Director of Public Prosecutions v Buchmasser
[2021] VCC 658
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-00782
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON BUCHMASSER |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2021 | |
DATE OF SENTENCE: | 19 May 2021 | |
CASE MAY BE CITED AS: | DPP v Buchmasser | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 658 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms R. Champion | Office of Public Prosecutions |
| For the Accused | Ms M. O'Brien | Stary Norton Halphen |
HIS HONOUR:
1Simon Buchmasser, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 years and one charge of distributing child abuse material. Both crimes carry maximum penalties of 15 years and 10 years respectively.
2You are now 22 years of age and were 21 at the time of offending. In those circumstances, I still regard you as a young offender and certainly not beyond redemption. Your plea of guilty was given to a settled indictment and, accordingly, I regard your plea as having displayed appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty. No cross-examinations took place in circumstances which would have been utterly humiliating for the complainant or victim, had it gone that far.
3You do have a number of prior convictions. You have street-type offences for drunk and disorderly and drugs. You have no priors of a sexual nature but you do have a concerning prior conviction for blackmail wherein you utilised the internet to set up a person you purporting to be an underaged child and then blackmailed that person.
4Because of the sentences I am to impose, the sentence on Charge 3, you will be sentenced as a serious sex offender. I am aware that that must be cumulative unless otherwise ordered and I will be so ordering because of reasons of totality. I am aware that the community protection is the principle sentencing purpose and it is a situation where the Crown do not seek a disproportionate sentence.
5Because of the offending, you will be placed on the sex offender's register and I advise you that the reporting conditions on that register will be for life. This is a situation where the charge of sexual penetration of a child under the age of 16 carries a standard sentence which is six years and I am well aware of the principles enunciated affectively by the Court of Appeal in the case of Browne, they being that when such a situation exists and here, as I think I just indicated, it is six years.
6The requirement of taking the standard sentence into account, is that
(1), it is to be treated as a legislative guidepost, having the same function as the maximum penalty;
(2), it does not affect the established instinctive synthesis approach to sentencing
(3), it does not require a two-stage sentencing; and
(4), it does not otherwise effect the matters which the court or may or must take into account in sentencing.
7It then goes on to say,
'Judges sentencing for a standard sentence offence should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability.'
8And I will so do.
9A summary of the offending is contained in the Crown opening which has been exhibited. The complainant Grace Martin[1] was born in June 2004. You were born on 16 January 1999 and the alleged offending commenced 11 days before your 21st birthday. You first contacted the complainant about a month before the offending, occurring via social media platform Snapchat. You were not previously known to each other and had never met in person. She told you that she was 15 and that has not been disputed. She, at that period of time, was living in residential units under the care of DHHS.
[1] A pseudonym
10On Sunday 5 January 2020 at approximately 4.30 pm, you and her met at the Turn-In Hotel in Warrnambool. The purpose of the meeting was to have sex. You chose the motel and made a reservation for one night which you paid for. She met you outside the motel. You checked in together and were given access to a room. You had brought alcohol with you. I note here that the agreement prior to was to have sex and that she in fact had asked you to bring the alcohol with you. The booking of the hotel room obviously shows some form of premeditation, I do not think that is disputed. It was indicated during the course of the plea. It is a fairly rare occurrence as this sort of offending does not happen in the park or the local football ground or something along those lines.
11In any event, when you arrived in the room, she sat down on a chair, you gave her a Vodka Cruiser bottle and you went outside to have a cigarette. She apparently consumed something in the order of 10 Vodka Cruisers and two apple ciders supplied by you over the course of the evening. She drank five or six of those Vodka Cruiser bottles within half an hour of arriving at the motel room. You had asked her if that was enough, she said no, so you went and got more. When you returned to the motel room, the two of you removed your clothes and started kissing on the bed and then engaged in various sex acts over a number of hours, namely, oral sex performed by her on you which you filmed on your mobile phone and for which she had given you permission to film. That gives rise to Charge 1 of sexual penetration of a child under the age of 16. And secondly, penetration of the complainant's vagina by you with a Vodka Cruiser bottle, also filmed by you. In these circumstances, it appears that she did not consent to the filming of that act. That gives rise to Charge 2 of sexual penetration.
12The two of you stayed the night at the motel. She checked out alone at approximately 7 am the following day.
13Between 25 and 29 December, seven days before the offending, her 13-year-old sister received numerous text message from a mobile phone number which belonged to you. You made requests of her for tit, bootie and pussy pics. She understood this to mean photographs of her breasts, bottom and vagina and she refused. On 9 January 2020, four days after the alleged offending, you sent the complainant's sister, whom you believed to be 14 years old, another unknown Snapchat account, a video of the sex acts engaged in-between yourself and the complainant in the motel room, they being affectively the oral sex performed on you and the insertion of the bottle in her vagina.
14What then occurred is of, in my view, real concern. You sent that video to the sister of the complainant. It is hard to know why and it is some sort of act in regard to her having refused to send you pictures previously. It would be speculation on my part but it is very, very ordinary behaviour what followed. That video that she saw and was deeply upset by, contained an image of you urinating in a stainless-steel toilet, an image of your penis, a video of the complainant performing oral sex on you during which you pushed her hair away from her face to reveal her identity, and a video depicting you slapping the complainant's vagina with your hand and then shows her vagina and you holding a glass bottle. You then insert and remove the glass bottle into the complainant's vagina several times. There is another video of the complainant performing oral sex on you and annotated with the words, 'Choke on it you fat slut.' The complainant's sister was obviously distressed by this and went to their mother.
15On 10 January, the victim's mother reported the incident to police and provided copies of the video recording along with the text messages between the victim's sister and you to investigators. On 10 January, the complainant made a VARE. She confirmed that she had been corresponding with you for about a year, confirmed that she told you she was 15, had never lied about it, that she had agreed to meet at the motel and the purpose was to have sex and that she asked you to buy alcohol and she then said she could not recall after that. It is a settled indictment, I understand that, and on the face of it, it at least indicates appropriate remorse and I do not need to go into all that again. She was then shown the videos, as I understand it, and became distressed by that. You were interviewed by police and made a no comment record of interview.
16That is the offending and the actual sexual penetrations certainly were, to an extent, premeditated. You were some five years older than the complainant. I accept on the material before me that you probably do have a lower mental age than your chronological age would suggest but not that much of a difference. The Crown argued that the alcohol and the premeditation aggravated the situation, as it is simply noted here, and again, it is no criticism of the victim in this matter, that she had agreed to have the sex beforehand, she is the one who had asked for the alcohol, so it was not a question of her consenting because of alcoholic consumption and, in some respect, she was a willing partner. It is an extremely unfortunate thing to have to say about a young girl who was living in the residential units, but unfortunately is common.
17On the other hand, taking advantage of girls in that situation is a despicable, in my view, act and I think that the sending of the video with the comment attached to it indicates that your view of women at that point in time. You did, as I understand it, say to one of the psychologists that you regarded, at that point in time, women as basically objects of conquest and that is clearly borne out.
18Certainly, there were no threats involved, there was no coercion and those are matters which do go in your favour. In terms of the objective seriousness of it, I do regard it as being at the lower end of this type of offending because of the lack of threats and whilst consent clearly cannot be given by a child of that age, certainly the cooperation, if I can put it that way, of the victim, whereby you, in that situation, did not have to use force or threats or anything along those lines. So that is those circumstances.
19The Victim Impact Statement tendered eloquently describes the devastation that this has caused to the young victim. It is pretty clear, reading that Victim Impact Statement, that the actual incidence of having the sex was not of all that great concern to her but what did cause serious problems for her, both in her own mental health and also in terms of her environs was the fact that you then sent that video to others. She has no idea, obviously, how many people it was sent to, but it was clearly sent to her sister and has caused real disruptions within her household. I am fully aware that she is already in the care of DHHS so I am certainly not going to buy into the level of all that and there is aspects of her Victim Impact Statement which, again, I will not go into, they are clearly self-evident for anybody who reads it as to what the consequences for her, of all this, have been. Clearly, the sending of the video by you to the sister, you must have been aware of the distress it would cause, not only the sister, but also the victim, if it became public.
20This is a situation which calls for the imposition of a sentence of imprisonment and your counsel did not demur from that position. What has been put to me is that a combination sentence is within range here and I have had you assessed for a Community Corrections Order. They found you to be suitable for such an order, albeit, a relatively high risk of general reoffending. I have then taken into account matters personal to yourself. Your counsel provided very helpful and succinct submissions. There were two reports from psychologists, there is a letter from your mother and there is a letter from your sister. You had a very difficult childhood and that is clear from the materials. You were brought up in Wagga Wagga. Your father was violent and an alcoholic. Your mother's battled mental health difficulties, including PTSD from a later partner's death in a motorcycle accident.
21There is significant familial discord and, as I have indicated, emotional and domestic violent from your father towards your mother. Indeed, your father was imprisoned for a period of time for such violence against your mother. That was when you were about eight or nine years of age. Your father apparently ceased drinking in 2019 and you do seem to have a satisfactory relationship with him. Your mother lives near Geelong and works at Geelong Hospital as a housekeeper. Clearly, that sort of background has a damaging effect on a young person.
22You went to three or four different primary schools which, again, is a bit of a red flag in terms of what is going to happen later on in life. You had formal high school studies which ended in around term 3 in year eight and you later enrolled in a VCAL course in auto mechanics which you completed at the age of 15 years. Upon leaving school, your work history is sporadic. You had work in KFC, building horse floats, a bakery apprenticeship, sorting rubbish. You had lengthy periods of unemployment. You have a long history of cannabis use going back to when you were about 12. You have recent ongoing history of alcohol abuse. Whilst alcohol played a part in all this, it is hard to say that the alcohol is the cause of such a calculated action in terms of having sex with a girl that you knew to be underage, and indeed, in one sense procured for that purpose.
23You have been diagnosed by Dr Patel as having a moderate personality disorder and Dr Jeffrey Cummins as having the symptoms at least of a schizoid personality disorder. Neither of those goes, in my view, to enliven the principles of Verdins in any real sense, but it does indicate that your real mental age is lower and may give some indication as to why you are attracted to younger girls is borne out by your approaches to the sister.
24You have now been in custody, as I understand, for 192 days. You have been in protection and I take that into account.
25Your prospects of rehabilitation are debatable. You are still young and, as I have already indicated, far from unredeemable. It is a situation where, I think, once you get some sort of sensible education as to the effects of such offending on young women that it may see a vast improvement. If that is achieved, then your risk of offending sexually will be significantly reduced.
26You stated to Mr Jeffrey Cummins that you were making poor choices at that time in your life because of the stress you were under with housing issues and increased libido as a result of testosterone abuse. I understand from the material and your own assertion, that when you reached puberty, you went through what is known as precocious puberty and you were then bigger and older than other children, became involved in fights in school and the like and, indeed, were certainly suspended from one school. As a consequence of that, you were slight and looked younger than your years and I take all those matters into account in a general way.
27I do not really have to go into the reports that were given in any greater detail, I do not think. They simply bear out what I have already said. What does concern me is that, whilst they indicate that you have been, for example, homeless between March and May 2018, that you have been living in a car by yourself, that you were transient and that your life choices and what was happening in your life were very unfortunate. You are in a situation now where you can reside with your mother, as I understand it, and she now has suitable accommodation. There is a number of other factors surrounding all this.
28You have now, as I say, been in gaol for a significant period of time. You have completed an Occupational Health and Safety course and Food Handling course in gaol. You have not used in gaol, you obviously have not drunk alcohol in gaol and that all hopefully does good. There is a reference here to you having been sexually abused when you were about 14 and having sex with a girl who was about 19 and that went on daily for about a month. I am not to know as to what effect that may have had upon you and it is hard to take it into account in any meaningful way.
29This is, as the Crown correctly point out, was not a spur of the moment thing and those sorts of backgrounds, whilst they may cause you to have an ill directed moral compass, they do not excuse such offending. Over the years you have abused prescription drugs and, in so far as the current situation is concerned, it was suggested by Mr Cummins that you had some insight into what you have done and, as I recall the material from Dr Patel, you had a fairly superficial understanding of the damage that such offending can cause to young victims. You did, as I think Mr Cummins reports,
'He has spoken in a manner indicating a very unsophisticated and superficial understanding of the extent to which the victim could've been traumatised by the offending.'
30The risk is are well above average for generalised reoffending and moderate to high for sexual.
31Unfortunately, as I was about to say, the reports do not really deal with the sending of the video after the event. As indicated to your counsel and I think she actually agreed, in my view, even though it carries a lesser penalty, that is the most serious of these offences. The other two were clearly matters where the victim was prepared to engage for perhaps very sad reasons of her own and was supplied with alcohol. The sending of the videos was gratuitous and, as I said, a very ordinary and very ugly act indeed.
32You are still only young and I am reluctant to impose a significant gaol sentence on one so young but it seems to me, in this situation, that it is inevitable. What I do take the view of is though, because you have done 192 days, a combination order, as it is known - I am not going to go through all the details of Bolton and cases like that - would be appropriate. You have described yourself as a loner and certainly Mr Cummins' belief is that you require mental health treatment with a very specific focus on helping you define your own identity, including your own sexual identity.
33What I am going to do is sentence you to a significant period of imprisonment. That will be followed, if you agree, by a Community Corrections Order. That Corrections Order will be with conviction and will be for a period of two years. The report that had been sent by Corrections says that you are suitable and indicates that the appropriate conditions would be treatment, rehabilitation for drugs, treatment and rehabilitation for alcohol, treatment and rehabilitation programs to reduce reoffending which, it would be my intention, would include the Sex Offender's Program which you will probably not have time to complete in gaol, and also supervision.
34As I have already indicated, you are now on the sex offender's register and whilst that is not a sentencing factor, it is hopefully a protection to the community in terms of any future reoffending and the like. The prospects of your rehabilitation I think are probably, the Crown has said guarded, I think it would probably be better than that. The risk of you reoffending in this particular way, leaving aside alcohol and drugs, is dependent upon you gaining some insight at least into the devastation that such, one sense, predatory behaviour in regard to young girls, can cause.
35In any event, taking into account the principles of totality, your youth, the fact that any sentence you undergo will be in protection, your sentence to be as follows:
· on Charge 1, 12 months,
· on Charge 2, 12 months, and
· on Charge 3, 12 months.
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I order that six months of the sentence imposed on Charge 1 is served cumulatively on the sentence imposed on Charge 3. That gives a total affective sentence of
18 months. If you agree, you will be placed on a two years' Community Corrections Order with conviction with the terms that I have already indicated.
37In so far as that sentence is concerned, I direct that 192 days be recognised as having been served under this sentence and I have taken into account 24 days Renzella time which was undergone for a Magistrates' Court sentence. Assuming you agree to the Community Corrections Order, pursuant to s.6AAA of the Sentencing Act, I say that, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of four-and-a-half year with a minimum term of two-and-a-half.
38I can still, as I understand the COVID legislation, take the consent orally.
HIS HONOUR: Ladies, I'm sure that's right.
MS O'BRIEN: I don't know the answer to that.
HIS HONOUR: So do you agree to go on that Community Corrections Order,
Mr Buchmasser?
MS O'BRIEN: He's on mute.
HIS HONOUR: Do you want to get him unmuted?
ASSOCIATE: I've unmuted him, Your Honour.
HIS HONOUR: No, it's not working. If you agree, can you nod your head please? Yes, he agrees, he's nodded his head.
MS O'BRIEN: Thumbs up, Your Honour.
HIS HONOUR: Sorry?
MS O'BRIEN: You just got a thumbs up.
HIS HONOUR: Thumbs up, well that's it. Yes, all right, well I'll sign that. What I'll do is, I'll just explain to you. When you're sentenced, Corrections will be in touch with you before you're released. When you're ultimately released, you have to report to the Corrections people and undergo that Corrections Order. What you've got to understand is, if you don't comply with it afterwards and obey the terms of it, you get brought back before me for resentencing and, as I've indicated, it's very ordinary offending and if you offend against a young girl in this way again and get brought back before me, you'll receive a very significant sentence indeed. I don't think there's anything else I need to say, is there?
MS CHAMPION: No.
MS O'BRIEN: No, Your Honour.
HIS HONOUR: All right. All right, what I'll do is, because I can't get in the sex offender's registered material, it'll be sent to the gaol. The reality of it is, they give him one anyway and it's up to the Chief Commissioner, not me.
MS O'BRIEN: Yes.
HIS HONOUR: But just so that's formally said, and I will try and do it, but other than that, I don't think there's any other orders I have to make, are there?
MS CHAMPION: No.
MS O'BRIEN: No, Your Honour.
HIS HONOUR: All right. Do you want to talk to him?
MS O'BRIEN: Yes, that would be great if I could.
HIS HONOUR: All right. Yes, thank you, Ms O'Brien, thank you, Ms Champion.
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