Director of Public Prosecutions v Bride (a pseudonym)
[2017] VCC 1650
•10 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY BRIDE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2017 | |
DATE OF SENTENCE: | 10 November 2017 | |
CASE MAY BE CITED AS: | DPP v Bride (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1650 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law sentencing – grooming for sexual conduct with a child under 16 – sexual penetration of a child under 16 – failing to comply with reporting obligations
Legislation Cited: Crimes Amendment (Sexual Offences & Other Matters) Act 2014; Crimes Act 1958; Sex Offenders Registration Act 2004; Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Roodenburg (Plea) Ms E. Piper (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr G. Steward (Plea) Mr B. Carpenter (Sentence) | Wisewould Mahony |
HER HONOUR:
1
Timothy Bride,[1] you pleaded guilty before me to one charge of grooming for sexual conduct with a child under 16, one charge of sexual penetration of
a child under 16 (that is a composite charge), and one charge of failure to comply with reporting obligations, contrary to s.46(1A) of the Sex Offenders Registration Act 2004.
[1]Timothy Bride is a pseudonym.
2 Each of the offences are serious and that is reflected in the maximum penalty that is prescribed by law and that is ten years’ imprisonment in respect to both Charge 1, the grooming offence, and Charge 3, the sexual penetration of a child under 16 offence. The maximum penalty for failure to comply with the reporting requirements under the Sex Offenders Registration Act 2004 (Charge 2), is five years' imprisonment.
3 In addition, you admitted your criminal record. There have been five previous appearances. They span the period from 23 March 2005 to 20 October 2014. It is of relevance that you do have prior convictions for sexual offending against a child.
4 On 23 March 2005, at Frankston Magistrates’ Court, you were convicted of one charge of indecent act in the presence of a child under 16 and attempt to commit an indictable offence, for which you were placed on a Community Based Order of 12 months’ duration with special conditions. Following that conviction, you were placed on the Sex Offenders Register. As a registrable offender you were required to report under that legislation you are subjected to for a period of 15 years.
5 There have been three appearances subsequently where you have been dealt with for failure to comply with the Sex Offenders Registration Act 2004 (SORA) reporting obligations. The first occasion, on 20 September 2005, you were convicted and fined $250. The second occasion, 12 July 2012, you were convicted of two charges of failure to comply with reporting obligations and convicted and fined an aggregate of $1,500. On 20 October 2014, you were convicted of failure to comply with reporting obligations and you were convicted and sentenced to two months’ imprisonment, which was wholly suspended under s.27 of the Sentencing Act 1991. The operational period was for a period of two years. Therefore, this current offending constitutes a breach of that suspended sentence and that is an aggravating factor.
6 On 18 October 2006 at Frankston Magistrates’ Court, you were dealt with in respect to two charges of make threat to kill, one charge of unlawful assault, and one charge of assault with an instrument, for which you were convicted and fined an aggregate fine of $1,500. All those prior matters were admitted.
7 I will now proceed to sentence you on the basis of the summary of prosecution opening that was read at the plea hearing. The summary was not challenged.
8 You were 47 at the time of the offending and you are now 48. The complainant was 15 and he is now 16.
9 In August 2016, the complainant was using the Hornet application, which is an app that is used to connect gay males with one another. Through that app, he came in contact with you. The app required users to be over the age of 18. He was 15 at that time, but set his age at 18 so that he could utilise the app.
10 On 19 August 2016, you sent a message to him and asked him if he wanted money. He told you that he did want money and you swapped mobile numbers. You then began texting one another and made arrangements to meet. Some of the messages were explicitly sexual in nature.
11 Between 19 August 2016 and 26 August 2016, you became aware of the complainant's real age and that he was under the age of 16. Through your words and communications, as set out in paragraph 9 of the opening, you told the complainant that you were interested in meeting with him so that you could have sex.
12 Ultimately, you agreed to meet him on 26 August 2016, so that you could take him shopping. He believed that you would buy him make-up, in exchange for doing sexual things together. That constitutes Charge 1, the grooming charge.
13 Charge 2, failure to comply with reporting obligations, concerns you using the Hornet application and not reporting that use to police. Further, you did not report child contact with the complainant, in accordance with the requirements of your registration under SORA.
14 Charge 3 is a composite charge of sexual penetration of a child under 16. It relates to the occasion on 26 August 2016 when you collected the complainant, ostensibly to take him shopping to buy make-up.
15 On that occasion, you collected him from the shops at Dingley Village. You drove away from the shops to an isolated area on Riverend Road, Bangholme.
16 After parking the car, you began kissing the complainant and eventually you both removed your clothing. You then placed your mouth over his penis and started sucking it (the first occasion of composite charge). You then pushed his head onto your penis and he placed his mouth around your penis for a short time (that is the second occasion of composite charge). He then told you he did not want to continue, so you then masturbated until you ejaculated.
17 The complainant said he felt really uncomfortable throughout, but did not feel like he could leave, as he did not know what you would have done. Following the incident, you took him to Fountain Gate Shopping Centre where you then purchased make-up for him.
18
Subsequently, his mother became aware of what had happened and on
1 September 2016, the matter was reported to police. The complainant made a video/audio recorded evidence statement on 2 September 2016.
19
On 7 September 2016, police attended your home address and executed
a search warrant. You were arrested and your mobile phone was seized. It was later analysed by eCrime. Messages were found on your phone that matched the messages located on the complainant’s phone.
20 You were interviewed and made a “no comment” record of interview in relation to the sexual offending, but admitted meeting the complainant on Hornet app sometime in August 2016. You also admitted that you had gone shopping at Fountain Gate Shopping Centre and that you had purchased some make-up for him and that you had given him some of your underwear and that you were aware of your reporting obligations under SORA in relation to contact with children and that you had been using the Hornet application randomly for up to 12 months.
21
Police charged you and you were released on bail. The matter was listed for
a contested committal on 15 June 2017. At the commencement of that committal, the matter resolved prior to any witnesses being called to be
cross-examined.
22 Mr Bride, the offending is serious, as it occurred during the operational period of a suspended gaol term that had been earlier imposed. Further, it involves offending against a young complainant whom you knew to be aged 15. Contrary to the prohibitions contained in your SORA reporting obligations, you made contact with the complainant via the Hornet application and thereafter you facilitated a meeting, knowing that you would have sex with a child. You took him to a remote location where he was sexually assaulted in the manner described.
23 Your offending is a serious example of this sort of grooming offence. I have also had regard to the differential in your ages at the time of the offending, the fact that you took the victim to an isolated area where he had little choice but to agree to your suggestion that you engage in sexual acts. You were in a more powerful relationship and in those circumstances you were able to overbear the complainant, so that he participated in the offending.
24 The act of sexual penetration itself is an act of violence and the fact that the victim was engaging with you on the Hornet application, in no way makes him responsible for what then occurred. You knew his age. The absolute prohibition on sexual activity with a child, is founded on a presumption of harm and your actions must be condemned.
25 Overall I have assessed your moral culpability as being high.
26 The offending has had a profound effect on the young victim and that is evidenced by the way he spoke about that when he read his victim impact statement. The significance of the violence and harm which such conduct involves cannot be overstated.
27
He now has immense trust issues and does not feel comfortable being in the presence of older men. He has difficulty with anxiety and depression. He has treatment from a psychiatrist and a psychologist and is prescribed
anti-depressant medication. He has tried multiple times to end his life. He feels hopeless and is full of self-loathing and does not feel safe anymore.
28
Your offending has also had a severe impact upon his mother, who also read
a victim impact statement. In her statement she described the difficulties that have followed on your offending. Her son’s life has been affected and she spoke of the anguish associated with not being able to protect her young son and to have to see him suffer in the manner that he described. He is very
self-destructive, disconnected emotionally, lacks any drive and tragically, she feels she has lost her son.
29 In sentencing you, there is a real need for the court to denounce your conduct and to emphasise general and specific deterrence and to provide for the protection of the community.
30 I have had regard to your circumstances, that is, your personal history and background.
31
You are the youngest of ten children. Your family has continuously operated
a business growing vegetables in the Huntingdale area over many years, some 150 years. You work in the business and live in your parents' home at the farm in Rosebud. Your parents are both aged 84.
32 Your family is aware of the charges brought against you and your admission of guilt. Your family remain supportive of you and will do whatever they can to assist you in your ultimate rehabilitation.
33 You are a person who has an excellent work history and that is reflected in the reference material that was provided. You have been involved in the family business for over 30 years and always were responsible for attending the wholesale market at Epping and dealing with customers. You are a person who has represented the interests of the business well and you have developed skills and relationships in that business that will be difficult to replace.
34 You have little by way of formal education. You left school after completing Year 10. You were never academically inclined and once leaving school, you entered into the family farming business.
35 You did marry and there are two children of that union. However, that marriage ended after you offended against your wife’s daughter from a previous relationship, by placing a camera in the family bathroom.
36 You are a moderate consumer of alcohol and do not take illicit drugs.
37 I have read the reference provided by your former wife and she confirmed that, notwithstanding the breakdown of your marriage, you have been a person who has maintained financial and personal responsibilities in respect to the two children of the marriage and you are described as a supportive father who enjoyed a close relationship with the two children.
38 Your youngest daughter provided a reference confirming that you have been supportive of her and been very active in maintaining your relationship with your two daughters.
39 Your family are all shocked and distressed concerning the nature of the crimes that you have committed.
40 In the course of your plea hearing, your counsel, Mr Steward, advised the court that you signed up for the Hornet app with a view of having adult homosexual relationships. You acknowledge that you did not desist from continuing to communicate with the complainant, notwithstanding that you became aware of his stated age well prior to the offences occurring.
41 I note that you have not completed any Sexual Offender Treatment Programs previously. No material was provided to the court concerning your risk category for sexual re-offending. It is of some concern that you do have a prior conviction in respect to sexual offending against your step-daughter. I note, however, this offending represents a real escalation in your criminal behaviour, involving as it does, a contact offence with a child under the age of 16.
42 In the absence of a proper risk assessment, I consider there is still an ongoing risk and that there will be a need for consideration to be given to making sure that you are appropriately assessed and treated whilst you are in prison, prior to your release, in order to provide for the best protection against re-offending in the future.
43 On balance, I consider, having regard to the strong support that you have from your family, your admissions and your acknowledgement of guilt, that there are prospects for rehabilitation and those prospects are reasonable. Those prospects will be enhanced if you do undertake a Sex Offender Treatment Program to address your offending behaviour.
44 I have taken into account all the matters put in mitigation. I accept that the plea of guilty has real utility. It was entered at an early stage, prior to any witnesses being called and cross-examined. That is especially important in a case such as this, where we have a young, vulnerable victim and both he and his mother have both avoided the further trauma of having to give evidence at your committal hearing or trial. Therefore, your plea does have great significance and your sentence will be discounted accordingly.
45 I accept that the plea is indicative of your remorse on your part and is an acknowledgement by you that what you did was wrong.
46 I have had regard to your general level of co-operation with the authorities when first interviewed. Notwithstanding that you made a “no comment” record of interview in respect to the sexual offending, you did make a number of relevant admissions.
47
I have noted your three prior appearances at court for failure to comply with your obligations, the reporting obligations under SORA, and the two relevant prior convictions arising from the one court appearance involving a single victim, your step-daughter, some 12 years ago. There have been no offences of
a sexual nature committed by you for in excess of 12 years. There are no outstanding matters.
48 The offending, the subject of the indictment, does breach your suspended sentence that was imposed in 2014 and that breach has yet to be dealt with by the courts. You are liable to have the sentence of two months' imprisonment restored, unless exceptional circumstances can be shown.
49 Mr Steward, in his sentencing submissions, acknowledged that the only available sentencing option was a term of imprisonment, having regard to the nature of your offending and considerations of general and specific deterrence. Those considerations are paramount in offences of this nature involving, as they do, sexual offending against a child.
50 I note that you are now 48 and this is a first time in custody and it is likely to be onerous. It is inevitable that any prison term will be served in protection with attendant restrictions.
51 The offending took place over a relatively short period of time, namely between 19 August 2016 and 26 August 2016. That is the grooming charge. The motivation for your offending against the complainant is not clear and that will be needed to be addressed in any treatment program.
52 Apart from those matters personal to you, to which I have referred, I must also take into account the need to emphasise general deterrence, which is significant in a case involving sexual offending against a child. That means that through the sentence imposed, the court must seek to deter others from committing sexual offences against children. You must be specifically deterred from re-offending in a like manner in the future.
53 I have had regard to the statutory maximum penalties and the particular facts and circumstances of your case. I must impose just punishment.
54 The Court of Appeal in this State in 2009 and again in 2016, found that there is a disparity between the maximum penalties in sentences handed down for sexual penetration offences against children,[2] with a real question as to the adequacy of current sentencing practices.
[2]DPP v C P D [2009] VSCA 114, [8]-[9]; DPP v D D J (2009) 22 VR 444, [72]; DPP v Dalgliesh [2016] VSCA 148, [87].
55 I must have regard to the principles of imposing a proper and proportionate sentence individually on each charge, taking into account factors put in mitigation and further having regard to concurrency, cumulation and totality and ultimately I must impose just punishment.
56
I consider that the grooming charge is a particularly serious example of such
a charge. It was calculated and predatory behaviour. You were aware of the young complainant's age. You persisted in pursing him for purposes of engaging in sexual acts. There was a great age differential. He was a young man and over time, you engaged in sexual explicit conversations with him, encouraging him to comply with your requests, by offering money and payment in kind, that is, by purchasing make-up. You took advantage of a young, adolescent male who was vulnerable to your advances and you were persistent in your endeavours to encourage contact with him, without any due regard for the harm that your conduct was likely to cause.
57 This is also the fourth time that you have been before the court for failing to comply with your reporting obligations, pursuant to SORA and there is a need to mark the seriousness of that offending by an increased penalty.
58 I have had regard to the circumstances generally in relation to the sexual penetration of a child charge, which is a composite charge and I note that you took the young complainant to an isolated area and performed the sexual acts that have been articulated earlier in my sentencing remarks and I consider that to be a serious example of that charge.
59 I will now make the formal court orders, so I just ask that you please stand.
60 On Charge 1, the grooming for sexual conduct with a child under 16, you will be convicted and sentenced to two years' imprisonment.
61 On Charge 2, failure to comply with the reporting obligations, pursuant to the SORA legislation, convicted and sentenced to 12 months’ imprisonment.
62 On Charge 3, sexual penetration of a child under 16, convicted and sentenced to three years’ imprisonment.
63 I make the following order for cumulation. One year of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 2, are cumulative upon the base sentence imposed upon Charge 3, making a total effective sentence of four years and six months. I direct that you serve two years before becoming eligible for parole.
64 I make the following declaration, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of six years to serve four years.
65 I declare that you have served 11 days pre-sentence detention, not including today’s date. I direct that that fact be entered into the record of the court.
66 An order for the taking of a forensic sample will be made. I note that there was no objection to that order by your counsel.
67 I make the orders sought, pursuant to s.464ZF(2) of the Crimes Act 1958 in relation to the taking of the forensic sample. I have made that order, having regard to the nature of the offending. I consider that it is in the interests of justice that such an order to be made.
68 What that means, Mr Bride, is that you will be asked at some stage to place a cotton bud into your mouth and in the event that you do not co-operate, then reasonable force may be used to enable the forensic procedure to be conducted. Do you understand that?
69 Finally, because the offences for which you have been convicted are registrable offences, Charge 1 is a Class 2 offence, Charge 3 is a Class 1 offence, pursuant to the Sex Offenders Registration Act you are a registrable offender and you are obliged to comply with reporting conditions imposed by that Act for life.
70 You will shortly be provided with written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations, by my associate.
71
This is the fourth occasion that those obligations have been provided to you.
I hope on this occasion that you realise how serious failure to comply with those reporting obligations are and that you heed those reporting obligations upon your eventual release.
72 I will just ask that Mr Carpenter goes down and obtains your client’s acknowledgement of receipt of the notification of the SORA requirements.
73 I have signed the s.464ZF, Ms Piper, and they will be provided to you shortly. We can adjourn. Thank you all for attending.
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