Director of Public Prosecutions v Creely

[2018] VCC 295

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-02231

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT CREELY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	2, 9 and 15 March 2018
DATE OF SENTENCE:	15 March 2018
CASE MAY BE CITED AS:	DPP v Creely
MEDIUM NEUTRAL CITATION:	[2018] VCC 295

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch	Commonwealth Director Of Public Prosecutions
For the Offender	Mr A. Waters	Robert Davis

Pages 1 - 15

 

 

HIS HONOUR:

1Robert James Creely; you have pleaded guilty to one charge of use a carriage service to transmit indecent communication.  That is a Commonwealth charge and carries a maximum penalty of seven years.  You also pleaded guilty to one charge of knowingly possess child pornography, which is a State charge and carries a maximum penalty of ten years.

2You are 67 years of age.

3You pleaded guilty at the earliest reasonable opportunity.  I accept that you have remorse for your offending, and indeed shame.  You must also, of course, get the utilitarian benefit of that plea of guilty.  You had an arguable defence to Charge 1, and that adds to the plea that you have made.

4Importantly, at the age of 67 you have no prior convictions of any description.  That stands very much in your favour.

5Firstly, because of the matters of which you will now be convicted. You will be placed on the Sex Offender's Register, and I advise you the reporting period will be for 15 years.  What were the classes of each charge for ‑ ‑ ‑ 

6MR CROUCH:  They're Category 2 offences, Your Honour.

7HIS HONOUR:  Category 2?  Yes, that's what I thought.  So there's two twos, yes.

8MR CROUCH:  Yes, Your Honour.  The sub-section identified in the opening in the footnotes.

9HIS HONOUR:  Yes.  No, that's right.  She's just typing it now, that's all.  Do it straight away.

10The circumstances here are - so far as Charge 1 is concerned - there has been a disputation about the factual basis upon which I should sentence, and I will deal with that in a little detail.

11Firstly, I note that this matter was originally to be heard in the Magistrates' Court, and clearly both the Crown and the accused man agreed to that process.  As I understand the situation one of the magistrate's refused to hear it summarily, and accordingly that was the reason it came into this jurisdiction.  I think it should not have and I will explain that again in a moment.

12The summary that was read to me and disputed by the accused is as follows.  That you, Mr Creely, are now 67 years of age.  During the period of this offending you lived in Maffra.  From July 2012 to March 2017 you were a cleaner at a Secondary College, and prior to that you had been a bus driver with the college.  That comes into account in terms of suggestion of a position of trust.  It has been pointed out to me that you had not been - physically, at least - in touch with the "victim" for a period of some time.

13You communicated online over a social network site known as Facebook.  I do not need to go through all the detail of that.  You were communicating with one boy.  He was 15 years of age at the time of the offending.  He had previously been a student at that college and was known to you through your work at that college.  You, in your interview, said that he had told you that he was 17.  I do not have to buy into that aspect of it because you have pleaded guilty to the charge, and accordingly I simply sentence on that basis.

14On 23 February 2017 you posted an indecent communication to his Facebook wall.  On that day you had first made contact with him over Facebook and you knew him, as I have indicated before.  You sent a photograph of your penis to him.  Instead of sending the photograph via private message you posted the photograph to his Facebook wall.  I accept that that was done without deliberation, and because you did not fully understand the way in which you were doing it.  On the same day a fellow classmate of the victim - and I am assuming other classmates - saw the public post of the image and took a screenshot.

15On 3 March 2017 - some ten days later - a classmate of the boy showed that image to the principal of the College, who then notified Victoria Police.

16Insofar as that charge was concerned I raised issues with the Crown submission that gaol was the only appropriate sentence.  On that basis you are a 67 year old man with no prior convictions, and I thought that submission was wrong.

17When it was first before me - as I have indicated, on 2 March - the Crown opening, at that period of time, had included within it the paragraph that you first made contact, that he had replied via private message with words to the effect that he was not gay and had a girlfriend.  That opening had within it:

"On the same date during the private message conversation the victim asked the offender to send him a photograph that he could give to his brother, who was gay".

18That paragraph was removed after the conversations that took place on
2 March 2018.

19Further on 2 March, when the matter first came on before you were arraigned, the Crown opening included the paragraph:

"The 15 year old victim had been a student at the accused's workplace; [a] Secondary College.  The impact of the offending conduct on the victim is substantial.  The victim has suffered damage from a person within his local community who was in a position of trust.  This will have a lasting effect.  Moreover, the other children who also saw the Facebook post will likely be similarly impacted".

20That paragraph was changed in terms of the submissions that were later put in because I had, at the time, raised the question as to whether there was indeed a victim impact statement at all, and whether there were any instructions to that effect.  That, to me, seemed to fly in the face of the agreed Crown opening.

21The matter - as I have indicated, I think - came back before me on 9 March, when you were arraigned, and that was when the defence disputed the Crown opening.  It then comes down to me to decide upon which basis I sentence.  It is quite clear that negotiations took place to settle this matter.  As I understand it there was originally a charge of grooming, which was dropped.  I am not prepared to engage in a situation which would appear to be suggesting that this was grooming when such a charge could have been proceeded with.

22Whoever drafted the original Crown opening - whoever did the "deal", I suppose you could call it - was of the view that the paragraph that has been deleted was the appropriate paragraph to put in.  As I understand it - and I find this quite astonishing - after you had said that in your interview the day after the VARE - that the boy had asked for the photograph - it was apparently never put to the boy whether that was true or not.  Whether it was put to him or not, I have no idea.  I find it astonishing that it would not have been.  That concept within this particular charge is of real importance in the process that I have to go through.  I do not know, for example - again, going back to those original documents - whether the boy was offered the opportunity of the victim impact statement, or what his response was.  The fact of the matter is there is not one and there are no instructions.

23When you were interviewed - and these are the matters which obviously the prosecutor who drafted the original opening accepted - you, at question 132 in relation to it.  Question:  "All right.  So with this" - answer:  "If you look - if you look up then you'll probably see where he's asked for it".

24Later on, a longer passage - this is from 237 onwards.  Question:  "Yep.  So you knew he wasn't gay?"  "Yeah".  "But you still sent the photo of your penis to him?"  Answer:  "Oh, yeah.  Well, he asked for it for some other reason".  Question:  "Yep.  Why did he want it then?"  Answer:  "To give to his brother".  Question:  "And why did he want to give it to his brother?"  Answer:  "I just" - question:  "I'm just trying to understand, Robert".  Your answer:  "Won't all this come out in court, because" - question:  "I'm just trying to" - answer:  "The lawyer has told me not to - to give no comments, 'cause it'll all come out in court, so" - question:  "I mean, that's really up to you".  Answer:  "I want to get this over and done with, but I've also got to do what the lawyer told me to do, so" - question:  "Yeah, yeah".  Answer:  "I'm torn between" - question:  "Yep.  No, it's all right.  Well, what you said is that he's asked you for the penis photo - the photograph of your penis to give to his brother".  You went, "M'mm", and question:  "And do you know why he asked for that to give to his brother?"  Answer:  "Because his brother is gay".

25Having gone again through the VARE after hearing the Crown submissions it is my view that I have no difficulty in accepting that the appropriate basis on which to sentence is what was contained within your record of interview.  There is nothing in my view to seriously contradict it, and I am comfortably satisfied that that is the basis - as was indeed the person who drafted the original Crown opening - that that should be the appropriate basis for sentence.

26In that situation, where I have got - having again read it with a view to the effect on the victim I have formed the view that the odds here are very high that (1), the victim would never have taken this matter to police if the classmate had not shown it to the headmaster, and I think there is a very real probability here that whilst you were behaving like a silly old man - I put that as strongly as I can - I think that there was almost certainly an element of you being wound up by these kids and it went bad and somebody took it to the headmaster.  That being so, it does not excuse your behaviour.  It is a criminal offence and you should have known better, and I have no trouble with the charge being laid.  I have a lot of trouble with the suggestion of the only appropriate disposition is one of gaol for a person in your circumstances, and I do not propose to do that.  I can simply indicate that on that basis alone I will be releasing you on a recognisance on that charge.  It will be with conviction, because that is a punishment in itself.  For that charge the recognisance will be one of three years to be of $500 to be of good behaviour.  There will be no gaol component to that recognisance.  It will become evident in a moment why that is so.

27The other charge is the one of possess child pornography, and is a far more difficult sentencing proposition.

28In March police attended at your residence in Maffra.  You voluntarily handed them your mobile phone, tablet and laptop for analysis.  You were interviewed in respect of the sending of the message and I have already been through that and do not need to take it any further.  Subsequently your equipment was analysed and a number of images were found.  Those 228 images and 383 videos were classified according to the categorisation model of child exploitation material, and I am well aware of that.  As such, you were clearly aware of the possession of the material and you knowingly possessed it.

29When arrested you said that you had got that material on an application called "WhatsApp" on your tablet.  You said that you tried to delete "stuff" off that tablet but you could not find out how to delete it, and it would have had to have been you that had acquired, if I can put it that way, the material.

30Child pornography is a vile existence in our community and the law takes it - the possession of it - very seriously.  I have been shown comparable cases, I have been shown sentencing statistics, and by reason of that I am aware of what - on paper at least - would be current sentencing practice.  I am aware of what the Court of Appeal has said in regard to ordinarily in these circumstances a custodial sentence would be warranted.  Offending of this nature has to be regarded as serious.  There is a need, clearly, for general deterrence.  Specific deterrence, in your situation, I think is probably not necessary.  There is to be denunciation and of course there must be an appropriate punishment.

31I was able to obtain the case of Maine very recently from the Court of Appeal, and that sets out the principles that should be looked at, as is set out in many other cases in a manner such as this.

32The starting point, I think from my perception of it, is this; that the Court of Appeal has said that in regard to the offending of child pornography most of those cases, it seems to me, also involve the acquisition, transmission and sharing of that child pornography.

33The statistics show that - insofar as a charge is concerned - when it is dealt with in a Magistrates' Court one in five people are incarcerated.  From my knowledge of the Magistrates' Court it is almost invariable that people with second offences are incarcerated, and almost invariable that people who contest are incarcerated.  That probably means that realistically first offenders in the Magistrates' Court being gaoled are probably something like one in seven - maybe one in eight in reality.  This matter should have been dealt with in the Magistrates' Court and the Crown agreed for it to be so dealt with.  It must have been done in the knowledge that a likely outcome would have been a non-custodial sentence.

34The fact that a magistrate has refused to hear it when I think he should have heard it, and sent it up here, does not change the ballpark, in my view.  However, that does not mean that statistically you do not go to gaol.  That is not what the test is at all.

35Your personal circumstances are contained within a report from Ms Pamela Matthews, a psychologist, and I will go through all that in a moment.

36You are 67 years of age.  You have a cognitive difficulty, which you obviously had for some time.

37The possession had only been for a period of some months.  There is no suggestion that that is anything otherwise.

38As indicated, you have no prior convictions, and you are 67 years of age.  You have two children, who are now adults, who will have nothing to do with you because of this.  So you have lost your children, you have lost your job, you are now socially isolated.  A brother has taken you in to accommodate you.  Apparently there are difficulties with that because of the landlord.  You have virtually got nothing.  This has cost you everything, effectively.

39You have worked pretty much all your life except for one extended period that you have been to Perth, where you stayed with your daughter, and yours is a situation where at your age, with your difficulties, if I needed to I would exercise mercy.  In any event, I do not think it needs to even get to that stage.

40In Maine the court set out the principles.  They quoted from Garside, which of course is a decision that the Crown had already given to me.

"The objective seriousness of child pornography offending is ordinarily determined by reference to the following factors:

(1), The nature and content of the material - in particular, the age of the children, the gravity of the sexual activity depicted".  Well, in this particular situation there is nothing out of the ordinary in that circumstance.

(2), "The number of items or images possessed".  In the County Court I have seen matters where there are tens of thousands.  The amount of images you had is nothing like what we normally see, however the Crown very correctly point out that you did have a significant number of videos.  Whether that is a correct way of assessing it or not, I am not too sure, but I do take the view that the videos are probably of greater damage, if I can put it that way, to stills - but I suppose I have no idea how these are manufactured.  Maybe the stills are just taken from videos, I do not know, but in any event, that is the situation with the number.

(3), "Whether the material is for the purpose of sale or further distribution".  That is clearly not the case.

(4), "Whether the offender will profit from the offence".  That is clearly not the case here.

(5), "In the case of possession or access of child pornography for personal use, the number of children depicted, and thereby victimised".  Well, I have really covered that already with No.1.

(6), "The length of time for which the pornographic material was possessed".  That was a relatively short of period of time and I have accepted, as the original Crown opening did, that you had endeavoured to delete at least some of it, but were unable to.

41In Maine the court went on to say this:

"Obviously the number of images and duration of the offending are relevant considerations, but an assessment of the objective seriousness of a child pornography offence is only part of the assessment that must be undertaken by a sentencing judge in determining an appropriate sentence.  An assessment of the offender's prospects of rehabilitation and the weight to be given to specific deterrence is also important".

42Your prospects of rehabilitation are excellent.  You have been found - both by Corrections and by Ms Matthews - as a low-risk of reoffending, and I would be very, very surprised if you ever did this again.  Because of the disposition I am going to impose if you were to do this again, and be apprehended, you will receive a significant gaol sentence indeed.  I make it no more clearer than that.

43Again, I do not think I need to go into great detail of Ms Matthews' report.  The history speaks for itself.  You were basically brought up on farms, you have worked as a labourer, had a marriage - and two children from that marriage - you have worked in butter factories.  In 2008 you suffered a heart attack, but there was nothing in your medical condition which would preclude you from going to prison.  As I have indicated, this is probably the saddest part of all this; the two children - your son and your daughter - now want nothing to do with you.  That is something you will have to live with for an extended period of time.  Also something else you will have to live with - and I am aware of the provisions about the Sex Offender's Registration - is that in that scenario, being on that register, you will be unable to have grandchildren stay with you, in any event.  So I accept that there will be social isolation for you.

44You used to drink heavily, but now only drink occasionally.  As I have indicated you suffered a heart attack, you take medications, but again, there is nothing in any of that.  There is nothing in any of your psychological circumstances which would call into play the principles of Verdins insofar as more difficulty in gaol, or those sorts of matters.  You are suffering a decrease in vision and hearing, and at your age that is certainly not unusual.

45What is of significance in Ms Matthews report is that having examined you she found that your cognition estimated based on language, educational history, employment background, and later testing, is estimated to be borderline.  Insight is limited by cognitive limitations.  She said:

"Over a lifetime his cognitive function has been in the borderline range.  His rather low score on executive functioning may be an indicator of a decrease in decision making abilities due to age related deterioration, or his history of alcohol use at hazardous levels".

46She then goes on in terms of risk:

"Mr Creely's risk of future offending in a similar manner is estimated to be low.  Advancing age, in Mr Creely's case, is also a moderating factor.  Cognitive testing indicates Mr Creely functions in the borderline range of cognitive inability, with more significant deficits in executive functioning being mildly impaired.  Executive functioning covers the abilities to inhibit behaviour, shift from one situational demand to another, control emotions, initiate an idea, response, or activity, or hold information in memory for the purpose of completing a task, plan or organise future orientated task demands, impose order on work, recreation, relationships, and other aspects of lifestyle, or living, and self-monitor against general expectations".

47She goes through those matters and then says:

"Hence there is a (indistinct) connection between Mr Creely's mode, or means of offending, and his cognitive limitations.  It's also the writer's opinion that Mr Creely's cognitive limitations are not the cause of his offending, but rather this aspect of his offending relates to sexual preferences which are male orientated, but yet to be clearly defined".

48When one starts to examine cases like Verdins it does become difficult.  Insofar as Charge 1 is concerned I have already given a decision on that, but added to that is the cognitive difficulties that you have - perhaps the lack of perception as to what the consequences may have been and the seriousness of what you were doing.  Insofar as the child pornography is concerned it may go, to a level, to moral culpability, and I am making no real finding about Verdins in this situation, but you did have the material, you were accessing it, and even though you had attempted to delete it, but were unable to, you still were aware of what it was, and you must have been aware of the criminality of possessing such material.

49Accordingly there needs to be an appropriate punishment.  The Charge 2 is a State charge, and accordingly the principles of Boulton apply to it.  When I take into account the prospects of your rehabilitation, the consequences that all this has had for you, the fact that general deterrence can be achieved by a community corrections order - as pointed out in Boulton - I think that a community corrections order with conviction - which is a punishment again in itself - is the appropriate disposition.  However, that community corrections order must show that it is serious offending.  Accordingly, despite your age, that CCO - if you agree to it - will have the following conditions:

50300 work hours.  It will be over three years.  I will include mental health, programs to reduce reoffending - which, in all probability, will be the Sex Offenders Program - and supervision.  Any hours done on any programs can be taken from the 300 in reduction of it.  These, as I have indicated, will be over a period of three years.  I believe that this is a situation where Boulton is applicable and that satisfies sentencing principles.

51I have made it very clear to you that should you reoffend in such a way, and breach that CCO, you will be brought back before me.  Reoffending would, of course, breach the recognisance, but in this situation I would not be able to impose a gaol sentence for that, but I certainly would insofar as a CCO is concerned, and were you to engage in this conduct again I can clearly indicate to you you would receive a gaol sentence which would involve a minimum term, which your counsel can explain to you in terms of what that means.

52The prospects of your rehabilitation I think have already been put in place.  The risk of you reoffending, as I have indicated, is low, and I think this is about all we can do as far as punishment is concerned.  Whilst I am well-aware of the Court of Appeal authority in your particular situation I think enough is enough.  All right.  So have you got the recognisance?  The Crown do that.

53MR CROUCH:  I think that Your Honour's associate would print a copy of that (indistinct words).  Sorry, the recognisance form.

54HIS HONOUR:  The Crown always do that.

55MR CROUCH:  I don't have a copy of it, Your Honour.  I can obtain one and ‑ ‑ ‑ 

56HIS HONOUR:  Well, I'm going to have to get him to sign it, that's the problem.  That doesn't have to be done now, but I'll just - as well I think I've also got to explain to him with the recognisance on Charge 1, if you breach it by misbehaviour, or criminal offending, you get brought back, okay?  And the consequence of that would be, in this situation, that the strongest disposition that could be imposed would be a fine.

57With the community corrections order, once you sign that I make it clear if you come back for doing this again, or breach it by just not turning up, or whatever, you're in very, very serious trouble, right?  I can't put it any plainer than that.  Where's he living?  Is he still living in Maffra?  No, he's living in Tanjil.  No, it's all right.

58MR WATERS:  Yes, Tanjil.

59HIS HONOUR:  No, it's Morwell.  Morwell's fine.  Yes, okay.  Yes, sorry.  No, I still had in my head Maffra.  It was in Tanjil South.

60MR WATERS:  Yes.

61HIS HONOUR:  No, those recognisance are always done by the Crown.  I've never done one.  I've never had an associate do one.  What we can do is this - I'll wait till he's finished.  If it can get sent to me I'll get an undertaking that it'll be sent to him and he'll sign it, and then when it's signed and returned to me - unless you can get it here in the next half an hour?

62MR CROUCH:  I couldn't, Your Honour, and I ‑ ‑ ‑ 

63HIS HONOUR:  I don't think we have - we haven't even got access to it.  It's not ‑ ‑ ‑ 

64MR CROUCH:  Yes, I actually spoke - I've never seen this particular disposition in the County Court.  In the Magistrates' Court ‑ ‑ ‑ 

65HIS HONOUR:  Which is where this should have been.  It happens all the time, yes.

66MR CROUCH:  Yes, and they have that form there.  I can ‑ ‑ ‑ 

67HIS HONOUR:  They might, but we don't.

68MR CROUCH:  Yes, it's a suitable course, Your Honour.

69HIS HONOUR:  Any recognisance, even if it's a gaol then release, has always been done by the Crown in my - in this court - so - but anyway, if you can just get the form and send it to us.  I'll get an undertaking in a moment then he'll sign it and we'll go from there.

70MR CROUCH:  As Your Honour pleases.

71HIS HONOUR:  Are we right?

72TIPSTAFF:  We're just waiting for that address, Your Honour.

73HIS HONOUR:  Sorry?  You're getting the address, yes.

74MR CROUCH:  Sorry, Your Honour, was the - Charge 1, the disposition - it was a three year order with a ‑ ‑ ‑ 

75HIS HONOUR:  Three year recognisance with conviction.

76MR CROUCH:  Yes.

77HIS HONOUR:  And $500.

78MR CROUCH:  Thank you, Your Honour.

79HIS HONOUR:  And the only condition is good behaviour, and I'm aware - I think I've indicated I'm aware that that does not give a power of imprisonment if it's breached, and as I understand it, when that recognisance is signed it's forwarded to the Crown.  The Crown keep it, not the court.  Because I had a bloke once on a tobacco thing where the Crown had lost it.  You've never seen a happier face in a dock.

80MR CROUCH:  My experience has been, Your Honour, that the court keeps the original, but ‑ ‑ ‑ 

81HIS HONOUR:  We keep it now, do we?

82MR CROUCH:  Yes.

83HIS HONOUR:  Okay.  It might have been because of that.  Might be why.  That's all done.  Yes, okay.  What I'll do is I'll order that he be released upon entering a recognisance.  That takes effect now, and I will - when we've got it if, Mr Waters, you can make sure that - I don't know whether - who's instructing, or whatever - but we'll send the recognisance to the solicitors and he'll sign that recognisance and undertake that it be returned to me, because it won't become effective until it's entered into.

84MR WATERS:  Yes.

85HIS HONOUR:  And if he doesn't enter into it ‑ ‑ ‑ 

86MR WATERS:  Yes.

87HIS HONOUR:  ‑ ‑ ‑ the sentence will not be there, and I'll bring him back.

88MR WATERS:  Indeed.

89HIS HONOUR:  It's Rob, is it?

90TIPSTAFF:  Yes.

91MR WATERS:  Yes.

92HIS HONOUR:  Sorry, it is too.  Yes, okay.  Yes, he'll bring it back.

93MR WATERS:  I'll let him know.  Thanks, Your Honour.

94HIS HONOUR:  He's too reliant on my good graces not to do it.  Okay, that all makes sense?

95MR WATERS:  Yes.

96HIS HONOUR:  All right.  Yes, my associate will give you a copy of that CCO and we'll just go from there.  All right.

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