Director of Public Prosecutions v Carnie

[2023] VCC 996

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-02159

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID CARNIE

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	07 June 2023
DATE OF SENTENCE:	09 June 2023
CASE MAY BE CITED AS:	DPP v Carnie
MEDIUM NEUTRAL CITATION:	[2023] VCC 996

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW – Sentence

Catchwords:  Sexual assault of a child aged 16 to 17 years under your care, supervision and authority – encourage a child under 16 or 17 to engage in sexual activity – sexual penetration with child aged 16 or 17 years – involved child in child abuse material – serious sexual offender –  breach of trust

Legislation Cited:  Sentencing Act 1991, s5(2F); s5AA; s6D; 6E; 6F

Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v McCoy (a pseudonym) [2019] VCC 680; DPP v Beavis (a pseudonym) [2023] VCC 399; DPP v Woods [2020] VCC 1133

Sentence:Total effective sentence of four years and eight months imprisonment with a non-parole period of three years imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Dane	The office of Public Prosecutions
For the Accused	Mr N. Papas KC	Tony Danos Lawyers

HIS HONOUR:

1David Carnie, on 7 June 2023, the County Court of Melbourne, you pleaded guilty to the following charges on Indictment No. N11542561.1.

·Charge 1, sexual assault of a child aged 16 to 17 years under your care, supervision and authority.  You were a teacher.  This is a course of conduct charge and the maximum penalty for that charge is five years imprisonment.

·Charge 2, encouraging a child under 16 or 17 years under your care, supervision and authority to engage in sexual activity.  This is also a course of conduct charge.  The maximum penalty for that offence is five years imprisonment.

·Charge 3, sexual penetration with a child aged 16 to 17 years under your care, supervision and authority.  This was penile vaginal penetration.  This is a course of conduct charge as well and the maximum penalty is 10 years imprisonment.

·Charge 4, sexual penetration with a child under 16 to 17 years under your care, supervision and authority.  This was oral penetration charge.  This is a course of conduct charge.  The maximum penalty is 10 years imprisonment.

·Charge 5, involving a child in the production of child abuse material.  This is a rolled-up charge meaning a number of events of that.  This charge has a maximum penalty of 10 years imprisonment.

2You have no prior convictions.  You have served 99 days pre-sentence detention not including today in respect of these charges. 

The circumstances of your offending

3The prosecutor tendered an Amended Summary of Prosecution Opening for Plea dated 6 June 2023.  It was Exhibit “A”.  The opening was read into the record of the court.

Background

4At the time of the offending, you were a teacher at a college in the eastern suburbs of Melbourne.  You were then aged 47 to 48 years of age.  You are now 51.  Your victim who I shall refer to as Tarj, attended that school between 2015 and 2020.  When Tarj was in Year 7 you were her home group teacher.  You taught Tarj at various times throughout her time at that school.  Tarj saw you as a fatherly figure, as you supported her through episodes of bullying that she reported to you, mental health issues that she had and her drive to excel academically.

5In the school community you were regarded as a favourite teacher amongst the students.  In 2019 you were the Year 11 coordinator and English teacher. 
You taught Tarj at that time.  You became aware that Tarj had experienced a trauma in her earlier year but you did not know the details of that trauma. 
You pressured Tarj to inform you about the nature of the trauma.  You then arranged to meet her on two occasions in the drama classroom for a cuddle.  Tarj believed these actions were part of your fatherly support for her.  You then commenced sending explicit and sexual messages to Tarj on Instagram and Snapchat.  The offending then commenced. 

Charge 1, sexual assault

6In the March holidays of 2019, you arranged to meet Tarj at the school in order to give her a book.  When at the school Tarj met you in a room designated by you.  You had set up some seats in the middle of the room and asked Tarj to lay down on them.  You then laid down on top of Tarj and started kissing her on the neck and grinding against her.  Tarj was scared and asked you to stop. 
You ceased your actions.

Charge 2, encouraging sexual activity

7After the grinding incident you regularly sent messages of a sexual nature to Tarj on Instagram.  You sent her a nude photograph and asked her to send a nude photograph of her.  You were seeking to convince Tarj to have sex with you and that it would feel good for her.   Finally, in or about June 2019, Tarj agreed to have sex with you.  You continued this type of communication with Tarj in the period from October 2019 through to February 2020. 

Charges 3 and 4, sexual penetration charges

8Charge 3 is a course of conduct charge where you have had penile vaginal sexual penetration with Tarj on 30 to 40 occasions over a period of approximately 18 months.  The sexual penetration took place on the back seat of your car in various locations; in car parks, at a churchyard, parklands and on one occasion at your own home in the garage.

9On three or four occasions you had penile vaginal sex in the drama room supply closet as it was referred to, at your school.  Tarj described your first sexual encounter as follows:

'He put the car seat back.  I was sitting in the front passenger seat and he climbed on top of me.  He started having sex with me.  He put his penis in my vagina and he did not use a condom.  I remember talking about this prior and saying I wanted to use a condom but he said, "Don't worry,
I've got it sorted".  I thought because he was an adult, I should trust him.  He pulled out of me and ejaculated on my stomach.  He dropped me off at the bus stop when we finished, and I caught the bus home.'

10You did not wear a condom on any of the occasions when you had sex with Tarj.  On approximately 10 occasions you engaged in oral sex with Tarj in the school drama room supply cupboard.  They are the allegations for the basis of Charge 4.

Charge 5, involving a child in the production of child abuse material

11On occasions you would film your activities of sexual penetration with Tarj and send the videos to her afterwards.  Some of these videos were retained by Tarj and they were a part of the evidence against you in this prosecution.  In total there were 10 images and six videos.

12At the end of 2020, Tarj ended 'the relationship' with you after you had told her you didn't have feelings for her and it was only ever physical for you.  Nevertheless, on occasions you continued to contact Tarj on Instagram seeking to meet up with her.  In mid-2022 Tarj blocked you from contacting her.

13Tarj told her friends of her experiences with you and they, the friends, encouraged her to report the offending to the police. On 30 June 2022 Tarj reported these matters to the police. 

14You were arrested on 19 July 2022.  Your electronic devices were seized and analysed.  There were only three photographs of Tarj taken of her when she was a 19-year-old which is after school.  You have not kept any of the child abuse material that was found on Tarj's devices.

15In your record of interview with the police you denied any offending against Tarj when she was at school.  You did know that Tarj was vulnerable when she was at school.  In your record of interview, you say as follows:

'Why did she turn around and say that I did this to her in high school,
I don't know.  I didn't do this to her in high school.  I cared and I helped her.  I don't want to use the word messed up, and it's slang and it insults people who have mental health issues to say you're messed up or damaged, but she needed a lot of support and medication to get through high school.'

16On 21 July 2022, two days later after your arrest, you rang the informant in this case and in effect confessed your offending and offering to hand your keys in to the school at that time.  Your 25-year career and life as a teacher was finished.

Victim impact statement

17In this case a victim impact statement was filed and served after the plea hearing was completed.  The statement was sworn by Tarj on 7 June 2023. 
I have marked it as Exhibit “C”.  I have read the victim impact statement carefully and considered the relevant parts for the purpose of this sentencing process.  The effect of your offending on Tarj has been significant in a very negative way and that will remain for the rest of her life.  Consistent with the exchange between myself and the prosecutor and your counsel, I will not detail the matters in full, which has been set out in the victim impact statement.

Personal circumstances

18At the time of your offending, you were 46 to 47 years of age.  You are now 51 years of age.  On 2 March 2023, you sought to revoke your bail which had been set by the police.  You have served 99 days pre-sentence detention not including today in respect of these offences.

19Your parents and older brother migrated to Australia in 1984.  Your family lived in the northern suburbs of Melbourne.  Your father obtained factory work.  Your mother worked in administrative roles.  You commenced school here in Year 7. 

20Your father struggled with the relocation in Australia and the fact that his employment here was of a lower status than his work in Sri Lanka where you come from.  Your father drank heavily. In 1990s your parents separated.  Your father moved to Queensland.  Your mother, your elder brother and yourself moved to the eastern suburbs of Melbourne and your father is now in an aged care facility in the eastern suburbs of Melbourne.  Your brother lives in New South Wales. 

21Your mother, father and cousin provided references in support of you which were Exhibit 3.  Your mother and cousin attended the plea hearing in support of you and I note they are here today.  It is clear that you have good family support even in the circumstances of your offending.  The family support will be important for your rehabilitation upon your release from custody. 

22You have been a keen and competent sportsman growing up and into your adulthood.  You have been a keen cricketer and had community involvement in your local cricket club.  A reference from a member of the cricket club speaks of your community involvement and leadership at that cricket club.  He speaks of your remorse for your offending which you had told him about. 

23Your initial education was to Year 12.  You then commenced a music program course with the ambition of becoming a rock star.  The reality of life meant you obtained work initially as an insurance clerk. You resigned from that employment to take up a course in physical education.  You then qualified in a teaching program in 1998. 

24Through your teaching job you met your future wife who is also a teacher in 1999.  You married at the end of 2000.  Your first teaching position was at the school where you offended.  You then taught in other eastern suburb schools between 2007 and 2012 when you moved back to the original school where this offending occurred to continue your teaching career.  Between 2020 and 2022 you worked in a country high school. 

25In June 2022 your teaching certificate was revoked due to the allegations which are the basis of these offences.  Between your arrest in March 2023, you did volunteer work and worked odd jobs.  You separated from your wife in or about June 2022.  You have three children.  One of your children has suffered a spinal tumour and has had surgery and follow up cancer treatment as a result.  Your daughter has changed her name as a result of your offending.

26You enjoy a good relationship with your two sons who have limited contact with you whilst in custody and in combination with the operation of an intervention order which was sought by police when you were charged with these offences.  You have been assessed by Ms Pamela Matthews, a forensic psychologist. 
Ms Matthews has prepared a report dated 2 March 2023.  It was Exhibit 2. 
Ms Matthews opinion was as follows:

'Mr Carnie does not present with a Personality or a Paraphilic Disorder or a Major Mood Disorder.  He does, however, present with a lack of insight regarding interpersonal boundaries and the boundaries between his emotional needs and the emotional needs of others.  Further, Mr Carnie becomes cognitively, emotionally and behaviourally chaotic under psychosocial stress, and this raises concern regarding his intermittent suicidal ideation associated with his current legal matters.  Mr Carnie is presenting with an Adjustment Disorder with mixed depressive and anxiety symptoms.'

27Dr Matthews went on to opine that you were a deceptive suicide risk. 
Her recommendation was that you should be monitored in Justice Mental Health Services whilst in prison.

28In summary, you are a middle-aged man with no prior convictions who has been on remand for 99 days awaiting the outcome of this proceeding.  You have good family support from your immediate family and a relationship with your two sons. 

Sentencing considerations

29The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. 

30I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and re-integrated into society.  I am also required to take into account current sentencing practices in fixing your sentence.  That inquiry is directed particularly but not exhaustively to the kinds of sentence imposed in comparable cases and the statistics for those sentences.

31I have considered the statistics in the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. 

32The learned prosecutor tendered a Summary of Prosecution Submissions on Sentence dated 6 June 2023.  That was Exhibit “B” on the plea.  I have taken into account the cases referred to of McCoy, Beavis and Woods in the assessment of current sentencing practices.  I also note the table of comparable cases attached to those submissions.

33Current sentencing practices of course are only one of the sentencing considerations and other sentencing principles apply in this case.  A just and appropriate sentence for the course of conduct of sexual offences such as this will be informed by the nature of the sexual acts, the surrounding circumstances of the offending itself, the emotional manipulation, the frequency and persistence of the act, the age and the other personal circumstances of the victim and the impact of the offending on the victim.

34The prosecutor submitted that s5AA of the Sentencing Act has application in this sentencing process.  The thrust of the submission was that due to your previous good character and reputation as a teacher in the school community it was of assistance to you in the commission of these offences.  The alternative position was that less weight should be given to your previous good character in assessing the breach of trust in the commission of these offences.

35The fact that an element of four of the charges is a requirement to prove that Tarj was in the care, supervision and authority of you is a breach of trust between the teacher and student. The additional weight sought to be placed on s5AA considerations does not of itself increase the assessment of the breach of trust by you. Your breach of trust is high. Your moral culpability for this offending is high.

36Charges 1, 2, 3 and 4 are charged as course of conduct charges. Section 5(2F) of the Sentencing Act provides that in sentencing an offender for a course of conduct charge the court must:

(a) impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and

(b)      not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.

37Similarly for Charge 5, which is a rolled-up charge, the court is required to reflect the totality of the offending taking into account the number of offending events.

38You have pleaded guilty to the five charges before the court.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending. 

39Your plea allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea obviates the necessity of your victim giving evidence in any court proceedings in this case.

40Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.

41Your plea of guilty and the admissions to police two days after your record of interview are signs of your remorse for the offending.  Your expressions of remorse to your referees which were part of Exhibit 3 and your psychologist,
Ms Matthews, are genuine.  You have lost your career, your reputation in the community and your reputation in the community in which you lived.  I accept your remorse is genuine.

42Your plea of guilty is entered at a time when the courts and the criminal justice system is still under enormous backlogs due to the COVID-19 pandemic. 
The Court of Appeal in the case of Worboyes stated that a plea of guilty in pandemic times should attract a more pronounced amelioration of sentence than in ordinary times.  A sentencing course must ensure that a plea of guilty results in a perceptible amelioration of sentence and I have taken that matter into account when finalising your sentence in this case.

43The serious offender provisions of the Sentencing Act apply to Charges 3, 4 and 5 on the indictment.  Under the serious offender provisions of the Sentencing Act, on your conviction and sentence for a term of imprisonment in respect of Charges 1 and 2, I am required on the sexual offence charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed.

44If necessary, in order to achieve the purpose of protecting the community, I am empowered under s6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence itself.  This means that the sentencing task in respect of Charges 3, 4 and 5 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which the sentence is to be imposed.  To achieve that purpose the sentence may be imposed longer than that which is proportionate to the gravity of the offending considered in the light of the objective circumstances. 

45Pursuant to s6F of the Sentencing Act I will make a declaration at the end of my reasons that you have been sentenced as a serious sexual offender. 

46Section 6E of the Sentencing Act also requires, unless I otherwise direct, that in respect of Charges 3, 4 and 5 on the indictment the sentences I impose on you are to be served cumulatively. I note that the Crown did not call for a disproportionate sentence or cumulation contemplated by s6D and 6E of the Sentencing Act.

47Allowing for the matters I have already outlined, in my view it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting, as it does, several episodes of offending.  To do otherwise may produce a sentence that is not appropriate and is unjust. 

48Your offending is serious and the objective gravity of the offending cannot be gainsaid.  In particular, the offending circumstances for Charges 3 and 4 are most serious.  Each of these charges have a maximum penalty of 10 years imprisonment. The indicators of the seriousness of the offending are as follows: 

(a)  the sexual penetration offending occurred over an extended period of
18 months;

(b)  there were 30 to 40 separate occasions of penile vaginal penetration;

(c)  there were approximately 10 separate occasions penile to mouth penetration;

(d)  you never used a condom during these penetrations, raising the risk of sexually transmitted and/or pregnancy;

(e)  there was a 31-year age differential between yourself and your victim;

(f)   you filmed some of your sexual activity with the victim and sent it to her;

(g)  you were Tarj's trusted teacher and confidante at the time of this offending;

(h)  you manipulated Tarj emotionally to achieve your own sexual gratification;

(i)    the events of Charges 1 and 2 clearly show your offending ultimately was carefully planned and premeditated.  Overall, the offending was for a period of 21 months.

49In summary, your offending was a sustained breach of trust of a young person who was a vulnerable student and you were in a position of a fatherly and respected teacher. 

50I assess your prospects of rehabilitation as good.  You have no prior criminal history at the age of 46.  You have strong family support upon your release from custody.  You are educated and should be able to gain employment in areas other than teaching when you are back in the community.  There is no assessment of paedophilic inclination by you.

51It was submitted on your behalf that your time in custody will be more onerous due to your mental health diagnosis of Adjustment Disorder with mixed depressive and anxiety symptoms compared to prisoners of normal mental health.  I accept that to be the case, as does the prosecution and take into account that factor when finalising your overall sentence.

52I have cumulated those parts of the sentence that reflect the seriousness of each offence, whilst at the same time considering the sentencing principles of totality to ensure that a crushing sentence has not been imposed upon you.  The sentencing principles of general deterrence, specific deterrence, just punishment, protection of the community, denunciation of your actions and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a fixed non parole period. If you are granted parole, the Adult Parole Board will supervise your rehabilitation.  You will be required to undergo sex offending courses whilst you're in prison. 

53Would you stand please. 

54On Charge 1, you are convicted and sentenced to six months imprisonment. 

55On Charge 2, you are convicted and sentenced to six months imprisonment. 

56On Charge 3, you are convicted and sentenced to three years and six months imprisonment, which is the base sentence.

57On Charge 4, you are convicted and sentenced to two years and nine months imprisonment. 

58On Charge 5, you are convicted and sentenced to 12 months imprisonment. 

59The cumulation for those offences on each of them and on one another, is as stated the base sentence is Charge 3 which is three and a half years.  From Charge 1, two months.  From Charge 2, two months.  From Charge 4, six months.  From Charge 5, four months.  That is a total effective sentence of four years and eight months imprisonment.  I fix a non-parole period of three years imprisonment.  Your pre-sentence detention is declared at 99 days not including this day. 

60But for your plea of guilty pursuant to s6AAA, I would have sentenced you to
seven years and six months with a non-parole period of five years and
three months.

61I make a further order that you are to be placed on the sex offender register for life and I declare that you have been sentenced as a serious sexual offender pursuant to s6F of the Sentencing Act.

62Is there anything further?

63MS DANE:  Nothing further, Your Honour.

64MR PAPAS:  No, Your Honour.

65HIS HONOUR:  Can I ask you just to check the arithmetic.

66MR PAPAS:  I'm just doing that now, Your Honour.

67HIS HONOUR:  I'll just repeat it if I need to.

68MR PAPAS:  It appears correct, Your Honour.  I'll check again but otherwise it appears correct.

69MS DANE:  Yes, Your Honour.

70HIS HONOUR:  Thanks.  You can take a seat.  Mr Papas, you can - - -

71MR PAPAS:  If I can approach the dock for the purposes of the confirmation?

72HIS HONOUR:  Yes.  Mr Carnie, you will be given a full copy of this document.  This is the sex offender register document.  You've got a full copy of that sex offender register?

73MR PAPAS:  Yes, Your Honour.  I'll give the prisoner some information about that now and otherwise as I understand it, Your Honour's complied with the provisions of that Act.

74HIS HONOUR:  Yes, thanks.  Tarj, nothing that I have said changes what happened to you, but today is the first day of the rest of your life.  Do the best you can. 

- - -