Director of Public Prosecutions v Billing

[2018] VCC 564

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

AT MILDURA
CRIMINAL JURISDICTION

CR 17-02331

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN RUSSELL BILLING

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	22 February 2018
CASE MAY BE CITED AS:	DPP v Billing
MEDIUM NEUTRAL CITATION:	[2018] VCC 564

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Darby
For the Accused	Mr R. Thyssen

HIS HONOUR:

1John Russell Billing, you are to be sentenced for one charge of using a carriage service to groom a person under 16 and one charge of using such a service to transmit indecent communications to a person under 16.  They are offences respectively under s.474.27(1) and s.474.27A(1) of the Commonwealth Criminal Code.    The maximum sentences are 12 and seven years' imprisonment. 

2You pleaded guilty before me on 15 February.  When interviewed by police on 29 May 2017 you made a full confession.  You pleaded guilty to these two offences at committal in November of 2017 and the matter was listed for plea hearing in this court.

3You receive the benefit of your plea of guilty and a high level of cooperation, both from an early time.  You have facilitated the interests of justice and I accept that you are remorseful and ashamed. 

4At your plea hearing, which also ran on 15 February, Mr Darby for the Crown tendered a written Crown opening.  He provided a written outline of plea submissions and also a table and transcript of comparative cases.   Mr Thyssen for you tendered the psychological report of Dr Matthew Barth dated 23 January 2018, a number of letters of character reference and the image of yourself you sent to the notional victim of your offending.  You also called the Pastor of your church community, Steven Taylor, to give evidence on your behalf.

5The circumstances of offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.

6At the time of offending you lived with your wife and ten year old stepdaughter in Mildura.  The offences were committed at work using your mobile phone.  You were employed by the Murray Valley Aboriginal Cooperative as a disability coordinator.

7In late February of 2017 you began online communication with an undercover police officer posing as a 14 year old girl, “Vanessa”.  Between 22 February and 18 April there were seven conversations.  The Crown opening records those parts which were sexual and make out Charge 1, the grooming offence.

8I bear in mind that innocuous or non-sexual material is not included. 

9You knew “Vanessa” as a 14 year old.  You did not disguise your own age.  You were 33.  The conversations developed to such sexual remarks and topics as kissing, being horny, her breasts and fondling, kissing, sucking them, masturbation and her vagina.   There was significant focus on masturbation,  by her and mutual.  You did not purport to actually do that.  You asked for an image of her.  You sent one of yourself.  It is not sexual in any way.  In an earlier conversation you spoke of working in Preston, relatively but in my view not very close to her home in Boronia.

10“Vanessa” did not respond to your messages on a number of occasions.  When she did not respond to an 18 April message you did not attempt further contact.

11Charge 1 is an offence under s.474.27(1).  That section states the requisite intention as follows.

"The sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender."

12Under the definitions or dictionary part of the Code,  there is as to procure:

"Procure a person to engage in sexual activity includes (a) encourage, entice or recruit the person to engage in that activity."

13Section 474.26 states the more serious offence of using a carriage service with the intention of procuring.  It carries the maximum sentence of 15 years' imprisonment. 

14As stated, Charge 2 is the offence of transmitting indecent communication to an under 16 year old.

15In early May 2017 you made contact with another undercover officer pretending to be a 15 year old girl, “Cassie”.  This remarkable coincidence (that the coverts did not approach you arising out of any particular interest or intelligence)   is not really explained.  Between 8 and 23 May there were as recorded in the Crown opening,  three conversations.  Topics were kissing her, cuddling, what she was wearing, stroking her body and breasts.  You asked about a picture of her.  You were not as sexually explicit as in the Charge 1 communications; thereby the lesser charge.

16On 23 May you stopped.  You did not reply to Cassie's message on that date.  I accept that you effectively desisted as to both offences and you deleted the material.

17You are a now 34 year old man with no relevant criminal record.  Outside of this offending you seem to have lived a productive and functional life.  You were raised in the Maclaren Vale, Robinvale and Barossa Valley areas.  You have two older sisters, an older brother and younger half-brother.  They live successful lives.  You went to a religious secondary school and achieved Year 12.  Since you have worked in the wine and farming industries and more recently in aged and disability care.  As stated, at time of offending you were Murray Valley Aboriginal Cooperative Disability Coordinator.  You were or had been chairman of Loddon Valley and Hume Aged Care Council and a representative of the Victorian Indigenous Committee for the Aged and Disabled.  Your wife worked and still works,  as I understand, at the Mallee District Aboriginal Service.

18Because of this offending you lost your employment.  You now work as irrigation manager at a vineyard and grape producing company. 

19Mr Thyssen described very heavy financial obligations.  Also arising out of this offending you have separated from your wife.  You are both working at reconciliation.  Your wife was at court supporting you.  She is here today.  Mr Thyssen explained difficulties in your marriage related in part to efforts to have a child.  There were also financial pressures. 

20In recent years you have become an active member of Pastor Taylor's congregation.  His evidence explained the style of church community it is.  He also explained that community's response to your offending.  It is supportive of you;  but there is restriction and monitoring consistent with the Safe Churches Program arising out of the recent commission inquiry into child abuse.  The church also assists you by way of counselling and in your efforts toward reconciliation with your wife.  These things will continue and some will become more formalised after your sentence.

21This was serious offending.  It is true to say that there was no actual victim impact statement.  However, covert police action is seen to be necessary in order to address the developing problem of electronic activity bearing upon risk and damage to our community's children.  Your communication in Charge 1 was quite sexually explicit, albeit less graphic and exploitative than in some cases of this kind.  The seriousness and circumstances of the offending make relevant such sentencing purposes and considerations as deterrence, your moral culpability, the need for both condemnation and proportionate punishment of the offending.  General deterrence is a particularly important purpose in cases of this kind of offending.  A sentence of imprisonment is necessary. 

22The question has become in what way that must be served.  There are significant moderating factors relevant to this.  They include the following.

23(1).   Your plea of guilty, cooperation and remorse. 

24(2).   I find that you are a person of otherwise good character, one who has made significant contribution.  For example, you and your wife have fostered disadvantaged children.  Good character is not uncommonly present in cases of this type.  However, you remain entitled to proper consideration of it.  In this case the tendered evidence and that of your pastor, Steven Taylor, speaks highly of you.

25(3).   I find that your prospects of rehabilitation are good.  I accept that your situation at the time of offending was stressed.  Upon detection you have been candid, not only with authorities; but also with your own community.  That church community has taken steps to assist and monitor you.

26The report of psychologist, Dr Barth, supports that there are genuine prospects of rehabilitation.  It describes the difficulties within your marriage and sense of "sense of disconnection and alienation".  Dr Barth describes an introverted and dependent personality type,  which one would find provides some context for this offending.  However, he does not diagnose a psychological condition or disorder.  Dr Barth states as part of his opinion.

"Mr Billing is an introverted and socially awkward man.  While he has strong needs for affection and affiliation his social skills are poorly developed and he communicates in a mildly eccentric fashion.  Thus he was not only deeply distressed by the issues in his marriage but also ill-equipped to manage these challenges.  While Mr Billing's interpersonal difficulties have not been insignificant he does not meet diagnostic criteria for personality disorder.  Nevertheless, his personality adjustment indicates 'features of avoidant and dependant personality disorders'".

27Significant to rehabilitation, he assesses you as of low to moderate risk of reoffending.  Dr Barth recommends ongoing mental health and offence specific treatment. 

28I would also find that the impact of detection in these proceedings is likely to have had a very considerable deterrent effect upon someone in your situation.

29Mr Darby referred me to comparative cases.  Some focus was upon the case of R v Nahlous in which, unlike others, an immediate term of imprisonment was not imposed.  There are factors of similarity and difference both favourable and adverse to you.   For example, in Nahlous the victim was an actual 14 year old neighbour.  The prospects of meeting and attempt at sexual activity, whilst not imminent, were less remote; even upon the presumption that the covert police officers here were real persons.  On the other hand the communication in Nahlous was less sexually explicit and he can be seen as an unsophisticated man.  You communicated with two persons.  They were not, but you thought they were, teenagers. 

30I do not attempt a complete comparison.  Consideration of both cases shows the difficulty and perhaps shortcomings of that.  I bear in mind that each case must be decided on its circumstances.

31It is clear that the usual sentence for offending such as this, particularly Charge 1, is immediate imprisonment.  However, as Nahlous states that is not an absolute proposition. 

32I have found this case troubling.  There are important and conflicting factors.  Many, (for example, the need for general deterrence) speak for actual imprisonment.  However, there are also strong considerations speaking against that.  Ultimately I have decided that the relevant sentencing purposes can be met by a sentence that does not require immediate imprisonment.  I bear in mind s.17A of the Commonwealth Crimes Act.  I feel that I have adequately stated my reasons for that.

33Stand up please.  After considering and weighing what I see to be the relevant matters I sentence you as follows. 

34On Charge 1 you are sentenced to 18 months' imprisonment.  On Charge 2 you are sentenced to 12 months' imprisonment.  I direct that the sentence for Charge 1 commence six months from today.  The sentence for Charge 2 commences today.

35I further order under s.21B of the Crimes Act that you be released today upon entering a recognisance in the sum of $5000, of three years' duration, to be of good behaviour.

36I refer to my earlier exchange with Mr Darby.  If enabled by the legislation to impose special conditions I would have imposed these.  That there be mental health assessment and treatment as directed and that there be offence specific programs and/or treatment as directed. 

37I need to explain the effect of this recognisance release.  You will leave court today and not be imprisoned.  That threat does not go away.  If you do not abide by the recognisance release order, that is be of good behaviour and particularly if you commit another offence of any kind you will be brought back before me and I will be obliged and shall resentence you for these matters.  The alternatives would be very narrow indeed.

38OFFENDER:  So it is similar to a suspended sentence?

39HIS HONOUR:  You could say that; but there are positive obligations on you, including that you undergo, I would think, a sexual offenders program.  So it entails more than just a suspended sentence; but it entails the same consequence if you fail to meet it, particularly by committing another offence, and also by not being of good behaviour.  Does that explain it properly,
Mr Darby?

40MR DARBY:  Yes, it does, Your Honour.

41HIS HONOUR:  Take a seat please.  We are going to prepare the papers.  Do you prepare the bond paper, do you?

42MR DARBY:  Yes, I can, so I have sent you a draft this morning and I can email through an updated draft now.

43HIS HONOUR:  I will just have a look at it.  We might be able to do it with this one.  We seem to have two.

44MR DARBY:  Yes, so there is one just standard general one and the second is probably the appropriate one which has conditions for participation in it.

45HIS HONOUR:  Particular conditions?  You can come out of the dock and sit for the moment near Mr Thyssen and I think what you have sent meets the need.

46MR DARBY:  Yes, there is no specific condition for mental health treatment.

47HIS HONOUR:  No.

48MR DARBY:  But as I understand it that can't be done in any event.

49HIS HONOUR:  There are quite specific requirements that relate to treatment under the sex offenders program and other particular obligations which tend to answer his question about how similar it is to a suspended sentence.  It requires a set of more positive obligations on his part.

50MR DARBY:  Yes, in this situation it does.

51HIS HONOUR:  I should delete the second line - part of the second line - I should delete "after serving".

52MR DARBY:  So cross out up until "forthwith".

53HIS HONOUR:  Yes, I've got that and I will initial that.  It is a $5000 ‑ ‑ ‑

54MR DARBY:  Yes.

55HIS HONOUR:  You forfeit the $5000, Mr Billing, if you do not meet the terms of this order.  Where does the duration ‑ ‑ ‑

56MR DARBY:  In condition (a), "The defendant is to be of good behaviour for three years".

57HIS HONOUR:  Yes, thank you.  So it goes.

58MR DARBY:  Then condition (c) there's a nominal period to complete the program.  I understand that the standard period is two years.

59HIS HONOUR:  I should put in two years, should I?

60MR DARBY:  Yes.

61HIS HONOUR:  The rest of it just seems to replicate what happens if you are released on a community corrections order or in part.

62MR DARBY:  Yes.

63HIS HONOUR:  Thank you.  Then there is provision for my signature.

64MR DARBY:  Yes, and just in (b) above that, "The court has sentenced the defendant to a term of I would say 24 months' imprisonment", because that is the time.

65HIS HONOUR:  Yes, I have got it.  I will put it in there now, 24 months.

66MR DARBY:  Yes, and otherwise it is okay to be signed.

67HIS HONOUR:  I need to delete "after serving".

68MR DARBY:  Yes.

69HIS HONOUR:  Stand up please.  I will read out to you what your obligations are and what the effect of that is.  I have sentenced you effectively to 24 months' imprisonment, but I am allowing your release today without having to go actually to prison today on the basis that you enter this bond in the sum of $5000.  The bond requires you to be of good behaviour for three years.

70So I will read out in detail the terms of the order.  There is that, that you be of good behaviour for three years, that you be under the supervision of the deputy commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for three years should I say under that,
 Mr Darby?

71MR DARBY:  Yes.

72HIS HONOUR:  That you attend and undertake and complete the sex offenders program within a period of two years and that you report to the Mildura Corrections Centre at 59 Madden Avenue, Mildura by 4 pm on 26 February.  I will delete "within two days".

73That the defendant is to report and receive visits from Community Corrections, that you are to notify an officer of Community Corrections of any change of address or employment within two clear working days, that you not leave Victoria without the permission of an officer at Community Corrections.

74Here on the river you raise that with them during your first appointment and as I understand it longer term permission can be granted to accommodate work and the like, but they will raise it with you.  Finally, that you obey all lawful instructions and directions of community corrections officers.

75Do you understand all of that?

76OFFENDER:  Yes, Your Honour.

77HIS HONOUR:  Do you agree to it?

78OFFENDER:  Yes, Your Honour.

79HIS HONOUR:  Do you understand the effect of breaching it, not meeting the terms of it, don't you, as I've told you that?

80OFFENDER:  Yes, Your Honour.  One thing, Your Honour, is the $5000 - Rob just told me that's I pay the $5000 if I breach?

81HIS HONOUR:  Yes, that is right.  That is what I said too.  You don't have to produce that today but you will have to produce it if you don't meet the terms of this order.  I am going to hand it down to you.  My associate will show you where you need to sign it and date it.  I will date it.  What is today, the 22nd?

82MR DARBY:  Yes.

83HIS HONOUR:  You need to sign that before her.  Show him that as well.  I will sign it and then we will copy it and then give a copy to Mr Thyssen who will give that to you.  That is what needs to be copied.  We will do that now.  What about sex offenders registration?  Does that apply?

84MR DARBY:  Yes, they are two Class 2 offences so the period is 15 years.

85HIS HONOUR:  We will deal with that next.  There is also a forfeiture order.

86MR DARBY:  Your Honour, that won't be required.  We have taken that out by consent so Mr Billing has consented and no order applies.

87HIS HONOUR:  Thank you.  So that people know what we are talking about that is the iPhone or the mobile phone.

88MR DARBY:  Yes.

89HIS HONOUR:  There are further documents that need to be prepared.  You just take a seat there for the moment please.  Whilst that's happening, Mr Darby, do I need to announce what I would have imposed had he not pleaded guilty under s.6AAA of the Victorian Act?

90MR DARBY:  The view is that it is preferable but it is not required.

91HIS HONOUR:  What do you say I should do?

92MR DARBY:  It is preferable that you make the declaration.

93HIS HONOUR:  Preferable?  On a three year sentence do I have a choice of recognisance release or must it be non-parole?

94MR DARBY:  Yes, yes, so it is up to three years recognisance release would be available.

95HIS HONOUR: It is compulsory in your situation that you be registered under a legislation called the Sex Offender Registration Act. There is no choice in it. That requires as is explained on a relatively short document here that requires certain obligations on your part in terms of providing the authorities with personal details, advice of changes of address and the like, and you must report for a period of 15 years.

96That must be done and I am going to have given to you now a two page document which briefly sets out your obligations and then there is a second document which permits you to sign it as an acknowledgement that you got the first one.  You can sign it or not sign it as you choose.  I will get my associate to give you those documents now.

97I just want to say one more thing to you.  Had you not pleaded guilty I would have imposed a total sentence of three years and you would have been released from recognisance but after serving 15 months of those three years.  Is there anything else I need to do, Mr Darby?

98MR DARBY:  No, thank you, Your Honour.

99HIS HONOUR:  Thank you for your assistance, Mr Darby, the other day and today.  Thank you for your assistance, Mr Thyssen.

100MR THYSSEN:  Thank you, Your Honour.

101HIS HONOUR:  You can go now.

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