Director of Public Prosecutions v Chapman
[2020] VCC 1136
•28 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-20-00700
Indictment No. K13164326
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN CHAPMAN |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 July 2020 | |
DATE OF SENTENCE: | 28 July 2020 | |
CASE MAY BE CITED AS: | DPP v Chapman | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1136 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Use carriage service to solicit child pornography – fail to comply with reporting obligations – youthful offender – COVID-19 – general and specific deterrence
Legislation Cited: Sex Offenders Registration Act 2004 (Vic) - Sentencing Act 1991 (Vic) - Crimes Act 1914 (Cth)
Sentence: Two years and seven months' imprisonment. Once you have served 18 months of that sentence you will be released on a recognisance release order for a period of 13 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Karamicov | Office of Public Prosecutions |
| For the Offender | Mr A.J. Patton | Tyler Tipping & Woods |
HIS HONOUR:
1 Darren Chapman, on 17 July 2020 you pleaded guilty to an indictment containing 11 charges, being use carriage service to solicit child pornography material (Charges 1 and 3) and nine charges of failing to comply with reporting conditions under the Sex Offenders Registration Act 2004 (Charges 2, 4-11).
2 You admitted your prior convictions.
3 The maximum penalty for using a carriage service to solicit child pornography material is 15 years’ imprisonment, while the maximum penalty for failing to comply with reporting obligations under the Sex Offenders Registration Act is five years’ imprisonment.
4 Tendered as Exhibit A on the plea and read aloud in court was the Summary of Prosecution Opening. The opening was supplemented by references to the depositions.
5 You met the victim of Charge 1 when she was 14 years of age when you attended with your family at her family house to pick up a puppy. During the period when your victim was 14 years of age, you became Facebook friends with her and commenced to communicate with her by way of Skype and Facebook phone calls. After your victim’s 15th birthday, being 30 March 2014, you repeatedly requested that she undertake sexual acts for you while you were on video calls. You asked your victim to take her pants off and to show you her vagina. You asked her to touch and rub her vagina. As well, you asked her to take her top off and show you her breasts. Your victim complied with your requests.
6 These requests continued for years, including after the time that you and your victim became boyfriend and girlfriend, which was on or about 6 April 2015, when your victim turned 16 years of age. On and after that time, you repeated your requests including that your victim masturbate to orgasm. Your victim complied with your requests.
7 In her sworn statement, your victim wrote:
“The Facebook chats were all based on sex. He said things like ‘when we go here or there we can have sex in the toilet or somewhere else’.
I felt like I had to talk that way back to him. I felt very controlled by him and felt like I couldn’t get out of the relationship. This lasted for about five years. He was very controlling and manipulative of me. He made me feel like l had to send him nudes.”
8 The between dates of Charge 1 are from 30 March 2014 to 29 March 2017, being from your victim’s 15th birthday until the day before she turned 18 years of age.
9 On 22 January 2015, you appeared before the Latrobe Valley Magistrates’ Court charged with using a carriage service to transmit indecent communications to a child under 16 years. You were convicted and placed on a Community Correction Order for a period of 18 months with conditions. As a result of your conviction you were subject to the provisions of the Sex Offenders Registration Act for eight years.
10 It was common ground between Ms Karamicov of counsel, who appeared on behalf of the Crown and Mr Paton of counsel, who appeared on your behalf, that some of your offending that founds Charge 1 occurred after your appearance at the Latrobe Valley Magistrates’ Court and, accordingly, you were subject to a Community Correction Order, and this fact is an aggravating feature of part of your offending the subject of Charge 1.
11 The facts that founded the charge which was dealt with on 22 January 2015 form part of Exhibit C on the plea. Your offending concerned a 12 year old girl after she had attended a camp where you were employed as an intern. At the time of your offending you were 18 years of age.
12 Charge 2 on the indictment is founded on the fact that you did not inform police of your contact and/or relationship with the victim of Charge 1 in breach of your reporting obligations under the Sex Offenders Registration Act.
13 Returning to your prior convictions, you contravened the Community Correction Order of 22 January 2015, by further offending that occurred in February and March 2015. You were brought once again before the Latrobe Valley Magistrates’ Court on 7 April 2016 in respect to failing to comply with the order, as well as the offence of communicating with a person under your care, supervision or authority who was under the age of 16 for sexual offences.
14 For this offence you were again placed on a Community Correction Order with conditions for a period of 18 months and ordered to be subject to the provisions of the Sex Offenders Registration Act for a period of 15 years.
15 The factual basis for the appearance on 7 April 2016 is set out in a summary which forms part of Exhibit C, and your conduct included sending images of your penis to your victim and requesting that she go for drives with you so that you could “do things” with her.
16 In respect to Charge 3 on the indictment, when you were aged 21 years you contacted your victim, who was 14. You sent a message of a sexual kind to your victim telling her that you were “horny” and asking her to send you nude photographs, writing:
· “send some nudes maybe? …”
· “even a nip pic”
· “one pic to jerk off to and I’ll send a pic when I’m done with cum”.
17 As a result of your entreaties, your victim having received photographs of your penis, sent you photographs of her breast area covered by her forearm.
18 Charge 4 on the Indictment relates to failing to inform police of your contact with the victim of Charge 3, as was your obligation under the provisions of the Sex Offenders Registration Act.
19 Charges 5 through to 11, both inclusive, relate to email addresses, Facebook addresses, a Twitter account and a Snapchat account that you were obliged to advise the police that you had, pursuant to the provisions of the Sex Offenders Registration Act, and that you failed to do. I note that it was common ground between the Crown and your counsel, Mr Patton, that there was no evidence that any of these accounts were active.
20 Tendered as Exhibit “B” were the Victim Impact Statements of the victims of Charges 1 and 3. The Victim Impact Statement of the victim, the subject of Charge 1, was read aloud in Court, and part of the document refers to matters arising out of the relationship that you had with her from when she was 16 years of age until the relationship came to an end in 2019. However, it is plain from the contents of the relevant portions of the Statement that your victim feels that she was treated as an object rather than a person. Further, she felt controlled by you, and that you exploited of her. She feels depressed, anxious and angry. Your conduct has adversely affected her.
21 Your conduct towards the victim, the subject of Charge 3, caused her to feel pressured to comply with your requests. Your conduct has affected her emotionally, in that she feels too scared to make friends and she experiences anxiety “just seeing a male”. Again, by your conduct, you have adversely affected a young girl.
22 It must be kept in mind that in respect to Charges 1 and 3 on the Indictment, that the offence is made good by the soliciting of material, the material being child pornography material, and not by accessing material, causing material to be transmitted, or transmitting material.
23 In respect to the investigation into your offending, police executed a search warrant at your address on 5 December 2019 and seized a number of electronic devices. You consented to those devices being forensically examined that resulted in Charges 5 through to 11, both inclusive. You were interviewed under caution on 5 December 2019 and made full admissions in respect of your offending, the subject of Charge 3. However, you made denials in respect to Charge 1 which, on a fair reading of the Record of Interview, appeared to result from a misunderstanding on your part of the nature of your offending when you had been in a relationship with the victim, the subject of Charge 1, from April 2015 to somewhere in late 2019. It should be further noted that during the Record of Interview you demonstrated your understanding of your obligations under the Sex Offenders Registration Act, as well as an understanding of what constituted child pornography material. However, the record of interview was conducted well after the occasions on which you offended during the dates pleaded in respect of Charges 1 and 3 on the Indictment.
24 You have relevant subsequent convictions. I was informed by Mr Patton that on 10 December 2019 the victim the subject of Charge 1, with whom you had a relationship, obtained a family violence intervention order in respect of you. In March of this year you contacted your victim by social media, during which you masturbated and requested explicit photographs from her. Further, in April you sent texts to your victim. I was informed that your actions gave rise to a charge of Persistent Contravention of a Family Violence Intervention Order. You were convicted and sentenced to 90 days’ imprisonment. You were granted your freedom on 9 July this year after serving 72 days’ imprisonment, because of allowance for periods of emergency lockdown. You had at the time of your sentence spent 71 days by way of pre-sentence detention.
25 You are 25 years old, and accordingly a youthful offender. You were aged between 18 and 23 during the time of your offending. You entered your pleas of guilty at the earliest possible opportunity, and you are entitled to the benefits that flow to you from your pleas, being their utilitarian benefit and that they are some evidence of your remorse.
26 You are the middle child of five sons born to your mother and father. Your father is a retired taxi driver. Along with one of your younger brothers, you suffer a chromosomal abnormality which you inherited from your mother. The chromosomal abnormality leads to learning difficulties. You were raised in Moe and attended both primary and secondary schools there. Whilst at primary school you received the benefit of the services of a teacher’s aide. This facility, however, was not made available to you during your secondary education and you struggled at secondary college, and left school part-way through Year 11. You have found it difficult to maintain employment. After leaving school you completed two years of a motor mechanic apprenticeship; however, you did not complete your indenture. You worked as an intern at a Christian camp, and you have also worked at an abattoir. Prior to being incarcerated you had worked as a delivery driver for six months, and you instructed Dr Aaron Cunningham, psychologist, whose report dated 26 June 2020 was tendered as Exhibit 1 on your plea that you enjoyed that work.
27 Dr Cunningham conducted subtests of the WAIS‑IV to screen you for intellectual disability. Dr Cunningham did not report in respect to your full score IQ; however, he did report that your verbal comprehension index was such that 81 per cent of your age peers would score better than you. Further he reported that your working memory index resulted in a score where 45 per cent of your age peers would do better than you. Your scores were not consistent with an intellectual disability.
28 Dr Cunningham also assessed you for the risk of sexual offending, and in applying the RSVP structured guidelines he assessed you as a moderate risk of sexual reoffending. However, Dr Cunningham opined that your risk is attributable to your relative immaturity, impulsivity and lack of self-awareness.
29 In short, you had a stable childhood with no indication of abuse or trauma. You struggled with formal schooling and have had difficulty maintaining employment. You presented to Dr Cunningham as emotionally and psychologically immature, relative to your age peers. Dr Cunningham opined that you do not meet the criteria for paedophilia, and that your behaviours occur in the context of your relative immaturity and lack of self-awareness.
30 In his well-structured plea, Mr Patton emphasised your relative youth, your immaturity, the circumstances of your offending, including that Charge 3 was based on one communication, and that the various internet addresses and the like that you had not reported to the police pursuant to your obligation to do so were not active. Further, Mr Patton relied upon the delay in bringing these matters forward to prosecution and your early plea. Finally, Mr Patton noted your small stature and submitted that because of this you would be likely to be targeted by others within the prison. In addition, you will be subject to restrictions placed on prisoners as a result of the COVID-19 pandemic.
31 The circumstances surrounding your offending are concerning, particularly so because of your prior convictions and that your offending was committed whilst you were serving Community Correction Orders, which is an aggravating feature of your offending. Further, your subsequent offending would tend to show that the conduct the subject of Charges 1 and 3 on the indictment falls into a pattern of behaviour that may be entrenched. I regard your prospects for rehabilitation as guarded.
32 Conduct of the kind committed by you must be deterred. You must be specifically deterred from further offending. You have been assessed as a moderate risk of sexual reoffending and accordingly protection of the community from you must play a role in the exercise of my sentencing discretion. Your conduct must be publicly denounced, and you must be justly punished. However, you are a youthful offender, and I must look to your rehabilitation.
33 Doing the best I can, taking into account your offending and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
34 On Charge 1, 18 months’ imprisonment,
35 On Charge 2, 4 months’ imprisonment,
36 On Charge 3, 18 months’ imprisonment,
37 On Charge 4, 4 months’ imprisonment,
38 On Charge 5, 1 months’ imprisonment,
39 On Charge 6, 1 months’ imprisonment,
40 On Charge 7, 1 month’ imprisonment,
41 On Charge 8, 1 month’ imprisonment,
42 On Charge 9, 1 month’ imprisonment,
43 On Charge 10, 1 month’ imprisonment,
44 On Charge 11, 1 month’ imprisonment, and
45 On Charge 12, 1 month’ imprisonment.
46 I order that two months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 2.
47 I order that the sentence on Charge 1 commence one month prior to the expiration of the State sentences imposed this day.
48 I order that Charge 3 commence 10 months prior to the expiration of the sentence imposed on Charge 1.
49 By this sentence it is my intention that you be sentenced to two years and seven months' imprisonment.
50 The court orders the release of the defendant under paragraph 20(1)(b) of the Crimes Act 1914 Commonwealth after serving 13 months of the term of imprisonment upon the defendant giving a security by way of recognisance of $500 to comply with the following conditions; a) that the defendant is to be of good behaviour for 13 months; b) be subject to the supervision of a probation officer appointed in accordance with the order; and c) obey all reasonable directions of the probation officer; d) not travel interstate or overseas without written permission of the probation officer; e) undertake such a treatment or rehabilitation programs that the probation officer reasonably directs.
51 I declare that you have spent 11 days by way of pre-sentence detention not including today.
52 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 4 years’ imprisonment with a non-parole period of 2 years and 6 months’ imprisonment.
53 I direct that you be subject to the provisions of the Sex Offenders Registration Act 2004 for life
54 A copy of that order will be sent to you. I have already explained it to you but I will do it once more. The effect is that you are sentenced to 31 months' imprisonment. Once you have served 18 months of that sentence you will be released on a recognisance release order for a period of 13 months. During that 13 months you must abide by the five conditions that I have read to you, in particular you must be of good behaviour. If you commit an offence punishable by imprisonment you will breach this recognisance release order and you will fall to be resentenced in respect of the 13 months held over your head and the real likelihood is that you will be ordered to serve that 13 months. Do you understand?
55 OFFENDER: Yes.
56 HIS HONOUR: Once again I want to thank you for your patience. I will break connection with you now, thank you, Mr Chapman.
57 OFFENDER: Thank you.
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