Director of Public Prosecutions v Aumann
[2015] VCC 2299
•31 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
| THE QUEEN |
| V |
| JAAK AUMANN |
JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2014 | |
DATE OF SENTENCE: | 31 March 2014 | |
CASE MAY BE CITED AS: | DPP v Aumann | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 2299 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: using a carriage service to transmit/solicit child pornography, & to procure a child for sex – possess child pornography; early Plea of Guilty; 7 boys involved, no actual contact or meeting; images of masturbation; exploitation of victims; young offender; socially isolated and immature, no prior convictions, early engagement in counselling, long-standing depressive symptoms; suicidal ideation; low to moderate risk of re-offending but strong protective factors; general deterrence significant.
Sentence: Recognisance release order 2 years, Community Corrections order 2 years.
Pseudonyms used for all complainants
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Grant Schubert | CDPP |
| For the Accused | Leighton Gwynn | Lethbridges |
HER HONOUR:
1 Jaak Aumann, you have pleaded guilty to eight charges involving child pornography and using a carriage service to procure a child for sexual activity. These are all charges under the Commonwealth Criminal Code and I shall set them out in detail later in these sentencing remarks. You also pleaded guilty to one charge of knowingly possessing child pornography under the Victorian Crimes Act. They are all serious charges with the Commonwealth charges each attracting 15 years imprisonment as a maximum penalty. For the state charge, the maximum penalty is five years imprisonment. For reasons which follow, it will not be necessary for you to serve a prison sentence of a type which must be served immediately.
2 The details of these charges are set out at length in the summary of the prosecution opening which was tendered by the learned prosecutor, and which will be retained on the court file as Exhibit A. It is sufficient for me to repeat the following from that summary.
3 You committed the offences over a period of approximately seven months commencing when you were aged 20 - you are now 21. You became involved in an online community known as The Orange Community using a program called TeamSpeak. It enabled users to talk while playing online games. A member of this community was a 13 year old boy, Zachary Hines[1] living in the USA. Investigations there revealed you as having, on 15 occasions, transmitted text stories describing the boy engaging in sexual intercourse with another child of the same age whom he knew. The material included descriptions of oral and penetrative sex.
[1] Pseudonym
4 You also transmitted a further series of such stories describing in graphic detail the same boy engaging in sexual intercourse with two eight year old girls while babysitting them. You encouraged the boy to masturbate while reading these stories and to engage in other sexual behaviour. You asked him to send you naked images of himself in return for further stories and to prove his loyalty to you, but he did not do so because his father discovered what was happening.
5 Overall you provided him with 105 online games. You told him fantasy stories involving him in ways that were disturbing and which he believed. You manipulated him and secured his attachment to you. These activities are the subject of Charge 1, using a carriage service to transmit child pornography.
6 You also communicated with a 14 year old boy in New Zealand, Cole Lyons[2], also using The Orange Community TeamSpeak channel. You asked him to send naked and sexual images of himself to you and encouraged him to do so when he expressed his discomfort about it. He sent four images and five videos to you, including images of his genitals and showing him masturbating. You told this boy you loved him and made him feel important. These activities are the subject of Charge 2, using a carriage service to solicit child pornography.
[2] Pseudonym
7 Charge 3 is the same charge in relation to Luke Reid[3], a boy in the USA aged between 13 and 14 years. You communicated with him via Skype asking him repeatedly for naked and sexual videos of himself masturbating and showing his genitalia and buttocks. You offered him paid work designing a website, but repeatedly told the boy that his priority was to send you videos. He sent you six videos and one image.
[3] Pseudonym
8 You also used Skype to communicate with a 14 year old boy, Adam Hayden[4] whom you manipulated into repeatedly sending you webcam video of him stripping and engaging in sexual activity. When he began to object and disclose that he had told two people, you banned him from contacting you which prompted him to ask you for your forgiveness. You began to make other demands and eventually he ceased contact. These activities are the subject of Charge 4, using a carriage service to procure a person under the age of 16 for sexual activity.
[4] Pseudonym
9 Charge 5 is a charge of using a carriage service to solicit child pornography. You communicated with a 14 year old boy in the UK, Noah Meyers[5], using Skype and the TeamSpeak program. You gained his confidence by playing online games with him and then you would steer the conversation towards sex. On your instructions he showed himself naked and masturbating on webcam, and you recorded the material and kept it on your computer. From this you obtained four images and 17 videos. The boy cooperated with you because you banned him from the chat room and prevented him from talking to his friends. He was also worried that you might distribute the material or tell others about it. He became unhappy and fatigued with disturbed sleep.
[5] Pseudonym
10 Charges 6 and 7 are charges of using a carriage service to solicit and transmit child pornography involving a boy you knew as Corey Olsen[6] who told you he was 14. Investigations did not establish his identity or age. You asked him for various sexual material and you received 10 images of a child displaying his genitals or buttocks, five images of a child performing sexual activity, and two video files of child pornography.
[6] Pseudonym
11 Charge 8 is a charge of using a carriage service to procure a person under the age of 16 for sexual activity involving a 14 year old boy, Charles Strong[7]. You befriended him through the TeamSpeak server and asked him to show his skin under his underwear and became angry with him when he refused. On another occasion, you paid for a pizza to be sent to his address asking him to masturbate in return. He refused but performed sexualised behaviour whilst wearing his underwear. You recorded these activities and retained the material on your computer.
[7] Pseudonym
12 The material obtained from the boys covered all levels of the categories of child pornography but consisted mainly of Level 1 and 2 categories, that is portraying nudity with no sexual activity Level 1, and masturbation, Level 2. There were a few images and videos belonging to other Levels 3, 4 and 5, those being the more serious levels.
13 Charge 9 is the charge of knowingly possessing child pornography in addition to the material already referred to. It consisted of four image files and 44 videos covering all levels, including Level 6. I note that is a relatively small number compared with other cases.
14 I turn now to your personal background. As I said, you are now aged 21, the only child of parents who run a successful business, and by whom you are employed in various capacities. Since you were charged with these offences, you have been working an 80 hour week to keep you occupied and away from the internet. Your parents attended the plea hearing and your mother has provided a written reference explaining the shock she and your father felt when they learned of your behaviour, and how it seemed completely out of character.
15 At school you were academically competent and completed Year 12 with good results. But you were bullied at school on account of your physique and your sexuality, and had to change schools in your early teenage years. After finishing school you enrolled in an online computer programming course. When your home was searched by the police leading to your arrest, you were very cooperative and made admissions in the record of interview. You began seeing a psychologist, Dr Christopher Grace, whom you have continued to see weekly, and with whom you have established a good rapport. He reports that you are, in his opinion, socially and emotionally immature with poor relationship skills but you have taken responsibility for your wrong-doing and have gradually developed a better understanding of the harm done to children by sexual abuse. However, there is still some way to go and in the opinion of Dr Grace, there remains some risk of reoffending.
16 In August last year, a few weeks after your arrest, you used the internet in breach of your bail conditions to contact a 14 year old in New Zealand. There was no sexual character to this contact and nothing objectionable in the exchange and it did not give rise to any charge. It has not been repeated, but perhaps it is an indication of the level of compulsion driving you in these activities.
17 Dr Grace said that you are isolated from others and this appears to have been a contributing factor to your offending. To help overcome your isolation, you have started to become involved in activities away from home, such as playing cards with a group and participating in historical role playing games. Isolation is a common feature in the make-up of offenders in these types of cases, and I do not regard it as a factor setting you apart from other offenders. Rather it is part of an explanation for the causes of the offending.
18 You were assessed recently by Mr Patrick Newton, a forensic psychologist, who confirmed that you have described a compulsion behind the offending. Mr Newton provided a detailed report to the court and gave evidence. He noted, as did Dr Grace, that you suffer long-standing depressive symptoms including suicidal ideation but there has been improvement following counselling without the need for medication.
19 Mr Newton considers that notwithstanding that improvement, significant symptoms remain, particularly a high level of suicidal rumination, and that this condition has origins in your early adolescence. He considers that you are at elevated risk of self-harm. He stated in his report that the nature of the chat-logs and your interactions with the boys clearly point to the presence of entrenched deviant sexual cognitions connected to peripubescent boys. This is being addressed by Dr Grace, and you are willingly continuing with that therapy. This is a protective factor, as is your focus on work and community activities, and the strong support of your parents. A sex offender program would be an additional protective factor as would sex offender registration and any other deterrent aspects of sentencing.
20 Nonetheless, Mr Newton considers the risk factors still operating indicate a moderate to high risk for recidivism. I note that the assessment by the corrections officer for the purpose for a community corrections order, classifies the risk as low.
21 There have been no problems in your past or in recent times, with drug or alcohol abuse, and you have no prior convictions, nor have you ever been involved with the criminal justice system before. Those matters mean there will be fewer impediments to your rehabilitation. As for other mitigating factors, you pleaded guilty at the committal hearing and are entitled to a discount on your sentence for that, as you have avoided the expense and inconvenience of a trial which is of particular importance in this case as several of the complainants live overseas. Its further significance is that it has avoided the need for the police to take statements from the boys and for them to have to give evidence.
22 Another factor is your youth and vulnerability. You are still very young although just outside the age range for detention in a youth justice centre. I must take into account that your experience of imprisonment would likely be more difficult than for others more resilient than you, and you would be possibly at risk of exploitation yourself. It is likely that if imprisoned you would be held in protection and you would be carefully monitored. Your experience of imprisonment would entail more than the deprivation of liberty and the factors that usually attend that.
23 The most important sentencing principle in relation to these serious charges is that of general deterrence and it must be given great weight. In most cases it leads to a custodial sentence to be served immediately. In this case the gravity of the offending is manifest in the fact that you manipulated several young boys by exercising your adult status and influence to overwhelm them, and to ensure on many occasions that they would respond favourably to your demands. You held out rewards and favours to this end with threats of punishment and indeed implemented punishment in some cases, by depriving them of online contact which brought about the results you wanted. The boys were too young to properly assess your behaviour and avoid involvement. You acted this way for your own sexual gratification and as the prosecutor put it, you exhibited a high degree of depravity in doing so. However, you did not meet with any of the boys nor sought to do so, and this aspect distinguishes this case from others where meetings took place or were attempted and where a term of immediate imprisonment was imposed.
24 You are classified as a young offender and so the issue of your chances of rehabilitation is significant. Mr Gwynn who appeared on your behalf submitted that the need for general deterrence should not override your youth and immaturity. It is well established that the more serious the offending the less significant youth and immaturity become. However, Mr Schubert, the learned prosecutor, submitted that in your case the seriousness of the offending was not such as to cancel out the significance of your youth.
25 There is also a need in this case for specific deterrence to be addressed in the sentence imposed. Because most of the charges are Commonwealth charges, the equivalent of a suspended sentence is available. If you were released on a recognisance release order, you would be able to undertake a sex offender program as well as being at liberty to continue with your treatment with Dr Grace. Mr Newton identified that as an important protective factor and I accept that it is indeed important. A term of immediate imprisonment would make that impossible until after your release, and in the meantime not only would you be at risk, but you would be unable to benefit from positive community engagement which is essential to your rehabilitation. Your commitment to counselling therapy is an important matter to be taken into account in combination with your youth.
26 In determining the appropriate sentence, I have had regard to a large number of sentences in other similar cases, and have been assisted by them, particularly those involving young offenders.
Mr Aumann, will you stand please now. I order that you be sentenced to terms of imprisonment for Charges 1 to 8 inclusive, all to commence today, but that you be released forthwith upon entering into a recognisance release order for the sum of $2,000 to be of good behaviour for a period of two years. The terms of imprisonment are as follows. Charges 1, 4 and 8 - 18 months. Charge 2 - 20 months. Charges 3 and 5 - 24 months. Charges 6 and 7 - 12 months.
27 You have been assessed as suitable for a community corrections order which will apply to Charge 9. That order will begin today and will last for two years. You must complete 80 hours of unpaid community work. You will be required to take part in a sex offender program, to be under supervision, to undergo mental health assessment and treatment, and to be subject to judicial monitoring. You must report to Box Hill Community Correctional Services at 703 Station Street, Box Hill, by 5 p.m. today 31 March. I note also that the assessing officer also requires you to attend on 2 April by 4 p.m.
28 A limited number of charges were involved in Charge 9 placing it at the lower end of the range of seriousness thus avoiding a term of imprisonment but warranting a punishment to be served in the community with the benefit of treatment from Dr Grace being able to continue. Other strategies focused on your rehabilitation as I outlined a moment ago, will also be employed as part of the order as I have set out.
29 Pursuant to s.6AAA of the Crimes Act, if you had pleaded not guilty to these charges I would have sentenced you to a total term of imprisonment of 34 months with a recognisance release order to be of good behaviour for three years with a community corrections order for three years.
30 I note that you are to be sentenced as a serious sex offender, and this is a matter I want to discuss with you, Mr Schubert, if I may. I think that that was intended to be in relation to Charge 9. But if Charge 9 is not a sentence of imprisonment, which a CCO is not, then that may be incorrect. It may be that the serious sex offender notation should apply to Charge 8. Can I leave that with you to consider for a moment?
31 MR SCHUBERT: Yes, Your Honour. Your Honour, my understanding is, first the provision does not have any application to the Commonwealth charges so there would not be a declaration if it does not apply to Charge 9.
32 HER HONOUR: That would mean it does not feature at all in this sentence then?
33 MR SCHUBERT: My understanding of the provisions, Your Honour, is that if a sentence of imprisonment has been imposed for two or more relevant offences which have been imposed for the Commonwealth offences, so even though there is no sentence of imprisonment on the state count, Mr Aumann still stands to be sentenced as a serious sexual offender in relation to that count.
34 HER HONOUR: I see. That makes sense. In that case the order will stand that Mr Aumann will be sentenced as a serious sex offender in relation to Charge 9 because of the sentence of imprisonment imposed for the other charges, notwithstanding that they are Commonwealth charges, and that will be noted on the court record.
35 Another matter that did not arise, Mr Schubert, was an application under the Sex Offender Registration Act.
36 MR SCHUBERT: There is no application, Your Honour, but there would be a declaration made by Your Honour that the period of registration is for life.
37 HER HONOUR: I see. Do you want to comment on that, Mr Gwynn?
38 MR GWYNN: There is no discretion, Your Honour.
39 HER HONOUR: That is what I had anticipated but I just noted that there was no application and it is a technical reason why there is not one. In that case, I have had that form prepared in anticipation and that can be signed by Mr Aumann in a moment. Do you want to be present, Mr Gwynn when he signs that?
40 MR GWYNN: Yes, I will be here.
41 HER HONOUR: My associate could take that down to him right now. That can be done now.
42 MR GWYNN: Certainly, I will attend with him, Your Honour.
43 HER HONOUR: While that is being done, I have to now address a date for Mr Aumann to come back to court for the judicial monitoring. He does not need you, and he does not need any legal representation for that. Usually the first appointment is a couple of months, at least down the track. So we could look at the end of May. What about Thursday 12 June? Would that be all right, Mr Aumann?
44 PRISONER: Yes, that's fine.
45 HER HONOUR: You would have to come here at 9.30 a.m. It will not take very long. When you go to see the Corrections today, no doubt that will be explained to you in more detail.
46 Mr Gwynn and Mr Schubert, you were both sent emails about the use of pseudonyms?
47 MR GWYNN: Yes, Your Honour.
48 MR SCHUBERT: Yes, Your Honour.
49 HER HONOUR: That will take place for the revised sentencing remarks. You can take a seat now, thank you, Mr Aumann.
50 HER HONOUR: I do not think I really explained to Mr Aumann much about the Sex Offender Registration Act. Mr Aumann, the Sex Offender Registration Act requires, in a mandatory way, that you provide to the police your details, including contact details every year for the rest of your life. That is something that has to happen and I do not have any discretion about it. Has that been signed, Mr Gwynn? Take a seat, you will be asked to sign that shortly.
51 MR SCHUBERT: Your Honour, I am not sure if your associate has drafted one, but I have manually drafted a recognisance release order in the terms Your Honour that has announced.
52 HER HONOUR: Thank you.
53 MR SCHUBERT: If I can hand that to your associate.
54 HER HONOUR: Thank you. Mr Schubert, the provision for sex offender program participation and assessment is already covered by the CCO but is it just a technicality that it gets ticked on the RRO as well?
55 MR SCHUBERT: Your Honour has not ordered it as part of the conditions of the recognisance release order so therefore I have deleted it from the order.
56 HER HONOUR: I see. It is deleted, is it?
57 MR SCHUBERT: It is ordered under the community corrections order.
58 HER HONOUR: So it gets covered by the state?
59 MR SCHUBERT: Yes.
60 HER HONOUR: Thank you. Yes, Mr Schubert?
61 MR SCHUBERT: Will Your Honour require the prosecution to appear at the judicial monitoring with Mr Aumann?
62 HER HONOUR: No, not at all.
63 MR SCHUBERT: Thank you, Your Honour.
64 HER HONOUR: I think that completes everything.
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