Director of Public Prosecutions v Carter

[2019] VCC 1893

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01744

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN CARTER

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October  2019
DATE OF SENTENCE:	15 November 2019
CASE MAY BE CITED AS:	DPP v Carter
MEDIUM NEUTRAL CITATION:	[2019] VCC 1893

REASONS FOR SENTENCE
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Subject: Fail to comply with reporting obligations pursuant to s.46(1) Sex Offenders Registration Act 2004 (SORA) ;  produce child pornography; indecent act with a child under 16 and possess child pornography.
Catchwords:
Legislation Cited: s46(1) Sex Offenders Registration Act 2004, s 6F of the Sentencing Act 1991
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Dunbar	OPP
For the Offender	Mr C. Terry	VLA - Morwell

HER HONOUR: 

1Steven William CARTER you have pleaded guilty to the following charges: fail to comply with reporting obligations pursuant to s.46(1) Sex Offenders Registration Act 2004 (SORA) ; produce child pornography; indecent act with a child under 16 and possess child pornography.

2The maximum penalty for the SORA offence is 5 years, and for each of your other offences is 10 years.

3The circumstances of your offending are set out in the Amended Summary of Prosecution Opening dated 25 October 2019. (Exhibit A) and can be summarised as follows:, on the 17th of November 2008, you were sentenced as a serious sexual offender at the Latrobe Valley County Court pursuant to Section 6F of the Sentencing Act 1991, having been found guilty of one charge of committing an indecent act with or in the presence of a child under 16 years and one charge of attempting to take part in an act of sexual penetration with a child under 16 years. Pursuant to SORA the length of reporting period imposed was life.

4In April 2015 and in February 2016, you had your annual interview with your SORA compliance manager and acknowledged receipt of relevant notices.  You did not declare that you were living with, or had regular contact with any children. 

Charges 1 - 2:

5Mia POLLOCK[1], (then aged 17 years) had a baby Lara[2] in April 2015.  You had known Mia since she was very young due to being friends with her father, and about a week after the birth of Lara, you established an intimate relationship with Mia.  During this relationship, you had contact with Lara accompanying Mia to her DHHS supervised visits.  Further in December 2015 you had contact with Mia’s friend Mackenzie ADAIR[3], aged 15 years - you did not report any of these contacts to your SORA manager.  (Charge 1)

·Between 12 July and 27 December 2015, you, on 5 separate occasions, took the following sexually explicit photos or videos of Mia:

·8 photos including two (2) of you penetrating her vagina with your penis;

·Thirty six (36) photographs of Mia using a sex toy;

·Twenty-nine (29) photographs and three (3) videos of Mia using a sex-toy to penetrate her vagina and one video of you using a sex toy to penetrate her vagina;

·Four (4) photographs of Mia naked with her hands and mouth duct taped;

·a photograph of Mia performing oral sex on Mackenzie.  That is the conduct amounting to charge 2, producing child pornography.    

[1] Mia POLLOCK is a pseudonym

[2] Lara is a pseudonym

[3] Mackenzie ADAIR is a pseudonym

Charge 3:

6On 27th December 2015, Mackenzie ADAIR was at your address with Mia - you all consumed alcohol.  Mackenzie and Mia became sexually intimate in your bedroom, then you went into the room.  You groped Mackenzie’s breasts and touched her vagina (Charge 3 - Indecent Act with Child Under 16 Years).   

Charge 4:

7On Thursday the 16th of February 2017, Police executed a search warrant at your address.  The electronic devices that were seized were analysed and the 77 pornographic images and three videos of Mia described above were located.

8On Friday the 17th of February 2017, you were intercepted by police and your mobile phone was seized - your phone was analysed and found to contain 5 pornographic images of Mia, which you had sent to her.  ((Charge 4 - Possessing Child Pornography)

Victim Impact Statement

9I received a victim impact statement from Mia POLLOCK - however this was received by me in chambers after the plea had been completed.  The parties were informed that I had received the VIS and made submissions in relation to it.  The prosecutor read did not read its contents in court as requested by Mia, though I was informed that Mia had been informed that it would not be done.  That situation was not satisfactory.  It has come about as a consequence of delay in having the victim impact statement available and points to reasons why a victim impact statement should be available at the time the plea is made.  She describes her unhappy relationship with you in which you were controlling of most aspects of her life. 

Personal circumstances

10You are currently 46 years old.  You were adopted when you were an infant and raised by your adoptive parents both of whom are now deceased.  You left school when you were 15 to commence a sheet metal apprenticeship.  You have worked consistently as an interstate truck driver for a number of years and plan to return to that vocation once you have completed this sentence.

11Prior to your arrest, you were working for Bedgood's transport in Maffra and I was informed that you can return to work there.

12You have 3 daughters, one who now is aged 14 and has a number of serious health issues - she lives with your cousins.  You have contact with your other daughters and they have visited you in custody.

Burdensome custody

13It was submitted that your time in custody has been more burdensome given you were initially charged with more serious sexual offences against children and that you were facing the prospect of a significant term of imprisonment.  In respect of one of the complainants you were acquitted, and in respect of the other complainant the proceedings were discontinued - these outcomes were not determined or finalised till last month.  I accept that your time in custody has been more burdensome given the stress and worry regarding the situation in respect of those more serious offences that you previously faced. 

Plea - utilitarian benefit and remorse

14This matter proceeded by way of straight hand up brief on 22 February 2018 and ultimately resolved on 29 August 2019, with the prosecution withdrawing a penetration charge in respect of Mackenzie.

15No witnesses have been required for cross examination and you have saved the community and the court the time and expense that would have been involved in running a trial.  There is a utilitarian benefit of your plea.  You have saved the ordeal to both Mackenzie and Mia of giving evidence.

16I accept that your plea is also evidence of remorse.

Objective gravity

17It was submitted on your behalf that charges 2 and 4 were at the lower end of seriousness for this type of offending, as you were in a legal consensual relationship with Mia POLLOCK who was aged 17.  Your counsel submitted that the child pornography offences were as a result of your activities with another consenting adult.  However the age discrepancy between you and Mia POLLOCK was significant or more than 20 years - although you may not have been aware of the exact nature of her intellectual disability, she was particularly vulnerable.

18As to your offending against Ms ADAIR, she was a friend of Mia and aged 15 - in addition to the indecent assault including you touching her breast and vagina, you also filmed sexual activity between her and Mia as part of Charge 2.

19Because of your prior convictions of sexual offending against children, you are to be sentenced as a serious sexual offender in respect of Charges 2, 3 and 4.  Under s.6E each sentence imposed on a serious offender for a relevant offence must unless otherwise directed, be served cumulatively.  Counsel for the prosecution did not seek a disproportionate sentence and I take into account principles of totality.

20You have 2 relevant prior convictions for sexual offending against a child - these offences occurred in 2006.  You were sentenced by the Court of Appeal in 2009 to a term of imprisonment of 3 years 6 months with a non-parole period of 2 years 2 months.  You are currently remanded at Hopkins Correctional Centre and have been in custody since 17 February 2017.  I was informed that you have had limited opportunities to undertake any courses or work at Hopkins.

21Given your prior convictions specific deterrence is an important sentencing consideration.  The SORA scheme is designed to ensure protection of children and monitoring of those who place children at risk - you disregarded your obligations.  By the production and possession of child pornography, you exploited your relationship with a 17 year old, and with her friend aged 15 years.  Principles of general deterrence, just punishment and denunciation are relevant sentencing considerations.  Further you are to be sentenced as a serious sexual offender in respect of Charges 2, 3 and 4 and I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. 

Sentencing submissions

22Your counsel conceded that there were no other sentencing options properly available other than imprisonment.  However, it was submitted that such a term ought to be moderated to take into account the mitigatory factors outlined above, including your plea and the circumstances of your time spent on remand.

23Taking all relevant sentencing considerations into account, I propose to sentence you as follows.  If you could please stand.  In respect of Charge 1, breach of the Sex Offenders Registration Act, you are convicted and sentenced to a term of imprisonment of three months;

24In respect of Charge 2, producing child porn, you are convicted and sentenced to a term of imprisonment of two years and six months;

25In respect of Charge 3, indecent act with a child under 16, you are convicted and sentenced to a term of imprisonment of three years;

26In respect of Charge 4, possession of child pornography, you are convicted and sentenced to a term of imprisonment of six months.

27The base sentence in respect of your offence is Charge 3 which is three years and two years of the sentence imposed on Charge 2 will be served cumulatively, leaving a total effective sentence of five years. I set a non-parole period of three years. In respect of Charges 2, 3 and 4 it will be noted that you are sentenced as a serious sexual offender pursuant to s.6F of the Sentencing Act.

28You remain registered on the Sex Offenders Register for life. Pursuant to s.6AAA of Sentencing Act, if you had not pleaded guilty to these matters I would've imposed a sentence of seven years with a non-parole period of five, and PSD please?

29MS DUNBAR:  One thousand and one days, Your Honour.

30HER HONOUR:  I declare 1,001 days PSD in relation to your sentence.  Are there any other matters?

31MR TERRY:  No, Your Honour.

32MS DUNBAR:  I believe there were a few ancillary orders.

33ASSOCIATE:  There's a forfeiture order, Your Honour, I'll print out.

34MS DUNBAR:  A forfeiture order and a forensic sample order, I believe, but they can be attended to later.

35HER HONOUR:  I'll just get my associate to print one of those in a moment and sign them.  You can sit down, Mr Carter.  Thank you, I'll stand down.

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