Director of Public Prosecutions v Blackwolf

[2016] VCC 543

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01974

THE QUEEN

v

DALE BLACKWOLF

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2015
DATE OF SENTENCE:	3 March 2016, 17 March 2016
CASE MAY BE CITED AS:	DPP v Blackwolf
MEDIUM NEUTRAL CITATION:	[2016] VCC 543

REASONS FOR SENTENCE
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Subject:         CRIMINAL LAW
Catchwords: Pleaded guilty to charges of using a carriage service to procure a person under 16 years for sexual activity and to transmit an indecent communication to a person under 16 years – covert police operatives posing as teenage girls – offender believed he was recruiting 14 and 13 year old girls to engage in sexual activity with him – previous convictions relevant to sentence and not sentenced as person of previous good character – had depression and longstanding excessive use of cannabis but did not present as being paranoid, psychotic, schizophrenic or having a personality disorder – not satisfied that there is a sufficient link between offender’s depression and the commission of the crimes -  risk of re-offending moderate.
Sentence: Convicted and sentenced to 22 months’ imprisonment, released after 6 months on condition of good behaviour for 2 years, and then to be on a Community Corrections Order for 30 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Loh	CDPP
For the Offender	Mr J. Kelly for Plea
Ms J. Kennedy for sentence	Leanne Warren & Associates

HER HONOUR: 

1Dale Blackwolf, you have pleaded guilty to a charge of using a carriage service to procure a person under 16 years for sexual activity, an offence against the law of the Commonwealth with a maximum sentence of 15 years' imprisonment, and to a charge of using a carriage service to transmit an indecent communication to a person under 16 years; an offence against the law of the Commonwealth with a maximum sentence of seven years' imprisonment.

2I proceed to sentence you on the basis of the Prosecution Opening read out on the plea[1].  In brief, both charges relate to your communications using the internet with people you believed to be under 16 years, but who were, in fact, covert police operatives posing as teenage girls.

[1] Exhibit A

3For Charge 1, between 1 and 4 June 2013, you engaged in graphic sexual talk with a person you thought was a 14 year old girl, including asking her for "sexy" photos, asking her numerous times if she wanted to meet; encouraging her to masturbate, and describing the sexual activity you would engage in with her if you met. During these conversations you were encouraging, enticing, or recruiting her to engage in sexual activity with you, while believing that she was 14 years old.

4For Charge 2, between 13 July and 1 October 2013, you again engaged in graphic sexual talk, this time with a person you believed was a 13 year old girl. Over about two and a half months you spoke to this person on nine occasions, the first four of which are classed as indecent communications transmitted by the internet because of the sexual content. In the last five chats, you told the person that you had collapsed and been to hospital and discussed your medical condition, amongst other non-sexual topics.

5Both of these charges are serious, involving an intention on your part as a 47 year old man, to engage in sexual discussions with under-age females.  It does not matter that the people that you engaged with were actually police officers.  It was your intention, and belief, that you were talking in such a way to a girl aged 14 and a girl aged 13, and you were seeking sexual gratification in doing so[2]. In Charge 2 you were sent a photo of a young girl by the covert operative, purporting to be the girl you were chatting with, and you continued to engage in sexual conversation with her. The law regards this kind of activity very seriously, as can be seen by the maximum sentences, particularly of 15 years for Charge 1.

[2] Exhibit 1 – report of Jeffrey Cummins dated 24 November 2015

6The prosecution submitted that there was a degree of manipulation involved in Charge 1, because you were telling the person that you were single and lonely on your birthday as part of your encouragement for her to engage with you in a sexual manner, and you threatened to cease communication when there was a delay in her replies to you. In Charge 2 you also told the person involved that you were single.  Although it was accurate to state that it was shortly to be your birthday, you were, in fact, in a fulfilling intimate relationship during the period of the offending.

7Your counsel conceded that your conduct, as outlined for Charge 1, is the more serious of the two charges, although it persisted only for a few days.  It is submitted on your behalf that for Charge 2, your criminal conduct, while still of a serious nature, stopped when you did not engage in sexual talk in the later communications. Further, it was submitted that no pornographic images were exchanged with either person and that you had not tried very hard to conceal your identity when you engaged in this behaviour, as you used your name or supplied your age and other personal details, as well as sending the person involved in Charge 2 a non-sexual photograph of yourself. I was also told that your computer had been seized and analysed and there was no child exploitation material found, or suspicious chat logs or internet searches.  I note that the lack of features that would make your offending even more serious, does not actually reduce the seriousness of your conduct.

8I accept that these matters put by the prosecutor and your counsel, help me to decide the level of your offending.  I have concluded that your offences are not as serious as some other examples of these types of crimes, but you are still to be sentenced for crimes which, quite properly, are objectively considered to be serious. I find that the offending in both charges constitutes a course of conduct engaged in by you, because the period of offending in Charge 1 in June was followed closely by the offending, beginning in July, for Charge 2.

9You admitted a criminal record involving dishonesty charges from 1985 and 1987 where you received a community based order in each instance.  Of more relevance are the six charges of indecent assault for which you were convicted in 1990 and received a combination of three months' imprisonment wholly suspended, and another community based order. All of the convictions are relevant to the sentence I will impose today.  Because of them you will not be sentenced as a person who has been of good character before committing the offences in 2013. The sexual offences are particularly relevant because of their nature, even though you committed them 26 years ago against a young adult female (your then wife's sister).

10There are a number of matters that I take into account in your favour in deciding the appropriate sentence.  The first of these is the fact that you pleaded guilty.  By your plea, the community has been spared the time and cost of a trial.  I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial. I also treat your plea as showing a willingness to facilitate the course of justice, as you indicated your intention to plead guilty in advance of the trial, although this was done ten months after the committal and only two months before the trial date.

11I have been told something of your personal history and circumstances.  You are now aged 49 years.  You grew up with both parents and five brothers, moving around as your father worked with the railways.  He died at age 57 from a combination of heart and lung conditions.  Your mother is still alive at age 82 and lives in Gippsland with two of your brothers, both of whom are receiving a Disability Pension; one due to an intellectual disability, the other due to a heart condition. Two other brothers live elsewhere.  One is intellectually disabled and the other receives the Disability Pension due to a back condition.    You last had contact with your mother about four years ago; there was no explanation given for the lack of contact. The fifth brother died of an apparently cannabis induced heart attack in 2002.

12You spent some months as a ward of the State at age 13 for uncontrollable behaviour before being reunited with your mother.  You were expelled from secondary school at age 16, and worked for three and a half years in the railways and then in the tramways. In 1990, you had a second lung operation and were retired due to ill-health related to your respiratory difficulties, including asthma, for which you have always refused medication. You have been unemployed and receiving a Disability Pension since then, except for a period when living in Queensland when you undertook a traineeship with Coles.

13In 1987 you married your first wife.  In 1988 you suffered the tragic loss of a son only days after he was born, from Sudden Infant Death Syndrome. In 1989, you had the first lung operation and in that year you were also charged with the indecent assaults of your sister-in-law.  You and your first wife separated and you later married another woman with whom you had a son.  That marriage ended, and you took up again with your first wife in 1995 and moved to Queensland where you had three children together.  That marriage ended finally and you returned to Victoria. Sadly, you see none of your children now.  Again, no reason was put forward for this.

14For the last five years, you have been in a relationship with a woman in her 40s who has a son aged about 12.  You have described your relationship with her as very loving and close, and she is apparently aware of these charges. You were of course, in this relationship when you committed the offences, so it has not prevented you from engaging in sexual offending related to underage females.

15A significant factor in your background is your longstanding excessive use of cannabis. You told Mr Jeffrey Cummins, who provided a forensic psychological report to the court[3], that you have been a smoker of cannabis since the age of 11, and since then you have been a heavy daily smoker, consuming up to 35 ‘bongs’ a day once you were compulsorily retired.

[3] Exhibit 1 dated 24 November 2015

16You told Mr Cummins that you ‘would have been off [your] head on choof’, when you committed the indecent assaults against your sister-in-law, and that although you could not remember what triggered the offending for which I am sentencing you, you said to him that your ‘offending always occurred when [you are] under the influence of cannabis’.    You told him you assumed that you committed these offences because you were feeling bored.

17You accept that you are addicted to and dependent on cannabis, but have never sought any treatment, despite your partner's displeasure at your excessive use, despite your respiratory problems, despite the death of your father from conditions including compromised lungs, and despite the death of your brother related to cannabis use.

18You told Mr Cummins that you were still grieving for your son, your father and brother, as well as an uncle to whom you were close. You described being in a psychiatric ward for three to four weeks in 1999 because you were not coping after the final separation from your first wife in Queensland and were again in a psychiatric ward for three days after your brother's death.  Both times you were apparently prescribed an anti-depressant but did not have any continuing mental health treatment, despite apparent suicide attempts by you on each occasion.

19After you were interviewed for these offences, you apparently refused to eat for three days and your partner took you to the community health service.  You were not hospitalised, but, again received antidepressant medication. I have no material before me about any of these hospital attendances or whether any link was drawn between your heavy cannabis use and your mental ill-health. You reported to Mr Cummins that you avoid medical and mental health practitioners. You were hospitalised for one day in December 2015[4], after your plea was heard and, as a result, missed your first appointment for assessment for a community correction order, but I have no information as to why you were admitted.

[4] Exhibit 2

20Mr Cummins was of the opinion that you did not present as being psychotic or schizophrenic, or having a personality disorder nor, despite your heavy and chronic cannabis use, did you present as being paranoid. However, he also formed the opinion, based on your report, that your perception, judgment and ability to think clearly were impaired at the time of the offending because you were then suffering from depression. Your counsel submitted that this should form the basis for me to reduce your moral culpability for the offences.

21I do not accept that there is a sufficient link between your reported longstanding depression and the commission of these offences.  Your judgment was no doubt impaired by the amount of cannabis you consume on a daily basis, and on the material before me, it is difficult to reach a conclusion about the nature, extent, and effect of any mental impairment experienced by you as a result of your depression at the time of the offending. I am unable to conclude how any depression suffered by you affected your mental functioning at the time of, or leading up to, the offences. Depression is apparently a longstanding problem which you confront daily, yet you committed offences of a sexual nature, 26 years apart. I find that you are likely to have committed the offences for which you are being sentenced today for the very reason you gave Mr Cummins - boredom.

22I do accept that if sentenced to a term of imprisonment today you would find it more difficult because of your depression, and no doubt, you would also suffer from the immediate cessation of cannabis use more than someone who was not such a heavy user.

23Mr Cummins assessed your risk for sexual re-offending as low to moderate.  He noted that although the offending did not involve physical contact with underage females, and you told him in reality you would never seek to have such sexual contact, you also told him that you were attempting to arouse yourself sexually during the communications.

24I find there is a moderate risk of you re-offending; it is not low because you have now committed two sets of sexual offending, despite the length of time between your offences. But it is not high because you have been operating under the same potential combined impairments to your judgment for many years with only these instances of offending being committed; and because you have now apparently expressed some recognition of the impact of such offences on real children, and disavowed offending of this nature in the future.

25As to your general prospects for rehabilitation, there is a continued risk to the community of you committing some offence so long as you do not seek and receive treatment for your cannabis addiction and your depression.

26Turning to other factors which must be taken into account, the factors in your favour have to be weighed against the need for general deterrence, which means that the sentence I impose on you must seek to deter others from committing these sorts of offences and the need for specific deterrence, which means that my sentence must seek to deter you from re-offending.

27I have taken into account the matters in s.16A of the Commonwealth Crimes Act some of which I have specifically addressed.

28The prosecutor submitted that your offending required a sentence of imprisonment with some time to be immediately served, although there was an option for a community correction order on the less serious charge.

29Your counsel submitted that if you were to be imprisoned on Charge 1, it was open to the court to release you immediately with a community correction order submitted to be an appropriate sentence for Charge 2.

30On 21 December 2015, you were assessed as being suitable for a community correction order.  It is still, of course, a matter for me whether that is an appropriate penalty.

31These serious charges must be denounced by the court for the reasons as stated in numerous cases heard in the courts over recent years, some of which I have been referred to in this hearing. It is clear that ordinarily, one can expect to receive a term of imprisonment in cases of this type[5]. There is nothing about your case that takes it out of the ordinary course.

[5]R v Gajjar [2008] 268 at [64]

32Therefore, I have decided that in all the circumstances, I do not have an alternative to a sentence of imprisonment on Charge 1.  I will announce the formal orders in a moment, but the outcome is that you will be required to serve six months immediately of a 22 months' term of imprisonment before being released on what is called a recognisance release order to be of good behaviour for two years.  Effectively, the rest of the 22 months will be suspended.

33On Charge 2, if you agree, I will convict and release you on a community correction order for 30 months following the term of imprisonment with the core conditions attached to every community correction order; that you must report to, and receive visits from, Corrections Victoria; you must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance with the order.

34I will also order that you comply with other conditions during that 30 months: that you be under supervision, that you attend, undertake and complete the Sex Offender Treatment Program and that you be assessed and if required receive treatment for mental health issues and drug abuse and dependency.

35Stand up please, Mr Blackwolf.  Do you agree to being released on a community correction order with those conditions attached for Charge 2?

36OFFENDER:  Yes.

37HER HONOUR:  On Charge 2, if you do not complete any condition of the community correction order, you will be brought back before me to be re-sentenced on this charge and also to be dealt with for non-compliance.  Do you understand what will happen if you do not complete a condition of this order?

38OFFENDER:  Yes.

39HER HONOUR:  I should also tell you that both the recognisance release order on Charge 1, and the community correction order on Charge 2 can be varied or discharged on application to the court if your circumstances change. To do that, you should get legal advice.

40You are convicted and sentenced as follows:

41On Charge 1, you are convicted and sentenced to 22 months' imprisonment.  That sentence starts today.  I direct that you be released under s.20 of the Commonwealth Crimes Act after serving six months on a recognisance release order on condition that you give security by recognisance of $800 to be of good behaviour for two years.

42On Charge 2, you are convicted and after serving the term of imprisonment on Charge 1, released on a community correction order for 30 months with the core and special conditions I have outlined.

43To make it clear, you will today begin serving six months' imprisonment.  After that period you will be released, but will have 16 months' imprisonment effectively suspended for the following two years. If you do not reoffend, you will not serve any more time.  If you do offend, you will forfeit $800 and be returned to gaol to complete the sentence. After your release in six months' time, you will begin the community correction order for a period of 30 months after that.

44Because of this sentence you have become a registrable sex offender.  Charge 1 is a class 2 offence, and so within seven days of your release from custody, you will be required to report your personal details and begin a regime of annual reporting and be otherwise subject to the Sex Offenders’ Registration Act for a period of eight years.

45You will now be asked by my Associate to sign three documents.  The first is your agreement to abide by the conditions which allow for your release from imprisonment after six months, that is, to be of good behaviour for the following two years. The second is a form notifying you of your reporting obligations under the Sex Offenders’ Registration Act. The third is to show that you agree to abide by the conditions of the community corrections order.

46Yes, just take a seat please, Mr Blackwolf. 

47Ms Kennedy I will ask to assist you with these forms.

48MS KENNEDY:  Yes, Your Honour.

49HER HONOUR:  So we will just have those printed out.

50Just while that is happening I will finally state that I will not state the sentence that would have been imposed if Mr Blackwolf had not pleaded guilty, until the Commonwealth legislation specifically provides for this, or an authority which binds me states that the Victorian law applies in this instance to a Commonwealth sentence, and I do not propose to do so.

51COUNSEL:  As Your Honour pleases.

52HER HONOUR:  Mr Blackwolf, my Associate will now bring those three documents up to you and Ms Kennedy will come and assist you with those.

53MS KENNEDY:  Yes, Your Honour.

54HER HONOUR:  So I have now signed all of those orders so they are in force from today.  Thank you, Mr Blackwolf may be removed.

55(Prisoner removed.)

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ADDENDUM TO SENTENCE DELIVERED 3 MARCH 2016

56Following the sentence being delivered in court on 3 March 2016, contact was made with my associate by the prosecutor appearing to hear sentence, enquiring as to the order made regarding registration under the Sex Offenders’ Registration Act.

57There had been no reference to the class of the charge or charges before me on the written opening tendered by prosecuting counsel on the plea.  I was informed verbally by counsel that the period was 8 years.

58After this enquiry was made following sentence, I confirmed by reference to the Sex Offenders’ Registration Act that I had not been told the correct reporting period.  While there is only one Class 2 offence arising from the sentence of 3 March, there are six Class 4 offences (indecent assault) for which Mr Blackwolf was sentenced in 1990. 

59The Act provides in section 34(4)(b) that a person subject to a sex offender registration order, if found guilty of a class 4 offence…is deemed to have been found guilty of a Class 2 offence.  The case of R v Cheetham[6] makes it clear that this section means that where a person is subjected to a sex offender registration order, which Mr Blackwolf was after conviction on 3 March, a Class 4 offence of which that person is at that time or has been convicted is deemed for those purposes to be a Class 2 offence.

[6] [2006] VSCA 126

60As Mr Blackwolf has been convicted of six Class 4 offences, these are deemed Class 2 offences. It follows that the reporting period is to be determined under section 34(1)(c)(iii) to be for the remainder of his life, as he has been found guilty of 3 or more Class 2 offences.

61I therefore propose to amend the order made on 3 March to read that Mr Blackwolf is subject to the Sex Offenders’ Registration Act for the remainder of his life. I do not require him to re-sign the Notice of Reporting Obligations, but a copy is to be provided to his solicitor.

62The amendment was announced in court on the 17^th March 2016 with Mr Blackwolf present via videolink, and counsel for both parties present in court.