Director of Public Prosecutions v Bowen

[2018] VCC 604

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02158

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY BOWEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 April 2018
CASE MAY BE CITED AS:	DPP v Bowen
MEDIUM NEUTRAL CITATION:	[2018] VCC 604

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	Ms A. Reid	Commonwealth Director of Pubic Prosecutions
For the Accused	Ms K. Werner	Victoria Legal Aid

HIS HONOUR:

1Child pornography is a corrosive blight on our community.  It involves the sexual abuse of children, often very young children, and the taking of images of them for the viewing of perverse criminals like you, Mr Bowen.  Denunciation and deterrence are the primary sentencing considerations with child pornography crimes.  In your case, Mr Bowen, because of your relevant serious prior offending, deterrence to you is most important, as is the protection of the community from you.

2In early February 2017 the Victorian Police were advised by the National Centre for missing and exploited children, that you were looking at, seeking out and possessing child pornography.  Your house was searched on 10 February 2017.  There were two mobile phones and ultimately both were examined.  That led to your arrest on 17 July 2017.

3What was discovered from the interrogation of the phones was firstly that you had from 4 December 2015, up until the phones were seized, accessed child pornography, that is searched for and viewed child pornography. The words or terms used by you to search for child pornography make it clear that you were seeking out young children around the age of five to six, up to 12 to 13, and those children involved in sexual activity. You admitted as much in your record of interview. What needs to be noted is that this was lengthy offending, only ended by the involvement of the police and the seizure of your phones. It involved very young children in degrading circumstances. Further, the searching and accessing of child pornography commenced about two years after your release from prison in 2013 while you were the subject of the Sex Offenders Registration Act.

4The prison term that ended in 2015 was a term of four years and nine months imposed on 2 October 2009 for two charges of rape and one of an indecent act with a child under the age of 16.  The victim in those crimes was age 12.  The sentence imposed on 2 October 2009 allowed for a period of parole but you did not secure parole, apparently due to difficulties obtaining housing.  Thus you were to an extent unsupervised when released and you returned to crimes involving sex abuse of children, as I say, within two years or thereabouts.

5You were at the time of your sentence made the subject of the Sex Offenders Registration Act. You have been twice before the Magistrates' Court for failing to comply with that act. On each occasion you were placed on a community corrections order, one for 12 months, commencing on 26 May 2015, ,and the other for eight months, commencing on 4 November 2016. Thus at the time of your offending when you were the subject of the Sex Offenders Registration Act, you were for significant periods accessing child pornography.

6What was also discovered by the police interrogation of your phones and confirmed by you admissions, was that you were not only accessing child pornography but you sent images to another offender who you called Robbo.  You engaged in sexualised on-line chats with this individual about child exploitation material and subjects.  You learnt from Robbo that he had young female children and you sought from him image involving them.  You were active in encouraging him to send you child pornography images of his own children.  You sent him images of young children, both female and male, and sought out his assessment and approval.

7What the police found on your phone when seized were a total of 54 images and six videos of child pornography.  Using the accepted child pornography categorisation system, there were 41 images at Level 1, one at Level 2 and three at Level 4, and all six videos were at Level 4.  That last level, Level 4, depicts penetration of a child by an adult or, put more bluntly, depicts the rape of a child filmed for people like you to view and send to others.  It only has to be said for the sickening nature of your crime to be made clear.  The number and level of the images and videos that you had at the time of the seizure of your phones was low compared to others dealt with for these child pornography offences before these courts.  That should not be used to somehow mitigate your dreadful crimes.  The seriousness of these crimes and the corroding aspect of them are plain.  As our Court of Appeal has said recently, in assessing the seriousness of these child pornography offences it cannot be reduced to some mathematical comparison of the number of images in your case relative to other cases, and I follow the Court of Appeal's direction in that regard.

8Your activity involved seeking out child pornography and submitting child pornography to another perverted offender.  Thus you promoted this vile industry.  You encouraged another to sexually abuse his children by sending you images of them.  You were, Mr Bowen, deeply involved in this dark world of child pornography.  Now you must face the consequences.

9As to your personal circumstances you are now 50.  You were raised essentially by your mother, your parents separating when you were seven.  You left school at 16 and were evicted from the family home.  You were homeless for many years thereafter.  You abused alcohol and only had short term odd-jobs.  From 1986 when aged 18 to 1989 you had a number of appearances at the Magistrates' Court for dishonesty offences, receiving a number of suspended gaol terms.  Your next offending was the sexual crimes that saw you sentenced in 2009 that I have already mentioned.

10You were able to secure solid work for 11 years as a mechanic, which ended in 2009 upon you being sent to prison.  Since your release from prison in 2013 you have not had any employment.  You have been in age appropriate relationships through your life and up until recent times. One of those relationships involved you and your partner having twin sons.  You had not been involved much in your sons' lives until recent times.  You have not returned to abusing alcohol or using drugs since your release, and that is to your credit.  You have been diagnosed with depression and post-traumatic stress disorder due to you yourself being sexually abused as a child, but those conditions are not said to have any causal connection to the current crimes.  Your counsel, in a most comprehensive written and oral plea, submitted that you had demonstrated some remorse and acceptance of responsibility.  He based this submission on your admissions to police, which were in large part the basis for charges 1 and 2.  You maintained this attitude and entered a plea at the earliest point.  The prosecution submitted that you showed a lack of insight and minimised the gravity of your offending in the record of interview.  Thus they said the benefit to you of a plea should not be at its highest.  In my view, there is some benefit in your plea which mitigates and I intend to ensure that that is reflected in the sentence that I impose.

11Your counsel submitted that with your difficult upbringing, your recovery from years of alcohol and drug abuse and despite this offending, what is revealed is that your rehabilitation is not completely forlorn.  I am very concerned, as to your rehabilitation, that your sexual perversions are ingrained.  I do consider from all the material that you do lack insight.  However, I cannot completely overlook your rehabilitation, thin as the prospects are.  The only tool available to me is fixing a period of potential parole, but whether you are given parole is for others in the future.  It is my view that for the protection of the community you should undertake mandated sex offenders programs both in custody and on release but again, that is for others, not me.  I note unfortunately you did not have available to you sex offender programs upon your release on the last occasion.

12There are three charges.  Charge 3 is the possession of child pornography that conclude is of images and videos obtained during the period of Charge 1, being the access to child pornography charge.  Despite the requirement of cumulation, unless I otherwise order as a consequence of the serious offender legislation, what I intend to ensure is that you are not doubly punished for that offending, which is so closely linked and overlapping with Charge 1.  Thus I will otherwise order and ensure that only a moderate amount of cumulation occurs in respect of Charge 3.

13Your offending must be denounced as despicable.  Any right minded member of our community would be bewildered that you could access, view and transmit such vile material.  You and others must be deterred from entering this dark realm of criminal activity by knowing that if you do, significant gaol terms await.  My sentence must express that message in unambiguous terms.  The community must be protected from you by having you incarcerated and thus incapacitated for some significant time.  Your rehabilitation must yield to these other considerations but it is hoped that you can be supervised on your release.

14I have considered all the sentencing options but the only option is one of imprisonment and so much was conceded.  I have considered the length of the term and it is one that requires me to impose a term of imprisonment with a non-parole period.  Doing the best I can I impose for Charge 3, the State sentence, a sentence of 14 months.  In respect of Charge 1, the first Commonwealth offence, I impose a sentence of two years to commence six months after State sentence Charge 3.  For Charge 2, which I consider the most serious charge, which is the transmission of the child pornography albeit only for a shorter period of time, nonetheless the sentence that I impose is reflective of that seriousness and your involvement in this industry.  That sentence is three years to commence 12 months after the commencement of Charge 1.  If my calculations are right, and this will be confirmed, so what I myself have calculated but others will correct me, is a sentence of four years and six months and I fix a single non-parole period for the Commonwealth offences of two years and nine months.  I have declined to fix a non-parole period for the State offences in all the circumstances.

15You have already served 287 days in custody, this figure having been reckoned.  I declare that it is part of the sentence that I have just imposed.  I will enter this declaration on the records of this court so as the prison authorities are left in no doubt that you have served 287 days of the sentence I have just imposed.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence ultimately of six years with a minimum of four years.

16In respect of the Sex Offenders Registration Act by reason of the categorisation of these offences, you must be registered. That is mandatory. The period of time is also mandatory. That period of time is life.

17In respect of Charge 3 I declare that you are a serious sex offender and I will ensure that that declaration is entered into the records of the court.

18Is there any other order sought?

19MS REID:  No, Your Honour.

20HIS HONOUR:  Can you do the calculations?

21MS REID:  Yes, Your Honour.

22HIS HONOUR: Mr Bowen, as a requirement of the sex offenders regulations I must give to you a document that tells you that you have reporting obligations. Essentially I sign a document to say that I have given you a document. You sign a document that tells me that you have received the document. What you keep is, of course, all the conditions and all the requirements of the Sex Offenders Registration Act. They are the important aspects. They should be familiar to you because you have been on the sex offenders register in previous times, that being for 15 years. It is now to life, and you have breached it on two occasions so you must be familiar with it. So I sign this document and you sign another page to tell me you have been given it.

23Ms Werner, in due course you can go to the rear of the court and get that document signed.

24MS WERNER:  Yes, Your Honour.

25HIS HONOUR:  Ms Reid, is it any help if I give you what - if it were a State sentence he would have got three years for the Charge 2.  That would have been the base sentence.  He would have got - well, 12 months added on for Charge 1 and six months added on for Charge 3.  Four years, six months.  Yes.  That is what I want to achieve.  If you can plot it out on these calendars that we have to do and timelines, which are palpably ridiculous.  It may be, Ms Reid, that if I just leave the Bench and take some pressure off you and you just sort that out.  The prisoner is just to remain here for the moment.  I just need to allow Ms Reid to do some work with Ms Werner.  Thank you.

26(At 11.25 am His Honour left the Bench.)

27(At 11.36 am His Honour returned to the Bench.)

28HIS HONOUR:  Ms Reid, is everything satisfactory?

29MS REID:  Yes, Your Honour.

30HIS HONOUR:  Thank you.

31MS REID:  Just one matter that my learned friend and I wanted to check.

32HIS HONOUR:  Yes,

33MS REID:  Is the intention that Mr Bowen, in relation to the two year, nine months' non-parole period, that would start with the first Commonwealth sentence starting?

34HIS HONOUR:  I see.  I thought it would start now.

35MS REID:  I believe it will actually start with the first Commonwealth sentence, which means - - -

36HIS HONOUR:  Six months' time?

37MS REID:  Yes, Your Honour.  So that would make it three years and three months before he was eligible for release.

38HIS HONOUR:  So how is that re-cast?  By fixing a non-parole period of two years and three months?

39MS REID:  Two years and three months.

40HIS HONOUR:  I change the order that I make.  Mr Bowen will be eligible for parole on the Commonwealth offences in two years and three months.  He will ultimately spend two years and nine months, that is from the commencement of the Commonwealth sentences, meaning that his time in incarceration is two years and nine months.  As a minimum term justice requires that.  Whether he gets parole or not is for the parole authorities.  That is another complication in this State Commonwealth sentencing, which since I was a young barrister judges have been complaining about and it has only got worse.  Anyway, surely this can be made easier but there it is.  Is there anything else required?

41MS WERNER:  No, Your Honour.  I will just get Mr Bowen to sign the - - -

42HIS HONOUR:  Yes.  Has he signed that?

43MS WERNER:  Thank you.  May I be excused from the Bar table?

44HIS HONOUR:  On the front of the document.  Can you do that?  I have received back, signed by Mr Bowen, a document headed, "Acknowledgment", that he has received the documents that are necessary relating to his reporting obligations and reporting period.  I will forward that document or have it forwarded to the Chief Commissioner of Police.  Is that still who gets it?  In any event.  Now, I have returned back to the informant the selection of images that were provided to me for my looking at but the next complication is getting
Mr Bowen out of this court.  Apparently he can be taken out that door.  All right.  Yes, remove Mr Bowen, thank you.

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