Director of Public Prosecutions v Beck
[2020] VCC 1590
•1 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-00666
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG BECK |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 August 2020 |
| DATE OF SENTENCE: | 1 October 2020 |
| CASE MAY BE CITED AS: | DPP v Beck |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1590 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence — using a carriage service to transmit indecent communications to a child under 16 — sexual assault of a child under 16 — sexual penetration of a child under 16 years — plea of guilty — standard sentence offence — victim impact statement — end-stage kidney disease — COVID-19 transfer quarantine — just punishment — general deterrence — denunciation — non-parole period of less than 60% — recognisance release order
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence:Total effective sentence of 24 months with effective non-parole period of 12 months and recognisance of $1500 to be of good behaviour for 2 years
Section 6AAA declaration: total effective sentence of 5 years with non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Lenthall | Office of Public Prosecutions |
| For the Accused | Mr J FitzGerald | Victoria Legal Aid |
HER HONOUR:
1Craig Beck, you have pleaded guilty to one charge of using a carriage service to transmit indecent communications to a child under 16 (charge 1), for which the maximum penalty is a term of imprisonment of seven years. You have also pleaded guilty to a charge of sexual assault of a child under 16 (charge 2), for which the maximum penalty is a term of imprisonment of 10 years, and to a charge of sexual penetration of a child under 16 years (charge 3), for which the maximum penalty is a term of imprisonment of 15 years.
2Charges 2 and 3 are standard sentence offences. The standard sentence for the charge of sexual assault of a child under 16 is four years’ imprisonment. The standard sentence for the charge of sexual penetration of a child under 16 is six years’ imprisonment.
3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.
4In brief, the circumstances of your offending were as follows.
5You were the friend of the father of the victim in this matter, Milly Gomez.[1] You met Ms Gomez when she was 10 years old. You were 22 years older than her.
[1] A pseudonym.
6Over time, you befriended Ms Gomez, and she felt that she could trust you and talk to you about things that she could not discuss with her father.
7Ms Gomez eventually gave you her phone number, and from around 1 August 2019, when Ms Gomez was 13 years old, you began to have frequent contact with her via phone calls and text messages. You contacted her on her own phone and via phones belonging to her schoolfriends. Ms Gomez would ask her friends if she could borrow their phones when she had no credit to speak to her boyfriend, Craig, who she said was 15.
8You started sending Ms Gomez messages of a sexual nature, commencing with comments that she was pretty and asking about what type of bra she was wearing and what type of underwear she was wearing.
9On around 16 August 2019, you met Ms Gomez at her school and gave her a white Android mobile phone which she could use to contact you.
10On Saturday 17 August 2019, you picked up Ms Gomez in your vehicle. You then drove to a logging plantation, where you parked your vehicle. You removed the cover of your ute, exposing the rear tray area of the vehicle. You took Ms Gomez’s pants off, and she laid down on the tray of your vehicle. You licked and sucked her vagina (charge 2, sexual assault of a child under 16).
11You then inserted your penis into her vagina and penetrated her in this manner for about five to 10 minutes. During this time, Ms Gomez asked you to stop and reminded you that she was 13 years old. You ejaculated into a condom you were wearing as contraception (charge 3, sexual penetration of a child under 16).
12Following this incident, you and Ms Gomez continued to have regular contact until November 2019. On a number of occasions, you met the victim at school during breaks in classes. On these occasions, you would often feel her breasts. On one occasion, you drove to a lookout and you asked if you could have sex again with her. She declined, saying she had her period, which was a lie.
13You also continued to regularly communicate with Ms Gomez through text messages and phone calls. Phone records later obtained for your phone showed you were in contact with Ms Gomez on 2,567 occasions between 1 August 2019 and 12 November 2019.
14On 12 November 2019, a search warrant was executed at your address. Various electronic devices were seized and analysed, including your Samsung phone, which revealed ongoing text messages between you and Ms Gomez. Police also obtained the phone Ms Gomez shared with her sister and the phone that you had given her. The three phones were analysed. Excerpts from text messages found on the phones included the following messages sent by you to Ms Gomez:
a. ‘I want you so bad’ (9 August 2019 at 4:38pm);
b. ‘I want to eat you out and give you a good fucking’ (9 August 2019 at 5:19pm);
c. ‘… you are 12 years old but act like you’re 18 you love a guy by the name of Craig’ (9 September 2019 at 8:53pm);
d. ‘you act like you’re 18 around me which I love that’ (9 September 2019 at 8:56pm);
e. ‘And yes I like fucking you as your my gf’ (9 September 2019 at 9:32pm); and
f. ‘I love you that much I want to cum in your pussy’ (9 September 2019 at 11:57pm).
15Police located the following MMS sent by you to the white Android phone that you had given Ms Gomez:
a. on 20 August 2019 at 10:58pm, you sent her a photograph depicting your exposed penis;
b. on 22 August 2019 at 12:18am, 10:04am and 2:07pm, you sent four different photographs depicting your exposed penis; and
c. on 23 August 2019 at 1:20pm, you sent a photograph depicting your naked body in the mirror.
16Those communications, including the transmissions of the photographs, are the basis of charge 1.
17Following the execution of the search warrant, you were arrested and interviewed at the Morwell Police Station. You admitted your offending but told police that the victim was ‘clingy’ and kept ringing you. You said you and the victim exchanged sexual fantasies and images.
18You admitted having had sexual intercourse with the victim. You told police that the victim had planned the incident and wanted her first time to be with someone she knows. You said the victim pursued you. You told police you had not ejaculated and had said, ‘No, I’m stopping, I have to go’.
19You also admitted having been to the victim’s school on approximately three occasions to talk to her during lunchbreaks, but said that ‘nothing happened’, and that you would just talk. You said the day at the logging reserve was the only time that you have had any sexual contact with the victim.
20You admitted knowing the victim was underage. You said you thought she was 15, but you knew she was in year 8 at school, and that students in year 8 would be ‘maybe 12 or 13’ years old.
21You admitted having given the victim a phone, which you said you had purchased a few years back as a work phone but had not used.
22You pleaded guilty to the charges on the indictment at a committal mention on 14 May 2020. This is an early plea, and it is accepted by the prosecution that it carries significant utilitarian value, particularly in the present context of extreme stress on the administration of criminal justice in this State, caused by the COVID-19 pandemic. By virtue of your plea, you accept full criminal responsibility for your actions, and I am also prepared to find it is indicative of remorse on your part.
23Ms Gomez has made a victim impact statement. She says your offending against her has wrecked her relationships with her friends and with her family. She says it is now hard for her to trust people, especially boys and men. She says before you offended against her, she was happy and open, attending school and not getting into trouble. She says she now suffers depression and anxiety and that she is struggling with life.
24I turn to an assessment of the gravity of your offending and your moral culpability.
25You were 22 years older than your victim. You befriended her and abused her trust. I accept the prosecution submission that your offending involved a level of pre-planning. You took the victim to a remote location in order to offend against her and you had a condom at the ready. I accept also that your offending can be properly characterised as predatory. You attended at the victim’s school and gave her the mobile phone in order to communicate with her secretly.
26In respect of the charge of transmitting an indecent communication, you sent the victim multiple highly sexualised messages and gratuitous images of your exposed penis.
27Your offending is serious, and your moral culpability is high.
28I turn now to consider your personal circumstances.
29You were born on 17 February 1984 and you are presently 36 years old. Your parents separated when you were only around 12 months old. You are an only child. You lived with your mother and your stepfather. The family moved to Stony Creek when you were around 6 years old.
30You report having been bullied at primary school, but you enjoyed your schooling when you reached the secondary level. You attended Leongatha Secondary College and completed year 11. You were not a successful student academically, but you made friends and enjoyed social activities, especially sailing.
31You left high school in 2002 and began an electrical apprenticeship, but you found the mathematical component to be too difficult and you did not complete this apprenticeship. Instead, you got an apprenticeship as a cook and worked in a restaurant in Stony Creek for about a year. You said the business had a practice of dismissing apprentices before they moved on to higher wages. After a period of unemployment, you worked in an abattoir.
32You met your wife, Rebecca Pilton, in 2004. She lived in New South Wales and you met on the internet. You moved to Singleton in New South Wales to be with her in late 2004 or early 2005. You lived in Singleton for around seven years. You were able to transfer your apprenticeship as a cook to New South Wales and you worked as a cook in the local pub and then in an abattoir.
33In 2009, you were required to have a work-related medical check-up. You underwent some medical tests and were told that you needed to go to hospital immediately because you had kidney disease. You spent the next six months having almost daily dialysis at the John Hunter Hospital.
34In 2011, you and Rebecca moved to Morwell to be near your mother and stepfather. You and Rebecca married in 2011. You were having regular dialysis, but you were working occasionally on farms.
35You and Rebecca bought a house in 2012. At this time, you were working full-time as a dairy farmer.
36You underwent an unsuccessful kidney transplant in 2017. You have not been able to work since this time.
37When your offending came to light, Rebecca moved out of the home you shared. You are, however, still communicating.
38She wrote a character reference which was tendered at your plea. She says that you have battled your kidney disease as best you could but have struggled with depression. She says you are remorseful for the hurt you have caused and that you are working hard to mend your relationship with her.
39Your mother, Susan Priller, also provided a character reference. She says that you have always been a hard worker and a happy, honest and well-mannered person. She says kidney disease has meant you can no longer do many of the things that gave you enjoyment in life, such as sailing, and that you have gained weight and become depressed. Your mother says that you are remorseful since your offending and you have been seeing a psychologist. Your mother says you have faced many challenges in your life, including that she herself has recently been diagnosed with breast cancer.
40Your long-time friend, Amanda Lucas, has also provided a character reference. Ms Lucas says she has enjoyed your friendship over the years and says your offending is out of character.
41You met with Simon Candlish, consultant psychologist, on 15 March 2020, and Mr Candlish prepared a report which was tendered at your plea. Mr Candlish reports that you discussed your offending with him in a seemingly open manner, but you told him the victim had pursued you and you struggled to take a greater responsibility for your own behaviour, although he says you did recognise your behaviour was wrong and that you were grappling with feelings of shame.
42Mr Candlish gives the opinion that you appear to have experienced depressive symptoms as a consequence of childhood experiences of bullying and rejection, and then as a consequence of your health issues. He diagnosed you with a persistent depressive disorder, the symptoms of which are positively affected by anti-depressant medication. There was no submission made to me that there was an application of Verdins principles in your case.[2]
[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).
43Mr Candlish says you were likely gratified by the attention of the victim and engaged in cognitive distortions which allowed you to view the victim as an equal and consenting partner. Mr Candlish was of the opinion that the effect of police involvement has already disabused you of the false perceptions you held of the victim, and that in his opinion you do not display any ongoing issues with self-control in respect of sexual matters or have any anti-social orientation which might contribute to a future disregard for the law. He found you to fall into the low risk category for sexual recidivism and that you appeared to show good prospects for rehabilitation.
44I turn now to the medical evidence.
45You suffer end-stage kidney disease, and its implications for the sentence I impose has been an important issue on this plea. Indeed, your counsel Mr FitzGerald’s submission was that he would concede that the seriousness of your offending would warrant a custodial sentence comprising of a head sentence and a non-parole period but for your medical condition, particularly in the context of the COVID-19 pandemic and its effects on conditions in prisons. In these circumstances, Mr FitzGerald submitted a community correction order was an appropriate sentence for you.
46Your treating nephrologist, Dr Anuksha Gujadhur, prepared letters detailing your condition and gave evidence at your plea.
47Dr Gujadhur says that you have been her patient since 2015. She says your kidney disease was due to a form of inflammation and you were put on dialysis in 2009. You received a kidney transplant in 2017 which, unfortunately, was not successful, and your transplant kidney had to be removed in March 2019. You then went back on dialysis, which since May 2019 you have been able to do yourself at home.
48You have a number of other medical issues related to your kidney disease, which include anaemia, hypertension and obesity. You require a suite of medications in addition to dialysis. Your condition will not improve unless you receive another successful kidney transplant. You require lengthy dialysis sessions to control your symptoms and to keep you alive.
Dr Gujadhur says you require up to eight hours of dialysis per session, three times a week. Considering the effects of imprisonment, the doctor said,
I would envisage he would need up to eight hours of dialysis per session three times a week. Should that not be provided, his health would be expected to deteriorate. Therefore, unless provision is made for him to have his longer hours [of] haemodialysis sessions while he is in prison, I have concerns about whether he will be receiving optimal treatment as far [as] his kidney failure.
50Dr Gujadhur gave evidence that you require longer hours on dialysis than the average patient. She said it was not understood medically why you require extensive hours of dialysis. She said you were reliant on the treatment to keep you alive, but with dialysis you had some quality of life, although you could not hold down a full-time job. She said your condition was presently stable on home haemodialysis.
51The doctor gave evidence that your medications and maintaining a low salt, potassium and phosphate diet were also important aspects of your treatment, but it was the dialysis treatment that was critical. She said unless you get another successful transplant, you will be on dialysis for life. She said without a transplant, your life expectancy was 15–20 years, but she stressed that this was a generic number.
52On the issue of COVID-19, her evidence was your risk of catching the disease was no greater than the average person, but if you became infected, your risk of becoming seriously ill was greater.
53The doctor said that the difference between you and an average dialysis patient was the long hours that you needed to be ‘plugged into the machine’. She said your treatment could be broken down into shorter sessions of reduced hours, but you needed to maintain your overall hours each week.
54The doctor also gave evidence that you have recently seen a vascular surgeon due to a hernia in your abdomen. Your surgical treatment for your hernia has been delayed and the doctor said there was no urgency for you to have this procedure.
55Given the evidence of Dr Gujadhur, it was not disputed that you have serious kidney disease and that I needed to be informed about how your condition could be managed in a custodial setting. I adjourned the plea to allow the prosecution to obtain that information.
56An affidavit was obtained and tendered from Jennifer Ann Hosking, Assistant Commissioner, Sentence Management Division, Corrections Victoria. There was no application made to have Ms Hosking attend Court to be cross-examined on the contents of her affidavit.
Ms Hosking has deposed,
Health service delivery within the Victorian corrections system is based on the principle of community equivalence, whereby prisoners are provided with health care of a quality and standard equivalent to that provided in the community through the public health system.
She goes on,
There are a significant number of prisoners in Victoria with complex and chronic health conditions. Health service providers are required to comply with the Justice Health Quality Framework which stipulates that Chronic Health Care Plans are developed and implemented for all prisoners with chronic health conditions.
She says specifically on the issue of dialysis,
Regarding treatment options available to prisoners requiring dialysis, there have been previous prisoners at high security Port Phillip requiring dialysis and there is currently one prisoner on dialysis at medium security Ravenhall. Following reception into prison, the patient prisoner is referred to the St Vincent’s Dialysis Program, and dialysis is undertaken at the Hospital. The patient is allocated set days and times for treatment on Monday, Wednesday and Friday. Prison transport is booked as a routine to ensure the patient attends dialysis each arranged day. All other health care and medical reviews are conducted at the prison following the usual medical process.
60She says, ‘The defendant’s kidney failure can be managed within the Victorian Prison System. Should the defendant require hospital treatment, his hospital attendance, his transport and security will be arranged for him’.
61I am satisfied on the basis of Ms Hoskings’ affidavit that, although your kidney disease requires extensive hours on dialysis, it can be managed in a custodial setting.
62There is, however, one further complicating issue, and that is COVID-19. In your case, if you were to be imprisoned, the long hours you would be required to spend at hospital for dialysis would mean you would be subject to quarantine transfer. The long hours of treatment you require means this could not be avoided in your case.
Debra Coombs of Corrections Victoria provided some supplementary information on this issue by way of an email in which she advised,
The current dialysis patient only requires about 2 hours of dialysis. The decision about transfer quarantine is if the prisoner spends more than 4 hours in the hospital. [Mr] Beck is likely to be on transfer quarantine, whilst the current patient is not.
64Ms Coombs goes on to say the current restrictions are part of the Stage 4 restrictions and she is unable to say if they will be lifted when this State moves to Stage 3 restrictions.
65I sought the parties’ clarification about the implications of Ms Coombs’ email, and it was agreed that as things presently stand, your treatment cannot be reduced to sessions under four hours. You would be subject therefore to transfer quarantine for the foreseeable future.
66I am therefore satisfied on the evidence of Dr Gujadhur and the evidence on behalf of Corrections Victoria that a term of imprisonment would be a considerably greater burden on you than on a prisoner of robust health. Any sentence I impose must be heavily moderated because of your ill health and the extensive hours of dialysis you require, and all of this in the context of the COVID-19 pandemic and the restrictions imposed to control it in the prison system. The question is, does this moderate the sentence to the point where I do not impose a component of immediate custody?
67There are of course, in this case, like any other case, countervailing considerations. General deterrence, just punishment and denunciation are important sentencing considerations in this case, as in all cases involving the sexual exploitation and abuse of children. The law imposes an absolute prohibition on sexual contact with children in order to protect them from harmful premature sexual activity. Adults who transgress this prohibition must expect stern punishment.
68Charges 2 and 3 are standard sentence offences. The standard sentence for charge 2 is four years’ imprisonment. The standard sentence for charge 3 is six years’ imprisonment. A standard sentence is not the same thing as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter that I must take into consideration in the instinctive synthesis, and I do so.
69I was referred to the cases on the offence of sexual penetration of a child under 16 imposed under the standard sentencing regime. These cases were of some assistance in my consideration of what is an appropriate sentence for you, but ultimately it is my duty to sentence you on the facts and circumstances particular to you.
70I must also take into account the maximum penalties for the offences you have committed and the effect of your crime on your victim.
71You have no criminal history or matters pending. You have the support of your family. You have never abused drugs or alcohol. I regard your prospects of rehabilitation as good and your risk of reoffending as low.
72The prosecution submitted that although your physical health meant you were entitled to a significant sentencing discount, still, a sentence of immediate imprisonment consisting of a head sentence and a non-parole period was required to give proper expression to the various sentencing considerations.
73I had you assessed for a community correction order. You were assessed as suitable. However, although a community correction order has both a punitive and rehabilitative component, I have concluded that the imposition of a community correction order would not be adequately punitive to address the serious nature of your offending.
74I have concluded, because of the seriousness of your offending, and to give proper expression to the principles of just punishment, general deterrence and denunciation, a period of active custody is required. However, the sentence I impose is heavily moderated because of your kidney disease and the burden of imprisonment upon you.
75Taking into account all of the matters I am required to consider under the Sentencing Act 1991 (Vic), and the matters personal to you, the sentences I will impose on charges 2 and 3 are less than the standard sentences.
76I will sentence you first on the State charges. On charge 2, you are convicted and sentenced to 10 months’ imprisonment. On charge 3, you are convicted and sentenced to 20 months’ imprisonment
77Charge 3 is the base charge, and I direct that four months of the sentence on charge 2 is to be cumulative on the sentence on charge 3.
78That is a total effective sentence for the State charges of 24 months’ imprisonment.
79Section 11A of the Sentencing Act 1991 (Vic) directs that unless it is in the interests of justice not to do so, the Court must fix a non-parole period, in this case, of at least 60% of the effective total term of imprisonment. In your case, in respect of the State standard sentencing offences, I am setting a non-parole period of less than 60% of the total effective term of imprisonment. In my view, given your kidney disease and the current restrictions in place due to COVID-19, imprisonment will be considerably more difficult for you than for a prisoner in good health. Therefore, I conclude it is not in the interests of justice to impose a non-parole period of at least 60%. I impose a non-parole period of 10 months in relation to the State sentences.
80On charge 1, the Commonwealth charge, you are convicted and sentenced to nine months’ imprisonment.
81I direct that the sentence on charge 1 begins at the expiration of the non-parole period on the State charges.
82I direct that you are to serve two months before being released pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) on recognisance of $1500 that you will be of good behaviour for two years.
83I want to explain the effect of the sentence I have imposed because it is of some complexity. You have a head sentence of 24 months’ imprisonment. Your effective non-parole period, that is the minimum that you will spend in custody, will be 12 months. That is the minimum. It is not up to me. It is up to the Adult Parole Board when you will be released, but that is your minimum. You will then go on to what is called a release bond. That is in respect to the Commonwealth charge. What that means is that you will go out into the community. You are to be of good behaviour for two years and effectively you have the balance of the sentence I imposed on charge 3 hanging over your head.
84So, I imposed a nine-month sentence. I only require you to serve two months immediately. So for two years after you finish your custodial sentence, you are to be of good behaviour, and if you are not, you may come before me again and you may be re-sentenced, and the worst possible outcome could be that that seven months which is in abeyance, you could be re-sentenced on that. Do you understand all of that?
85OFFENDER: Yes, I do, Your Honour.
86HER HONOUR: Mr FitzGerald will take you through that more carefully.
87Charges 1 and 2 are class 2 offences under the Sex Offenders Registration Act 2004 (Vic). Charge 3 is a class 1 offence. Because charges 2 and 3 arise from the same incident, they are to be treated as a single offence.
88You are subject to mandatory reporting for life.
89I make the forfeiture order sought by the prosecution.
90Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of five years with a non-parole period of three years.
91Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence I have passed upon you and I direct that this be entered into the Court records.
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