Director of Public Prosecutions v Conway

[2024] VCC 445

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01512

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE CONWAY

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2024
DATE OF SENTENCE:	10 April 2024
CASE MAY BE CITED AS:	DPP v Conway
MEDIUM NEUTRAL CITATION:	[2024] VCC 445

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Plead of Guilty – Use carriage service to procure person believed to be under 16 years of age – Possess child abuse material using a carriage service – Chatroom – Fourteen year old girl – Police Operative – Sexually explicit engagement – Procurement – Persistent – Highly sexualised interaction – Breach of trust – Gravity – No criminal priors – Short offending period – Anxiety and depression – Isolation arising during COVID – Community Corrections Order – Rehabilitation– Punishment – Deterrence –Imprisonment – Recognizance Release Order.

Legislation Cited:           Crimes Act 1914 (Cth), s 17A.

Cases Cited:DPP (Cth) v Singh [2017] VSCA 146; Director of Public Prosecutions (Cth) v Cameron [2020] VCC 1506; DPP v Edwards [2021] VCC 238; DPP v Dean [2019] VCC 40; R v Verdins & Ors [2007] VSCA 102.

Sentence:Total sentence of 23 months imprisonment and a single recognizance release order, to be released after serving five months, leaving 18 months to be served in the community.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	M. Challen	Commonwealth Director of Public Prosecutions
For the Accused	K. Rolfe	Angus Cameron Lawyers

HIS HONOUR:

1Jamie Conway, you have pleaded guilty to two offences, firstly using a carriage service to procure a person believed to be under 16 years of age contrary to s 474.26(1) of the Commonwealth Criminal Code between 10 May 2022 and 17 July 2022.  Secondly, possessing child abuse material using a carriage service contrary to s 474.22A(1) of the Code, discovered and occurring on the single day of 21 March 2023.

2The agreed summary of your offending appears in the Commonwealth summary dated 5 April 2024.

3In summary, each of the two charges carries a maximum penalty of 15 years' imprisonment.  Charge 1 relates to your engagement with someone you thought to be a 14-year-old girl on four different online platforms: firstly a chatroom on a website; secondly, a messaging service online; thirdly, by way of text messages by phone and finally by a phone call, that all happened between May and June-July 2022.  At the very least, it all happened over 11 or 12 distinct days which the Commonwealth have summarised and as discussed in court.

4Your engagement with the person at the other end, who as it turns out was a police officer but who you thought was a 14-year-old girl, was sexually explicit. At times you engaged with suggestions or requests with the caveat 'if she wanted to', but of course a child is not taken to be able to give effective or proper consent to sexual conduct. As such, the laws of the State and the Commonwealth make such engagement and suggestions criminal.  In the chat, the responses to you in the first engagement, it was clear to you that the person at the other end of the call was for all intents and purposes a 14-year-old girl. 

5It was said in the text that that was the case and further that she was just home from school, and that her mum was present in the home. In other contact you had, you in fact engaged in criticism of her mother, saying 'You're not a little girl anymore', criticising the mother's parenting and thereby intervening in the child/parent relationship, that is, from your point of view.  You offered to meet the girl.  You stated that you had arrangements to travel to where she lived and that you would do so, and you offered her inducements by way of purchasing her a phone or taking her shopping or to a movie. 

6I find in all the circumstances that your engagement in this procurement was persistent, it was intrusive, and it was of a significant degree of intensity for a 14-year-old girl who you intended to be the recipient of your messages and communications. 

7As to Charge 2, there was a search warrant executed at your place on 21 March 2023.  Police seized a laptop and a mobile phone and upon examination they found four images, in a download folder.  Whilst there were only four images, the four images included depictions of seven to 10-year-old girls, one in each image.

8Two of them were engaging in sexual penetration.  A different two included the presence of an adult male engaging with the girls sexually, one of them penetrating or seemingly to be penetrating her.  Whilst the number of images is low, the content of them is disturbing and very grave. 

9Your counsel, in a comprehensive and forcefully-put plea, indicated that you were living in somewhat isolated circumstances, including due to COVID, in 2022. Because of COVID, you had engaged with the internet to overcome your isolation.  You went onto the dating site that gave rise to Charge 1 and, I was urged to find, that was for legitimate reasons, or at least that I should not find that you went there with the purpose of finding a child to engage with sexually.

10I do not make that finding, but nor do I find that you had a wholly innocent state of mind when you engaged in the dating site.  I cannot find either way.  What I do find, is that your engagement with the operative, who you thought to be 14, very quickly descended into highly sexualised interaction and your counsel conceded, quite properly in my view with respect, that it was clear that you were open to engaging with a child on that website once the chat started. 

11It was submitted that your communication was of a low level of sophistication and to a degree I accept that.  There was a profile photo of you that you used which was your own.  You used your own phone number in the later contacts.

12It was also said, which I have some difficulty accepting, that there were no threats or breaches of trust.  Whilst there weren't any overt threats of harm or disclosure, or any other such kind of threat, there was a degree of psychological intervention with the operator, inducing and enticing her to either send you photographs or to meet up with you or engage with you sexually online. 

13There is always a breach of trust when an adult deals with a child in these ways and so I don't accept there was no breach of trust. But of course you weren't in a pre-existing relationship of particular trust with the operative such as being a teacher or step-parent. 

14The evidence doesn't show that you were trolling for children, but I do note that very quickly once you had contact with the police operative, matters turned sexual. 

15Both charges are Class 2 charges under the Sex Offender Registration Act and as such, once I sentence you, you are to be a registerable offender and the applicable reporting provisions will last for 15 years. 

16By agreement you have forfeited the ownership of the laptop and the phone and I make no order about that, because as I understand it you have signed, or will sign an agreement for that forfeiture to occur.

17You were arrested on 21 March 2023 and interviewed, and whilst you admitted the images seemed to be of your home, you made no comment about your identity or having engaged in any way with a child or a police operative sexually.

18You were bailed, but you did plead guilty at a very early stage, namely at a committal mention in 2023, before the matter was adjourned to this court for plea hearing.

Personal Circumstances

19Personally, you are 52 now, you were 50 at the time of the offending.

20You have a criminal history which is irrelevant, I find. You were fined without conviction in 2006 for unrelated matters.  I have no regard to them when fixing a sentence for this matter.

21You relied on two exhibits, the first a Centrelink certificate (Exhibit 1) setting out that you have been diagnosed with anxiety and depression.  That certificate is current, dated 3 April 2024 and those conditions have been affecting you for some time.  It is said, and I accept, that they were operating at the time of the offending, but it was not submitted that they materially reduced your moral culpability for what you did.  I take them into account in a general sense when assessing your circumstances.

22The second exhibit (Exhibit 2) was a letter from a Mark Foote from the Men's Shed, it was undated but I accept it is recent. It speaks well of your character and contribution to the Men's Shed.  It does not refer to this offending and I take it from comments of your counsel that you have not disclosed this offending to him.

23You have grown up and lived in Melbourne's north since you were about eight years old and you remain living at home with your mother, for whom you provide care, and a brother with whom you have a good relationship and who lives with cognitive challenges.

24You are number nine out of 10 children and you have good relationships with all of your siblings.  On your mother's side, uncles have married indigenous women and you identify as aboriginal, but it was not said that that is of any material importance in assessing the sentence in this case other than generally by way of your own personal background. 

25You achieved schooling until Year 9 when you left and began to work.  Your home environment during those years growing up was marred by alcohol related violence at home, and this did not assist you in developing. 

26Between 1997 and 2016 you were a worker and a driver and, in various roles, contributed to the community.

27From then, 2016, however, with the onset of anxiety and depression, you were pensioned and you have lived on the disability support scheme since. Partly, if not chiefly, your anxiety and depression arises from trauma that you had witnessed on the roads with various motor vehicle accidents, not that you were involved in them, but when you were at the scene. Also from an incident when you were a child when a neighbour shot at you and hit you and about which you were a complainant to police and you gave evidence.  I accept that those experiences have contributed to your anxiety and depression. 

28You engaged in some counselling from 2016 to 2019 and you did so willingly, which is to your credit. You have been able to cope since then without medication.  As I said, during COVID you became somewhat isolated, you engaged in the Men's Shed, but the Men's Shed of course was closed during 2020 and 2021.  You engaged with family but those family members that live far away would not have been able to support you during lockdown and restrictions on movements which I accept. Your relationship of 13 years, from which you now have two adult children, broke down in 2005, which formed part of the context of your depression and its development.

Sentencing issues

29Your counsel submitted that a CCO alone would be appropriate in your case.  Ms Rolfe submitted that there is a lower level objective seriousness because of the fact that there are no highly aggravating features of your case of contact in Charge 1. There was only one person that you had contact with, not a number. You did not actually meet them. It turns out they were a police officer, that it was only online, that you did not attend at their location and other like matters are absent.  So much can be accepted. 

30She submitted also that a CCO alone is supported by your personal history; your lack of criminal priors; the very short offending period; your anxiety and depression; the isolation arising during COVID and that you were a good candidate for and had reasonable prospects for rehabilitation.

31She submitted that the focus should be on a community order without requiring you to go into custody.  It was submitted that there is little need to specifically deter you against further offending, that there has been no further offending discovered since you were charged, and you have no relevant priors.

32It was submitted that a community correction order can be appropriately punitive and, importantly, support your rehabilitation as you deal with the complexity of the issues that gave rise to your offending. 

33I accept that much – that your rehabilitation does need to be supported, because the material upon which I could find that you have engaged in rehabilitation is lacking.  Against that submission, I will need to weigh up, and I have weighed up, the seriousness of your conduct. 

34Further, by way of context, your counsel relied on a number of like cases. 

35First, the case of Singh,[1] a Victorian Court of Appeal decision, a Director's appeal against the imposition of a three year community correction order alone. The Court of Appeal said there is no mandatory imprisonment for this kind of offending and that each case must be decided on its own facts, which of course is true. I note that in Mr Singh's case, he was young, in his 20’s, he was a relatively recent immigrant to Australia. 

[1]DPP (Cth) v Singh [2017] VSCA 146.

36Your counsel also referred to Cameron,[2] Edwards,[3] and Dean,[4] being other cases in this court, not being appellate decisions. 

[2]DPP (Cth) v Cameron [2020] VCC 1506.

[3]DPP v Edwards [2021] VCC 238.

[4]DPP v Dean [2019] VCC 40.

37Whilst I do not find that any of them are binding, I do note that Cameron related to an 18-year-old offender who had mental health concerns that directly affected his moral culpability.[5] 

[5]DPP (Cth) v Cameron [2020] VCC 1506.

38Edwards was a charge with a lower maximum, but not much lower, a 12-year maximum sentence.[6]  He had an IQ of 57 and Verdins applied.[7]  He was not a young offender.

[6]DPP v Edwards [2021] VCC 238.

[7]R v Verdins & Ors [2007] VSCA 102.

39Dean had a borderline IQ,[8] he voluntarily ceased contact with the person he was contacting. 

[8]DPP v Dean [2019] VCC 40.

40Every case is different.  I don't find those three cases to be so explicative of principle that they led me to impose a similar sentence to the courts in those cases.

41The Prosecutor submitted that there must be cumulation between the two sentences on these two charges. Further, that the seriousness of Charge 1, at the very least, if not both, passes the s 17A test,[9] namely that prison should only be imposed as a last resort and where it is properly warranted. 

[9]Crimes Act 1914 (Cth), s 17A.

42Mr Challen submitted that in relation to Charge 1, the gravity is not lessened by the fact that you were communicating with a police operative, that when you did communicate, you believed you were sending your messages and speaking with a 14-year-old girl and that your communication only stopped when there was no response.

43As to Charge 2, he fairly conceded that there were only four images and that is a very low number in comparison to other cases of similar nature. However, he did rely on the fact that the content of those images was highly depraved, one of them including real violence against a 7-10 year old girl. 

44A point of contention between the parties during your plea hearing was whether or not recent amendments to the sentencing provisions under the Code mean that there should be a general uplift of sentences. 

45There is certainly a more stringent requirement relating to sentences of more than six months for these kinds of charges, namely that immediate release on a recognizance order may not be ordered unless there are exceptional circumstances.  That is certainly an uplift of a kind.

46Mr Challen submitted that the only inference able to be made from that new provision, is that all sentences ought be increased, whether or not they fall within that particular category. So much was, he submitted, the intention of parliament. 

47Your counsel submitted that that is not the wording of the amendments and that a general uplift provision was not imposed by Parliament and so I should not proceed on the basis that, even if I were to impose sentence short of a six-month term of imprisonment, that I should increase sentence beyond those previously imposed. 

48Ms Rolfe submitted that the real test was, on each charge, whether or not 17A was met, namely the whether facts warranted a term of imprisonment. 

49In the absence of authority, which I sought from the Commonwealth, and there being no such authority at this point supporting a general uplift of sentence, I will not impose sentence on you by way of some general uplift. 

50However, that falls away if, as I have come to the view, only a term of imprisonment of beyond six months is appropriate. 

51As I hope is clear to you, your conduct over those two months with respect to who you believed to be a 14-year-old girl, fell very, very far short of the standards that anybody should live by.

52Unfortunately for you, I have come to the view that such offending must attract severe consequences.  Whilst giving full understanding to your personal circumstances at the time, offending of this nature has such dire consequences to children, that even though in this case, a real 14-year-old was not affected, the conduct you engaged in must attract the kind of punishment that will deter others. 

53I have taken into account your personal circumstances when determining how long you must stay in custody before you are released into the community.

54The order that I will make will provide for that release in some months’ time and that release date will be fixed. That will not be the subject of a Parole Board decision, but you will be released so that you can engage in treatment and rehabilitative programs in the community. 

55Mr Conway, I sentence you as follows. 

56On Charge 1, you are sentenced to 22 months' imprisonment. 

57On Charge 2, you are sentenced to two months' imprisonment. 

58That two months is to commence one month before the termination of the sentence in Charge 1.  That gives rise to a total sentence of 23 months. 

59I make, in relation to that total sentence, a single recognizance release order, such that if you agree, you are to be released after serving five months, leaving 18 months to be served of the total sentence in the community which leaves you the time within which you can engage with appropriate treatment.

60I must caution you about breaching a recognizance release order.  The release order will also provide for a security, if you like, of $1,000, which means that if you get into further trouble during the period of the sentence, you will forfeit and have to pay the $1,000; you will be returned to court and you may face further orders about what the breach means and whether the sentence on this matter changes. 

61Do you understand that?

62OFFENDER:  Yes, sir.

63HIS HONOUR:  If you comply with the order, you will serve five months commencing yesterday effectively.  At the end of that five months you will be released and you will have obligations according to the paperwork we are about to give.

64OFFENDER:  Okay.

65HIS HONOUR:  Do you agree to that?

66OFFENDER:  Yes, sir.

67HIS HONOUR:  In terms of the State Sex Offender Registration Act, as I indicated, because both charges are Class 2 charges, you will have obligations to contact police upon your release.  You will have only a few days to do that.  Your lawyers will help you about that.  I will give you some paperwork now and you can sign to say that they have been provided to you.  You do not have to read them or agree with them, and you will have obligations to report to Victoria Police upon your release for the next 15 years.  I have no choice about that.  I cannot change your obligations or the length of time that they go for. 

68I will explain them to you in short, but your barrister will be able to go through them with you before you sign it.  You have to go to appointments and receive visits.  If they refer you for assessment and treatment in relation to your offending, you must attend.  That might involve group work and ongoing work.  There may be other requirements that Corrections assess you as suitable for and require you to attend, and you must.  I will have that provided to you now so that Ms Rolfe can go through them with you.

69HIS HONOUR:  Thank you.  Mr Conway, is that your signature on the page?  Yes?  Thank you.  And is that your signature on the acknowledgment that you have received the documents about sex offender registration?

70OFFENDER:  Yes.

71HIS HONOUR:  Yes.  Thank you.  Is there anything further other than PSD being one day I declare as having been served. 

72Under s 6AAA, I will declare that had there not have been a guilty plea, the sentence would have been 30 months with a recognizance release after 12 months having been served.  Other than that, are there any orders?

73MS ROLFE:  There's just some custody management issues, Your Honour and I'd just ask that the following be noted.  They are the diagnoses of severe depression and anxiety.

74HIS HONOUR:  yes.

75MS ROLFE:  That it is Mr Conway's first time in custody.

76HIS HONOUR: yes.

77MS ROLFE:  And a request for mental health to be monitored.

78HIS HONOUR:  I will make those additions.

79MS ROLFE:  As Your Honour pleases.‑ ‑ ‑