Director of Public Prosecutions v Cabo
[2016] VCC 579
•9 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01591
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOBUS CABO |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 May 2016 | |
CASE MAY BE CITED AS: | DPP v Cabo | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 579 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991; Crimes Act 1914 (Cth);
Cases Cited:R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183; Cameron v The Queen (2002) 209 CLR 339; CDPP v Okoko [2016] VCC 172; Phillips v The Queen [2012] VSCA 140
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Verdon | |
| For the Accused | Ms D. Lamovie |
HER HONOUR:
1 Jacobus Cabo, you have pleaded guilty to one charge of transmitting child pornography material (Charge 1) and one charge of possessing child pornography (Charge 2). The maximum penalty for Charge 1, which is a federal offence, is 15 years’ imprisonment. The maximum penalty for Charge 2, which is a state offence, is 5 years’ imprisonment.
2 The circumstances of your offending are set out in the Prosecution Opening which was tendered as Exhibit A. In brief, the circumstances of your offending are as follows.
3 Charge 1 concerns the use by you of a carriage service to transmit child pornography. On 28 April 2015 a New Zealand police undercover operative was logged onto an invite-only social networking site for those interested in the exploitation of children. You informed the operative that you were a user of the Yahoo! Instant Messenger Platform and offered to chat further with the operative on Yahoo. You had a conversation with the operative on Yahoo, and during the conversation transmitted 28 image files and 12 movie files which contained child pornography material. You also transmitted a further movie file from a particular email address.
4 On 29 April 2015 you initiated another conversation with the operative, and during that conversation transmitted four image files and four movie files which contained child pornography. In the conversation, you engaged in a chat log conversation in which you described having two daughters aged 11 and 16 and their engagement in sexual activity. You described details of what sort of things they had engaged in, including with you, and what sort of things they might do with the operative. This material is clearly offensive and constitutes further child pornography material. In fact, you did not have any daughters.
5 The image and movie files sent by you to the operative were analysed in accordance with the Child Exploitation Tracking System (CETS) scale. There were 32 images in total and 17 videos. Sixteen of the images and one of the videos showed sexual pictures of children but with no sexual activity. Of the remainder, four images and seven videos were in Category 2, seven images were in Category 3, four images and eight videos were in Category 4, and one image and one video were in Category 5. Categories 1 to 5 increase in seriousness, with Category 5 being considerably more serious than Category 1.
6 Charge 2 concerns child pornography found on a Google tablet and a Samsung Galaxy tablet found at your house when police executed a search warrant on 3 June 2015. You provided passwords for your computer devices and accounts. Forensic analysis showed that there were a total of 190 child pornography files which were classified in accordance with the CETS scale. There were 56 images in Category 1, 21 images and six videos in Category 2, 31 images in Category 3, 53 images and 18 videos in Category 4, and one image and two videos in Category 5. There were also two videos in Category 6, which covers material which involves anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
7 There is no overlap in the material covered by each charge.
8 You were arrested on 3 June 2015, but were unwell. On 4 June 2015 you attended at a police station and were interviewed. You made frank admissions. You said you were addicted to smoking ice pipes and that that was a catalyst for your behaviour. You said that the conversations you engaged in were a sexual fantasy. When you were asked whether you wanted to meet any of the people you chatted with online, you said that that was part of the fantasy too. You said that exchanging child pornography made you feel sick and that you did not get aroused transmitting the images and engaging in the conversations.
9 The nature of the material located on your devices is described in the Prosecution Opening. The descriptions are consistent with the selection of material that I viewed. I do not propose to go into detail about what the material showed but the material includes pictures and videos of numbers of children engaged in sexual activity, including with adult males. The Category 5 material is especially offensive.
10 In sentencing you I have taken into account your personal circumstances. Your circumstances were set out by your counsel, and are also described in the psychiatric report of Associate Professor Andrew Carroll dated 14 March 2016 which was tendered as Exhibit 2.
11 You are now 56 years old. You were born in the Melbourne area and your family moved to country Victoria when you were eight. Between the ages of five and seven you were sexually abused by your father. Your mother found out and threw your father out and you have never seen him again. At the age of ten you were sexually abused by a nun at the school you attended. You did not disclose this at that time. At the age of ten you and your brother were grabbed by a stranger. The stranger sexually abused your brother and you witnessed this attack. At the age of 11 you were sexually abused again by a family friend. In your early teens your stepfather, who had been violent towards you, your brother, and your mother, was shot at in the home by an acquaintance. Your family had to leave where they were living and moved around because of fears for their safety.
12 You managed to stay at school and left school in Year 10. You left home and school at the age of 16 and have always been in work until 2013. You have various trade qualifications and have worked in various areas of employment, including as a machine operator, track layer, and diesel fitter. Your main job was as a truck driver, which you did for over 30 years until 2013. You experienced some trauma as a truck driver, being inadvertently involved in three suicide deaths.
13 You met your first wife at the age of 17 and with her you had four children. She died in 1988 and you looked after your young children. You lived in Queensland from 1991 to 2005. You had two further brief marriages, and you have been in a de facto relationship with your current partner since 2005. You stopped working as an interstate truck driver in 2013 because your partner was diagnosed with brain tumours that became recurrent. You have been her carer, although at the time of the plea hearing you were not living with her due to issues in respect of her son. An amount of medical material was provided in Exhibit 3 in respect of your partner’s medical difficulties. She was also in court to support you. She suffers from epileptic seizures and has various health problems. At present your brother is assisting in her care.
14 After your arrest you were admitted to hospital as an involuntary patient and you attempted suicide in December 2015.
15 You have admitted a prior criminal history which includes court appearances for theft and assault. Of significant relevance is a court appearance in 2012. You were convicted on a child pornography offence and were sentenced to three months’ imprisonment to be followed by a community correction order for a period of 18 months. You told Associate Professor Carroll that you were using speed at that time but not ice. To him you denied being sexually aroused by the child pornography material. The community correction order concluded in September 2014.
16
Associate Professor Carroll diagnoses you as having a dysthymic disorder which appears to have been present from childhood onwards. He says that this is not as severe as a major depressive disorder. Associate Professor Carroll says your dysthymic disorder was relevant at the time of your offending, in that it would have predisposed you both to the use of methamphetamine and also being drawn into the social contact that you felt online.
Associate Professor Carroll says that you adamantly deny any sexual arousal to child sexual material but that he cannot exclude the possibility of an underlying paedophilic disorder. Associate Professor Carroll says your condition would not have affected your ability to understand the wrongfulness of your actions or to make appropriate judgments. He says your methamphetamine intoxication would have caused disinhibition and poor judgment, but would not have rendered you unable to understand the wrongfulness of your actions.
17 Associate Professor Carroll says that you have not had any sustained psychological treatment regarding your past trauma and dysthymic disorder. He says that the effectiveness of the sex offender program you did previously appears to have been limited. Associate Professor Carroll says that you require treatment with a psychologist and that you need to be reassessed by the Corrections Victoria sex offender program. He is of the opinion that your dysthymic disorder will not make prison more onerous for you than would otherwise be the case, but it does place you at high risk of major depressive disorder.
18 Associate Professor Carroll describes your anxiety about leaving your partner without your ability to care for her. He is of the opinion that this would cause a high degree of anxiety and anguish and may precipitate a major depressive episode or place you at high risk of suicide. He says that you will suffer disproportionately if given a custodial sentence, due to not being able to access trauma-focused ongoing psychological treatment. Associate Professor Carroll says that you do not appear to be at high risk of relapse into substance misuse, which both recent episodes of sexual offending have been related to. He says you have expressed considerable remorse and regret, and are fearful of the impact of your offending on your partner.
19 In sentencing submissions, your counsel particularly relied on:
(a) your plea of guilty;
(b) your remorse;
(c) your cooperation with the police, including admissions;
(d) your mental health;
(e) your physical health;
(f)the hardship that would be caused to your partner by your imprisonment;
(g)your prospects of rehabilitation.
20 Your counsel conceded that your offending would attract the operation of sentencing purposes including general and specific deterrence, community protection and denunciation. She submitted that whilst past rehabilitation had not succeeded, that your reoffending took place in the context of drug use relapse and external stressors. She submitted that you were prepared to engage in programs to address your drug use and your offending, and that your prospects of rehabilitation were such that an appropriate sentence would be a sentence of imprisonment to be followed by release on a recognisance release order.
21 In prosecution sentencing submissions, the prosecutor addressed the factors set out in s.16A(2) of the Crimes Act 1914 (Cth) which are applicable to the sentence on Charge 1. The prosecutor addressed the general sentencing principles in relation to child pornography offences set out in the decisions in the cases of R v Porte [2015] NSWCCA 174 and R v De Leeuw [2015] NSWCCA 183. The prosecutor submitted that the subject matter transmitted by you displayed a significant degree of depravity, although was at the lower end in terms of quantity. In respect of the material possessed by you, the prosecutor submitted that a significant number of children were involved who had been exploited in order to obtain the images.
22 The prosecutor submitted that you were entitled to a sentencing discount on the basis that you had entered a plea of guilty at the earliest opportunity demonstrating remorse, acceptance of responsibility and a willingness to facilitate the course of justice. The prosecutor submitted that in respect to the sentence on Charge 1, I must not have regard to the objective utilitarian benefits of your guilty plea, relying on Cameron v The Queen (2002) 209 CLR 339. There was discussion during the plea hearing concerned the Ruling of the Chief Judge of this Court in CDPP v Okoko [2016] VCC 172. I agree with the reasoning of the Chief Judge in that matter and am of the view that the common law allows for the utilitarian benefit of a plea of guilty to be included amongst the matters for which a discount is given, and that I am bound by the Victorian Court of Appeal’s interpretation of the common law as set out in Phillips v The Queen [2012] VSCA 140. In this case, given there is no issue that utilitarian benefit would be taken into account in respect of Charge 2, I consider that whether or not sentencing for federal offences can include recognition that a plea of guilty has a utilitarian benefit, is academic in terms of the discount that you will be given for your plea of guilty.
23 Jacobus Cabo, the courts have frequently denounced and expressed horror at the type of offending that you have engaged in. The number of people engaged in this type of offending, as reflected in the number who appear in these courts, is disturbing. You were prepared to go beyond viewing and possessing child pornography material to distributing it and in a sense creating it in terms of the fantasy conversation about your imagined daughters. Much of the material that you transmitted and the material you possessed relies on the abuse and exploitation of children. The images and movies that you transmitted and that you possessed cover a range of material, including images of children of a young age. The fantasy conversation in which you engaged with the operative suggests that you have a depraved imagination and a capacity to imagine vile sexual abuse of children. Particularly given the contents of that conversation, it appears to me it is an inescapable conclusion that you are in some way sexual aroused by this type of material or thinking.
24 It is extremely disturbing and increases the seriousness of this offending that you commenced offending again so shortly after engaging in treatment in respect of child pornography. Despite having previously offended in the context of drug use, albeit it a different drug, you relapsed into more serious drug use and further offending. I accept that the offending occurred in the context of your dysthymic disorder, personal stressors and drug use, but I do not consider that those matters reduce your moral culpability to any degree. Your offending must be strongly denounced and justly punished. A sentence of imprisonment must be imposed with the hope that others will be deterred, and that you will be deterred from similar offending. I also consider community protection must be given weight in sentencing you given your previous offending.
25 I have taken a number of matters into account in mitigation of sentence. You are entitled to a significant discount for your plea of guilty, which I accept demonstrates remorse, acceptance of responsibility, a willingness to facilitate the course of justice and the saving of the expense of what would have been a relatively short trial.
26 I accept that you are remorseful about your offending. You made immediate admissions to the police and clearly understood that your behaviour was unacceptable. You are also remorseful, of course, about the consequences to yourself and your partner.
27 I do not consider that the hardship to your partner if you are incarcerated amounts to exceptional circumstances. I accept on the basis of the medical material provided and the letter from your partner, that she has considerable medical difficulties of a serious nature. It is clear that she requires a degree of care that, at present, between you and your brother, can be provided. It appears that your partner is a quite capable adult in other respects and that there are others who may be able to provide care for her. I do not consider, as I have said, that the hardship to her constitutes exceptional circumstances, but I do accept that your concern about her will make imprisonment more burdensome for you.
28 I do not consider that your dysthymic disorder in any way affected your ability to understand the wrongfulness of your actions or make appropriate judgements. I accept that your disorder may make imprisonment more difficult for you and that it places you at higher risk of your mental condition worsening. I do not accept that any physical disorders you suffer from will make imprisonment more difficult for you to the extent that any mitigation of sentence is warranted on that ground.
29 Any assessment of your prospects for rehabilitation must be adversely affected by your reoffending so shortly after completing a sex offender program. I consider that the prospects of you becoming rehabilitated are moderate. It is only because you have been able to cease drug use and expressed a willingness to engage in treatment that suggests that the assessment is even moderate. You clearly need to engage in more counselling in respect of drug use and involvement in child pornography. It appears from Dr Barthe’s report, desirable that you engage in this on a one-to-one rather than group basis.
30 I have taken into account that there is a limited amount of material and the offending involving transmission took place over a two-day period. I have also taken into account that you were not attempting to use the material for further sale or profit.
31 Both these offences are Class 2 offences under the Sex Offenders Registration Act 2004 (Vic), and, as you have previously been convicted in relation to a single Class 2 offence, you will now be required to report for life pursuant to the Sex Offenders Registration Act 2004.
32 On conviction and sentence to a term of imprisonment in respect of Charge 2, you will be sentenced in respect of that offence as a serious sexual offender. Part (2A) of the Sentencing Act 1991 applies to the sentence in respect of that charge. The prosecution does not seek a disproportionate sentence for the purpose of community protection. I have considered the application of s.6D and s.6E of that Act. In respect to community protection I do not consider that a disproportionate sentence is required.
33 I consider that total cumulation would be contrary to the application of the principle of totality, but I consider that some cumulation between sentences is warranted given the different vices involved in the subject matter of each of the charges. I have chosen the unusual course of making the sentence on Charge 2 the base sentence despite it being a somewhat shorter sentence, in order to achieve some cumulation of sentence and an appropriate period of recognisance release order to enable you to undergo further counselling by way of an individualised sex offender program. The amount of the recognisance will be $1,500. Mr Cabo, could you stand up, please?
34 I expect that your counsel has explained to you the consequences of a recognisance release order, and the consequences if you breach such an order. If you do breach the order by further offending or not complying with the conditions, you can be brought back before me for resentencing. I can resentence you to what I consider to be an appropriate sentence, but in this case, if your reoffending involved any form of child pornography, then I would have no hesitation in imprisoning you further if you breach the recognisance release order. The recognisance release order would go for a period of 18 months, so that means that you must comply with the conditions, which would be that you be of good behaviour, and that you engage in the sex offender treatment program that Victoria Corrections says that you must. I am also required to advise you that you, or an authorised person, can make application to vary or discharge the recognisance release order. Are you prepared to consent to such an order?
OFFENDER: I am, Your Honour.
HER HONOUR: Thank you.
35 Jacobus Cabo, on Charge 1 of transmitting child pornography, you are convicted and sentenced to 15 months’ imprisonment. On Charge 2, possession of child pornography, you are convicted and sentenced to nine months’ imprisonment.
36 The sentence on Charge 2 commences today. The sentence on Charge 1 commences on 9 October 2016. After serving five months of that sentence, you are to be released on a recognisance release order for a period of 18 months on condition that you engage in a Sex Offender Treatment Program.
37 My intention is that five months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1 so that you will serve 10 months’ imprisonment before being released on a recognisance release order of 18 months with $1,500 recognisance and conditions that you be of good behaviour and complete a sex offender treatment program.
38 In respect of Charge 2, you are sentenced as a serious sexual offender.
39 But for your plea of guilty I would have sentenced you to a term of imprisonment of two years, with a non-parole period of eighteen months.
40 The total effective sentence, if you had been required to serve it, would be 20 months' imprisonment.
41 I declare that you have served 33 days of this sentence by way of presentence detention, which will be deducted administratively.
- - -
0
5
0