Director of Public Prosecutions v Bloomfield
[2013] VCC 1509
•15 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01233
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON BLOOMFIELD |
---
JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2013 | |
DATE OF SENTENCE: | 15 October 2013 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2013] VCC 1509 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Sentence – Using a carriage service to procure and groom – 4 separate charges and victims – significance of intellectual disability and moral culpability – deterrence and protection of community – observations on unavailability of residential treatment order for commonwealth offences committed by persons with an intellectual disability
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr S. Young | |
| For the Accused | Mr T. Shocker | Mr A. Halphen Robert Stary Lawyers |
HER HONOUR:
1 Cameron Bloomfield, you have pleaded guilty to two charges of use a carriage service to groom a person under 16 years for sexual activity, and two charges of use a carriage service to procure a person under 16 for sexual activity.
2 The offending the subject of these four charges took place over a seven month period between 26 August 2012 and 28 March 2013, with each charge involving separate victims, three boys and a girl, aged between 12 and 15.
3 The offending was first discovered on 13 March 2013 when a police officer attended at your home to conduct a compliance visit, as required by your registration on the sex offenders register. That registration is a result of your previous convictions for sexual offences involving children. When asked whether you had access to the internet, you admitted you had a smartphone. You picked up the phone and tried to conceal its contents from the officer's view. A subsequent examination of this phone, as well as another phone and diary that were later seized during the execution of a search warrant at your home, revealed text messages, phone calls and Facebook communication with the victims of your offending. Your smartphone was also found to contain two images of child pornography.
4 The acts that are the subject of Charge 1 relate to four Facebook exchanges between you and a person I will call Samuel,[1] a 12 year old boy, over about a three month period between 26 August 2012 and 29 November 2012. On two of these four occasions, Samuel did not respond to your attempts to contact him. On the other occasions, you engaged him in sexually explicit conversation.
[1]Pseudonym used.
5 Samuel initially told you that he was 13 but later told you he was in fact 12. Amongst other things, you asked Samuel about his sexual history and preferences and to send you pictures of himself. On two occasions you asked if you could attend at his house, either to pick him up or to have sex with him. Samuel told you his address, and you gave him your email and mobile phone details. You and Samuel never met.
6 The acts that are the subject of Charge 2 also span a three month period, from early January to 25 March 2013. During this time, you communicated frequently, sometimes daily, with Nathan,[2] the 15 year old victim, via Facebook and mobile telephone. You spoke of emailing each other videos of yourself masturbating, and engaged in sexually explicit chat. You told him you loved him and he responded in like terms. You asked the victim if you could call him, to send you pictures of him, and if he wanted to have sex with you.
[2]Pseudonym used.
7 In early February 2013, whilst you were communicating with Nathan, you also commenced Facebook communication with Ashley,[3] Nathan’s girlfriend, who was then aged 14. Ashley is the victim of the offending constituting Charge 3. Your Facebook contact with Ashley was frequent. You repeatedly asked her if you could call her; about the details of her sexual activity; and if she wanted to have a threesome with you and Nathan. At some point you exchanged mobile phone numbers.
[3]Pseudonym used.
8 In March 2013 you made arrangements to meet Nathan and Ashley. On 19 March, you made arrangements to take them to the movies on the 22nd. Ashley asked you if you wanted to attend her school sports day. She told you where that was and you said that you would be there at 2PM. It is not clear from the material whether or not you attended.
9 After school on 22 March, you drove to Ashley’s house and parked out the front. You called Nathan’s phone several times and when he did not pick up, you called Ashley. Ashley answered and told you that what you were doing was creepy. You said you wanted to take Nathan to McDonald's. You eventually left after Ashley’s mother came outside and Ashley told you her mother was angry and that you were scaring her younger sister.
10 Two days later, on 24 March, Nathan told you via Facebook that he wanted to have sex with you. The two of you arranged a time and place to meet, but although you were there, waiting for him, he did not attend. You attempted to contact him the next day, but he did not respond.
11 You also contacted Ashley on that day to see if she wanted a picture of your ‘face or dick,’ and again asked her if she would have a threesome. She responded ‘that’s fucking disgusting…you’re a dirty minded creep’ and told you that she was deleting your phone number.
12 At about this time, on 19 March 2013, Caleb,[4] the 13 year old victim of the offending the subject of Charge 4, made contact with you via his brother’s account on a social networking site called Tagged. After this initial contact was made you then continued your communication via Facebook. Caleb told you he was 14, although in fact he was 13. You told him you were 27 and gay. You asked Caleb for a picture in exchange for your phone number. You had a discussion about meeting at his school the following morning. You discussed the nature of the proposed sexual acts the two of you were to engage in, as well as giving details to him of your previous sexual encounters. Caleb gave you his phone number.
[4]Pseudonym used.
13 A few days later on 23 March, you and Caleb again communicated via Facebook, and you agreed to meet at the toilets at Flinders Street Station at a particular time. You discussed the possibility of having a threesome, as well as other sexual fantasies of yours. Caleb did not attend at Flinders Street Station and you sent him a message asking where he was. He did not respond until the following day, when he said he had a sudden change of plans.
14 You continued to pursue him. You contacted him via Facebook the next day, 25 March, and again discussed meeting for sexual purposes. Caleb told you his home address and school, and told you to go to the school and state that you were his Uncle Cameron. Video footage from the school identifies you going there. Fortunately, the school contacted Caleb’s grandmother who advised that Caleb did not have an Uncle Cameron, and so your plan to meet was thwarted. The school staff took your details and contacted police.
15 Undeterred, you continued to try to meet Caleb. You sent him a message later that morning when you had been turned away from the school, stating ‘I did go there they did not get what r u next week.’ You tried to contact Caleb again on 26 and 28 March.
16 All of this offending with Caleb occurred after the compliance visit by the police officer.
17 You were arrested and interviewed on 29 March 2013, the day after the last attempt to contact Caleb. You denied all offending in interview. Whilst you accepted that you have a Facebook account that you accessed via your phone, you attempted to attribute blame to someone else, a person you described as a friend called ‘Daniel’. You said Daniel also used your phone, and that it was he who must have been contacting the victims, and that it was he who had ‘set [you] up’ by telling you to go to the school. References were found in your diary to a person with the same first name as the victim the subject of Charge 2. You said you knew another person of that name, saying 'there’s more than one you know.’ By your pleas of guilty, you acknowledge the account you gave the police was false.
18 These are serious offences, punishable by imprisonment for 15 years for the procuring charges, and 12 years for the grooming charges. Each charge concerns a course of conduct, carried out over a period of some months for the first three and some weeks for the last. Whilst in some ways unsophisticated, in that you used your own name, gave out your phone number, and your Facebook and phone were in your own name, you were well aware what you were doing was wrong, and unlawful. Even though some of the children put up their age up by a year, they all still gave you ages that showed they were under 16. You knew they were all under age. The conduct with each child was over a period of months or weeks. It was persistent, and escalated over time. Their initial willingness to engage with you only serves to show their vulnerability to exploitation. As Mr Shocker’s plea acknowledged, it is no mitigation to point to their conduct in volunteering such personal information about themselves, and engaging in sexually explicit discussions as they did. These laws recognise that children of their age do not have the emotional maturity or life experience to appreciate the consequences of engaging in activities such as those that you engaged them in, or the skills to protect themselves from being exploited and manipulated by a person in your position. These laws are designed to protect children like these four from being preyed on and exploited by older people.
19 One of your victims has filed a victim impact statement. Its content bears out what I have just said. Young people do not have the life experience or emotional maturity to foresee the consequences of engaging in on online, sexually explicit chat with strangers.
20 It is clear that subject to consideration of matters personal to you, denunciation, just punishment, and deterrence must play a role in sentencing for these offences.
21 You are now 28, and were born and raised in Melbourne. Your parents separated when you were 13, and you and your siblings remained with your father, but you maintained regular contact with your mother. Apart from the inevitable disruption caused by parental separation, it appears that family life was safe and stable.
22 You have amassed a number of convictions over the past eight years for contact sexual activity with children, as well as procuring and breaching court orders or your obligations under the Sex Offender Registration Act.
23 In 2005, you were dealt with for indecent act with a child under 16. You were released on an undertaking conditioned upon your complying with lawful instructions of officers of Disability Services. Four years later, in May 2009, you were dealt with on charges of indecent act with a child under 16, indecent assault and attempted procuring of a child under 16 for sexual penetration. You were released on a two year Community Based Order with a Justice Plan. You failed to comply with the conditions of the Community Based Order and your reporting conditions under Sex Offender Registration Act and in October the following year, breach proceedings led to your release on an intensive corrections order and a further 12 month Community Based Order, again with Justice Plan conditions, and a direction you participate in a Sex Offender Treatment Program. In November 2011, you were sentenced to your first period of imprisonment. This was for a further failure to comply with your reporting obligations under the Sex Offender Registration Act. At the same time you were dealt with for breaching the Community Based Order that had been imposed in October the previous year. You were placed on a further 12 month Community Based Order on the same conditions as the previous one. Your sentence, as varied on appeal to this court, was 12 months' imprisonment with a non parole period of four months. This offending commenced only a month after the expiry of your parole.
24 It is clear that rehabilitative, community based orders have not been successful in containing your behaviour. Nor has imprisonment served to deter you.
25 You have limited family support. It would appear that you had been living with your father whilst on parole, but the arrangement broke down and you were living independently during the time of this offending. According to the reports provided to me, it was your behaviour which led your father to bring the arrangement to an end. You were assisted through Disability Services to find independent accommodation. You have little contact with your siblings, and have had weekly phone contact with your mother whilst you have been in custody. It follows that your prospects of family support whilst in custody and on release are limited.
26 You were diagnosed with a mild intellectual disability at age 12. You remained in school until completion of Year 10, and with the assistance of an integration aide, attained, for your level of intellectual functioning, reasonable numeracy and literacy skills.
27
A recent Client Overview Report and Justice Plan were relied on on the plea. They reveal you are able to live and manage all aspects of daily life, including managing your budget independently. The report says that you can articulate your needs and ideas, and access the community without assistance. You hold a drivers licence, and can drive and navigate around both familiar and unfamiliar areas. You also hold a forklift licence, and have obtained a Certificate IV in Warehouse and Logistics. You can read and write, and although you do not have a job, or a history of employment, I was provided with an Australian Government job capacity assessment which found you have some capacity. Given it recommends sheltered workshop type work, for four to eight hours a week, it is not surprising that you have not been able to secure employment. The report describes you as a friendly and sociable man who enjoys the company of your peers. You told the psychologist
Ms Lechner, who assessed you for the purposes of this plea that you relate better to young people than those of your own age.
28
As Mr Shocker pointed out, the combination of your relatively high level of functioning and capacity for social engagement, enjoyment of the company of people considerably younger than you, and having time on your hands, can go some way to explain how you came to be in the position you are now being sentenced by me. As he also pointed out, based on the observations of
Ms Lechner, and in conformity with the warning sounded by the High Court in R v Muldrock,[5] I must be careful not to assume your cognitive capacities are greater than they are, or that you have the same capacity to modify and regulate your own behaviour as a person of normal, even low end of the scale, but normal, intellectual capacity.
[5]Muldrock v R [2011] HCS 39.
29 Whilst this means that general deterrence has little role to play, and the weight to be given to specific deterrence must be significantly moderated too, and weighted only in a way which relates to the extent to which you can be deterred. It is clear that you know right from wrong, and that you knew you were not allowed to what you did. Hence, whilst the weight to be given to deterrence, both general and specific, is greatly reduced, it is not entirely eliminated. For the same reason, whilst the weight to be given to moral culpability is reduced, moral culpability is not entirely removed as a sentencing consideration. And, as Mr Shocker acknowledged in his careful and considered submissions, the greater the effect of your intellectual disability in reducing the weight to be given to moral culpability and deterrence, the more significant consideration of protection the community becomes.
30 Despite your prior convictions, the restrictions placed on you by reason of the Sex Offender Registration Act, and the guilty pleas that you have entered to these charges, Ms Lechner notes you find it hard to understand why your behaviour is wrong when you made no physical contact with the victims. This is a particularly concerning position when regard is had to the fact you importuned each victim to meet you, and were thwarted each time only by circumstances outside your control. This difficulty in understanding what you have done is wrong, and for you to grapple with your efforts to take matters further than online chats and messaging, coupled with your limited capacity to make reasoned judgments and inhibit impulses, your emotional immaturity and propensity to engage with teenagers, and your limited capacity to reflect on the impact of your behaviour, all make it clear that your risk of further offending is high and your prospects for rehabilitation guarded. Protection of the community is clearly a significant factor.
31 It is in my view of real concern that it is not open to me to consider your suitability for a Residential Treatment Order under s.82AA of the Sentencing Act1991 (Vic). That provides for a sentence specifically designed to detain and treat people with an intellectual disability who have committed serious sexual or other violent offences. It is designed to apply to offending committed by a person with an intellectual disability which is too serious to be dealt with by attaching a Justice Plan to a non custodial sentence such as a community corrections order. Although community corrections orders are gazetted as available sentences in Victoria, for those convicted of committing Commonwealth offences, and so community corrections orders with Justice Plans attached are available for people with an intellectual disability who have been convicted of commonwealth offences, I suspect it is an oversight, rather than a deliberate decision, which has confined the availability of a Residential Treatment Order to serious State offences, and excluded Commonwealth offences from its purview.
32 However, as even if you were considered suitable for a Residential Treatment Order, it is not open for these offences, so I must exclude it from consideration. It was acknowledged, having regard to the sentencing options open to me, the seriousness of the offences, and your history, that no sentence other than one of imprisonment was open.
33 I take into account in your favour, in addition to the maters I have already referred to: your pleas of guilty and the early stage at which they were entered; your acceptance of the inevitability of a term of imprisonment and your efforts to make the best of your time and improve your skills in custody by undertaking courses whilst you have been on remand; the fact that your intellectual disability, your sexual orientation and your appearance make you a vulnerable person in the prison system, and will reduce the range of safe places, and access to programs and facilities where you can be housed; and your isolation whilst in custody due to your limited family support.
34 Mr Young, in response to my invitation to make submissions on sentencing range, submitted a total effective sentence range of between four and five years, with a non parole period of between two years three months and three years three months. That was broken down in this way: on Charge 1, a range of between 14 and 20 months; on Charge 2, between 24 and 30 months; on Charge 3, between 18 and 24 months; and on Charge 4, between 32 and 40 months.
35 Mr Shocker submitted both the head sentence and the non parole period were too high, having regard to the weight to be given to your intellectual disability, in accordance with the principles in Muldrock.
36
In the end, I have fixed on a head sentence within the range submitted by
Mr Young, although the individual sentences vary somewhat from the ranges proposed by him.
37 I accept Mr Shocker’s submission that there should be a considerable gap between the head sentence and the non parole period. I accept you were able to remain offence free when on parole the last time, and that you believe that the intensive supervision you received from the Adult Parole Board and Disability Services, was instrumental in assisting you. I believe if you are released on parole, and receive intensive supervision again from the Adult Parole Board and Disability Services, that the community will likely be better protected, and your prospects for rehabilitation enhanced, than if you were released without parole, or unsupported. I recommend you be assessed for suitability for participating in a Sex Offender Treatment program, preferably one designed and tailored to meet your needs, such as the Sex Offender Treatment program conducted by Disability Forensic Services.
38 Before I formally pass sentence on you, I want to provide a schedule to counsel to see whether the proposed orders I make comply with Commonwealth law.
39 MR YOUNG: On my calculations Your Honour that sentence is expressed perfectly correctly.
40 HER HONOUR: Conforms?
41 MR YOUNG: Yes.
42 HER HONOUR: I do not know why it is made so complicated Mr Young.
43 MR YOUNG: It seems to be one of those situations Your Honour and I have been involved in them myself previously where the mathematics just seems to be unduly complicated. I'm not quite sure how that can be remedied, but it's certainly been the source of problems in Commonwealth sentencing for some time.
44 HER HONOUR: Yes, that is right. It is so much easier under State laws to just start with your commencement date today, and to be able to aggregate by simply making a partial cumulation orders to arrive at the total effective sentence rather than declare the commencement date for each individual sentence.
45 MR YOUNG: And then it becomes sometimes quite a complicated mathematical exercise, on my calculations this does achieve a head sentence of four years and six months with a conclusion date on the head sentence of 15 April 2018 and then the non parole period of two years and three months.
46 HER HONOUR: Do you agree with that Mr Shocker?
47 MR SHOCKER: I do Your Honour, yes.
48 HER HONOUR: You have also come to terms have you with Commonwealth legislation?
49 MR SHOCKER: Yes I'm getting there.
50
HER HONOUR: All right, thank you. All right could you please stand now
Mr Bloomfield.
51 On the four charges to which you have pleaded guilty you are convicted.
You are sentenced on Charge 1, the charge of using a carriage service to groom in respect of Samuel, to be imprisoned for a period of 18 months.
On Charge 2 of using a carriage service to procure in respect of Nathan, you are sentenced to be imprisoned for a period of 30 months.
On Charge 3 of using a carriage service to groom in respect of Ashley, you are sentenced to be imprisoned for a period of 24 months.
On Charge 4 of using a carriage service to procure in respect of Caleb, you are sentenced to be imprisoned for a period of 30 months.
52 I direct that the sentence on Charge 2 commences today. The sentence on Charge 1 commences 18 months from today. The sentence on Charge 3 commences two years from today and the sentence on Charge 4 commences two years from today. That makes a head sentence or a total effective sentence of four years and six months and I direct that you serve a period of two years and three months before being eligible for parole. You have spent 200 days in pre-sentence detention and I direct that that be counted as part of the sentence already served.
53 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that but for your pleas of guilty, I would have sentenced you to a longer term of imprisonment, a total effective sentence or a head sentence of six years and nine months and I would have fixed a non parole period of four years and six months, but what I want you to understand Mr Bloomfield is that the sentence that I have actually passed on you, and that you must serve, is a head sentence of four years and six months and a non parole period of two years and three months. I know that Mr Shocker will explain that to you. Now are there any further orders that I need to pronounce?
54 MR SHOCKER: No Your Honour.
55 MR YOUNG: No Your Honour.
56 HER HONOUR: You have time to go down to the cells do you?
57 MR SHOCKER: I do.
58 HER HONOUR: All right thank you. Could you remove Mr Bloomfield please. I want to thank you both for your assistance, to you particularly Mr Shocker, I think the written submissions and the oral submissions were of a very high quality and I was greatly assisted by them.
59 MR SHOCKER: As Your Honour pleases.
60 HER HONOUR: Thank you. I will adjourn.
- - -
0
0
0