Director of Public Prosecutions v Brian Jones
[2012] VCC 1176
•29 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00399
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN JONES |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2012 | |
DATE OF SENTENCE: | 29 May 2012 | |
CASE MAY BE CITED AS: | DPP v. Brian Jones | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1176 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - use carriage service to groom person under 16 years (s.474.27(1) Cth Criminal Code) - knowingly possess child pornography
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Breckweg | Commonwealth DPP |
| For the Accused | Ms F. Todd | Fitzroy Legal Service |
HIS HONOUR:
Brian Jones, you have pleaded guilty to one charge of use a carriage service to groom a person under 16 years of age, contrary to s.474.27(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is 12 years' imprisonment.
You have also pleaded guilty to one charge of knowingly possess child pornography, contrary to s.70 of the Crimes Act 1958 (Vic). The maximum penalty for that offence is five years' imprisonment.
You are presently 42 years of age, having been born on 8 October 1969.
You have two prior court appearances in the Melbourne Magistrates' Court, both when you were aged 20 but nearly a year apart. On 29 November 1989 you were put on an 11-month good behaviour bond for the offences of shop-stealing and being drunk in a public place. On 5 October 1990 you were fined $500 for the theft of a motor car.
A more detailed description of the circumstances of this matter are set out in the tendered prosecution facts. In essence, the evidence is as follows.
As to Charge 1, the grooming offence, in September 2007, using the alias ‘Blake Reynolds’, you began communicating online with the victim, who was 12 years old at the time.
When you first communicated with him you were just short of 38 years of age, but you told him you were 14 years old. You also told him that you had been kidnapped and raped as a teenager. As time progressed you increased your age to 18 years and eventually, in April 2009, you told the victim that you were 31 years old and your real name was Brian Jones.
From September 2007 you and the victim communicated via text message, email and internet messaging sites. You also communicated “live” while playing various online computer action games.
Photographs were exchanged between the two of you and webcam was also regularly used to communicate. Over time the relationship between you grew stronger, with you calling each other frequently and sending a large number of text messages to each other on a daily basis. You exchanged jokes, shared your day-to-day experiences, and you often gave him advice, for example, about his girlfriends. The victim came to view you as his “best mate”, despite never having met you. In many text messages you and he expressed your affection for each other. Frequently, the messages you sent were flattering to him.
You also purchased large amounts of mobile telephone credit for him. For instance, on 8 May 2009 you wrote to the victim that you had bought him nearly $680 worth of telephone credit. As time progressed you continued to purchase telephone credit for him.
There were also texts discussing him travelling to Melbourne to visit you and many conversations in which the two of you discussed him moving to Melbourne to live with you.
In April 2009, after you admitted to the victim that you had lied about your name and age, he ceased contact with you. The two of you then resumed contact in late May 2009 after you sent a message to him saying that you felt like you had “lost [your] best friend”.
Shortly after the reconciliation you told the victim that you wanted to go to Parkes to visit him. He responded cautiously but you persisted.
In early June 2009 the victim also asked you to stop buying credit for him as "… it seems like you're trying to bribe me to stay your friend. I'll stay your friend without you buying all this for me."
Eventually plans were made via SMS messages and the internet for you to travel to Parkes. On 11 September 2009 you flew from Melbourne to Sydney and then flew from Sydney to Dubbo. You then hitchhiked to Parkes, New South Wales. You booked into the Coachman Motel and contacted the victim that evening. SMS texts were exchanged with you both stating you were nervous about meeting for the first time. The victim was 15 years of age at that time.
On 12 September 2009 at about 1.15 pm you were seen talking to the victim and his younger brother in the front of the family home. Their mother asked the younger brother who the other person was and he said it was the uncle of a friend from school who had helped the victim out. You and the victim spoke for about 40 minutes at the front of the house and the victim's mother then allowed you to sit on the veranda.
The victim's mother introduced herself to you and you introduced yourself as ‘Brian Doyle’. You gave two DVDs to the victim as a gift. Later the victim walked to work at the Cook Park Cafe and after he arrived there you entered the store and were seen "acting strange towards [the victim]" by a staff member with both you and the victim making eye contact and sending each other text messages. The victim's mother was called and told about the strange behaviour. She attended the store and spoke with the victim who told her you were at the Coachman Hotel bar.
The victim's mother attended the hotel and asked you what your interest in her son was. You said you knew him through a school mate. You said you were 24 years old and from Forbes. The victim's mother then called the police as she did not believe your story. You also called the police. The police attended and spoke to both parties. You told police you were “good mates” with the victim and had just visited him to “put a face to a name”. Police then searched your mobile telephone and found many text messages between your and the victim's mobile telephones relating to loving each other and cuddling up to each other. Your laptop also held saved Internet chat logs between the two of you where you were telling the victim you loved him, and referring to a two-year period when the two of you were dating.
During the course of your contact with the victim you engaged in several online chats with other online friends where you discussed your preference for young boys. Two examples of that, which I will not repeat here, were provided in the prosecution summary and were in 2007 and in 2009.
The victim impact statements tendered understandably expressed the deep conflict and effect that your conduct has produced.
As to Charge 2, the possess child pornography charge, a search was subsequently conducted of your hotel room, where police located a laptop computer. Subsequent forensic analysis of that computer revealed that it contained:
· two level 2 and five level 4 video files depicting children involved in masturbatory and sexual activity with other children and adults located in a folder entitled ‘Family Photos’;
· 23 level 1 photographs depicting images of naked, dressed and semi-dressed male children in erotic poses with no sexual activity.
The videos were from 8 to 32 minutes' duration and featured young boys masturbating each other, having anal intercourse and performing oral sex on each other. One video featured group sex between young boys and another depicted sexual activities between two boys and one girl. Two videos depicted a young boy having sexual intercourse with an older male.
The images feature photographs of young and adolescent boys without shirts or only wearing underwear, posing provocatively. Several of the photographs are advertising brochures labelled with the relevant Internet site or organisation to which they are linked, for example, "Boylover.net." One photograph features a young male child being held by an adult male around the neck. The boy is crying and appears to have abrasions on his face. The photograph is embossed with “bruised and bloody but still here."
In a recorded interview with police on 18 September 2009 the victim stated as follows:
· He knows you as ‘Brian’, 31years old.
· Brian initially used the name ‘Blake Reynolds’.
· He first spoke to Brian in ‘around’ October 2007 just before his 13th birthday – he was in year 7. They met online.
· Brian initially told him he was 14 but he eventually discovered he was 18 when he Googled the name ‘Blake Reynolds’.
· Brian bought him credit for his phone.
· Brian told him he was gay after talking for about 3 months (when he was pretending to be Blake and 18).
· Brian eventually told him he was 31 around the beginning of 2009 – when he told him, he blocked him for a few weeks. They started talking again after he saw a message Brian put on his MSN saying that he had lost his best friend and he ‘felt sorry for him’.
· When he said he was not 31 the suggestions that he was Blake Reynolds stopped.
· He started using Webcam with Brian around mid 2009.
· He sent photographs to Brian via text.
· He would just be his mate and they would chat about all sorts of things such as his girlfriend, school or fights he had with his mother.
· He and his mother were fighting every day and Brian offered to come up and just hang out with him. He said yes but ‘not right now’.
· He planned to move to Melbourne to do year 11 and 12 and live with Brian after Brian offered him the opportunity in around July 2009.
· They texted many times a day, every day.
· They had spoken of him moving to Melbourne before 2009 (when he thought Brian was 18).
· When Brian attended Parkes, the pair had planned his trip to Parkes so they could ‘just hang out’. They agreed to introduce Brian to the victim’s mother as ‘Brian Doyle’, a friend from school’s uncle.
· When he thought you were 18, you asked if he would ever date you. “…I said, no. Because, like, we’re best mates and dating your best friend sort of ruins the friendship if you break up”.
In your record of interview with police on 12 September 2009 you stated:
· You had come to NSW to meet the victim.
· You knew the victim was 14 at the time of coming to NSW to meet him and that he was around 13 when you first started talking.
· You had been talking to the victim’s brother for about 6 months.
· You were just friends with him and had no intention of having sex with him.
· You met him ‘about 2 years’ ago – that would have been 2007.
· You spoke on Webcam.
· The victim’s mother believed the victim’s friend to be only 18 years old.
· The romantic nature of the chat logs was ‘just the way we speak’.
· You only travelled with a backpack and had no computer with you. A laptop computer was later located in your motel room.
· You had not seen the movies on your laptop which you had downloaded from a web site.
· You downloaded some of the photographs and had been sent some by others. You also said some were of the friends of children you had babysat occasionally in the past.
In a further record of interview on 13 September 2009 regarding the laptop located in your motel room, you stated:
· You had downloaded the video files found under ‘Family Photos’ from internet sites ‘a couple of months ago’ but you had never watched them as you could not view them when you opened the files.
· Your internet connection is in a friend’s name.
· You didn’t tell police previously that you had a laptop with you as you didn’t want people to see the type of sites (porn) you had on your favourites list.
· The photographs on your computer were either an actor you liked, your MSN friends (who you named) who you spoke to for ‘a while’, a ‘random’ teenage boy, a photograph of a dog and a photo of yourself.
You were remanded in custody for five days following your arrest. You are presently serving a sentence of imprisonment on other subsequent matters. Accordingly, you have served five days in custody for these offences as at the current date.
You pleaded guilty to separate charges of possess child pornography at the Magistrates' Court Melbourne on 18 May 2010. This material concerned material discovered under warrant following a search at your Melbourne premises. Your plea hearing was adjourned for classification of that material.
On 23 May 2010 you committed further offences, being child stealing. You were arrested and remanded in custody on 28 May and your bail was formally revoked on 31 May. You remained in custody until you were sentenced on the child pornography charges relating to your Melbourne premises. You were then sentenced on 2 September 2010 to imprisonment for 18 months with a non-parole period of six months. Ninety-eight days were reckoned as served prior to sentence.
You subsequently served the non-parole period but were refused parole because of the outstanding matters. On 18 August 2010 you were convicted on the subsequent charge of child stealing and sentenced to ten months' imprisonment to be served concurrently with other State terms then being served. You have appealed this conviction and the return date for the appeal is listed for 16 July next.
On 14 March 2012 this matter proceeded by way of a straight hand-up brief committal. Following committal you entered a plea of guilty to the charges contained on this indictment.
I now turn to your personal circumstances.
As I noted earlier, you are now aged 42. At the time you commenced your offending in September 2007 you were just short of 38. You are a single man and have never married.
You were raised in the Cockatoo area and have two brothers. Your parents divorced 24 years ago. You attended two primary schools and three secondary schools and moved to live with your grandmother in Oakleigh at age 16 and successfully completed Year 12.
You have maintained strong contact with your mother and had been living with her until recently.
You have a stable employment history, working initially as a storeman and thereafter in the insurance industry where you attained positions of increasing responsibility. You recently resigned your position due to the current matters.
The psychological reports tendered document your experience of being a victim of multiple sexual abuse in your adolescence as well as your own proclivity to homosexual relationships from adolescence, extending in your adult years to continued interest in pubescent males.
In 2010 Dr Vincent Marziano, psychologist, reported on your assessment and treatment sessions. Dr Marziano reports that you have failed to form a capacity for intimate adult relationships and have been assessed as socially isolated. You have for many years engaged in store catalogue and later Internet imagery of under-aged males for sexual gratification. You would spend hours collecting, downloading and perusing this material as well as commentary on underage male site forums. As you spent more and more time engaged in Internet child pornography you became increasingly socially isolated, at the same time abusing alcohol and cannabis.
Dr Marziano summarised his opinion of the factors precipitating your offending as a combination of poor early family relationships, a bereft view of self, poor social efficacy, prolonged sexual victimisation, internal conflict regarding your sexual orientation, inability to establish intimate adult relationships and an underlying belief system legitimising sexual contact with under-aged persons. More proximal factors included an established interest in under-age males (mainly pubescent), social withdrawal and loneliness and prolonged substance abuse. In addition, your frequent feeling of boredom, curiosity, belief that the Internet assured anonymity and easy access to the material seems to have facilitated your behaviour. This behaviour was likely maintained by habituation, hence new and more stimulating material is sought and then reinforced through ongoing fantasy elaboration.
Dr Marziano also reported that you had engaged in regular weekly to fortnightly treatment sessions between November 2009 and April 2010 and that your response to psychological treatment had been positive to the targeted area of low mood, suicidal ideation and ongoing alcohol usage. Dr Marziano was more guarded concerning the risk of you committing a further offence, rating your chances as moderate to high. This appears based on your primary sexual interest being towards pubescent males mainly 12 to 14 years of age. Dr Marziano recommends further psychological treatment, including sexual reconditioning techniques and possibly pharmacological intervention.
I note that in Dr Marziano's opinion you were moderately depressed, reactive to your then predicament of impending court proceedings.
I also note that Dr Marziano's assessment and report was directed only to the child pornography charges, being those charges relating to the Melbourne premises.
Dr Michael King, psychologist, further assessed and reported for the purposes of your plea concerning the current charges. Whilst Dr Marziano regarded treatment focussed on your preferred sexual orientation, Dr King regarded the requirement of sexual counselling as unhelpful. In Dr King's opinion the focus of your rehabilitation should be directed to your arrested social development brought about through the inappropriate sexual incidents you experienced at an important and vulnerable age.
Both practitioners, however, agree that your early sexual experiences have likely contributed to your disordered sexual development.
In September 2009 following your release on bail after your initial arrest, you were hospitalised following a suicide attempt where you attempted to gas yourself. You were admitted to St Vincent's Mental Health section and treated from 23 September until 12 October 2009. You were there diagnosed with adjustment disorder with depressed mood and anxiety. You were prescribed appropriate medication and released when your condition settled, then referred to Midwest Crisis Assessment and Treatment Service with recommendations for ongoing care and support from your GP and psychological services.
From late 2009 you have been receiving medication for reactive depression and anxiety from your GP.
These offences are considered seriously by the courts, as is indicated by the maximum penalties set by Parliament. Children are vulnerable and innocent and are capable of being permanently and deeply affected by the perversions of cruel and thoughtless adults.
In your case there is relevant evidence that your own disorder was contributed to by your experience of being sexually abused at a vulnerable age. The offence of child pornography is a disgrace and a gross violation of basic moral obligations to humanity. We live in a global community and the Internet being what it is, may superficially seem to mask the deep personal viciousness of this form of exploitation. Children anywhere in the world should be afforded protection and any notion of apparent justification by a sense of removal by distance or effect is simply an exercise in wilful blindness.
When considering the gravity of the offences to which you have pleaded guilty, general deterrence must be the paramount consideration along with denunciation. The authorities require that I take into account those who are harmed by the production of the pornographic images. The fact that persons are prepared to possess child pornography necessarily creates a market for the corruption and exploitation of children. Relevant considerations include the volume and level of depravity of the pornographic material and the spread of victims.
General deterrence is also a highly significant aspect of sentencing on the grooming charge. The particular circumstances of this case provide a clear and serious example of a methodical and sustained attempt to gain the trust and confidence of your young victim. You initially used a false name, lied about your age, consistently offered to provide help and offered to take him away from his home, suggested meetings, purchased phone credits for him and maintained regular contact complete with flattering and suggestive comments. All this occurred over an extended period, most likely up to two years.
Having established an encouraging rapport you travelled interstate to meet with the victim in a clandestine manner. Had it not been for the suspicions of a store worker and the victim's mother, there was every likelihood that your offences would not have been detected and further damage may have occurred.
In mitigation I accept that the pornographic still images are in the relatively low range of seriousness and although five of the videos are assessed at a serious level, that number is low compared with the majority of cases which come before this court where the numbers are in the thousands often, and tens of thousands.
Your prior offences in 1989 and 1990 are of little relevance.
I accept that you pleaded guilty early, at the committal stage, and that you are entitled to considerations of remorse for that plea as well as for the utilitarian effect. You have a strong and stable work record with positions of responsibility and that is a positive factor for hopes of rehabilitation, together with the indications of your preparedness previously to engage in rehabilitation counselling with your previous psychologist, Dr Marziano.
The extended period for resolution of these matters and the division of these offences from the Melbourne premises pornography offences has placed you under added burden and strain. The exposure of your conduct has resulted in you facing the reality of your shame and has resulted in reactive depression and suicide ideation.
I also accept that your disordered sexual development, occasioned at a vulnerable age, has been sufficiently established as a psychological state or condition to be considered to moderate to some, but not a significant, extent your moral culpability for these offences, as having impaired your ability to exercise appropriate judgment and make calm and rational choices, making you more disinhibited and likely contributing causally to the commission of the offences.
Principles of totality also apply in consideration of your past sentences and time served for those. If the current matters had proceeded in a more timely way these matters could have been heard together with the Melbourne premises pornography charges. Furthermore, because of your subsequent matter and this outstanding matter, you were refused parole and ultimately served the full term of your sentence.
Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
Charge 2 on this indictment represents your third conviction and sentence to a term of imprisonment on a sexual offence charge. This means that the sentencing task in respect of Charge 2 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentence is imposed, and to achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. However, because of the circumstances and mitigating factors in your case, I do not propose to do so.
Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 2, the sentence I impose is to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose any cumulation.
I note here that the Crown did not call for a disproportionate sentence or for the cumulation contemplated by either s.6D or s.6E of the Sentencing Act.
Mr Jones, would you please now stand.
On Charge 1 of using a carriage service to groom a person under 16 years of age, I propose to sentence you to a term of imprisonment, which I intend to partially offset by way of a Commonwealth recognisance order. It is similar to a partially suspended sentence of imprisonment.
On Charge 1, using a carriage service to groom a person under 16 years of age, you are convicted and sentenced to two years' imprisonment.
On Charge 2, the State charge of knowingly possess child pornography, you are convicted and sentenced to two months' imprisonment.
Before I make the recognisance order I will explain to you the purpose and effect of the proposed recognisance order, the consequences that may follow if you, without reasonable excuse or cause, fail to comply with the conditions of the proposed order and that any recognisance given in accordance with the order may be discharged or varied under the Act.
The purpose and effect of the recognisance order is to grant you conditional freedom from its commencement. The conditions are that you be of good behaviour for a period of 21 months and attend for assessment and programs as ordered. If you breach the recognisance order, which comes into effect in three months' time, you will be brought back before the court and most likely that will be before me, to be dealt with for that breach and to be re-sentenced. The order may be extended or revoked and you may be required to serve the remaining term of imprisonment. A breach would also mean that the sum of $2000 would be forfeited.
You should bear in mind that having given your recognisance, either you or the Commonwealth Director of Public Prosecutions may apply to vary or discharge that order. Do you understand that, Mr Jones?
OFFENDER: Yes, Your Honour.
HIS HONOUR: I order that you be released under s.20(1)(b) of the Crimes Act 1914 after serving three months of the sentence imposed, upon you giving security by recognisance of $2000 to comply with the following conditions:
(a) that you be of good behaviour for a period of 21 months;
(b) that you be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management, or his or her nominee, for 21 months;
(c) that you attend for assessment, and if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management, or his or her nominee;
(d) that you report to the Community Corrections Centre by 4 pm within 48 hours of your release from custody;
(e) that you report to, and receive visits from, a Community Corrections officer or officers;
(f) that you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change;
(g) that you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and
(h) that you obey all lawful instructions and directions of Community Corrections officers.
The sentence on Charge 1 starts today and goes for a period of two years from today.
The sentence on Charge 2 starts today.
I also direct, pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charge 2 as a serious sexual offender within the meaning of that Act.
Pursuant to s.16E of the Crimes Act 1914, the Commonwealth Act, and s.18(4) of the Sentencing Act 1991 (Vic), I declare that the period of five days be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty, the sentence that would have been imposed is a total effective sentence over both charges of 30 months' imprisonment with ten months to be immediately served.
The recognisance orders will have to be signed shortly. Before that is done there is a further matter to which I need to attend. You may take a seat for a moment, Mr Jones. I will deal with that other matter in a moment. Is it appropriate the recognisance order be signed now?
MS BRECKWEG: Yes, it is, Your Honour. Just to clarify, Your Honour, the effect of it is that three months' imprisonment will be served as of today.
HIS HONOUR: Correct.
MS BRECKWEG: Which means that the release date would be after his release from prison on the current matters. Thank you.
HIS HONOUR: Yes, that is right. I am sorry that that caused a confusion. I keep forgetting that it is nearly June.
MS BRECKWEG: It has gone very quickly.
HIS HONOUR: Yes, which community centre?
MS BRECKWEG: Caroline Springs - Sunshine, Your Honour.
HIS HONOUR: That will be given to you to sign in a moment, Mr Jones, but there is a further matter I will need to do, and that is to speak to you about the provisions of the Sex Offenders Registration Act. You have already been placed on that but there are further orders that need to made in light of the current sentence.
The offences to which you have pleaded guilty subject to this indictment are registrable offences pursuant to the provisions of the Sex Offenders Registration Act, and by reason of your conviction for these offences, you are a registrable offender obliged to comply with reporting obligations imposed by that Act.
As required by s.5(2BC) of the Victorian Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender, is not a matter that can objectively influence the imposition of a just sentence.
Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you do fail to comply with those obligations.
I am also required to inform you of the length of your reporting period which, in this case, is for life.
My associate will, in a moment, hand to you the Notification of Reporting Obligations, which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgment to my associate.
So those appropriate forms for the recognisance order and the sex offenders registration materials could be now passed to the offender.
Thank you. Just bear with me a moment. I think that concludes proceedings, subject to any submissions. Anything else from either counsel.
MS TODD: Nothing further.
MS BRECKWEG: Nothing, Your Honour.
HIS HONOUR: All right, thank you very much, both of you, for your helpful submissions in this case, which has its complexities.
MS BRECKWEG: Thank you, Your Honour.
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