her mother was. You described your “dick” and discussed whether she wanted to see it. You urged she delete the messages you had sent her, so no one would see them. You asked what was under her dress. This was the first significant discussion between the "girl" and yourself, and involved you introducing sexual discussion having been made aware on that day of her age.
13 Between 9 and 13 October 2015, you attempted further contact with the "girl" via TAGGED, however, the operative was not online at that time and there was no reply to your messages.
14 Communication between yourself and the "girl" recommenced on 14 October 2015 and that conversation is set out within the prosecution opening (paragraph 12).
15 In brief, you said you were pleased her mother did not know about you, and you did not want her to tell her friends about you. You asked what she would like to do if you met. You asked if she had deleted the messages from the last time they had spoken. You said if anyone found out you would be in “big trouble with the police”. You asked what she was willing to do and the "girl" said that she did not know, “What do you mean?” and you said “I do not know, I was thinking dirty. LOL.” You asked if she wanted to do anything with you. You asked what she was wearing under her shorts. You said you hoped to get her number next time and give her a call. You asked if she would do you a favour and have a feel of her "pussy", you then said, “Joking, do not.” And you said “pussy” was “vagina”.
16
Between 15 and 20 October 2015, you attempted to continue the communication with the "girl", writing to her on 16 October, suggesting “I know what we can do when we meet LOL.” The "girl" replied six days later on
22 October 2015, as set out in the prosecution opening (paragraph 13).
17 At that time, you suggested if they met, you could show her your “dick”. There were discussions about what you would do and you asked if there was a park near her place and referred to her performing oral sex upon you. You said you would help her with it and asked her if she was starting to like you and you described the oral sex. You asked about her pubic hair. You advised she not tell anyone about that and that she would not be able to tell anyone about that until she was 17 or 18. You also asked if she would like you to “touch her bum, cuddle, kiss and touch her boobs and pussy”.
18 The "girl" asked how you would get from Ballarat to her place and you said you would drive. You asked if her mother would let her go for a walk when it was dark and reminded her to delete messages, “So we do not get caught.”
19 You suggested she wear a skirt and G-string that night and requested more pictures. You again referred to sexual activity with her. You asked when her birthday was. You asked if she would let you rub your penis against her vagina.
20
Non-sexualised communication occurred between yourself and the "girl" sporadically between 27 October and 10 November 2015. On 11 November 2015, you recommenced sexualised communication as set out within the prosecution opening (paragraph 14). There was further conversation on
11 November 2015. You asked where her mother was, if she was still deleting the messages, and requested more pictures. You suggested meeting at a park. There was also sexual references by you in that conversation.
21 On 12 November 2015 you again asked where the "girl's" mother was.
22 On 14 November 2015, you again asked about her mother, and described sexual activity with the "girl". This conversation involved a significant amount of sexual activity being discussed between you and suggested by you.
23 On 1 December 2015 you again brought up the topic of meeting.
24 On 2 December, you suggested getting a motel room, and also proposed sexual activity and explicit sexual discussion (Exhibit A paragraph 15).
25 On 3 December 2015 you discussed the "girl's" schooling.
26 On 8 December 2015 you said you could not meet her that weekend as you had your son over. Again, you asked where the "girl's" mother was.
27 As I previously stated, I discussed many of the conversations and their content with your counsel, Mr Kantor, relevant in my opinion when assessing your admissions to police in your record of interview of 8 December 2015 and the gravity of your offending.
28 Turning to your record of interview, you significantly minimised your involvement with the "girl" in a number of your answers, specifically your answers referred to in Exhibit A at N, O, Q and V. I accept you did, however, admit discussions of a sexual nature with the "girl".
29 At approximately 5.50 pm on 8 December 2015, Victoria Police attended your home, executed a search warrant and seized a number of items.
30 You provided passwords to access your phone, email accounts, social media and dating applications. Subsequently your phone was examined and photographs taken of all the chats between yourself and the covert operative. No illegal material was found on the laptop.
31 Between 7.26 pm and 8.12 pm on 8 December 2015, you participated, as I have said, in a tape-recorded interview with the informant. You told police you talked to a young girl, at first thinking she was 18, then being aware she was 13 or 14. You agreed the chats were general as well as "dirty and explicit". You said communications started a month or two ago. You did not think you were hurting anyone by talking dirty and if you had known that, you would not have done it.
32 You said the "girl" mentioned she was 14 but that did not enter your head. You chatted to other people on TAGGED but believed they were all over 18.
33 You did not know why you kept talking to her but said that you took it too far.
34 You had talked about meeting her but you said you would never have done that. You agreed you talked about getting a motel room.
35 Once being aware of how old she was, you agreed you continued to talk dirty and said you were not thinking. I disagree with your statement that you were not thinking, given the content of the messages, that I discussed with some detail with Mr Kantor.
36 You said it did not cross your mind the "girl" was 13 when talking like that, and that you did it for a bit of fun. I disagree with that assertion, as I discussed with Mr Kantor.
37 You said these conversations with KS-AI1 were similar to the conversations you had with all the other girls at the time that were over 18. You said she only mentioned her age once and that you "kind of forgot" how old she was. As I discussed with Mr Kantor, the conversations clearly reflect you had not "forgotten" her age.
38 You said you never asked for nude photographs.
39 You acknowledged you were guilty and accepted punishment.
40 You were charged and bailed to appear at a filing hearing on 10 December 2015. At a committal mention on 24 March 2016, the matter proceeded by way of straight hand-up brief and you entered your plea of guilty to this charge. The matter proceeded to this plea hearing.
41 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Further, I take it into account in your favour you intimated early your intention to plead guilty to this charge and also you admitted your involvement in this offending when questioned by police, although minimised it, as I discussed with Mr Kantor. I accept your plea of guilty is indicative of some remorse.
42 Following conviction for this offending, you are to be registered pursuant to the Sex Offenders Registration Act 2004. The offence to which you have pleaded guilty is a Class 2 registrable offence in Schedule 2 of the Act and pursuant to s.34(1)(a)(i) of that Act, you are required to comply with reporting obligations for 8 years.
43 Mr Kantor conceded on your behalf, upon conviction for this offence, you were to be registered pursuant to that for a period of 8 years.
44 You do not have any prior convictions and therefore come to the court as a person of previous good character, nor is there anything subsequent alleged.
45
Mr Kantor, who appeared on your behalf, addressed his written submissions, tendered a psychological report from Mr Joblin, dated 7 May 2016, to which I shall shortly refer, a reference from Sharon Burrows, your employer, dated
30 May 2016, and a bundle of certificates from State Emergency Services and other services, relevant to your volunteer work.
46 Mr Kantor urged you had pleaded guilty to this charge at the earliest opportunity, and I accept that is so. And he also referred to your lack of prior convictions at age 29 of which I am also aware.
47 By way of background to this offending, you instructed Mr Kantor you were, at that time, struggling with relationship issues, elaborated upon by Mr Joblin in his report. As I discussed with Counsel, however, it is not unusual that there be relationship issues between couples. That in my opinion however, did not explain your offending, which involved a girl you believed to have been 13 years of age.
48 I was told you continued to enjoy the support of your family, and I note that in court to support you during your plea hearing was your mother and your fiancée. You have been in an age-appropriate relationship with your fiancée for approximately three and a half years and were hoping to marry this year.
49 You have a 4 year old son, born in 2011 and you share parental responsibility of him with his mother (your ex-partner).
50 Mr Kantor submitted you had an excellent work history and most recently had worked for Burrows Transport for the past four and a half years.
51 A reference was tendered from Sharon Burrows, Director of Max Burrows Bulk Haulage Pty Ltd dated 30 May 2016. She was shocked to hear of this charge as she regarded you as a "decent person". You and your partner, she said, were working towards a future together. You had a young son and you worked hard for the future of your son and partner and you were remorseful for your offending.
52
I was also handed a number of certificates presented to you between 2004 and 2010 relevant to your volunteer work. There were tatements of attainment and certificates from New South Wales State Emergency Services dated 28 March 2004, 25 May 2004, 30 October 2004, 15 May 2006, 27 October 2007, 23 June 2008, 14 September 2008, 21 September 2008, 22 September 2007,
19 October 2008 and 7 June 2010.
53 There were also certificates for State Emergency Services dated 15 May 2006, 22 June 2008 and 25 May 2009; a Rescue Awareness Certificate with Penrith Whitewater dated 27 May 2009; and a certificate from Riverina Community College dated 30 June 2009 with a transcript of results.
54 I turn to the report from Mr Joblin, dated 7 May 2016. Further details were set out in that report regarding your family, education, employment and relationship history.
55 Your parents live in Wagga, they lease and work in a caravan park. You described a good relationship, in particular with your mother.
56 You have five brothers and two sisters, you being the youngest of the eight. You reported little contact with two of your brothers and no contact with your sisters.
57 You were raised in Bendigo, attending primary school. At 13 years of age, the family moved to Wagga. You left secondary school mid-Year 11.
58 You reported significant problems at school, having a marked speech impediment and being the target of bullying and abuse.
59 After leaving school, you worked in the meatworks in Wagga for some months, leaving due to medical problems. You then worked in Wagga in a factory making trailers. You left that employment when you said you had a diagnosis relating to cancer (not further elaborated upon before me). For the next two to three years you worked with your parents in the caravan park.
60 You then came to Ballarat working for a shearing gang as a roustabout, and also worked for a tree-felling company.
61 Approximately four years ago you obtained a truck licence and had been driving trucks since then. Since 15 August 2011, you worked for the company based in Ballarat to which I previously referred, and said you enjoyed that work. And again, I note the reference from Ms Burrows.
62 In January 2012, your first partner and mother of your child, returned to Wagga and you separated. You continued to have access with your son on a monthly basis.
63 You met your current fiancée in 2013. She works in a supermarket in Beaufort.
64 You underwent an operation when you were 7 or 8 at the Royal Children’s Hospital to correct some of your speech impediment problems. However, that impediment continued to be a source of difficulty for you. I have taken that into account when determining the appropriate disposition and, in particular, the duration of any immediate imprisonment you are to serve for this offending. I accept that impediment may make your time in custody more difficult than a prisoner without such.
65 Mr Joblin noted while you had, in the past, acknowledged difficulties with alcohol consumption, such had not adversely impacted upon your ability to work. I also note alcohol did not appear to play a role in this offending. You did not have any history of drug abuse.
66 Turning to your offending behaviour, Mr Joblin noted, as do I, no child pornography was found during a search of your home on 8 December 2015. And I accept that a number of your “friends”, apart from the "girl", were 18 years or older.
67 You reported this was the first time you began chatting with a girl that age and that you did not search through social networking sites to find a 13 year old specifically. I accept you were not specifically looking for a minor (or a 13 year old).
68 You acknowledged you had made a serious error in judgment, which I regard as an understatement, by continuing to interact with the "girl" who you believed to be 13 years of age.
69 You reported you had no sexual interest in girls 13 years of age previously, although acknowledged you found the interaction exciting and stimulating. The latter has yet, it seems, to be addressed in any formal counselling.
70 Mr Joblin submitted you were under no misapprehension about the seriousness of this charge, and that you regretted your offending behaviour, in particular with regard to the possible involvement of the Department of Health and Human Services.
71 Mr Joblin concluded it was difficult to report that your offending represented a psychosexual disorder. He also did not consider you had a paraphilia, such as paedophilia. Nor did Mr Joblin consider you had any disorder that included searching for girls this age for the purpose of sexual relations, and I accept that to be so.
72 Mr Joblin submitted you had a reasonably optimistic prognosis in terms of further offending.
73 Mr Kantor, in his written outline of submissions, referred to the matters that he relied upon in mitigation of your sentence, and I discussed those with him (Exhibit 1 paragraph 16).
74 Mr Kantor submitted there was an absence of a number of aggravating features. The "girl" was a covert police operative and there was no actual victim. That is so. There was also the absence of possession of any pornographic material relevant to these discussions. There was a single “victim” and you were not seeking underage persons for the purposes of procurement, that is you were not trolling the internet. Nor did your offending involve threats of violence or coercion, no actual meeting occurred and there were periods of time without communication between yourself and the "girl". I am aware of all these matters.
75 Mr Kantor conceded, having had the benefit of the prosecution written submissions on sentence that he did not take issue with the matters of law, sections of the relevant Act and cases referred to by the prosecution as relevant when sentencing for your offending, although he submitted your disposition should not involve immediate imprisonment.
76 Ms Piechutowska provided a written outline of the prosecution submissions. She referred to the paramount importance of general deterrence and the need for just punishment and denunciation. That is so.
77 The prosecution ultimately submitted that only a term of imprisonment would be appropriate for your offending.
78 Ms Piechutowska submitted, consistent with s.16A(2) of the Act, I must take those matters into account as relevant and known, and that I must impose a sentence of severity appropriate in the circumstances.
79 Ms Piechutowska referred to general deterrence as being a highly relevant factor because of the significant public interest in protecting children from sexual abuse or predation.
80 In that regard, I was referred to the recent amendment to the Crimes Act 1914 (Cth) by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 specifically s.16A(2)(ja).
81 The need for general deterrence, Ms Piechutowska submitted, was also referred to in decisions such as R v Gajjar[1] and DPP (Cth) v Hizhinkov[2], and I have read those decisions.
[1] (2008) 192 A Crim R 76
[2] (2005) 153 A Crim R 104
82 Ms Piechutowska also referred to cases that have dealt with similar offending, R v Burdon; Ex parte Attorney-General (Qld)[3], State of Western Australia v Collier[4] and DPP (Cth) v Walls[5]. Ms Piechutowska set out in her written submissions the relevant principles as enunciated in those decisions (Exhibit A paragraphs 13-16). I was also provided with Appendix A Supreme Court Sentencing Decisions on procuring, contrary to s.474.26(1) Criminal Code (Cth). All of this has been of assistance to me.
[3] [2005] QCA 147
[4] (2007) WASCA 250
[5] [2014] VSCA 323
83 Ms Piechutowska referred to Gajjar in which the court accepted that ordinarily one could expect to receive a term of immediate imprisonment for offending of this type (paragraph 86).
84
I was also directed to the maximum penalty applicable for this offending of
15 years which indicated, the prosecution submitted, the objective seriousness of your offending was high. I agree.
85 I was also referred to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No.2) 2004, Explanatory Memorandum referable to s.474.26 and the Second Reading Speech which referred to Parliament’s attempt to address the problem of internet sexual exploitation of children (Exhibit A paragraph 24).
86 The prosecution submitted the lack of a real child victim should not be treated as a mitigating factor, nor was it an aggravating feature. I agree.
87 Ms Piechutowska referred to the significant age difference between yourself and the "girl", i.e. 16 years difference. That your offending occurred over a significant period of time, specifically from the conversation in which you became aware of her age, 8 October 2015, and your last message on
8 December 2015. That the contact involved over 400 messages between you.
88 I agree with the prosecution that your offending was sustained, frequent, persistently sexual and a deliberate course of conduct by you.
89 I also agree with the prosecution submission that the sexual activity you proposed with the "girl" can be described as salacious and explicit.
90 I note there were no threats or enticements made or given by you in your offending.
91 It was also conceded by the prosecution you did not attempt to conceal your identity.
92 It was submitted by Ms Piechutowska that one of the circumstances of aggravation was that you discussed arrangements for meeting the "girl", although no meeting actually occurred. The prosecution submitted the intention however was there.
93 As I discussed with the parties, there was suggestions/discussions about meeting that are instigated by you, however no further efforts were made by you to enable any meeting to occur, such as purchasing train tickets for the "girl" or actually booking a motel room. It is clear, however, you were discussing the prospect of meeting, beyond that, I do not regard it specifically as a circumstance of aggravation relevant to your sentence, however, of some relevance as stated in Tector v R[6].
[6] (2008) NSWCCA 151
94 Addressing s.16A(2C) of the Act, the prosecution submitted your offending did not involve an isolated incident, rather, a course of conduct involving a number of criminal acts of the same or similar character over a period of two months. And it was.
95 Addressing s.16A(2F) of the Act, the prosecution accepted you were co-operative with police, made admissions in your record of interview, and provided details of your passwords which was indicative of some remorse on your part, although your remorse, it was submitted, had in part arisen at "being caught". I agree.
96 The prosecution acknowledged your plea of guilty was entered at the earliest opportunity and that, by your early plea of guilty, you had demonstrated a willingness to facilitate the course of justice. This was, however, it was urged a strong prosecution case. The prosecution submitted a guilty plea entered in the face of a strong prosecution case should not be afforded as much weight as a plea entered in circumstances where the prosecution was weak. The prosecution conceded, and I agree, you are entitled to a discount for your plea of guilty and such as evidenced in some remorse by you.
97 Addressing s.16(2)(j) of the Act, the prosecution submitted specific deterrence was a significant sentencing consideration in your case as you were well aware of the wrongfulness of your offending as evidenced by your continuous messages to the "girl" to delete messages “so we do not get caught”. You also acknowledged at the start of your communication with the "girl" that you “would get in big trouble with the police” if anyone knew that they were talking. You also said she would have to wait until 17 or 18 years of age before letting others know of your acquaintance. I agree.
98 Addressing s.16A(2)(K) of the Act, the prosecution submitted the emphasis on general deterrence and authorities made it clear offending of this type would ordinarily result in a term of immediate imprisonment.
99 Turning to s.16A(2)(m) of the Act, you are 29 years of age with no prior convictions. The prosecution, however, submitted less weight should be given to evidence of prior good character, as offences such as this are frequently committed by persons of otherwise good character. The authorities confirm that is so.
100
Turning to your prospects of rehabilitation, s.16A(2)(n) of the Act,
Ms Piechutowska referred to your lack of treatment to date as relevant when assessing your prospects of rehabilitation. To date, I note you have not sought any counselling/treatment for your offending in particular, given you had stated you found the interaction "exciting and stimulating".
101 Ms Piechutowska submitted offending such as yours was difficult to detect and onerous to investigate.
102 Turning to your offending and matters in mitigation of sentence, I turn specifically to s.16A(2) of the Act and the matters I must and have taken into account when sentencing you.
103 I note the length of your offending behaviour over a significant period of time, approximately eight weeks, and that contact was frequent over that time.
104 Your offending was not a spontaneous, one-off incident, rather there were multiple communications between yourself and the "girl", including a number of sexually explicit contacts.
105 At a very early stage in your communication with the "girl", you believed she was 13 years of age, and in that same conversation as discussed before, including reference to the specifics of sexual activity in which you wanted to be involved in with her was spelt out by you in detail about what you would like to do to her. You were also aware the "girl" was supposedly sexually inexperienced from the content of her responses to you.
106 Your contact was persistent. You urged the "girl" to keep your relationship secret.
107 I note at no stage did you actually meet, although the possibility was discussed and you knew it.
108 Turning to your prospects of rehabilitation, I have guarded optimism, given your failure to date to address through counselling this offending. Having said that I accept that there is nothing to suggest that your other conversations have not been with age-appropriate persons (over 18 years). I hope, as stated by Mr Joblin, your current experience with the criminal justice system dissuades you from similar activity in the future.
109 I note for completeness the principles in R v Verdins & Ors[7] do not apply on the material before me.
[7] (2007) 16 VR 269
110 I turn to some authorities that are relevant to the charge before me and this list is by no means exhaustive.
111 Section 474.28(9) of the Act makes it clear it does not matter that the recipient to whom the sender believes the sender is transmitting a communication is a fictitious person, being represented to the sender as a real person. This is relevant, as in your case there is the absence of a real “victim”. Section 474.26(1) of the Act is designed to be preventative and such offending likely to be detected only through use of undercover police techniques (see Gajjar).
112 In relation to offending of this type, in Gajjar, the court said:
“However, in cases of procuring for sexual purposes contrary to s.474.26(1), it is clearly appropriate to give paramount consideration to the principle of general deterrence. It follows from that proposition that it must be open to the sentencing judge to give less weight to prior good character in such cases, than it might otherwise bear.”
113 There is no doubt the concern by Parliament of this offending.
114 In Gajjar the court referred to the Explanatory Memorandum for the Bill which contained this offence”:
“In line with tough federal crimes sex tourism offences in the Crimes Act 1914, new offences will also target online "grooming" activities by sexual predators. Unfortunately, adults are increasingly exploiting the anonymity of the internet to forge relationships with children as a first step in luring them for sexual abuse. The Bill provides a responsible criminal law response to these abhorrent practices.” [31]
115 The maximum penalty for this offence of 15 years' imprisonment, and as I have said, indicates the court regards this as serious offending (see Gajjar at [42]). Regarding the maximum penalty, in R v Fuller[8], the court stated:
“Apart from the need to appropriately punish and deter individual offenders, there is a significant need in the interests of the community to impose a sentence that will, in so far as may be possible, effectively deter other would-be offenders.” [36]
[8] [2010] NSWCCA 192
116 In Gajjar, the court analysed a number of relevant authorities and the principles which could be drawn from them:
“They showed that the legislature viewed conduct of this kind as deplorable. An offender’s conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.” [56]
117 In Tector the court stated that:
“A communication, for example, that expresses an intention to engage in sexual intercourse in contrast to some lesser form of sexual activity is a relevant circumstance in the assessment of the gravity of an offence.” [96]
118 Turning to sentencing statistics and comparing cases. Facts vary enormously case to case, as do matters in mitigation and aggravation of sentence. Sentencing statistics are also, of course relevant, however details of the offending behaviour and matters personal to offenders is absent. Ultimately, I must determine the appropriate sentence in your case based on all relevant sentencing principles and facts in your case.
119 Your contact, as I have said, with the "girl" involved graphic and salacious reference to penetrative sexual activity with her as well as other sexual acts with her. You were the instigator and driving force of those communications.
120 General deterrence is a primary sentencing consideration when sentencing you, as stated in Gajjar and Hizhinkov. In the latter, the Court of Appeal approved statements of principle and reasoning in Collier.
121 The age difference between yourself and the "girl", in my opinion, is also significant. You acknowledge you were much older (16 years older) and you believed she was 13. In addition as I have said, from the communications, you were aware the "girl" was inexperienced sexually.
122 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, as I find them to be, I must take into account matters such as deterrence, especially general deterrence which is of considerable importance in a case such as this.
123 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me albeit I am somewhat comforted by Mr Joblin’s report and lack of diagnosis of a psychosexual or paraphilia such as paedophilia.
124 There is also the need for specific deterrence when sentencing you, albeit you do not have any prior convictions as there were a large number of communications between yourself and the "girl" over an approximate two-month period.
125 I am called upon to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
126 I have taken into account when sentencing all matters known to me referrable to s.16A(2) of the Act. I am aware that I must impose a sentence of a severity appropriate in all the circumstances of the case, whilst taking into account all matters in mitigation.
127 I am also mindful of s.17A of the Act which states I should not impose a sentence of imprisonment, unless having considered all other available sentences.
128 In all the circumstances of your offending, taking into account not only the gravity of it but also all matters in mitigation of your sentence, I do not consider it appropriate to accede to the submission by your counsel that you not be required to serve an immediate term of imprisonment for this offending.
129 In my opinion, the only appropriate disposition involves a term of immediate imprisonment.
130 Now I am going to go through this with counsel. What I am ultimately intending is the following. You will serve a term of imprisonment which involves a short period of time in custody, then you will be on a recognizance release order.
131 I am going to hand down to counsel what I am proposing, so you can have a look at it and we will go through it slowly. So just listen nice and carefully.
132 I turn to sentence.
133 On Charge 1, you are convicted and sentenced to 2 years' imprisonment and that sentence commences today which is 16 June 2016.
134 I direct that you be released pursuant to s.20(1)(b) Crimes Act (Cth) 1914 after serving 4 months of that sentence on your recognisance in the sum of $1000 on the following conditions.
135 Now I need to check that these conditions still apply. I have checked the Act but I just need to make sure these conditions apply, Mr Crouch:
(a)you be of good behaviour for 20 months, which is the difference between the sentence of 2 years and the 4 months you are to serve;
(b)you be under the supervision of the Deputy Commissioner of Community Correctional Services and Sex Offender Management or his or her nominee for 20 months after release;
(c)that you attend for assessment, and if assessed as suitable, treatment for sex offender program or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee, now I am just not sure that the titles are the same because they have changed over the years, but just check that, we will come back to that;
(d)that you report to and receive visits from a Community Corrections officer or officers by reporting to a specific Community Corrections Centre being yet to be determined, because I do not know where it is going to be;
(f)that you notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change, I would like that included if I can;
(g)that you not leave Victoria except with the permission of an officer of the Community Corrections Centre at, wherever it is; and
(h)you obey lawful instructions and directions of the Community Corrections officer.
136 First of all, can I do what I intend - i.e. on Charge 1, Mr Crouch, sentence to two years and have him serve four months and then be on a recognizance release order in the sum of a thousand. Can that be done federally?
137 MR CROUCH: Yes, Your Honour. Absolutely. That is (indistinct).
138 HER HONOUR: Yes, I thought I could. I had checked that before but I just want to be a hundred per cent sure all right?
139 MR CROUCH: Yes.
140 HER HONOUR: So that is correct. Now about these conditions? Can these be part of the order?
141 MR CROUCH: Your Honour, I have just got some notes that I would like to have a quick look at. I have not generally seen conditions like this attached to an RRO.
142 HER HONOUR: No.
143 MR CROUCH: Certainly, conditions can be attached. These specific conditions?
144 HER HONOUR: Yes.
145 MR CROUCH: I just want to have a quick look if I can.
146 HER HONOUR: No, what I think I will be doing is eventually I am going to stand the matter down, you can have a look, you can make your phone calls and then you come back. Because I want this right.
147 MR CROUCH: Yes, Your Honour.
148 HER HONOUR: If I am proposing a condition that cannot be done, then it will be out, simple. These are conditions I have imposed previously, but if they cannot be now done, because I know Commonwealth legislation changes, I know titles of officers change. It may not be the Deputy Commissioner of Community - you know, all sorts of things change and it has be got to be bedded down. And so, I just want to know what conditions are appropriate of those and then of course, we will have to come back and I need to explain.
149 I have to explain to him the consequences, what the order means, what the breach of it means; and I have got to go through all of that, so I have not finished yet. But what I want to do is just confirm that (a), I can sentence him as I have proposed - 2 years, do 4 months, 20 months recognizance release order, $1000 on conditions. And they are the conditions that I want to work with (a) through to (h). All right?
150 MR CROUCH: Yes, Your Honour. And I am sure all of that is fine except possibly the conditions of - - -
151 HER HONOUR: I want you to check it. I do not want anyone leaving on a Commonwealth sentence without this being accurate.
152 MR CROUCH: I will check that now.
153 HER HONOUR: If you need to contact Melbourne to check on it, I expect you do that.
154 MR CROUCH: I would like to do that, Your Honour.
155 HER HONOUR: And so, what I propose is to stand this matter down. So it will not be that long. All right, so we will come back at a quarter past 11 and at this stage, the conditions are not set in stone. You may want to talk to your client, you may not, but I have yet to finish this sentence. I have to explain it in terms he is likely to understand what the conditions are. I have to tell him about the breaches. We are still probably ten minutes from me concluding this sentence.
156 MR TAMANIKA: Certainly, Your Honour.
157 HER HONOUR: But I want to be sure it is right. All right?
158 MR CROUCH: I would raise, Your Honour, there is an RRO form that he will need to sign. I have a copy of that.
159 HER HONOUR: So, you know, assume I want to work on all those conditions and if there is anything that cannot be done then it will be deleted, that I cannot include, then it will be deleted, and we will work on the ones that can be included.
160 MR CROUCH: Yes, Your Honour.
161 HER HONOUR: I have covered everything I wanted to cover, but if some are not appropriate, they are out. I do want sex offender programs if possible. Yes. All right?
162 MR TAMANIKA: Yes, Your Honour.
163 HER HONOUR: So is that all sort of clear at the moment?
164 MR TAMANIKA: Absolutely.
165 HER HONOUR: Well, we have not finished. So now, Mr Allen, I know this is a long laborious process, but so is Commonwealth sentencing. That is just an observation of mine. So what I will do, we are just going to stand this matter down, a little while. But I have already indicated what your sentence is going to be. I am trying to work on the conditions to make sure you only have to do what you are legally obliged to do, if that makes sense - nothing extra. That is wrong, you know.
166 Anyway, so we are only part way through. Unfortunately, you will have to come back. I will make it 11.15 unless the police hear otherwise, we will aim for 11.15 to come back. All right? Right, Mr Allen, I am sorry for this hiatus or interruption rather. But such is life when you deal with a Commonwealth matter. All right, you can head out Mr Allen, if you would not mind.
167 Both counsel are excused, see you back here at 11.15
168 (Short adjournment.)
169 HER HONOUR: Thank you. All right. Mr Crouch, you have provided a copy of the order here.
170 MR CROUCH: Yes, Your Honour, what I have provided to your associate - and I apologise if I have caused any difficulty - - -
171 HER HONOUR: No. That is all right.
172 MR CROUCH: - - - is a document which my office, the CDPP, reached an agreement with Corrections.
173 HER HONOUR: Yes.
174 MR CROUCH: And it has essentially substantially the same orders that Your Honour has proposed - - -
175 HER HONOUR: But in different words?
176 MR CROUCH: Very slightly different words.
177 HER HONOUR: Well, that is fine. We will use the right words.
178 MR CROUCH: Yes, Your Honour. And the difficulty I would raise was just that as a matter of practicality, I could not write that number of conditions on the form I have prepared.
179 HER HONOUR: No, that is all right.
180 MR CROUCH: And I said to your associate that perhaps the simplest way would be to edit that template I have given your associate to change the name of the offender and the name of the matter and that sort of thing.
181 HER HONOUR: All right. So I think that needs to be done.
182 MR CROUCH: And then print that off and he will need to sign that.
183 HER HONOUR: So did you get a copy of this?
184 MR TAMANIKA: No, but my friend and I were discussing it just out of the court.
185 HER HONOUR: So you understand you are - - -
186 MR TAMANIKA: Absolutely.
187 HER HONOUR: Well, obviously I do not want any conditions on here that cannot be there. All right?
188 MR CROUCH: Yes, Your Honour. They are all fine.
189 HER HONOUR: Yes.
190 MR CROUCH: The one very small difference I would raise is - - -
191 HER HONOUR: yes.
192 MR CROUCH: - - - and it is just very technical in nature is paragraph D of the orders you have suggested.
193 HER HONOUR: Yes, by 4 pm on "date."
194 MR CROUCH: Yes. They are separated into two conditions. One of them is to report and then one of them is to be - - -
195 HER HONOUR: Receive visits.
196 MR CROUCH: Yes, Your Honour. So in the form I have given you, that is two paragraphs and it is connected into one in this, otherwise it is virtually identical.
197 HER HONOUR: All right. So the 4 pm on a date, how can we give a date because even though I have sentenced him to four months - PSD yet to be declared - do not panic. I have not forgotten the PSD.
198 MR CROUCH: Yes.
199 HER HONOUR: But then there could be administrative issues and lockdowns and things like that so how do I put a particular date?
200 MR CROUCH: A practical way to do it might be just saying "within two days of being released"?
201 HER HONOUR: Yes. So D - that the defendant is to report to - which Community Corrections Centre?
202 MR CROUCH: I have discussed with my friend. I think Ballarat.
203 HER HONOUR: Ballarat. All right. Ballarat. So for D - so if we go through the order, the court orders - so the name will change all that - that the defendant under (indistinct) after serving four months of the term (indistinct) $1000. No sureties, no. By recognizance, $1000, you will complete this form all right? And to be of good behaviour for 20 months, is that right? Under the supervision - yes. Attend for assessment - yes. Ballarat community - D - within two days of release. Two working days should that be? What if he is out on a Saturday?
204 MR CROUCH: Two working days would be safest, Your Honour.
205 HER HONOUR: I think so. Two working days immediately following release. And he is to receive visits from a community - do you put Ballarat in there or just leave "a community corrections officer"?
206 MR CROUCH: I think "a community corrections officer".
207 HER HONOUR: That will do.
208 MR CROUCH: Yes, it will do.
209 HER HONOUR: Defendant is to notify an officer at Ballarat Community Corrections Centre any change of address. Not to leave Victoria except with the permission of an officer at the Ballarat Community Corrections Centre, and he obey all lawful instructions and directions.
210 Now, what is this next page? It is a different one, is it not? What is that page all about? Looks like that. Is that not applied?
211 MR CROUCH: Yes, Your Honour. The next page is just - goes into the standard RRO form.
212 HER HONOUR: Right. Well, basically, I want you to complete the form.
213 MR CROUCH: Yes, Your Honour.
214 HER HONOUR: That is your job.
215 MR CROUCH: The only issue with that is just that I do not have access to a computer with me.
216 HER HONOUR: We will do all that.
217 MR CROUCH: Yes. I can do that - the rest of that, Your Honour.
218 HER HONOUR: Right. So I am going to hand it down and you can do that now. I want this document completed to reflect all of this, put in the names then we will give it to - then we will show Mr Tamanika. Sorry, it is a long process.
219 MR TAMANIKA: I understand. Getting it right is important so - - -
220 HER HONOUR: Federal offence.
221 MR TAMANIKA: Absolutely.
222 HER HONOUR: They will not come into line with the state. Or the state will not go into line with them. One of the two. Anyway, have a seat. Do you have to be somewhere else at the moment? Because we will just sit and wait.
223 MR TAMANIKA: I should - no. That is fine.
224 HER HONOUR: Let us see if we can do it quickly. Ms Jackson, now can you just run that off? Have you got the form there? Can you fill it out for me please? Have you got it?
225 MR CROUCH: I do not, Your Honour. I have just emailed it.
226 HER HONOUR: So Ms Jackson, just run off all three and give them back. Once you have amended the first page, give it back Mr Crouch as well as the other two pages and he can delete what he wants. Run a copy off for Mr Tamanika also, but Mr Crouch first of all so he can get moving on this.
227 All right. Copy coming down to both of you. Just have a look at it. I have only altered the first page, so you can do the rest while we sit here and watch you.
228 MR CROUCH: Can I just approach your associate for a moment, Your Honour?
229
HER HONOUR: Yes, sure. Of course you can. She will retype it for you.
Mr Allen, this is just a long process trying to get the forms right and because Ms Jackson can type it but your solicitor will have a read of it so do not worry. It will all be fine it just always takes a lot of time. Always.
230 Copy coming down, Mr Tamanika, in a minute for you to check then I will continue. I will have a look at it first.
231 MR CROUCH: I do apologise for the difficulty, Your Honour.
232 HER HONOUR: No, that is not (indistinct) it is always the way. We can only complain so often but nothing changes, Mr Crouch. Any more changes you would like made? Just give it back to Ms Jackson, she is used to typing and retyping and typing again.
233 MR CROUCH: Your Honour, it is very minor changes.
234 HER HONOUR: That is fine. We will get her to do it again.
235 HER HONOUR: We will take that one back, Mr Tamanika. We have another tree going down. So we will take all those drafts from him and give him now the final copy. We will give you a copy after it is signed with those changes. Are you all right with that?
236 MR TAMANIKA: Yes, thank you, Your Honour. Absolutely. We discussed that one already - yes.
237 HER HONOUR: Right all right. Excellent. Well, I will have a copy with the changes, that would be great. Thanks. All right? Everyone ready to go? You can have a seat. Mr Allen, just stay seated. I have got to go through from where I left off. No, just stay seated.
238 On Charge 1, you are convicted and sentenced to 2 years' imprisonment and that sentence commences today, 16 June 2016.
239 I direct you be released pursuant to s.20(1)(b) Crimes Act (Cth) 1914 after you serve 4 months of that sentence on your recognisance in the sum of $1000.
240 And I must explain the content in the order in terms that you are likely to understand and also the consequences if you do not comply with this order. So, basically what I am doing so you understand, is sentencing you to 2 years' imprisonment, starts today. You have to do 4 months of that sentence subject to some pre-sentence detention. All the days you have done already, you will get a credit for those and they come off the 4 months, but more about that later.
241 Now, after the 4 months, you are then on recognisance release order in the sum of $1000. You do not have to forfeit that $1000 or pay $1000 unless you breach the order in that 20-month period. All right? So no money upfront. So you are on that order for 20 months after you are released.
242 There are going to be conditions that are attached to that order and these are the conditions, so you have got to listen carefully to these. It is over that 20-month period. You have to be of good behaviour for that 20 months. No getting into any more trouble with the police about anything. Driving offences, nothing.
243 And you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender management or his or her nominee for 20 months after your release. Corrections Office for 20 months.
244 You are to attend for assessment if you are told to and if assessed as suitable, you have to undertake treatment for sex offender programs or programs of other sorts to reduce reoffending, as you are told to do by Corrections. So if they tell you you have to do these assessments, you have got to do it.
245 You are to report the Ballarat Community Corrections Centre within two clear working days after you are released from prison. If you do not, you are in breach of the order. You are back before me. I have got to resentence you on this offence of procuring. You do not want that I can assure you.
246 Also, if you have to report to and receive visits from a community correction officer or officers. So if they say you have got to come in on a certain day, you have got to go there on a certain day. They will work around any work commitments you have. You do not have to worry about that. You do not give up a job just to attend Corrections. They will work around you.
247 You are to notify an officer at Ballarat of any change of address or employment within two day of moving. So, you have got to let them know if you change house. You can, but let them know. Do not just head off into the ether somewhere.
248 You are not to leave Victoria except with the permission of an officer from Ballarat Corrections. So if you want to on a holiday - Queensland or Sydney or somewhere over the border, get permission. Will not be refused providing you are doing all the right things, but get permissions. And you are to obey all lawful instructions and directions of community corrections officers. So if they tell you to do something, you should do it.
249 Now, just so I will let you know, the purpose and effect of a recognizance release order, so you know, is to give you conditional freedom after that four-month period, and if you breach this order, which comes into effect after the four months, you come back before me and you can expect, when I have to resentence you, you will go to gaol for longer. We do not want that. You do not want that. I do not want to do that. But I will if I have to.
250 So if you commit any further offences in that 20-month period or you fail to comply with any of those conditions that I have just read out, you will breach the recognizance release order, you will be back before me and resentenced. Gaol. Got that?
251 A breach would also mean you lose that thousand dollars. You have to pay $1000 as well. And you should also bear in mind having given your recognizance, if that is what you agree to do, either you or the Commonwealth Director of Public Prosecutions may apply to vary the order or to discharge it.
252 So, just on the order. Have I got it right?
253 MR CROUCH: Yes, Your Honour.
254 HER HONOUR: Right. Do you understand that?
255 OFFENDER: Yes, Your Honour.
256 HER HONOUR: You sure? Anything you are not clear on so far?
257 OFFENDER: (Indistinct) basically, I have got to report within two working days to - - -
258 HER HONOUR: After you get out. Yes.
259 OFFENDER: After I get out.
260 HER HONOUR: To Ballarat Corrections.
261 OFFENDER: Yes, Ballarat Corrections.
262 HER HONOUR: Sure.
263 OFFENDER: Keeping (indistinct) clean, no - - -
264 HER HONOUR: No trouble with anything. No - do not get into any trouble with the police. Be careful of driving offences, anything like that, like driving whilst unlicensed. Could get a gaol term for that. You have got to be really careful. I will just check with the prosecutor. Is the same as state? It would only be if it is an offence which carries a potential penalty of imprisonment if he commits further offences?
265 MR CROUCH: It should be, Your Honour. The set provision should be picked up by the Commonwealth law.
266 HER HONOUR: So if you commit an offence that has a potential term of imprisonment - even if you do not get gaol for that offence, but has the potential for that, such as driving whilst disqualified. There can be a lot of charges out there that you will not know have that potential for gaol. So keep your nose clean for 20 months. Seriously, because that is a big problem. Yes? Now, apart from that did I get it right?
267 Now, is there anything you would like to ask me?
268 OFFENDER: No, just keep going.
269 HER HONOUR: Not so far? You can certainly ask Mr Tamanika who has been listening carefully and he will hopefully be able to assist you.
270 In a moment, you are going to be asked to sign for that, if you want to be on that order.
271
Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent
13 days in custody already, up to and including yesterday, which was 15 June. And that will come off your four months. So I direct that that be entered into the records of the court.
272 Pursuant to s.6AAA Sentencing Act, if you had pleaded "not guilty" to this charge, and been found guilty of it, I would have sentenced you to 3 years' gaol and you would have done 18 months in gaol. So to do four months and then be on a recognizance release order, I think, is a big reduction.
273 Now, the offence of which you have been convicted means you are obliged to comply with reporting conditions imposed by the Sex Offenders Registration Act. That is mandatory, you have to, and it is for 8 years, +it is a Class 2 offence.
274 In a moment, Ms Jackson, my associate, is going to come back to you with two or three documents. Two to sign. One, the recognizance release order where you will sign saying effectively I have explained it to you, you understand what the breach will mean and you are then being asked to sign. The other document that she is going to give you to sign tells you a bit about the Sex Offenders Registration Act. You are not being asked to sign to agree to be on it. I have made that decision. All you are doing is signing you have got the paperwork from it and you can refuse to sign that one if you want to. But all she is doing is saying, "Here is the paperwork. Sign that you have received it." But if you do not want to sign it, a matter for you. All right?
275 So, I think that is it for the moment. Now, Ms Jackson, can you wander back with to Mr Tamanika and give him some assistance please? Do you know the Ballarat Community Corrections Office address off the top of your head or does any - - -
276 MR TAMANIKA: Not off the top of my head, but I can find it out reasonably quickly.
277 HER HONOUR: Yes, could you do that because I think it might be fair over rather than just telling him to - you may not know where it is. Well, he may not because he does not have any priors from memory. So he may not know where it is. So, it is not fair really, it is not a guessing game when you walk out of gaol. Let us help him out a bit. We will insert the address.
278 MR TAMANIKA: I have the address. Here, Your Honour, it is 206 Mair Street in Ballarat. That is right.
279 HER HONOUR: Thank you. We will just insert that address so there is no - 206 Mair Street, Ballarat. All right, Mr Tamanika, you can wander back if you would not mind? Thanks. Just to give him some help if he wants it.
280 All signed? Excellent. Then, I do not think there is anything further I need to do. Thank you both very much for your assistance and sorry about the delay, Mr Allen. Mr Allen, you will need to go out first, all right? So, I will wait while you head out and Mr Tamanika may well come out later and see you.
281 All right, thanks again, Mr Crouch. Copies are coming. I will leave the Bench.
282 COUNSEL: As Your Honour pleases.
283 HER HONOUR: Thank you very much.
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