Director of Public Prosecutions v Castles
[2019] VCC 229
•1 March 2019
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTIONRevised
Not Restricted
Suitable for PublicationCR 18-00746
DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW CASTLES ---
JUDGE: HIS HONOUR JUDGE HIGHAM WHERE HELD: Melbourne DATE OF HEARING: 21 February 2019 DATE OF SENTENCE: 1 March 2019 CASE MAY BE CITED AS: DPP v Castles MEDIUM NEUTRAL CITATION: [2019] VCC 229 REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – sexual penetration of a child under 16 – supply drug of dependence to a child – produce child abuse material – no prior convictions – moderate risk of reoffending – general deterrence – specific deterrence – denunciation – just punishment – serious sexual offender
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Clarkson v The Queen; E J A v The Queen [2011] VSCA 157; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Crouch (a Pseudonym) v The Queen [2019] VSCA 30.
Sentence:Total effective sentence of three years and ten months’ imprisonment with a non-parole period of two years and three months.
---
APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Ms H Bate Solicitor for Public Prosecutions For the Accused Mr J Westmore David Tamanika
HIS HONOUR:
1Andrew Castles, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16, for which the maximum penalty is a term of imprisonment of 15 years, one charge of supplying a drug of dependence to a child, for which the maximum penalty is a term of imprisonment of 15 years, and one charge of producing child abuse material, for which the maximum penalty is a term of imprisonment of ten years.
2You have also admitted summary charges of using a drug of dependence, for which the maximum penalty is a term of imprisonment of one year, inducing or assisting a child in care to be absent without authority, which carries a maximum penalty of a term of imprisonment of six months or 25 penalty units, and possession of a controlled weapon, for which the maximum penalty is a term of imprisonment of two years or 240 penalty units.
3Exhibit 1 on the plea was a prosecution opening dated 11 December 2018. I annex a copy of that document and incorporate that document in its entirety into these reasons for sentence.
4Your victim is a biological female who identifies as a male. At the time of the offending, he was 14 years of age and under the care of the Department of Health and Human Services, residing in a DHHS residential facility.
5At the beginning of July 2017, you and he met through Grindr, which is a hook-up application for men seeking sexual encounters with men. Your victim's profile indicated that he was 18 years of age, a necessary requirement for registration with the application.
6Over the following weeks, you and your victim communicated with each other and your online chats quickly became sexually focused. On 24 July 2017, your victim told you that his real age was 14. Your victim wanted to meet up with you for a sexual encounter. He also wanted to take drugs with you. You agreed, and on Monday 31 July 2017, you made arrangements to pick him up from the DHHS residential facility where he lived. It seems that you agreed to meet further down the street so as to avoid being seen. These facts underpin the summary charge of assisting/adducing a child to be absent from care of the Secretary without authority.
7You and he drove to your home in Sebastopol. You supplied your victim with a measured dosage of gamma-hydroxybutyrate acid (“GHB”) and took some of the drug yourself.
8Thereafter, sexual activity took place. You put a condom on and penetrated the victim's vagina with your penis on four occasions, both in the lounge room and in your bedroom. In the midst of such sexual activity, you provided your victim with a further measured dose of GHB, and yourself took another dose. On the third occasion of penile/vaginal penetration, the condom broke. You penetrated the victim's vagina with your penis on one more occasion when not wearing a condom. Charge 2 is a representative charge of penile/vaginal penetration, representing four instances of such penetration by you. Prior to the fourth instance of penile/vaginal penetration, and after the condom had broken, you inserted your penis into the victim's mouth; this is Charge 3. The sexual activity took place over approximately a three hour period.
9At the conclusion of the sexual activity, you and your victim returned to the lounge room and you provided your victim with shots of vodka. After a time, your victim fell asleep on the couch and whilst he was lying naked, you took a photograph of him on your Samsung mobile phone. You saved the photograph on the phone and assigned it to the victim's mobile phone number profile; this is Charge 4. You reported later that you had no memory of taking the photo in question. That image is categorised as level 1 child abuse material. By taking the photograph, you have produced child abuse material.
10The following morning, you provided your victim with approximately 3 milligrams of GHB and then drove him to Melbourne, dropping him off at Flinders Street train station. The three instances of supplying of GHB constitute Charge 1, supplying a drug of dependence to a child. Your own use of that drug constitutes the summary charge of using a drug of dependence.
11Upon his return to his residence on 1 August 2017, the victim was questioned as to his absence and as to where and with whom he had been. Police officers attended at your home address in the evening of 3 August 2017, taking your mobile phone and confiscating a samurai sword and a medieval sword which they had found. Those items constitute the summary charge of possession of a controlled weapon.
12You were taken to Ballarat police station and participated in a record of interview. In the course of that interview, you made full and frank admissions as to all of your interactions with your victim, both online and in person. You confirmed that the victim had told you his age, that you thought he was 14 when you had had sex with him, and that you knew that it was illegal to have sex with a 14 year old child.
13You stated you believed GHB to be illegal in Victoria and, further, that you did not have a prescription to possess it. You said that the swords were birthday presents bought for you in the ACT and you describe them as blunted weapons made of the incorrect metals. You stated you were unaware that you needed authorisation to possess them.
14You were charged on summons on 18 September 2017. There was a committal on 11 April 2018, which focused on the limited issue of the conduct of the record of interview. The matter resolved in this court in August 2018 and your plea was heard on 21 February 2019 after two prior adjournments.
15I turn now to your personal circumstances.
16You have no prior, subsequent or pending matters. Your date of birth is 30 March 1990. You are now 28 and you were 27 at the time of this offending and working as a medical radiation practitioner in Ballarat.
17You were born and raised in Canberra, the youngest of two children to professional parents. Your childhood was a happy one. After primary school, you attended Canberra Grammar, where you were a good student academically. Despite being bullied, you developed a small but close group of friends. You competed your tertiary education at Charles Sturt University before commencing work as a medical radiation practitioner.
18Your Australian Health Practitioner Regulation Agency registration was suspended on 3 October 2017 following your arrest on these matters. Following that suspension, I am told you have applied for well over 100 jobs in technical or computer-based roles and those applications have been unsuccessful because of the unique nature of both your qualifications and your experience. You are currently on Centrelink, and the loss of your career has had a significant impact upon you, not just financially, but in terms of your self-identity.
19It appears that a defining event in your life story was your violent rape at the hands of an older man when you were aged 13.
20On the plea was tendered Exhibit 3AC, a report from Mr Patrick Newton, clinical and forensic psychologist dated 4 December 2018. Mr Newton also gave evidence on your plea.
21Mr Newton confirmed that you did not report your rape to authorities or to your parents. From the age of 14 onwards, you sought out older men online and began to engage in sexual encounters with them. At the time, you believed that you were, in your words, “working through” your own rape. The number and frequencies of your casual sexual encounters increased and continued up until the time of your arrest for these matters. It was, of course, through the use of such online applications that you met your victim.
22It was also through these encounters that you were first introduced to drugs. You began to use drugs, particularly methamphetamine, as a way of facilitating "hypersexuality". You identified to Mr Newton that such drug use was pervasive in the online sex culture and it was there that you were introduced to methamphetamine, GHB and MDMA (ecstasy). You were at pains to stress that you had never worked whilst under the influence of drugs, and if you were planning to use, you would make sure that you were rostered so as not to work the following day.
23You have had two cohabiting relationships, both with women: the first from 2012 to 2016, and the second from 2017 to late 2018. The first relationship was marked by unhealthy co-dependency. Your partner was diagnosed with severe anxiety, depression and a personality disorder. She would self-harm, threaten suicide, and she isolated you from both your friends and your family. You, no doubt, believing that you deserved nothing more, remained committed to that relationship. She left you in 2016 with emotional scars and with significant debt. Your second relationship was reportedly healthy, loving and mutually supportive.
24You reported to Mr Newton that your dominant sexual preference is for sexual interactions with adult women. It appears that in reaction to relationship problems, you began to resort to more illicit drug use, particularly methamphetamine to elevate your mood and to escape from those problems. Of course, such drug use merely served to undermine your mental clarity and thus exacerbate the very problems which you sought to escape.
25Throughout the course of your two relationships, you continued to have an online presence and identity, where you sought out casual encounters with men, and it is in that context that you met your victim.
26Mr Newton notes that you have understood your promiscuous frequent sexual encounters with other men primarily through the lens of your own experience of sexual assault. It was, for you, one of the ways in which you processed your experience of your own abuse. Noting that in the context of those encounters you had often been both physically and emotionally abused, Mr Newton continues that the events only served to entrench and deepen your experience of trauma, rather than provide you with a sense of mastery and control that you had been seeking.
27Of the offending, you told Mr Newton that you had met the complainant on Grindr, and initially you believed the complainant to be 18 or 19 years old, and it was not until some weeks later that you were told of his true age. Your first response was, "Oh, shit", and initially you ceased your chats. However, the complainant contacted you again and at that point you decided to go through with the plan to meet up. You told Mr Newton, "I thought, well, I was younger than the complainant when I started having sex with men. He seems better equipped to deal with it than I was and he had an interest in things that I had experience with, like GHB and kink (which I understand to be a diverse sexual interest). I thought it would be safer if he learnt with me than if he learnt it the way I had when I was young. He seemed like a good kid but naïve around the edges, and I didn't want him to get hurt like I had."
28Significantly, in my view, Mr Newton is of the opinion that a further effect of your earlier sexual experience was your attribution of precocious sexual maturity to young people. That, particularly when considering young males, you generalise from your own experiences to conceive of them as being emotionally and psychologically ready for sexual experience, and to believing that sex with adults could be, for them, a positive experience.
29Mr Newton notes that you espouse permissive views regarding the sexuality of young people, believing them capable of giving consent to sexual contact with adults. You also hold similarly permissive views about drug use by young people, rationalising those views as an extension of the harm minimisation principles. This provided the context for you to supplying illicit drugs to your victim.
30Mr Newton views such misunderstandings and distorted perspectives as providing the foundation for "offence supporting cognitive distortions", basically wrong thinking, which facilitated your offending:
"While these views are clearly problematic and whilst Mr Castles requires offence specific intervention to address them, there is no indication to suggest that he suffers from a paedophilic disorder or other paraphilia."
31With a view to assessing the risk for sexual recidivism, Mr Newton administered both the Static-99 and the Risk of Sexual Violence Protocol (RSVP), which are recognised and peer approved assessment tools. In light of those results and Mr Newton's clinical judgment, he assessed your risk of recidivism as in the moderate risk range overall.
32Of your mental status presentation, Mr Newton said:
"His dominant emotional experience is one of preoccupied worry. His anxiety can be divided into a reactive component related to his legal predicament and a more chronic component relating to the sexual assault he reportedly experienced as a teenager. These components interact with each other to cause Mr Castles' particularly intense distress. In my opinion, Mr Castles' anxiety is best understood as representing post-traumatic stress disorder in partial remission."
33In addition to your symptoms of anxiety, you have also reported ongoing depressive symptoms, all of which have caused you clear distress, prompting ongoing experiences of suicidal ideation. You spoke to Mr Newton of your remorse. You said:
"I am constantly appalled and disgusted with myself when I think of what I've done because it is out of keeping with the person I see myself as, and I try to make excuses for my behaviour; there are no excuses and there never will be. Rather, I've been working with my psychs and with my mother to better understand the reasons for it and to provide insight for myself as to what led to this dark episode of my life and what led to the situation where I offended and broke the law."
34Mr Castles, I accept that this remorse is genuine and that it in part underpins your reactive depression and anxiety; in other words, I accept that your reactive depression is in part due to your realisation of what your offending meant.
35Mr Newton concluded that the most important rehabilitative need in your case is for you to participate in appropriate offence specific treatment. He stated that with provision of effective treatment to ameliorate the effects of the factors identified by the RSVP, "It is likely that Mr Castles' risk of reoffending will be significantly reduced over the medium term.”
36In evidence, he emphasised the need for treatment to ensure risk reduction. He agreed that your cognitive distortions were embedded but not immutable; in other words, you can change. Beyond offence specific matters, you would benefit from education relating to drug issues and from treatment to assist you in addressing the unresolved trauma from your past.
37This trauma continues to cause you significant distress which has, in many ways, underpinned your interpersonal and behavioural problems. Mr Newton recognised this will present particular challenges in a Corrections setting. The ongoing effects of your trauma are such that your experience of a custodial environment will be considerably more difficult for you than for a prisoner who has not suffered such a trauma. You will be at risk of internalising the punitive aspects of sentencing in a particularly harsh fashion and likely to magnify an already substantial experience of shame, elevating the risks of impulsive acts of self-harm. Mr Newton says that you would be a relatively vulnerable prisoner.
38I turn now to the submissions of counsel.
39Your counsel, Mr Westmore, provided both detailed and helpful submissions, both written and oral. He conceded that this was serious offending but sought to distinguish your offending from more serious examples. Referring to the case of Clarkson v The Queen; E J A v The Queen [2011] VSCA 157, he submitted that in assessing the objective gravity of your offending, I should have regard to the circumstances in which the consent of your victim was obtained.
40He submitted that your offending was absent those aggravating features so often found: no grooming or abuse of trust; no using or exploiting of a position of authority to establish intimacy, and thereby securing an ostensible consent.
41Whilst recognising the gravity of supplying drugs to a child, he submitted this was not a case where drugs were supplied to secure consent or were furtively administered to ensure a compliant victim. Rather, the meeting was for the pre-agreed purpose of sex and drug-taking.
42He pointed to your record of interview and the full and frank admissions you made therein. Your admissions in that record of interview underpin Charge 3, a matter of which the police were unaware and of which your victim did not speak in his VARE.
43Mr Westmore posited a connection between the abuse you experienced as a 13 year old and this offending, which connection, he argued, reduced, to a certain extent, your moral culpability.
44He urged me to view your plea of guilty as a relatively early one, having regard to the forensic terrain at the committal. Your plea was indicative of your willingness to facilitate the course of justice and brought with it the utilitarian benefit of saving the community the time, cost, expense and trauma of a trial and was also an indication of your remorse. He further pointed to Mr Newton's report in this regard.
45He submitted that I should have regard to the inevitable loss of your career, which you felt particular keenly, as it was linked to your sense of identity. Further, he submitted your prior antecedents and work record, your personal history, the ongoing support of your family, your continued abstinence from drugs since your arrest, and your engagement in treatment addressing the issues underlying your offending, were indicative of positive prospects of rehabilitation.
46Your undoubted willingness to engage in offence specific treatment is likely to reduce your risk of recidivism. He submitted that your constellation of post-traumatic stress disorder and chronic depression would make prison more burdensome for you, therefore, engaging limb 5 of the well-known case of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102, and I accept that submission.
47He recognised that if terms of imprisonment were imposed on Charges 2 and 3, you would fall to be sentenced as a serious sex offender in Charge 4. However, he submitted that the sentencing purpose of protection of the community, thereby engaged, did not require, in your case, further detention than might otherwise be merited.
48Mr Westmore submitted that the principle of totality remained a relevant consideration and, indeed, had particular application in your case, where the offending occurred as part of a single episode with a single complainant and was of short duration. He accepted that general and specific deterrence and denunciation clearly had work to do in your case. Having regard to all of the above, he submitted there was an exceptional combination of matters in mitigation which permitted a sentencing disposition of a term of imprisonment combined with a lengthy and suitably constructed community correction order, structured so as to focus on your rehabilitation needs and thereby ensuring the continued protection of the community.
49Ms Bate, for the prosecution, submitted correctly that although there was no victim impact statement, the court must proceed upon the presumption of harm that such offending creates.
50Whilst there was, in your case, no coercion, she reminded me of the purpose of the legislation, which was to protect children from themselves. She accepted this was not a case where the administering of drugs led to the ostensible consent. She submitted that your victim was a vulnerable child living in residential care. His being in residential care was something known to you. The fact that you had ceased contact with your victim when told of his age makes it clear that you knew it was wrong, yet you carried on.
51She did not seek a disproportionate sentence in relation to Charge 4, having regard to the serious offender provisions.
52The prosecution did not accept that there was an exceptional combination of circumstances tending to the exceptional course advocated by your counsel of a term of imprisonment combined with a community correction order.
53She submitted there was no room for reduction of your moral culpability in light of your own trauma. It was rather your promiscuity and drug taking that led to your distorted views on the benefits of sexual interaction with children.
54She reminded me that the last instance of offending in Charge 2 occurred after the condom had broken and was, thus, unprotected penile/vaginal penetration with the attendant risks of sexually transmitted infection.
55She accepted that the court must be astute to avoid double punishment and that totality is a relevant consideration here, given that the offending comprises one episode.
56However, her ultimate submission was that the objective gravity of your offending required a head sentence with a non-parole period, which would also afford the best structure for treatment, should you obtain parole.
57I turn now to the seriousness of the offending.
58Mr Castles, sexual offending against children will always be viewed as serious offending. There is an absolute prohibition on sexual activity with a child which is founded upon a presumption of harm, and that prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child's consent is more accurately referred to as apparent or ostensible consent.
59Sexual activity between adults and persons under the age of 16 can have a lasting impact upon the emotional and psychological well-being of the victims of such offending. This absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harm caused by that premature sexual activity and, to that end, to protect them from their own immaturity, to protect them from themselves. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if they are subjectively attracted to the idea of participating in such activity. Secondly, and in order to advance the protective purpose, the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.
60Your victim gave consent which, of itself, is not and, indeed, can never be a mitigating factor, nor can that consent be considered in isolation. Rather, the court is told that it needs to investigate the circumstances in which the offence came to be given. Thus, in assessing the gravity of any such offending, the court's attention must be focused not upon the consent as such, but upon the circumstances in which the consent came to be given.
61You met your victim via a hook-up application designed to facilitate meetings between men who are looking for sexual encounters with other men. It was in the context of your online chats that the victim made clear his desire to have sex with you and, indeed, to take drugs. As indicated above, such consent cannot be viewed by the court as meaningful.
62In your virtual presence and interaction with the victim, there was no overbearing and operative disparity in age or other interpersonal attributes so often encountered. There was no breach of a position of trust and authority and, in that sense, your offending is absent many of those aggravating features so often found in cases of this nature.
63It is clear to me that you internalised the trauma of your own abuse, and that in your later adolescent years, you sought to construct a similar scenario, but one where you were in control. It was in the course of that construction, or in
Mr Newton's phrase, “recapitulation”, that you became promiscuous at a far too early an age. It is that promiscuity or “hypersexuality”, fuelled by drug use, that has created the cognitive distortions in the field of sexual activity and which you project onto others.64Mr Castles, I give such weight as I can to your history. However, those cognitive distortions, that wrong thinking, enabled you to justify to yourself, actions and conduct that you knew to be wrong. Your initial reaction when told of your victim's age was, "Oh, shit." That was the right reaction. If you were not of a mind to dissuade him from having sex with older people, then you should have blocked him, thereby preventing any further contact. You did not. By the time he had reconnected with you, you had determined that you knew best, that it was better for him to have sex with you, that it was better for him to be supplied with drugs by you, than by someone else whom he might meet online.
65You arranged to meet your victim down the road from his residence where he lived in the DHHS facility, a fact that was known to you and which must have alerted you to his vulnerabilities. You engaged in an act of unprotected penile/vaginal penetration. You justified it to yourself as being in the child's best interest but you knew it was not. You were driven by your desire, by your own sexual gratification. As you are now only too well aware, Mr Castles, in acting as you did, your status changed from that of victim to that of an abuser. A further indication of the abusive nature of the interaction was the apparently casual manner in which you took a photo of your sleeping victim, for reasons which you are now unable to explain. That photo constituted child abuse material, albeit, I accept, at the lowest level of classification. And whilst I accept it was not intended for publication or driven by any financial gain, to create such an image itself is serious offending.
66To supply drugs to a child is, likewise, serious offending, as is clear by the maximum penalty interposed by Parliament. I make clear, Mr Castles, I accept that this was not a case where drugs were supplied by you to secure consent or were furtively administered by you to make sure that your victim became compliant. You maintained that you were concerned to ensure a safe drug experience for your victim, demonstrated by your careful measuring and calibrating of a precise dose. However, on parting, you supplied a further quantity to the child for him to use at his leisure and, clearly, without your present and careful supervision.
67In sentencing you, I must have regard to a range of different factors. I must give effect to principles of both general and specific deterrence, that is, I must deter others from behaving as you did and I must deter you from any repeat of such behaviour. I accept that you have willingly engaged in treatment but the need for specific deterrence remains. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. I must take into account the presumed effect that your crime has had upon your victim and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence that you have committed, and the maximum penalties imposed by Parliament. I must try, as I already told you, to balance your personal circumstances with the circumstances of your offending.
68Clearly, principles of general and specific deterrence, denunciation and just punishment are to the fore in the sentencing exercise. Charge 2 is a representative charge and I make clear I have had regard to the principles applicable to such charges recently restated in the case of Crouch (a Pseudonym) v The Queen [2019] VSCA 30. On Charge 4, I am required to sentence you as a serious sexual offender and, ordinarily, that means that I would be required to impose a sentence that is cumulative upon other sentences.
69The prosecution has not sought to persuade me that I should impose a disproportionate sentence and I do not propose to impose a sentence that involves total cumulation. It is the duty of the court to impose no longer a sentence than is necessary in all the circumstances. It seems to me that justice can be done in this matter and the public can be adequately protected by measures of concurrency that I think adequately deals with all of the relevant sentencing considerations.
70I have had regard to all of the matters so ably argued in front of me by your learned counsel, Mr Westmore. For the avoidance of doubt, I have had regard to:
i.Your plea of guilty; I accept it was an early and, as the prosecution fairly accepted, a most valuable plea;
ii.The fulsome admissions that you made to the police;
iii.Your expression of remorse, which I accept as genuine;
iv.Your prospects of rehabilitation, which I view as positive, in light of your good character, family supports, engagement in treatment, abstinence from drugs and your expressed desire to deal with what lay underneath this offending;
v.Your loss of career, which I accept that you have felt particular keenly;
vi.My finding that imprisonment will be more burdensome for you than for others;
vii.The circumstances surrounding the ostensible consent of your victim; and
viii.The single episode of which your offending comprises.
71However, in my view, the objective gravity of your offending is such that it requires a head sentence with a non-parole period.
72If you could please stand, Mr Castles.
73On Charge 1, supplying a drug of dependence to a child, you are sentenced to a term of imprisonment of ten months.
74On Charge 2, sexual penetration of a child under 16, you are sentenced to a term of imprisonment of three years and three months.
75On Charge 3, sexual penetration of a child under 16, you are sentenced to a term of imprisonment of two years and nine months.
76On Charge 4, producing child abuse material, you are sentenced to a term of imprisonment of four months.
77On the summary charge of using a drug of dependence, you are convicted and discharged.
78On the summary charge of possession of a controlled weapon, you are convicted and discharged.
79On the summary charge of inducing/assisting a child in care to be absent without authority, you are sentenced to a term of imprisonment of one month.
80I order that three months of the sentence on Charge 1, three months of the sentence on Charge 3 and one month of the sentence on Charge 4 run cumulatively to each other and cumulative to the sentence on Charge 2.
81This makes a total effective sentence of three years and ten months. I fix a non-parole period of two years and three months.
82On Charge 4, you are sentenced as a serious sexual offender and I direct that this be entered into the records of the court.
83Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a total effective sentence of five years and three month and I would have imposed a non-parole period of four years.
84There is a disposal order.
85MR WESTMORE: That is consented to.
86HIS HONOUR: I will make that disposal order.
87Pursuant to the provisions of the Sex Offenders Registration Act 2004, you are required to comply with the reporting obligations under the Act for a period of 15 years. You will need to report to Victoria Police upon your release from custody, and your reporting is ongoing. Failure to comply with those requirements is, itself, a criminal offence and the courts view such breaches most seriously.
88My associate is going to bring you a document for your signature, and you will be signing the document to acknowledge that you have been provided with a copy of your reporting obligations.
89Mr Castles, what is important for your future is how you engage in treatment and your recognition that this is not an act that has to define you. Mr Newton was clear, you can change. That is a very positive message, and we would wish you to take that with you.
90Mr Westmore, you have the list of medications?
91MR WESTMORE: Yes.
92HIS HONOUR: Now, Corrections officers, this is a young and vulnerable first time offender. I am concerned that he be assessed by a doctor today.
93PRISON OFFICER: Yes, I will be indicating that to my supervisor.
94HIS HONOUR: I have a list of his current medications. He has not brought any with him, Mr Westmore?
95MR WESTMORE: He has. Unopened. He has got the prescriptions with him.
96HIS HONOUR: I am noting on the order that Mr Castles is a young person, first time in custody, vulnerable, history of suicidal ideation, must be assessed today, he must receive medication, that is his antidepressant, fluoxetine, and also must receive his asthma medication.
97MR WESTMORE: I am content with that.
98HIS HONOUR: Thank you very much, Mr Westmore. Mr Castles, just bear in mind you can change. Use this as a learning experience and as an opportunity. It may not seem like one now. I readily accept that this is probably going to be the darkest day but there is light ahead.
99Ms Bate, thank you for the very fair way in which you prosecuted this matter and for your assistance. Thank you, Mr Westmore.
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ANNEXURE A
IN THE COUNTY COURT OF VICTORIA Court Reference: CR-18-00746
AT MELBOURNE Indictment No: H12636551.1CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
ANDREW THOMAS CASTLES
PROSECUTION OPENING FOR PLEA
Date of document: 11 December, 2018 Filed on behalf of: The Director of Public Prosecutions Prepared by:
JOHN CAIN
Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne Vic 3000
Solicitor’s code: 7539
Telephone : (03) 9603 7666
Direct: (03) 9603 7442
Reference:
THE ACCUSED
1.The Accused, Andrew Thomas CASTLES, was born on the 30th of March 1990. At the time of the offending he was 27 years old and he was employed as a Medical Radiation Practitioner in Ballarat.
THE VICTIM
2.The Victim was born in 2002. At the time of the offending he was 14 years old. The Victim is a biological female who identifies as a male. The Victim is currently under the care of the Department of Health and Human Services and resides in a Residential Care Facility.
3.At the beginning of July 2017, the Accused and the Victim met through Grindr, a social networking application geared towards homosexual and bisexual men. The Victim’s Grindr profile indicated that he was 18 years old. The Accused’s Grindr profile indicated that he was 27 years old. In the following weeks, the Accused and the Victim communicated through the Grindr Application and their conversation quickly became sexually oriented. During the conversations over Grindr the Accused sent the Victim a picture of his penis. The Victim also sent the Accused a number of non-sexual images of himself using Snapchat. At the time of the conversations, the Accused was of the belief that the Victim was around sixteen years old
4.Around the 24th of July 2017, the Victim informed the Accused via a Grindr conversation that his age on his Grindr Profile was the incorrect age and that he was under-aged. The Accused investigated further into the Victim’s correct age during which time the Victim stated that he was 14 years old.
5.After further conversations between the Victim and the Accused, the Victim expressed a desire to meet up. On Monday the 31st of July 2017, the Accused contacted the Victim via Grindr and arranged to pick him up from his address.
6.At approximately 7:00pm on the 31st of July 2017, the Accused attended the Victim’s Residential Care Facility. The Accused picked the Victim up a few doors down the facility and drove back to Ballarat. (Summary charge – assist/induce child to be absent from care of Secretary without authority)
CHARGE 1- SUPPLY A DRUG OF DEPENDENCE TO A CHILD
Summary Charge - USE DRUG OF DEPENDENCE
7.At approximately 9:00pm, the Accused and the Victim arrived at the Accused’s residential address. Once inside, the Accused and the Victim sat on the couch and talked. The Accused told the Victim that he was able to measure his dosage of GHB. The Accused then provided the Victim with a syringe containing 0.5ml of GHB which the Victim consumed orally. At the same time the Accused also consumed 0.7ml of GHB.
CHARGE 2- SEXUAL PENETRATION OF A CHILD UNDER 16 YEARS (LOUNGEROOM- PENILE/VAGINAL) REPRESENTATIVER CHARGE – FOUR OCCASIONS
8.At approximately 10:00pm, the Accused and the Victim were sitting on the couch when they began kissing and groping each other (Uncharged act). The Accused then used a non-penetrative vibrating massager on the Victim’s vagina (Uncharged act). The Accused then put a condom on and penetrated the Victim’s vagina with his penis on the couch. They moved to the Accused’s bedroom and the Accused penetrated the Victim’s vagina on his bed. *(See charge 1) The Accused and the Victim later returned to the couch in the lounge room.
CHARGE 3- SEXUAL PENETRATION OF A CHILD UNDER 16 YEARS (LOUNGE ROOM- PENILE/ORAL)
9.At approximately 12:00am on the 1st of August 2017, the Accused provided the Victim a further 0.75ml of GHB and further consumed 1.0ml himself. The Accused and the Victim began kissing and groping each other (Uncharged act). The Accused placed a condom on his penis and penetrated the Victim’s vagina with his penis before the condom broke. *(See charge 1) The Accused then inserted his penis into the Victim’s mouth. The Accused and the Victim moved to the Accused’s bedroom where the Accused penetrated the Victim’s vagina with his penis on the bed. *(See charge 1)
10.The Accused and the Victim again returned to the lounge room. The Accused offered the Victim an alcoholic drink and showed him his alcohol supply. The Accused supplied the Victim with three shot glasses of Crystal Skull vodka and consumed one shot glass himself. After some time the Victim fell asleep on the couch.
CHARGE 4 – PRODUCE CHILD ABUSE MATERIAL
11.At 6:29am, the Victim was lying naked on the couch asleep when the Accused used his Samsung mobile phone to take a photograph of the Victim. The Photograph depicted the Victim’s naked body. The Accused then stored the photograph on his mobile phone in a folder named “Lewds” and assigned it to the Victim’s mobile phone number profile.
12.At approximately 8:00am on the 1st of August 2017, the Accused and the Victim left the Accused’s address and went to McDonalds in the Accused’s vehicle. The Accused provided the Victim with approximately 3ml of GHB. The Accused then drove to Melbourne and dropped the Victim at a train station at 10.30am.
13.At 7:30pm on the 3rd of August 2017, Ballarat Sexual Offences and Child Abuse Investigation Team Investigators executed a Search Warrant at the Accused’s residential address. Investigators seized the Accused’s Samsung mobile phone, a samurai sword and a medieval sword. (Summary charge – possess controlled weapon) The Accused was arrested and formally interviewed during which time he made full admissions to having sex with the Victim on two occasions.
14.During the Record of Interview the Accused was asked when he found out that the Victim was 14 years of age to which he stated “shortly prior to me agreeing to go collect him, maybe a week before”. When the Accused was asked how he found out that the Victim was 14 years of age, he said “he told me” “over Grinder I believe”. When the Accused was asked how old he thought the Victim was when he had sex with him, he said “14” and knew it was illegal to have sex with a 14 year old child. The Accused also stated that GHB was “Gamma Hydroxyl Bata”. When the Accused was asked if it was illegal in Victoria he said “I believe it is” and stated that he did not have a prescription to possess it. When the Accused was asked about his conversations over Grindr with the Victim and asked if they discussed having sex, he said “yes we did”. When the Accused was asked about the two swords seized from his address, he said “they are my swords”, “they were bought for me as a birthday present in the Australian Capital Territory”, “they are blunted weapons made of the incorrect metals”. The Accused stated that he was unaware that he needed authorisation to possess them.
15.The Accused’s mobile phone was examined identifying the photograph of the Victim. The photograph was reviewed and categorised as “Level 1” Child Abuse Material in accordance with the ANVIL/CETS (Australian National Victim Image Library / Child Exploitation Tracking System) Chart:
Level 1 – Depictions of children with no sexual activity.
Level 2 – Solo masturbation of a child or sexual acts between children.
Level 3 – Non-penetrative sexual activity between child(ren) and adult(s).
Level 4 – Sadism, bestiality, humiliation or child abuse.
Level 5 – Anime, cartoons, comics and drawings depicting child(ren) engaged in sexual poses or activity.
Level 6 – Non-illegal child material.
Level 7 – Adult pornography
16.On the 20th of August 2017, the Victim attended at a police station and a Video and Audio Recorded Evidence (VARE) was obtained. During the VARE, the Victim indicated they had some GHB and some more GHB and then a couple of shots of vodka, he told the Accused “I’m 14, I’m trans”, the Accused got a bit touchy and took off his pants, they had sex again and again, the Accused used a vibrator on the vagina and he told the Accused that he lived at a residential unit.
MAXIMUM PENALTIES
Indictable:
Supply drug of dependence to a child – Level 4, 15 years max.
Sexual penetration of a child under 16 years – Level 4, 15 years max.
Produce child abuse material – Level 5, 10 years.
Summary charges:
Use drug of dependence – 1 year max.
Induce/assist child in care to be absent without authority – 25 penalty units or 6 months imprisonment.
Possess controlled weapon – 240 penalty units or 2 years imprisonment.
CRIMINAL HISTORY
Nil.
PRE-SENTENCE DETENTION
Nil – on bail.ANCILLARY ORDERS SOUGHT
Disposal will be sought for the two swords.
No s464ZF or s464ZFB – (automatic retention applies).PROCEDURAL CHRONOLOGY
Date charged – 18 September 2017.
Filing Hearing – 19 October 2017.
Committal Mention – 25 January 2018.
Committal – 11 April 2018 (Informant only due to child witness).
Initial Directions Hearing – 26 April 2018 – Trial date listed
Pre-trial Argument – 13 August 2018 – Matter resolved and accused arraigned and pleaded guilty.
Plea listed – 10 December 2018 – Defence sought adjournment by consent.
Plea re-listed – 25 January 2018.SERIOUS SEXUAL OFFENDER PROVISIONS
Applicable (See Sch: 1, Sentencing Act 1991– The offender falls to be sentenced as a serious sexual offender for charge 4 – if sentences of imprisonment are imposed on charges 2 and 3.SEX OFFENDERS REGISTRATION ACT
Applicable – Sexual penetration of a child under 16 years (Class 1 offence); Producing child abuse material (Class 2 offence).
Registration mandatory – 15 years.Counsel for the Director
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