Director of Public Prosecutions v Andrews
[2019] VCC 2018
•5 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
CR-17-01673
Indictment No. H11094096
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN ANDREWS |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 July 2019, 20 September 2019 and 21 November 2019 |
| DATE OF SENTENCE: | 5 December 2019 |
| CASE MAY BE CITED AS: | DPP v Andrews |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2018 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – production of child pornography – indecent act with a child
under 16 – totality – plea of guilty
Sentence: Total effective sentence of a 3 year Community Correction Order
Section 6AAA declaration: 2 years’ imprisonment with a non-parole
period of 15 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A Hassan (Plea) Mr P D’Arcy (Plea) Ms A Nalpantidis (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Smallwood (Plea) Mr M Stanton (Plea and Sentence) | Maloney Anderson Lawyers |
HIS HONOUR:
1Justin Andrews, you have pleaded guilty to one charge of production of child pornography (Charge 1) and to three charges of indecent act with a child under the age of 16 (Charges 2 to 4). The maximum penalty in respect of each charge is a term of imprisonment of ten years.
2Tendered as exhibit 1 on the plea was a Summary of Prosecution Opening and I annex a copy of that document to these sentencing reasons. Briefly stated, the circumstances of your offending were as follows.
3Your victim was Mr Ethan James[1], who at the relevant time was 14 years of age. You met Ethan online via a gaming platform called 'Gary's Mod' in late 2012 or 2013, when he was 12 years old.
4Ethan was then living in Ballarat with his mother, Diana[2], and his younger brother, Michael[3], and his mother's partner. You were living in Sydney. You were 26 years of age but you told Ethan that you were 19. You sent Ethan an iPod and you began speaking to him on Skype. You exchanged phone numbers and would occasionally speak on the phone.
5At some point Diana, Ethan’s mother, became aware that her son was communicating and playing online with you. At the end of the first school term in 2013 Ethan's family moved to Mildura. You flew from Sydney to visit him. You stayed in Mildura for the better part of a week and slept, with Diana’s consent, in Ethan's room on a mattress on the floor. You wanted to share a bed with Ethan and would hug him from behind which made him feel uncomfortable.
6After you returned to Sydney it became apparent to Diana that both Ethan and Michael idolised you. Via the internet you maintained constant contact with Ethan and were in frequent communication with Michael. You sent the boys expensive gifts such as iPods, new gaming consoles, Apple television and various computer accessories.
7In 2013, Diana separated from her partner and she began to rely upon you as a stand in - albeit online - parent. You would remind Ethan to clean his room, do his homework and go to bed. You continued to buy gifts for Ethan. Diana continued to believe that you were a good influence on her children.
8In 2014 you visited the family in Mildura for the September school holidays. During the visit you slept on an air mattress on the floor in Ethan's bedroom.
9Between 20 and 29 September 2014 you took a number of films and photographs of Ethan whilst he was asleep. On 24 September 2014 at 11:57am you used your mobile phone to make two films in Ethan's bedroom. The two recordings are, respectively, 1.23 minutes and 18 seconds in length and depict you touching and masturbating Ethan's penis. Ethan was asleep during this incident. These facts underpin Charge 2, indecent act with a child under the age of 16.
10On 25 September 2014 at 12:27am you again filmed yourself in Ethan's bedroom whilst he was asleep. This recording is 43 seconds in length and depicts you taking Ethan’s hand and using it to masturbate your erect penis. This is Charge 3, indecent act with a child under the age of 16.
11Also on 25 September 2014 at 4:10am you recorded yourself masturbating and then ejaculating on Ethan's toes and bedding whilst Ethan was asleep. This is the charged occasion of Charge 4, which is a representative count of indecent act with a child under the age of 16. The three other represented instances of such offending are as follows.
12On 27 September 2014 at 1:54am you filmed yourself for 17 seconds masturbating near Ethan's leg and then rubbing your erect penis onto Ethan's foot. Then at 1:58am you filmed yourself for 54 seconds masturbating whilst Ethan slept before rubbing preseminal fluid onto the sole of Ethan's foot and toes.
13On 28 September 2014 at 2:27am you filmed yourself masturbating your erect penis and then placing your penis in between Ethan's toes and ejaculating, spreading your semen between his toes.
14At the end of your visit you returned to New South Wales. On 10 December 2014 Australian Federal Police executed a search warrant at your Sydney home.
15In the course of their search, various photos and video files featuring Ethan were located and these images underpin Charge 1, production of child pornography. In addition to the recordings of the above incidents, the child pornography items included two photographs of Ethan's penis; one photograph of you kissing Ethan's feet; and one file depicting you stroking Ethan's feet whilst you had an erect penis.
16Fifty-three items were non-pornographic but included 40 photographs of Ethan's feet whilst sleeping and four saved screenshots of Ethan. Following the execution of the search warrant on 10 December 2014 you were arrested and interviewed by Australian Federal Police in relation to online accessing and possession of child exploitation material. Those matters proceeded within the New South Wales jurisdiction.
17On 19 January 2017 police attended your home to interview you about the present charges but you declined to be interviewed as of course was your right. You were charged in relation to these matters on 3 April 2017. The charges resolved at committal mention on 22 August 2017 and were adjourned to this court for a plea.
18Your plea hearing began on 23 July 2019 and I will explain the reason for the delay in the course of my sentencing reasons below. Ethan's mother, Diana, provided a victim impact statement, tendered on the plea as exhibit 2.
19Diana writes,
'I was sickened and disgusted at Justin and his actions and I am bitterly angry with myself for trusting this man and allowing him into my children's lives. I had welcomed him into my home and had been grateful for his apparent help and support whilst I was struggling as a single mother working full-time in a challenging career'.
20She continued,
'[Ethan] no longer lives with me and I rarely get to see him anymore.
…
He disengaged from school despite the best efforts of his teachers. It was like watching his life fall apart and feeling completely incapable of stopping it. … I had no choice but to send him to live with his father in Ballarat'.
21Diana also speaks of the lasting damage you have caused to her son, your victim. She writes,
'[Ethan]'s decline continued over the following two years. He has developed anxiety, depression, sleep problems and drug and alcohol addiction problems. He has been asked to leave school due to being completely disengaged and with a poor attitude. He has on two occasions been transported to hospital via ambulance with suicidal ideation and has twice run away from home'.
22Whilst the impact of your offending must not be allowed to overwhelm the sentencing process, no one can be in any doubt as to the continuing traumatic impact that your offending has had upon your victim and his family. Your victim's mother is not to blame for allowing you into her home.
23I turn now to your personal circumstances.
24You were born on 28 May 1986 and you are now 33 years of age. You were 28 years of age at the time of your offending. You grew up in Sydney's eastern suburbs in what you describe as a positive environment. You have a non-identical twin brother and you were both born prematurely.
25You have chronic medical conditions that they developed from physical weaknesses in utero due to your twin being more dominant and also from your premature birth. I will detail these shortly. You also have much older siblings from your parents' earlier relationships.
26Your father worked as a wholesale jeweller and your mother was on home duties. You report a close relationship with your mother. However, your father was a strict, if not brutal, disciplinarian who regularly resorted to physical assault of you, masquerading as parental chastisement.
27When you were 11 years of age, one particular act of corporal punishment upon you apparently ended your parent's relationship. You attended a Catholic primary school until Year 3 before moving to Cranbrook School, a private Anglican boy's school in Sydney's eastern suburbs, for Years 4 to 12.
28You progressed through school without significant behavioural or academic issues and you completed your HSC with good results. You went on to study graphic design and work in a range of roles within the information technology sector such as a ‘genius’ with Apple and in sales with Optus.
29I understand you worked in graphic design whilst incarcerated in New South Wales. However, you have not worked since your release from prison in New South Wales in June 2019 and you currently live with your mother in Bronte, on Sydney's eastern beaches.
30You have a number of medical conditions which have been outlined in medical letters and reports, exhibits 8JRA and 9JRA on the plea. You have severe retinal detachment in your right eye which has been repaired but left you with an irreversible loss of sight. Your left retina remains attached but there are extensive areas of retinal thinning. Since childhood you have also suffered with gastrointestinal issues that have necessitated surgical intervention to remove parts of your small intestine. I take these conditions into account to the extent that they inform your personal background.
31The matters that were being investigated by the Federal Police resulted in charges of online accessing of child pornography between 7 October 2013 and 9 December 2014 and possession of child abuse material on 10 December 2014, the day of your arrest.
32These Victorian offences were thus committed within the charged period of the New South Wales Indictment. You were sentenced in New South Wales by His Honour Judge Madgwick on 21 June 2018 and that was some three and a half years after your arrest on those matters. No reason has been provided to me as to why there had been such an inordinate delay between you being first arrested and the final disposition of those matters.
33Various reports were provided to His Honour and were also provided to me: they were exhibits 4JRA, 5JRA, 6JRA and 7JRA. None of the authors were expert in the field of sexual deviancy or in risk assessment of sexual deviance. In those reports you downplayed the nature of your physical desire and sexual attraction toward adolescent boys. This was averted to by His Honour, when in sentencing you he noted that it was,
'Very clear that he did have an active and strong sexual interest in boys in their early teens as the material itself would suggest, and contrary to what he suggested or half suggested to his reporting forensic psychiatrist, Dr Olav Nielssen. The relevance of that is that it bears or may well bear on the prospects of his rehabilitation'.
34His Honour took into account your physical frailties and vulnerabilities, your plea of guilty and your developmental disorder. You were sentenced to a total effective sentence of two years in respect of those Commonwealth and New South Wales State charges, with a non-parole period of 12 months.
35All members of your immediate family visited you during your incarceration in New South Wales. During your time in custody you were assaulted. You also unfortunately did not participate in any sex offender treatment programs. You were released on parole on 20 June 2019.
36Following your release, your plea hearing on these matters was listed and it commenced on 23 July 2019. The plea hearing was adjourned to enable a report to be prepared which specifically addressed your sexual deviance and your risk of reoffending. Exhibit 10JRA was a report of Patrick Newton, clinical and forensic psychologist, dated 2 September 2019.
37Mr Newton noted that your results on the administered psychological testing suggested that: -
'He is aware of his failings and problems, but he chose not to disclose them on testing and instead chose to portray himself in a positive light.
As a result the credibility of Mr Andrews' self-reports of his adjustment is questionable and concerns must be raised about his candour. It is highly likely that his true level of dysfunction present in his personality and broader psychological adjustment is greater than he was willing to admit'.
38Mr Newton noted how this echoed the reports of Dr Collins and Ms Jewson, exhibits 6JTA and 7JRA respectively. You described to Mr Newton no clear gender preference with regard to your sexual orientation and told Mr Newton that you had never engaged in an intimate relationship with another person. You described viewing online pornography which progressed from viewing hardcore material to increasingly deviant expressions of human sexuality.
39It was reportedly in the course of deliberately searching for more diverse and varied material so as to sustain your sexual interest and masturbatory fantasies that you first accessed child exploitation material.
40Whilst your intelligence was not formally assessed Mr Newton estimated your intelligence likely to fall in the high end of the average range.
Mr Newton noted how your chronic physical ill health had become something of a lightning rod for your problems. In other words, you were finding it much easier to discuss physical problems rather than to be open about the emotional and psychological problems in your life.41As to your personality adjustment Mr Newton stated,
'He remains a very immature person for his age … and lacks a coherent sense of his own identity … He has a strong desire for closeness and would dearly love to be able to establish connection with others … While he denies feeling lonely he clearly feels different and alienated from the world of mainstream interpersonal interactions …[In consequence] He has sought refuge in the online world pursuing gaming and pornography as well as dabbling in magic as a means of making connection. None of those activities have allowed him to establish a close relationship with another individual'
42Mr Newton continues,
'While I am reluctant to diagnose a personality disorder on the basis of a single interview (especially in the context of questionable psychological test results), it is evident that Mr Andrews suffers significant deficits in his interpersonal and personality development. There is a strong need for him to receive appropriate treatment to address these issues and such treatment would best be provided by a psychiatrist who specialises in the treatment of personality disorders'.
43You have engaged in virtually no sexual activity with any other person despite your 33 years of age. Mr Newton notes, 'his perspective on sexual issues has been based largely on his observations of the pornographic material that has formed the foundation for the bulk of his sexual "experience” ’.
44In other words, you're learning physical expressions of intimacy from the platforms run by pornographers. From these platforms you derive your sense of your identity as to what is and is not acceptable.
45Mr Newton continues, 'As a result his perspective remains at best immature and at worst, very distorted'.
46You have described feeling very strong sexual arousal to peri-pubescent and pubescent males and he noted that you had engaged in extensive sexual fantasies with child exploitation material that depicted such individuals. Mr Newton writes, ‘it would seem likely that the use of such individuals does not evoke a level of anxiety which a potential adult partner would for Mr Andrews’.
47Mr Newton assesses your risk of sexual re-offending as no lower than a moderate to high risk. That risk of recidivism, of repeat offending, is significantly higher than that of a typical sex offender undergoing sentence. Mr Newton considers you to attract a diagnosis of an unspecified paraphilic disorder, hebephilia, which is an attraction to adolescent children:
'His interest in pubescent and peri-pubescent males goes beyond a mere “normal variant” to be dysfunctional, to be deviant and problematic. I consider it to be a potent criminogenic risk factor'.
Mr Newton emphasised on more than one occasion in the course of his report the strong need for you to receive structured offence specific treatment which you have not unfortunately received to date.
48Mr Smallwood, learned counsel on your behalf, in skilful and helpful submissions, urged upon the Court, in brief: the terms and effect of the sentence that had been imposed upon you in New South Wales and the consequential compressing effect of totality; your guilty plea and the utilitarian value, that is, its value in saving the community the time and the cost of a trial; your remorse, which you are beginning to express); your personal history; your physical vulnerabilities, indicating that prison would be more burdensome for you; and your isolation in prison in Victoria away from your family (who I note are here again today and have attended on all your Court appearances).
49Mr Smallwood also urged upon me the steps that you had taken towards your rehabilitation; the delay of nearly five years since your arrest and since the offending for which you fall to be sentenced today and the clearly demonstrated, and indeed urgent, need for you to participate in offence specific treatment to reduce the identified risk of reoffending.
50Mr Smallwood concluded in his submissions to me that it would be a crushing outcome for a man such as you, who has just completed his first custodial sentence to be required within a matter of a few months to return to gaol. He submitted that in the somewhat unusual circumstances of this case and, in particular, in light of the punitive aspect of the punishment imposed in New South Wales, the best way to give effect to totality, general deterrence, denunciation, rehabilitation and the other sentencing principles that guide the sentencing task would be through the imposition of a Community Correction Order.
51Those submissions, I may add, were echoed by Mr Stanton, learned counsel, who acted on your behalf after Mr Smallwood became no longer available.
52Mr D'Arcy, learned counsel for the prosecution, submitted that having regard to all of the above matters I could deal with the matter by way of a Community Correction Order. That, in my view, was prosecutorial conduct of the most exemplary kind.
53Mr Andrews, you have pleaded guilty to serious charges, as is clear by virtue of the maximum penalties which Parliament has seen fit to impose. Offending against children will always be viewed by the courts as serious offending.
54There has been a growing recognition by the courts over the last decade or so of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived. Children who have been sexual offended against have had their innocence and their sense of self stolen from them and as they grow up they blame themselves for acts that were committed against them by adults and for which acts they are completely without blame.
55They struggle to engage in healthy relationships. They struggle to find their place in the world. Crimes against children are crimes against our common future and our common humanity. The courts have said time and time again that they will do everything within their power to protect children.
56I accept that for you the real world was too intimidating a place and thus you retreated into the virtual world where you did not feel challenged.
57When you were online you lost your moral compass. You began to view pornography. You began searching for evermore hardcore and perverted material to sustain your sexual interest and that was the context, so I am told, in which you first viewed child exploitation material. Your desire it seems settled upon adolescent male children. Images of adolescent male children fuelled your sexual fantasies and became their mainstay.
58Through the course of online gaming you formed an online relationship with the complainant who you then befriended, lying about your age in the process. He was then 12 and you were 26. You showered him with presents. His mother came to trust you as someone who was a positive influence upon her child.
59She invited you into her home not once but twice. She placed her trust in you and that trust, Mr Andrews, you betrayed. You told Mr Newton that, 'you had found the complainant attractive', and that you had therefore pursued steadily greater intimacy with him and his family and that:
“In this context he had begun to fantasise about the complainant following scenarios he had engaged with in the child pornography he downloaded, and progressed to acting these fantasies out with the complainant filming himself while he did so.”
It seems there needs no other descriptor of the offending than that account that you gave to Mr Newton.
60Mr Andrews, you reduced a living child to the status of a simple object, an object whose sole purpose was to be used in satisfaction of your deviant sexual desire. Your offending was utterly callous and in my view your moral culpability for it, that is the extent to which you will be held accountable for your actions and for their consequences, is high.
61The sentencing process is not about revenge, it is not about retribution and I am acutely aware that the sentencing process cannot give back to Ethan and to his mother that which they feel, rightly so, has been taken from them.
62In sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence. That is, I must deter others from behaving as you did, and I must consider specific deterrence, that is, deterring you from any repeat of such offending.
63I must consider the need to protect the community from you. I must express the community's denunciation of your conduct. I must take into account the effect of your crimes upon your victims. I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty. I must have regard to current sentencing practices.
64In short, I must try to balance the circumstances of your offending with your personal circumstances and I am required by law to pass no longer nor greater a sentence than is necessary.
65The gravity of this offending and its surrounding circumstances is in my view serious indeed. Ordinarily, the sentencing purposes enlivened by your offending would demand a significant and immediate term of imprisonment. However, in the particular, indeed perhaps unique, circumstances of your case, and after much consideration, I have come to the conclusion that the relevant sentencing purposes do not require that you be returned to prison.
66In so finding, I have regard to all the matters that were argued so ably on your behalf by your counsel, Mr Smallwood, and his successor in title but equal,
Mr Stanton, and also, and perhaps more importantly, I have had regard to the prosecution's concession that a Community Correction Order would sufficiently address all the relevant sentencing purposes.67Mr Newton is clear as to the urgency of your need for treatment. Your rehabilitation and the community's protection will both depend upon your response to treatment. If I were to pass a combination sentence, that is a sentence combining a term of imprisonment for 12 months or less and a Community Correction Order, there would only be a further delay before treatment could commence as the sex offender treatment program could not be initiated and completed and run in that period of time.
68So the custodial element would, I accept, be purely punitive. Sometimes that is called for. However, delay, the principle of totality and your physical frailties and vulnerabilities all loom large in the balancing exercise of my discretion and they in my view temper the need for punishment.
69So if you would stand up please, Mr Andrews?
70On Charges 1 to 4 you are sentenced to a Community Correction Order of three (3) years. Mr Stanton, I know, will explain to you the core conditions. Essentially, you must not commit an offence whilst you are on this Community Correction Order. I have made it for a three (3) year period, notwithstanding the submissions made to me by Mr Stanton.
71I am going to put in place a condition of supervision. You must undergo any mental health assessment and treatment as directed by the regional manager.
72You must participate in programs or courses directed or relating to the offending as directed by the regional manager and you are required to participate in the specialist offender assessment and treatment program. Those will be explained to you.
73I am also going to impose a condition of judicial monitoring. That enables me to see how you are going over the course of the order.74The first review will be on 7 April 2020 at 2:15pm in this Court but I of course will permit you to appear via video link.
75My first question to you, Mr Andrews, is do you consent to being placed on this order?
76OFFENDER: Yes, Your Honour.
77HIS HONOUR: You must attend at the Melbourne Justice Centre at 50 Franklin Street Melbourne within two clear working days after the commencement of this Order.
78Mr Stanton, I and my staff have made extensive enquiries. Mr Andrews has to report and be inducted in Victoria before the Order can be transferred. I am sure you foreshadowed that with him and I see his mother and his brother are here.
79I do not know what plans he had for his return to Sydney but he should not return to Sydney until he has been inducted. Those arrangements are not for me but certainly it has been foreshadowed with Corrections. He needs to report and I would suggest no time like the present.
80MR STANTON: Yes, Your Honour.
81HIS HONOUR: So interstate Orders are rare but we can see if we can make them work, Mr Andrews.
82Had you not pleaded guilty, I would have sentenced you without hesitation to a total effective sentence of two (2) years' imprisonment with a non-parole period of fifteen (15) months. That means you would have returned to prison for at least 15 months, notwithstanding the issue of delay and your vulnerabilities.
83Pursuant to the Victorian Sex Offenders Registration Act2004 you are now a registrable offender and you are subject to the reporting conditions under the Act and the reporting period is for the remainder of your life.
84You are going to be required to sign a document acknowledging that you have received a notice of your obligations. Again, Mr Stanton, I know will explain what that means to you, if he has not done so already, but for a young person who is tech savvy, as is you, the most important requirement is that you must declare to the police officer who is in charge of maintaining the register all of your online identities.
85So if you go onto a gaming console and you are 'Captain Whiz' or captain whatever, and I mean that, every single time you go on if you have a different persona or avatar or call it what you will, you have to declare that.
86Do you understand me?
87OFFENDER: Yes, Your Honour.
88HIS HONOUR: Those requirements are primarily designed to protect children. It is to keep those who have offended against children, away from children. The stranger danger of old, is now in the virtual world. More and more people live such as you do, entirely in the virtual world, because it is without challenge and enables you to be whomever you might pretend to be.
89Courts view seriously any such breach of an Order. They are always prosecuted and let me tell you if you were to be prosecuted and come back to me for such a breach you would go to prison.
90Mr McKenzie has got a document that you can sign. Mr Stanton, again you can go with him. I have noted - I have not noted but the Court is cognisant of the fact that I think it is Charges 2 and 4 were committed within 24 hours of each other so it is essentially three Schedule 2 offences but that is sufficient.
91Mr Stanton, is there anything that I have forgotten to do?
92MR STANTON: No, Your Honour.
93HIS HONOUR: There is a process of registering registration.
94MR STANTON: Yes, that has been explained and it will be explained again to Mr Andrews.
95HIS HONOUR: It can be registered in another state.
96MR STANTON: In New South Wales, yes.
97HIS HONOUR: In New South Wales, and that therefore is subject to management and enforcement by New South Wales whereas the Community Correction Order is in effect being caretakered by New South Wales.
98MR STANTON: Yes, and my instructor made enquiries of SOCIT in Mildura and Melbourne in relation to that and that is correct, that with the registration of that once he makes the initial report that will be then relayed to the New South Wales authorities.
99Thank you, Ms Nalpantidis. Thank you, Mr Stanton.
100MS NALPANTIDIS: One further thing, Your Honour, just the 464 application.
101HIS HONOUR: Yes, that is right. I will sign it in chambers. Mr Andrews, I am making an order enabling authorities to take a forensic sample from you. That is taken by means of a buccal swab. I am told by Parliament that I must inform you that should you refuse, and I am sure you will not, but should you refuse when officers come to take that swab officers are entitled to use such force as is reasonably necessary to take the sample.
102Mr Andrews, you have been well served by your Counsel and you have also been well served by the Director of Public Prosecutions of this State who has behaved like a model litigant in the instructions that she provided to Mr D'Arcy.
103I will stand down. Thank you, have a good day to both of you.
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[1] Ethan James is a pseudonym
[2] Diana is a pseudonym
[3] Michael is a pseudonym
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