Director of Public Prosecutions v Broadbent

[2014] VCC 701

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02226

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER BROADBENT

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2014, 20 May 2014
DATE OF SENTENCE:	20 May 2014
CASE MAY BE CITED AS:	DPP v Broadbent
MEDIUM NEUTRAL CITATION:	[2014] VCC 701

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G Hughan
For the Offender	Mr A Lewin

HIS HONOUR: 

1Tyler Lawrence Broadbent, you can remain seated for the time being, you have pleaded guilty to an indictment charging you with possession of child pornography and an offence of failure to comply with the reporting obligations pursuant to the Sex Offenders Registration Act 2004.  You have also admitted a number of prior convictions.   Some of those, of course, involve offences of child pornography and also sexual offending.  There are other offences as well.

2The prosecution has tendered and relied upon a prosecution opening on the plea, which is Exhibit A.   That was read on the previous occasion which you appeared before me.  I am not going to read it again, suffice to say that you attended for interview with police concerning your reporting obligations under the Sex Offenders Registration Act 2004 on 14 August last year, not long after you had been released from prison after serving a term of imprisonment.

3An initial interview was conducted, during which you told the police falsehoods about various matters that are particularised in the charge.  A search warrant was executed at your home address on the same day and an Apple iPhone 4 was seized.  You told the police the password and they found the phone to contain a number of images of children which constitutes the basis for the first charge on the indictment of possessing child pornography.

4There were different categories of images.   Some of those were images were in a category which depicted sexual activity between children or between children and adults, including but not limited to intercourse, cunnilingus and fellatio.  These images were of pubescent girls engaged in various forms of penetration with what appears to be adult males.

5You have pleaded guilty to the offences and pleaded guilty at the first reasonable opportunity.   That is to be taken in to account in your favour.  On the last occasion your counsel provided me with an outline of submissions which is Exhibit 1 on the plea hearing, which acknowledges that the only disposition that is appropriate in this case and in regard to your criminal record and the nature of this offending conduct is an immediate term of imprisonment.

6It is accepted by your counsel that there are sentencing considerations including deterring you and protecting the community, which are of particular importance in this case, as well as of course deterring other people from offending in this way.  It is submitted that your plea should be taken as an expression of remorse and that, coupled with your cooperation with police, and various submissions that you have made, should be taken as further evidence of your remorse.

7I am reluctant to accept that submission.  It seems to me that whilst those matters may be consistent with remorse they do not specifically evidence remorse.  It is difficult to find genuine remorse in circumstances where you committed these offences so soon after completing your previous term of imprisonment, even though you may have been dissatisfied with the extent of which you were able to receive assistance in your process of rehabilitation.

8Nevertheless your plea of guilty is to be taken in to account as facilitating the administration of justice and having the benefit of saving the community the cost of a trial and in that sense you are entitled to a full discount for your plea of guilty.

9Your previous convictions are acknowledged to be relevant and are clearly to be taken in to account, although they should not lead to a disproportionate sentence for the offending conduct.

10Whilst the child pornography charge is a serious charge it is to be compared with offences of a like kind committed by others, and the degree of seriousness of the offence has to be considered.  It does not seem to me to be an offence at the high end of the scale, nor does it seem to be an offence at the very low end of the scale either.   But what is significant, unfortunately in your case, is that this is not your first offence and you should have learnt a lesson from your previous court appearance in relation to the similar offending conduct, which resulted in the period of imprisonment served up to I think June  2013?

11MR LEWIN:  Yes, 5 June, Your Honour.

12HIS HONOUR:  You had shortly before this offending conduct been released from prison and in that sense there clearly is a need, I think, for particular attention to be given to individual deterrence as well as protection of the community.

13I have to take in to account, also, the maximum terms of imprisonment that are prescribed by Parliament for these offences, in each case it is five years' imprisonment.   That is an indication of the seriousness with which Parliament regards offending conduct of this level. 

14It is submitted that although the report from Forensicare seems to paint a picture of you which suggests that you are a poor candidate for rehabilitation and assesses your risk of further offending of this nature as high, nevertheless you are a young man, aged 28, and that I should not treat your prospects of rehabilitation as hopeless, at any rate, and that I should facilitate to the degree that I reasonably can, your rehabilitation.

15The offence of the failure to comply with the reporting obligations under the Sex Offenders Registration Act is, it seems to me, to be regarded as a serious offence in this particular case.   There needs to be, as is conceded by your counsel, I think quite appropriately, some degree of cumulation of sentence as between the two offences.

16I need to punish you adequately for your offending, but proportionately.   It is necessary for me to impose a term of imprisonment that seeks to protect the public adequately and to deter you and others from committing offences of this kind.   It is I think important for the community also that proper attention is given to facilitating your rehabilitation.  It may be that there was a breakdown of the communication between you and Mr Daffern, the principal consultant psychologist who prepared the Forensicare report, and to some extent that may have coloured some of the opinions he expressed.  It is, I think, fair to say that you do seem, in many respects, to have been quite forthright about your sexual proclivities and your history of fantasy.   That too has assisted in the production of the report and the conclusions that were reached, perhaps not entirely to your own benefit, in one sense.   But your counsel points out that that honesty, or apparent honesty, would suggest perhaps you are a better candidate for rehabilitation than might otherwise have appeared to be the case on the objective facts.

17I do not find the balancing exercise particularly easy, I have to say, but I am inclined towards giving you a period which will give you the opportunity, at any rate, of parole, during which, hopefully, you will be able to take advantage of some of the programs that Mr Daffern has suggested would benefit you in your rehabilitation, make it possible to access some of those programs whilst you are doing your period of custody.   But to the extent that it is not, hopefully that might be possible under the supervision of the Parole Board.

18You have been in custody for some considerable period of time.  It seems that you have made efforts to use your time whilst in custody to facilitate your rehabilitation.  It is to be hoped that that will continue.

19Your background has been a difficult one, I am certain, for you.   Your personal history is set out in some detail in Mr Daffern's report, as well as in the submissions that were tendered before me.  I do not think I need go in to it in any great detail.  You obviously had some difficulties at school with attention deficit hyperactivity disorder and difficulties with your peers at school.   It seems that you got in to substance abuse at a fairly early age and have maintained a habit of using cannabis as well as having experimented with a number of other drugs, including heroin and methamphetamines.   But it seems cannabis has been your drug of choice as well as alcohol.  All of that, no doubt, has affected your passage through your education and indeed your very patchy work record thereafter.

20It seems to me that you will need a fair bit of help to sort yourself out and I do urge you to take advantage of all of the opportunities that are offered to you in the future.   Because unless you get that help I think it is likely that one way or another you will be appearing before courts on a fairly regular basis in the future.  Obviously you are the subject of a Supervision Order.  There are facilities there to assist you and support you and you are hopefully going to be assisted by supervision from the Adult Parole Board in due course.  All of which leads me to hope that the prospects of rehabilitation which are, as the prosecution put it, somewhat forlorn, looking at the Forensicare report, may be higher than that assessment.

21Doing the best I can to take in to account the various considerations that are urged upon me, it is not suggested that the Verdins principles apply, but it is urged upon me that you will be probably in a protective environment within the prison system for the period of your sentence.   That that will impact upon your capacity to cope with doing the time and will weigh more heavily upon you than if you were not in that environment.   I take that in to account.  I am of course required to take in to account the totality principle to ensure that I do not impose a crushing sentence upon you and that in total the sentence is a just one having regard to all the circumstances.

22I am now ready to impose sentence upon you, so would you please stand?  For the offence of possession of child pornography I convict you and sentence you to imprisonment for a period of two years.

23For the offence of failing to comply with the reporting obligations under the Sex Offenders Registration Act I sentence you to imprisonment for a period of 12 months.

24I order that six months of the term of imprisonment on Charge 2 be served cumulatively upon the sentence of imprisonment on Charge 1, making a total effective sentence of 30 months' imprisonment.  I order that you serve a period of 18 months before you become eligible for parole.  But for your plea of guilty I would have sentenced you to imprisonment for a period of 40 months, with a non parole period of two years and three months.

25All right?  I have been asked to make a disposal order and I think there was no opposition to that order, Mr Lewin, on the last occasion, I take it that is your instructions?

26MR LEWIN:  Correct Your Honour.

27HIS HONOUR:  I make the disposal order in the terms of the draft.  All right, thank you.

28MR HUGHAN:  Sorry Your Honour, I think there were just ‑ ‑ ‑

29HIS HONOUR:  I think I have to declare, do I not, that I sentence him on Charge 1 as a serious sex offender.

30MR HUGHAN:  Yes, that is right Your Honour, then I think the only other thing was that the agreed pre-sentence detention should be in the record there of course as well.

31HIS HONOUR:  I do apologise for that, yes.  I declare that 279 days of pre-sentence detention is to be reckoned as time served on the sentence that I have imposed upon you and that will be deducted administratively from the time that you will actually have to serve.  I order that that fact be noted in the records of the court.

32MR HUGHAN:  As Your Honour pleases.

33MR LEWIN:  If Your Honour pleases.

34HIS HONOUR:  Thank you, yes.

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