Director of Public Prosecutions v Chuter
[2015] VCC 1266
•8 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01793
Indictment E11867819
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRESHAM CHUTER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 September 2015 | |
CASE MAY BE CITED AS: | DPP v Chuter | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1266 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Di Pietrantonio | Solicitor for Office Public Prosecutions |
| For the Accused | Mr R. B. Hammill |
HER HONOUR:
1 Gresham Chuter, you have pleaded guilty to one charge of using a carriage service to transmit indecent communications to a person under 16 years, Charge 1; two charges of sexual penetration of a child under 16, Charges 2 and 4; one charge of indecent act with a child under 16, Charge 3; and one charge of possession of child pornography, Charge 5. The maximum penalty for charges of sexual penetration of a child under 16 years and indecent act with a child under 16 years is 10 years' imprisonment. The maximum penalty for using a carriage service to transmit indecent communications to a person under 16 years is seven years' imprisonment. The maximum penalty for possession of child pornography is five years' imprisonment.
2 The offending in relation to Charge 1 of using a carriage service to transmit indecent communications to a person under 16 years of age, arises from the results of a E-Crime analysis conducted after your arrest on 23 April 2013, in respect of the offending covered by Charges 2 to 5. That analysis retrieved 56 email conversations between you and a person I will call "JL" between 1 November 2012 and 8 November 2012. JL is believed to live overseas and has not been identified by police. JL said he was 14. The emails contained sexually explicit language. Nine child pornographic images purporting to be of JL were attached to emails.
3 You were interviewed in respect of these matters on 3 June 2014 and said you did not know of any video clip on your phone of a teenage boy masturbating and said you believed you had been set up in respect of possession of pornography.
4
The victim in relation to the remaining charges is a girl who was aged 14 years at the time of the offending between 1 December 2012 and
31 December 2012, and on 23 April 2013.
5 In late November 2012, you initiated contact with the girl on an online chat room. Your profile said correctly that you were 58 years old and the girl’s profile said that she was 15 years old. You then had phone conversations with the girl and she told you she was 14. She said she was unhappy at home because of family violence issues between her parents. She also said that she had been raped by a family member. You offered to collect her from her home in Sydney and look after her. You said you would give her more freedom than her mother did. You invited her to stay with you in a spare room in your home in rural Victoria. Arrangements were made for you to drive to Sydney and collect the girl. You told her that you had to delete emails and chat room history, as you would get into trouble if anyone found out because the girl was a minor and you should not be doing “stuff” with her.
6 On 1 December 2012, at about 1 am, the girl left the flat in which her family lived and found you waiting in your car, as arranged. She again told you that she was 14. On the drive back to Victoria, you engaged in consensual physical contact of a sexual nature with the girl.
7 On arrival at your home, you both went to sleep in your bed. When you woke up, you engaged in sexual intercourse with the girl. You were not wearing a condom and moved her off you before ejaculating. Charge 2 of sexual penetration of a child under 16 years is representative of four such occasions. The occasion just described is the first occasion and the occasion for which you fall to be sentenced in relation to Charge 2.
8 The second occasion was described by you in your record of interview and was a further occasion of penile/vaginal sexual penetration with you not wearing a condom at the time and withdrawing prior to ejaculation.
9 The girl told police about two other instances of sexual penetration. On an occasion in 2012, you engaged in penile/vaginal sexual penetration with the girl. You had to stop, as she said her legs were hurting. Soon after this you went back to the position you had been in and again you put your penis into her vagina. The girl was uncertain whether you ejaculated on this occasion, but says that you never wore a condom during any of the sexual penetrations.
10 The offending in respect of Charge 3, of indecent act with a child under 16 years, was described by you in your record of interview. You told police that on an occasion during December 2012, you masturbated while the girl watched you.
11 The offending covered by Charge 4 of sexual penetration of a child under 16 years was also disclosed by you during your record of interview. You said that on an occasion in December 2012, you put your penis into the girl’s mouth and engaged her in oral sex, whilst you were stimulating yourself.
12
The girl began to miss her family and booked a taxi for the morning of
21 December 2012, to take her to the railway station, in order to go home to Sydney. In the early hours of that day, she decided to try to leave during the night. She waited until you were asleep, took your credit card and walked to the main road, trying to call a taxi. You went looking for her. You were angry and shouted at her that someone might have seen her. You put her into your car and returned her to the house. You said that you loved her and she could not leave and you wanted her to stay. She stayed. You contacted your work and told them you were sick and stayed home with her. Later that morning the taxi arrived and you told the driver that the taxi was not required.
13 On 27 December 2012, New South Wales police called your home phone and left a message inquiring about the girl, as she had been reported as a missing person by her family. You became very agitated and wondered how the police had located the girl. She convinced you that she had to return to Sydney. On 29 December 2012, you drove the girl to a railway station in Melbourne and bought a bus ticket to Albury and a train ticket from Albury to Sydney, using a false name for the girl. On 30 December 2012, you drove her to the station in Melbourne and she left on the bus. She arrived in Sydney the following day, but was not able to face seeing her family. She spoke to you and you told her to say that she had been at a friend’s house. You told her that you would clean up so there would not be any trace of her.
14 The girl was reunited with her family and the matter was reported to the police. You were arrested on 23 April 2013. Police seized your mobile phone and electronic devices.
15
The E-Crime analysis to which I have previously referred, retrieved three emails which had been sent by the girl to you at your request. The first email on 21 November 2012, depicts three pornographic images of the girl. A second email on the same date contained a further pornographic image of the girl. The third email on 22 November 2012 contained ten pornographic images of the girl. The images are categorised as Category 1 and
Category 4, according to the categorisation used by the police, with
Category 1 being the least offensive category. The images are of an explicitly sexual nature. Those images are the subject matter of Charge 5, possession of child pornography.
16
You were interviewed by police on 23 April 2013. In that interview you denied that you knew the girl was 14, although you did agree that her profile had said she was 15. You denied certain sexual contact, but did make significant admissions in relation to three sexual acts in particular. You admitted that you were conscious of not getting the girl pregnant, as you thought it would not be right because you were too old. You also agreed that it was inappropriate to have sexual intercourse with a schoolgirl who had told you she had been recently sexually abused. You admitted that you had lied to your family and friends about the girl and said you should have been honest and you were trying to do the right thing for someone who needed your help. You also said to the police that you had been “shammed”. After police began to investigate, you spoke to your daughter and a friend, saying that you had been the victim of an internet scam. You denied knowledge of the existence of naked or
semi-naked photographs of the girl on your phone or computer.
17 This matter was resolved on 9 October 2014 at the committal mention stage, with you indicating your plea of guilty. The victim has been advised of her right to provide a victim impact statement, but has not done so.
18 The prosecution made application for the forfeiture and disposal of the computer and child pornography material. The making of those orders was consented to.
19 In sentencing you, I have taken into account your personal circumstances. You were born in England and came to Australia with your family in 1965. You were sexually assaulted on two occasions when you were 13, but did not report this. You completed Year 9 at school and then worked doing various jobs of a low-paid and unskilled nature. You are now 60 old. For the last 27 years you have worked for a quarry. That employment is confirmed by a letter from your employer which was tendered as Exhibit 2.
20 You were married in 1973 and have a daughter who was born in 1977. You and your wife divorced in 1984 or 1985 and you had custody of your daughter from when she was six years old. You married again, but that marriage failed after about ten years. You then had a relationship with another woman for about eight years. That relationship broke up about ten years ago and since then you have been on your own. You have lived in country Victoria for the last ten years or so. Your parents are now deceased. It appears that you have lived a fairly reclusive life, especially after you were adversely affected in bushfires in 2014.
21 You have no prior criminal history.
22 A psychological report from Mr Bernard Healey, dated 26 June 2015, was tendered as Exhibit 1. In that report, Mr Healey describes a number of physical problems that you have had, which have been confirmed by letters from your general practitioner, Exhibit 3, and printout of your medical history, Exhibit 4. Mr Healey says you suffered post-traumatic stress disorder following the bushfires in February 2014. It appears that you had to escape from your home during the bushfires. Mr Healey has been seeing you for ongoing counselling under a mental health care plan and you attended him for treatment on six occasions.
23 Mr Healey says that you are of average intellectual capacity. He says your personality testing was indicative of depression, anxiety and significant social introversion or withdrawal. He assesses your risk of further sexual offending as medium, with no risk of sexual violence. Mr Healey says that in the context of marked isolation, you became involved in chat lines, immersing yourself in a world of fantasy in an attempt to alleviate your loneliness. You acknowledge the serious nature of your offending and the stupidity of your conduct. Mr Healey says you remain self-reproachful and ashamed and appreciate that you may well lose your liberty.
24 Mr Healey says you are hopeful of being involved in a program of ongoing counselling to help you understand more clearly the unacceptable nature of your behaviour and to avoid the possibility of re-offending. Mr Healey says you have been responsive to therapeutic efforts in relation gaining further insight and that you are resolute never to offend again. In his oral evidence, Mr Healey confirmed these matters and said that your levels of insight and victim empathy had improved and would improve further over time, with appropriate support.
25 In sentencing submissions, your counsel particularly relied on:
(a)your plea of guilty;
(b)your co-operation with the police;
(c)your acceptance of the prosecution case;
(d)your remorse;
(e)your medical conditions;
(f)your depression, anxiety and PTSD; and
(g)willingness to engage in treatment.
26 Your counsel submitted that a Community Correction Order would be an appropriate disposition, which would mean that you could continue with your treatment with Mr Healey and engage in a sex offender program. Your counsel submitted that if I were against him on that, that you ought to be sentenced to a term of imprisonment to be followed by a Community Correction Order.
27 The prosecutor, in sentencing submissions, did not take issue that your physical and mental state could lead to some increased hardship in prison, but submitted that it should be taken into account that your conditions could be managed in custody. The prosecutor submitted that due to the nature and gravity of your offending, a sentence of an immediate term of imprisonment would be appropriate, noting that a term of imprisonment to be followed by a Community Correction Order would not be available for the Commonwealth offence, which is Charge 1.
28 The prosecutor submitted that it should be borne in mind that the purposes of the provisions creating sexual offences against children are to protect children from the predations of others and also their own bad decisions. The prosecutor submitted that general deterrence and specific deterrence ought to be significant sentencing considerations and that denunciation was highly relevant.
29 Gresham Chuter, the offending to which you have pleaded guilty is clearly serious offending. All of your offending involves sexual exploitation of children. Charges 2 and 4 of sexual penetration of a child under 16 are particularly serious offences. You engaged in sexual activity with a child knowing that she was under 16. As the decision in R v Clarkson (2011) 32 VR 361 makes clear, the prohibition against sexual activity with a child under 16 is intended to protect children from the harm presumed to be caused by sexual activity, before the age when the child can give meaningful consent. The legislation is designed to protect children against those who would exploit their vulnerability and against their own bad decisions.
30 In respect of this offending, it is an aggravating feature that you engaged the girl in conversation and then held out the prospect to her of a life which would be less problematic than the one she was leading in Sydney. You went to the trouble and effort of going to Sydney to meet her, having made the arrangement earlier. You had already engaged the girl in sexual conduct by the provision of sexually explicit photographs to you. You engaged in sexual activity once you were back in your home. You engaged in sexual intercourse without wearing a condom. You did take steps to avoid getting her pregnant, but those steps did not entirely remove the risk of her getting pregnant or contracting some form of sexually transmitted disease.
31 There is a very considerable age difference between you and the girl. You clearly used emotional means to persuade her to stay when she wanted to leave. She was dependent upon you, living in your home and you took advantage of that. The thought of a man of your age and state of health engaging in sexual activities with a girl of this age is both disgusting and disturbing.
32 You engaged the girl in a sexual relationship, despite her having complained to you about being sexually abused by another person. You took advantage of a teenage girl who was clearly having a difficult time within her own family, to achieve your sexual and emotional objectives.
33 Your prior conduct in transmitting indecent communications to the boy, JL, is consistent with your description of having engaged in chatroom activity on the internet, prior to the offending with the girl. Once again, you were prepared to engage in sexually explicit communications with a child.
34 Your offending must be strongly denounced and the punishment imposed must be severe enough to deter others from engaging in similar activity. A sentence of imprisonment is warranted for the purposes of denunciation, general deterrence and just punishment.
35 I consider that your prospects of rehabilitation are good, given you have no prior criminal history, a good work record and are assessed as at medium risk of further offending by Mr Healey. I also take into account that Mr Healey says that you are remorseful and hopeful of engaging in further counselling to understand your behaviour. It appears that you have gained insight and are resolute and indeed fearful of offending again.
36 I accept that after treatment with Mr Healey, you have greater insight and remorse than you exhibited at the time of the record of interview, where you made a number of denials and attempted to minimise your behaviour or blame the girl or another person for your predicament. It is of significance, of course, that you made admissions during that record of interview. I consider that specific deterrence and community protection need not be given significant weight in sentencing you.
37
In mitigation of sentence, I have taken into account your plea of guilty,
co-operation and admissions. Your plea has saved the trauma and expense of a trial or trials and is an indication of your remorse. You did co-operate significantly with the police. The offending covered by Charges 3 and 4 was disclosed by you and the charges are based on those disclosures. You also disclosed one of the occasions of which Charge 2 is representative. I accept also that you have not quibbled with various aspects of the prosecution case, but have accepted the summary as police have stated. I accept that you are genuinely remorseful and that you are willing to engage in treatment.
38 In his oral evidence to the court, Mr Healey described you as “depressed, distressed, anxious and afraid”. He said you were worried about your physical health. It was his view that your depression, anxiety and worries about your physical health would make imprisonment considerably more difficult for you. I accept that your medical conditions and mental health state are likely to make imprisonment somewhat more difficult for you, despite the treatment you will be able to receive in custody.
39 I have also taken into account in mitigation that you will be serving your sentence in protection.
40 In terms of the Sex Offender Registration Act 2004, you have pleaded guilty to two Class 1 offences and two Class 2 offences. Accordingly, registration is mandatory and you will be required to comply with the requirements of that legislation for life.
41
If you are sentenced to a term of imprisonment on Charges 2 and 3, then you will be sentenced as a serious sexual offender for the purposes of the Sentencing Act 1991 on Charges 4 and 5, on being sentenced to imprisonment on those charges. Being sentenced as a serious sexual offender will bring into operation the provisions of ss.6D, 6E and 6F of the Sentencing Act. Accordingly, I must regard the protection of the community as the principal purpose of sentencing. In order to achieve that purpose,
I may impose a disproportionate sentence. The prosecution is not seeking a disproportionate sentence and I do not propose to impose a disproportionate sentence, given what I consider to be your good prospects of rehabilitation.
42 I make the orders for forfeiture and disposal sought.
43 I have considered the imposition of a Community Correction Order or imprisonment, followed by a Community Correction Order on Charges 2 to 5. You have been assessed as suitable, but it is my conclusion that your offending against the girl, in circumstances where you first made contact with the girl over the internet and then went to Sydney to collect her from her family’s home, is so serious that only a sentence of imprisonment of a significant length could appropriately reflect the relevant sentencing considerations of denunciation, just punishment and general deterrence.
44 If Charge 1 were the only charge against you, I would consider placing you on a Community Correction Order alone, or in combination with a sentence of imprisonment.. That is not the only charge. In view of my conclusion on the remaining charges, I propose to sentence you to a term of imprisonment on Charge 1, of using a carriage service to transmit indecent communications to a person under 16 years of age. A sentence of imprisonment is appropriate, given that a sentence of imprisonment will achieve the sentencing objectives of denunciation and general deterrence. Due to the limited nature of the communications, I consider that it would be appropriate to make that sentence concurrent with other sentences of imprisonment to be imposed in this case.
45 In respect of the remaining charges, I propose to impose sentences of imprisonment, with some degree of cumulation to reflect the additional offending. I have taken into account that the offending covered by Charges 2 to 5 was against the same victim and within a relatively short period of time.
46 Gresham Chuter, could you stand please. Are you able to stand. If you cannot stand, you can remain seated.
47 In respect of Charge 1, using a carriage service to transmit indecent communications to a person under 16, you are convicted and sentenced to three months’ imprisonment. That sentence is to commence today.
48 In respect of Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to three years and six months' imprisonment.
49 In respect of Charge 3, indecent act with a child under 16, you are convicted and sentenced to 12 months' imprisonment.
50 In respect of Charge 4, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of two years' and three months'.
51 In respect of Charge 5, possession of child pornography, you are convicted and sentenced to six months’ imprisonment.
52 In respect of Charges 4 and 5, it will be recorded that you are sentenced as a serious sexual offender.
53 The sentence on Charge 2 is the base sentence. Three months of the sentence on Charge 3; ten months of the sentence on Charge 4; and two months of the sentence on Charge 5, are to be served cumulatively on each other and on the sentence on Charge 3. The total effective sentence is a term of imprisonment of four years' and nine months'.
54 I fix three years and three months as the period you are required to serve before being eligible for release on parole.
55
I declare that you have served 56 days of this sentence by way of
pre-sentence detention.
56 But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years' and six months', with a non-parole period of four years.
57 I make the orders for forfeiture and disposal that were sought.
58 You will shortly be provided with the documentation in respect of the requirements of the Sex Offender Registration Act and you will be asked to sign a document to indicate you have received that information.
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