Director of Public Prosecutions v Allman (pseudonym)
[2018] VCC 268
•9 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEBASTIAN ALLMAN (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 8 March 2018 |
| DATE OF SENTENCE: | 9 March 2018 |
| CASE MAY BE CITED AS: | DPP v Allman (pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 268 |
REASONS FOR SENTENCE
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Subject:Procure child for child pornography, sexual penetration child U/16 years.
Catchwords:
Legislation Cited:
Cases Cited: Sentencing Act 1991
Sentence: 30 months with Non-Parole Period of 18 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | |
For the Offender | Mr T. Timms |
Pages 1 - 13
HIS HONOUR:
1Sebastian Allman[1]; on 29 August 2017 you entered a plea of guilty to three charges on indictment no.H10635684.2.
[1] ‘Sebastian Allman is a pseudonym’
2On 8 March 2018, you confirmed those pleas of guilty, and a plea hearing was heard on that day.
3You have pleaded to:
Charge 1; procurement of a minor for child pornography. This charge has a maximum penalty of ten years' imprisonment.
Charge 2; sexual penetration of a child under 16 years. This charge has a maximum penalty of ten years' imprisonment, and
Charge 3; indecent act with a child under 16 years. This charge has a maximum penalty of ten years' imprisonment.
Circumstances of Offending
4I turn to the circumstances of the offending. The full circumstances of the offending in this case are set out in the document entitled "Prosecution Opening for Plea" dated 7 November 2017. It was Exhibit A on the plea.
5A summary of the offending is as follows. At the time of the offences you were 43 years old. The victim of your offending was 15 years old. You were family friends with the victim's family. In particular the victim was a friend of your son, Brock.[2] The two children went to school together.
[2] ‘Brock is a pseudonym’
6During the 2016 and 2017 summer school holidays you and the victim started messaging each other on social media. At first the victim was messaging you about your son, Brock, who was her friend. Then you sent her a message saying, "I like you". She has replied, "I like you". You then continued to message each other socially. The messages became sexual in nature. Your name in the messaging application was "Handsome", and Isabel's[3] name was "Sexy". You and the victim started messaging each other several times every day. On one occasion the victim sent you a photograph of herself fully clothed. You replied to that photograph by saying, "Oh, it's got clothes on". You then sent another message asking for a photograph of her without clothes. The victim has then sent you a photograph of her naked breasts. This photograph was taken on her phone. You then responded by saying, "Oh, good. I can't wait to see them for real". That is Charge 1; procuring a minor for child pornography.
[3] ‘Isabel is a pseudonym’
7At your suggestion you, the victim's mother, and the victim and her family and friends, went out to dinner to celebrate the victim's 15th birthday. This dinner occurred at the end of January 2017.
8In February 2017 the victim's mother has contacted you because she had heard there was an ambulance at the fish and chip shop, and that is where you and your father worked. You have told her your father was in the emergency department and was being tested. She told you to let her know if you needed any help with your children.
9The following day you have called the victim's mother and said that you were at the hospital picking your father up after he had had a stroke. You asked if the victim could stay at your house to help with your children while you went to and from the house at the fish and chip shop, where your father lived, to keep an eye on him. The victim's mother agreed to this arrangement. The victim then went to your house. You left the house to check on your father once in the evening of that day.
10Later on that night, between 9 o'clock and midnight, you sent your other children to bed. You had told the victim that she would sleep in your bedroom, and that you would sleep in the lounge room. The victim had a shower and you remained in your bedroom watching a movie. After the shower the victim returned to your bedroom and sat on the bed, drying her hair. She was wearing a top, leggings and underwear. She felt cold and so she put a blanket over herself. You were under a different blanket on your bed. You were wearing a T-shirt and shorts. You told her she could get under the blanket with you, and she did so.
11You then rolled over to her and hugged her, and started kissing her on the lips. You and the victim then watched television for a while. You then started kissing and hugging her again, and you put a hand inside her pants, under her underwear, and inserted your finger into her vagina. That is the charge of sexual penetration of a child under 16.
12The victim asked you to stop, and you did so. She got up and went to the toilet and got herself a drink. She then returned to the bedroom and got under the blanket. You then rolled over and started kissing and hugging her again. You then rolled the victim on top of you. You pulled down her underwear to her knees. You were kissing each other. You then touched her vagina with your penis. After a short period of time the victim asked you to stop doing it, and you did. That is the charge of indecent act with a child under 16.
13The victim has then left the bedroom to get another drink. You have then also got up, got a drink, and went to the bathroom. The victim went to sleep in your bedroom and you went to sleep on the couch. At one stage throughout this incident you asked the victim if you could trust her, and she said you could. You told her that if she told anyone about this that you would go to gaol. Just pausing there; you were right about that. The victim also asked if she could get pregnant, and you said no. The victim slept at your house that night and you drove her to school in the morning.
14The complaint to the police in this case was made by the victim's mother. The victim's mother had intercepted text messages and social media messages between yourself and her daughter. The victim then told her mother what had occurred between yourself and her.
15You were arrested on 22 February 2017. You participated in a record of interview with the police and you admitted hugging and kissing the victim whilst lying face to face in the bedroom the night she stayed over with you, however you denied sexually penetrating the victim. You also stated as follows:
· that you and the victim had been messaging each other and some of the messages sent by both of you were quite explicit and concerned sex;
· that your name on the messaging application was "Handsome" and hers was "Sexy";
· that the victim was confiding in you, and she was down on self-confidence;
· that you had asked her for a photograph, and that she had sent you the photograph of her breasts, and that you had replied saying, "Nice";
· that you had deleted the photograph of her breasts a couple of days after receiving it;
· that you had offered to send her a sexual photograph of yourself;
· that you thought the victim was falling in love with you;
· That you knew the victim was 15 years old.
16An analysis was conducted of your mobile telephone and a photograph of the victim's naked breasts was found on that phone. That relates to Charge 1. Analysis of the phone also showed that on 30 January 2017 - that is, before the offences in Charges 2 and 3 - you conducted a Google search with the following search terms: "When can you legally have sex?"
17On 15 February 2017 - that was after those offences - you deleted the photograph of the victim's breasts, and on the following day you deleted her contact from your phone altogether. The police had located messages between yourself and the victim on her phone. The messages show extensive contact between you and the victim, including messages of a sexual nature.
18You have no prior convictions and no outstanding charges. In respect of Charge 1 you offered a plea of guilty at the committal hearing. In respect of Charges 2 and 3 you indicated a plea of guilty after pre-trial argument, and prior to the empanelment of a jury on 29 August 2017. You have been on bail awaiting your plea hearing since that date.
Victim Impact Statements
19I turn to the victim impact statements. The victim of your crimes was a 15 year old girl at the time of your offending. Your victim has filed a victim impact statement dated 20 September 2017. It was read in open court. Your victim, your family, and the victim's family, all live in a tightly knit rural community. Of necessity, all of the people involved in these families once shared an interdependence and support network for the benefit and well-being of all of you. Your criminal actions have shattered that relationship and trust, which was for the mutual benefit of all members of those families.
20In particular you were in a position of trust with your victim. The victim was a friend of your son. The victim stayed at your home on the basis of the friendship with your son. You knew, and were friends with, the victim's mother and father. The offending has breached the trust of all people around you, and related to you. The victim sets out how she has had a lot of time away from school due to your offending, and the bullying and name calling from other children at that school. She has developed a condition of gastritis as a reaction to the stress suffered by her. She has been rejected by her friends because they wrongly regard her as being at fault for your criminal offending. Most significantly, she has lost her ability to trust people; particularly adult males. She limits the time she spends in her local town due to the stares she gets from the local townsfolk. Your victim is now receiving counselling to assist her in sorting through the issues of trust, anger, and the sense of loss in respect of friends and activities. Your actions have had a significant impact on the victim's life.
21The victim's mother also filed a victim impact statement dated 19 September 2017. The victim's mother attests to matters of failing to protect her own daughter. The mother states she was a friend of yours, and that you had breached her trust in you. She sets out the shock and betrayal she experienced upon discovering your offending against her daughter. She speaks of experiencing insomnia, depression and anxiety as a result of your offending, and the reaction of local people to you being charged with these offences. The victim's mother sets out her reluctance to attend local events, and states the family may need to sell up and relocate. These are significant impacts due to your criminality.
Personal Circumstances
22I turn to your personal circumstances. At the time of the offending you were 43 years old. You are now 44. You have six siblings. You were initially raised by both parents, but when you were approximately eight years old your mother left the family home. You and your siblings were thereafter raised by your father. You live with your father now and have a good relationship with him.
23You attended school to Year 10 and then obtained an auto-electrician apprenticeship. Unfortunately the business that you were working for failed and you were unable to complete that apprenticeship. You worked as a truck driver both in Melbourne, and in regional areas after that. When you were 27 years old you moved to Merritown.[4] You have lived in Merritown since that time. You have driven trucks, the school bus, worked in the hotel, and more recently run the Merritown fish and chip shop with your father, Logan Allman[5].
[4] Merritown is a pseudonym
[5] ‘Logan Allman is a pseudonym’
24You have four children aged 18, 15, 12 and nine. Your youngest child is a girl, your older three children are boys. Since you were charged with these offences DHHS have been supervising the care of your children. Initially the children were returned to the care of their mother. The children returned to Merritown after that. The children were then taken back to their mother, who effectively abandoned them. Other DHHS plans were made for the care of your children, which included them being placed with kinship relatives, unknown to your children, in New South Wales. Ultimately these plans were not implemented. The children currently live with your father in the house in Merritown and you have resided in a caravan at the back of that premises as part of the supervised care for your children.
25In the course of the DHHS proceedings you have been assessed for risk of sexual offending. A report dated 21 February 2018, which is Exhibit 3, was prepared for the purposes of evaluating the suitability for the children's' living arrangements. You have been assessed as a low-average risk of sexual recidivism. Of the 46 page report your comment about your victim being "happy as Larry" is an indicator that you do not accept the full impact your offending has had on your victim.
26I accept you are a low-risk of reoffending in this manner against children in the future.
27You have the support of members of the local community, you have been captain of the local CFA, a generous supporter of local sports clubs, helped at the RSL working bees and provided employment opportunities through your business in Merritown.
28In 2016 and 2017 your father suffered a heart attack and a stroke. This has meant you had to perform more of the fish and chip shop business activities, as well as take care of your father and take him to medical appointments.
29As a result of these charges your family has been disrupted. You have been suspended from the CFA and generally suffered a loss of reputation in your local community.
Sentencing Considerations
30The basic purpose for which a court may impose a sentence are just punishment, deterrence - both specific and general - rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
31I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases, and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices is but one of the considerations I have to take into account when fixing your sentence.
32You have no prior criminal history and have no outstanding court matters. You have lived a life supporting your family and contributing to your local community. You are entitled to draw on the credits for those matters in this sentencing process.
33You have pleaded guilty to these charges. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community. Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty for these charges indicates and demonstrates some remorse on your part.
34Your offending against this victim has a number of factors which are indicative of the seriousness of your criminality. The factors are:
·The young age of your victim. She was 15 years old and you knew that to be the case;
·you instigated the sexualisation of your contact with her - initially by seeking a photograph of her partially naked;
·you used the victim's friendship with your son to progress your contact with her;
·you betrayed the trust of the victim's mother, and the victim, in the way that you involved her in your family;
·you set up the scenario for the victim to be at your house, and hence, under your control at the time of the offending;
·the offending was for your sexual gratification by using a naïve, vulnerable child of 15 years;
·the disparity in age between you, as a 43 year old man, and she, as a 15 year old child, when you were on the level of being a parent to her. You were friends with the victim's parents, and the victim was a friend of your son.
35I am required, pursuant to the provisions of the Sentencing Act 1991, that upon your conviction and sentence to a term of imprisonment in respect to Charges 1 and 2 that dictates that I am then required, for the sexual charges thereafter, to regard the protection of the community from you as a principal purpose for the sentence to be imposed. If necessary in order to achieve that purpose of protecting the community I am empowered under s.6E of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences. This means that the sentencing task in respect of Charge 3 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which that sentence is imposed. To achieve that purpose a sentence may be imposed for longer than that which is proportionate to the gravity of the offences considered in the light of the objective circumstances.
36Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 3 on the indictment, the sentence I impose on you is to be served cumulatively. I note that the prosecution did not call for a disproportionate sentence, or for all of the cumulation contemplated in either s.6D, or 6E of the Sentencing Act, allowing for the matters for which I have outlined. In my view it is appropriate to impose only that degree of cumulation to which I will subsequently refer, reflecting, as it does, several events of offending. To do otherwise may produce a sentence which is not appropriate, and unjust in the circumstances.
37You will be required to be supervised under the provisions of the Sex Offender Registration Act for life. This is an order made pursuant to statute, and is not a consideration I take into account when sentencing you for the three charges. You will be given a copy of that order at the conclusion of this sentencing process.
38I also take into account the fact that your incarceration will give rise to hardship for your three younger children. Your arrangement for looking after your children is conducted by DHHS. The children live in the house with your father - their grandfather - at Merritown. Your father has had open heart surgery in 2016 and a stroke in 2017. He does not enjoy good health. A sentencing court has to take into account hardship to an offender's family if that hardship satisfies the exceptional circumstances test. An assessment of the exceptional circumstances test is a matter of fact and degree. Whilst the carer grandfather does not have robust health, he does have a home, and an ongoing place where these children have grown up, in Merritown.
39In the course of the plea it was made clear that the children's mother will not be of any assistance in the ongoing care of your family. There are siblings of the prisoner, or you, who can assist the carer grandfather in the task of bringing up the children in your absence. In assessing the exceptional circumstances test required to enliven the court's mercy I note in the DHHS report that your youngest son has an intellectual disability as a result of brain cancer, and the surgery for it, when he was very young. This fact, whilst adding a further burden to the carers of your children, and the child himself, does not amount to exceptional circumstances in this case. I have no doubt your absence from the family home will be a hardship for your children, but I am not satisfied that it is to the extent of exceptional circumstances as required by the law to activate an exercise of mercy in the sentencing process.
40Whilst the offending constituting Charges 2 and 3 occurred on the one night, there was a break in time and proximity between you and your victim, and you elected to continue your offending when you could have stopped. There needs to be some cumulation between the sentences of Charge 2 and 3 to reflect that further criminal behaviour to satisfy both general and specific deterrence. I accept that your offending in respect of Charge 1 is at the lower end for that type of offending, however it is to be seen in the context of your whole offending, and clearly this offence was your initiating the sexualisation of the contact with the victim. Your counsel urged the court not to convict you and sentence you to imprisonment for Charge 1. The submission was that you would not then be subject to a compulsory Sexual Offenders Registration Act order in respect of Charges 2 and 3.
41In his written submissions your counsel submitted a CCO was an appropriate sentence, but did not pursue the course to that full extent after an exchange with myself over the nature and circumstances of your offending.
42I regard your prospects of rehabilitation as good. You have family responsibilities to return to upon your release from prison, you have a good record of past community involvement, and based on the references in Exhibit 2, have good support in your town of Merritown.
43This series of offending was a grave fall from your own standards, and the community's standards reflected in the law set down by Parliament. Your offending has had significant impact on your victim and her family, and your own family. Your time in prison will give you an opportunity to reflect on your actions and plan your path to rehabilitation.
44On Charge 1 you are sentenced to six months' imprisonment.
45On Charge 2 you are sentenced to 18 months' imprisonment.
46On Charge 3 you are sentenced to 15 months' imprisonment.
47The cumulation is as follows. The base sentence is Charge 2. The cumulation is - on Charge 1 - three months of the six month sentence is to be cumulated, and on Charge 3, nine months of the 15 month sentence is to be cumulated.
48That is a total effective sentence of two years and six months, or 30 months.
49I fix a non-parole period of 18 months.
50I declare under s.6AAA but for your plea of guilty I would have sentenced you to four years with a three year non-parole period.
51I declare that you have served one day of pre-sentence detention.
52I have signed the disposal order.
53I am ordering that you provide a forensic sample under s.464ZF of the Crimes Act, and I will just explain that to you, Mr Allman.
54The authorities are now empowered to take from you a sample, which is usually done by a swab from inside your mouth, to collect DNA. Do you understand? If you do not comply they can use reasonable force to obtain one. Do you understand that? Thank you.
55I declare that you have been sentenced as a serious sexual offender pursuant to s.6F of the Sentencing Act and that you are on the Sexual Offenders Register for the period of your life. I will have that document prepared, and Mr Timms, if you could show your client and get him to acknowledge it?
56MR TIMMS: Yes, Your Honour.
57HIS HONOUR: Mr Allman, the Sex Offenders Registration is a for life order. It is contained in that document, you will have time to read it in full, but contained in that document it sets out all the restrictions on your life from this day forward, and upon your release. Take this opportunity, for want of a better way to describe it, in gaol to straighten yourself out, come out, and get on with looking after the kids, because that is what you have got to do. Remove the prisoner.
58I note there's a member of the media in court. I know you know your obligations about not identifying, or in any way publishing this to identify the victim in this case. It might be very difficult to do so because of the tight knit community in which this offending occurred, and everybody knows who it is, but you must comply. All right. I've got two appeals on. Are you in either of those appeals, Mr Timms?
59MR TIMMS: No, Your Honour, I'm not.
60HIS HONOUR: Okay. Well, I want to thank you very much for your assistance in this matter.
61MR TIMMS: Thank you.
62HIS HONOUR: They're always very difficult cases.
63MR TIMMS: Thank you, Your Honour.
64HIS HONOUR: So I'll stand down until we sort out the appeal cases.
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