Director of Public Prosecutions v Amarasinghe

[2018] VCC 1298

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01583

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMARASINGHE AMARASINGHE

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2018
DATE OF SENTENCE:	22 August 2018
CASE MAY BE CITED AS:	DPP v Amarasinghe
MEDIUM NEUTRAL CITATION:	[2018] VCC 1298

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Knowingly possess child pornography

Legislation Cited:     Sentencing Act 1991, Sex Offenders Registration Act 2004

Cases Cited:            

Sentence:6 months’ adjourned undertaking without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr T. Lavery	Dribbin & Brown Criminal Lawyers

HIS HONOUR: 

1Amarasinghe Bharana Amarasinghe, you have pleaded guilty to one charge of knowingly possessing child pornography contrary to sub-s.70 (1) of the Victorian Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

2The maximum penalty for this offence is 10 years' imprisonment. 

3You are presently 26 years of age, having been born on 7 January 1992, and you were aged 24 when the offending occurred nearly two years ago. 

4You have no prior convictions and nothing pending. 

5The charge to which you have pleaded represents two videos of one occasion of the victim performing oral sex on you and two images, being one of a breast and the other of the vagina, of the victim. 

6The background circumstances of your offending are important and are as follows.

7The victim is a 15-year-old schoolgirl who you befriended on the ‘OkCupid’ dating website. 

8The victim conceded that she had stated on the website that she was aged 21. 

9The two of you communicated extensively for a time on ‘Skype’ and by other means before meeting.  During the course of those communications, the victim freely discussed with you very frank and erotic personal sexual matters including an urgent wish to meet and be sexually involved with you. 

10You arranged to meet and by early May 2018 commenced a series of clandestine visits to the victim's home by entering her bedroom through a window which she opened for that purpose.  The victim's parents and siblings were asleep in other nearby rooms.

11During at least five occasions over a period of approximately two months, you and the victim engaged in multiple acts of sexual intercourse in multiple ways. 

12It is clear on the evidence that the victim was a very willing partner, often initiating and encouraging the activity. 

13Because of the actual age of the victim you were charged with the offence of sexual penetration of a child under 16.  You went to trial and were acquitted by a jury on the basis that the jury was satisfied on the balance of probability that you believed the victim was aged 16 or over and there were reasonable grounds for that belief.

14During the course of the trial you gave sworn evidence that after you had physically met the victim you thought that she looked 18, 19 or 20.  You said that she only told you she was 16 sometime between the second and third occasions you had visited.

15It was in the course of these circumstances that on some occasion the video and photographs were produced.  It is readily apparent from the evidence that the victim was consenting.

16I now turn to your personal circumstances. 

17As I noted earlier you are now 26, you were 24 at the time of the offending and you have no prior or subsequent convictions. 

18You are a citizen of Sri Lanka and have been studying a Masters course at RMIT University.  You have no family in Australia.

19The possession of child exploitation material such as you had is ordinarily regarded as serious offending on the basis that children should be protected.  That includes protection from their own foolishness.  A child's relative lack of education and life experience renders them vulnerable to behaviour from which they would otherwise refrain when fully mature.  You were an intelligent adult aged 24, completing a Masters course at university.  You were expected to be more responsible when engaging with a teenager.

20In the present circumstances however, I accept that your conduct is significantly mitigated by the following circumstances: 

·    your plea of guilty;

·    the absence of any previous or subsequent offending;

·    your youthfulness;

·    the nature of the material being at a low level, both in number and category of seriousness,

·    the material was produced willingly with the victim;

·    you and the victim were engaged in a consensual and highly charged sexual relationship which existed in a context of expressions of mutual love - the photographic material was merely a pictorial representation of what was occurring between you both physically and legally;

·    the material was not disseminated by you; 

·    your possession of the material was isolated to the charged items and no wider interest in child exploitation material was ever detected;

·    you voluntarily handed in your phone to police without being under any compulsion to do so; 

·    whilst you have been granted bail, you have been and will remain in Immigration custody until at least 18 September next, and afterwards your future entitlement to remain in Australia is unknown and subject to administrative discretion;

·    there is no indication that the victim was in any way distressed about the fact that you possessed this material, either at the time it was produced or subsequently; and

·    I regard it highly unlikely that you would ever offend in this manner again. 

21In my view the circumstances are quite exceptional, and I accept that the recording of a conviction for this offence would carry with it a punishment, with its stigma and effect, well beyond what is appropriate.  The full mitigating circumstances would never be appreciated beyond the recording of the offence.  In my view, your behaviour was most likely just foolishness rather than anything more sinister.

22Mr Amarasinghe, could you please now stand.

23On Charge 1 of knowingly possess child pornography, without conviction you are released on an adjourned undertaking.  The adjourned undertaking will start today and continue for a period of six months from today. 

24The conditions of the undertaking are that you must be of good behaviour during the period of the undertaking and you must attend before the court if called upon to do so during the period of the adjournment. 

25Do you understand and agree to those conditions, Mr Amarasinghe?

26OFFENDER:  Yes sir.

27HIS HONOUR:  Thank you.  If your circumstances materially alter or if it appears that you are no longer willing to comply with the conditions of the undertaking, then either you, the Director of Public Prosecutions or the Police may apply for a variation or cancellation of the undertaking.  I recommend that you obtain legal advice if any such application is made.

28However I must warn you that if you breach any condition of this undertaking you will be brought back to court, and that will be before me, to be re-sentenced on the original charge and dealt with for the breach. 

29So, Mr Amarasinghe, do you understand the consequences of breaching an adjourned undertaking?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  That will be set out in writing for you to have and to read and understand with the assistance of your counsel.  If you agree to that then I will ask you to sign it shortly, and it will be returned to me for signing. 

32Mr Amarasinghe, do you understand quite clearly that an undertaking to be of good behaviour means that if you commit any offence within the period of this undertaking, then that may be considered to be a breach of your undertaking to be of good behaviour.  Do you understand that?

33OFFENDER:  Yes, sir.

34HIS HONOUR:  There is a further matter to which I need attend.  You may take a seat for the moment. 

35The charge to which you have pleaded guilty is a registrable offence pursuant to the provisions of the Sex Offender's Registration Act 2004, and by reason of  you being sentenced for this offence you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.

36Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.  I am also required to inform you of the length of your reporting period which, in your case, is for eight years. 

37My associate will shortly hand you the Notice of Reporting Obligations form which I have already signed.  Your representative in court today, Mr Lavery, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notice and to return that Acknowledgment to my associate. 

38The materials that I have just referred to can now be passed to Mr Lavery and if you could take them to your client.

39MR LAVERY:  Yes, Your Honour.

40HIS HONOUR:  Thank you, Mr Lavery.  I understand from that interaction that you have actually read the full materials of both those documents to your client.

41MR LAVERY:  Yes.

42HIS HONOUR:  And he clearly understands.

43MR LAVERY:  And I'll go through it again with him outside of court as well, Your Honour.

44HIS HONOUR:  Yes, thanks Mr Lavery.

45MR LAVERY:  So he will be certain as to what these conditions are.

46HIS HONOUR:  There is just one other matter.  The prosecution also sought a disposal order to which you consented, as I understand it.

47MR LAVERY:  Yes.

48HIS HONOUR:  I have made that order also today.

49That is the mobile phone.

50MR LAVERY:  Yes, Your Honour.

51HIS HONOUR:  All right, any other matters?

52MR BROWN:  No, Your Honour.

53HIS HONOUR:  All right, 11 o'clock Bob.

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