Director of Public Prosecutions v Domenic Perri

[2024] VCC 1197

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

CR 24-00221

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMENIC PERRI

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JUDGE:	KARAPANAGIOTIDIS
WHEREHELD:	Ballarat
DATEOFHEARING:	1 August 2024
DATEOFSENTENCE:	6 August 2024
CASEMAYBECITEDAS:	DPP v Perri
MEDIUMNEUTRALCITATION:	[2024] VCC 1197

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing

Catchwords:  Use a carriage service to transmit child abuse material – possess or control child abuse material for use through a carriage service

Legislation Cited:  s474.22 of the Criminal Code Act 1955 (Cth); s20(1)(b), pt 1B of the

Crimes Act 1914; sch 2 of the Sex Offenders Registration Act 2004 (Vic); s6AAA of the Sentencing Act 1991 (Vic).

Cases Cited:  Phibbs v The King [2023] VSCA 123 (24 May 2023); Bugmy v The

Queen [2013] HCA 37; Johnston v The Queen [2013] VSCA 362;

Morrison v The Queen [2012] VSCA 22.

Sentence:  Total effective sentence of 7 months imprisonment. To be released

forthwith on a Recognisance Release Order in the sum of $1000 with conditions. Sex Offenders Registration for 15 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Cullen	Office of Public Prosecutions
FortheAccused	Ms E. Allen	Victoria Legal Aid

VICTORIAN GOVERNMENT REPORTING SERVICE 241868

HER HONOUR:

1Domenic Perri, you have pleaded guilty to one charge of using a carriage service to transmit child abuse material and one charge of possessing or controlling child abuse material for use through a carriage service.

Circumstances of the Offending

2The circumstances of your offending are outlined in the amended prosecution opening of 1 August 2024, and this is the basis upon which I sentence you.

3In summary, you came to the attention of police during their investigation into another individual, Phillip Bailey, who informed police that child abuse material on his phone had been sent by someone he had communicated with on the ‘Fastmeet’ chat service. An analysis of his phone confirmed he had received three videos containing child abuse material via WhatsApp from a particular username, with an identified mobile number.

4Between 22 September 2019 and 8 August 2021, you communicated with Bailey on WhatsApp. The messages were sexual in nature, you exchanged images depicting yourself masturbating and inserting hypodermic needles into your arms and sending other pornographic media depicting adults. All of the evidence in support of Charge 1 was obtained from Mr Bailey's mobile phone during the prior investigation into him.

5On 1 June 2023, police attended your residence in Preston to execute search warrants. They seized an Apple iPhone, and an Apple iPad located on your bed in which you had been sleeping at the time. You voluntarily provided the passwords and PIN codes for each device.

6Charge 1 concerns you sending three videos containing child abuse material via the ‘WhatsApp’ application. The videos were classified as Category 1 material, each depicting children under the age of 13 engaged in sexual activity. Two videos depict male adults engaging in penile-anal sexual intercourse with

pre-pubescent male children. One video depicts two pre-pubescent male children engaging in oral and anal sexual intercourse with each other. The videos were sent between 11:58 PM on 7 August 2021 and 12:15AM the next day, a span of 17 minutes.

7Charge 2 concerns your possession or control of 22 video and image files containing child abuse material on your iPhone and iPad. You possessed two of the relevant files with the intention of transmitting them, thereby intending that they be used in the commission of an offence against s474.22 of the Criminal Code Act 1955 (Cth).1 You transmitted two to a contact known as 'James.' You sent one image containing child abuse material on 23 October 2022 over SMS and a cam video on 20 March 2023 over the ‘iMessage’ application.

8In summary, there were eight relevant files on the iPad, comprising seven videos and one image. Five of the videos were classified as Category 1 material, the remainder was classified as Category 2 material. The majority of the files depict male children engaged in sexual activity with adults, sexual posing or exposing their genitals. The ages of the children range from infancy to approximately 16 years old. A sample of the Category 1 and Category 2 material on the iPad is outlined in the opening at paragraphs [21] and [22].

9The iPhone contained 14 relevant files comprising one video and 13 images. The video and two of the images were classified as Category 1 material, 11 images were classified as Category 2 material. The majority of the files depict male children engaged in sexual activity, masturbating, sexual posing or exposing their genitals. Examples of both Category 1 and 2 material are provided in the opening at paragraphs [24] and [25].

Commonwealth Sentencing Regime

10In sentencing for Commonwealth offences, the Court is required to have regard

1 Criminal Code Act 1955 (Cth) s474.22.

to the matters as set out in Part 1B of the Crimes Act 1914 (Cth), in particular, s16A(2) which sets out a non-exhaustive list of factors where relevant and known. In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence2.

Gravity of Offending

11The charges that you have pleaded guilty to, Mr Perri, are inherently serious, as reflected by the 15 year maximum penalty. The applicable principles and factors in sentencing for offending involving child abuse or child pornography material, and online child exploitation, are well established and were referred to by both Counsel.

12General deterrence is a significant consideration. As the higher Courts have stated, there is a paramount interest in protecting children from sexual abuse and exploitation.

13Accessing or possessing child pornography is not a victimless crime, it is abhorrent because it supports a market for the production of images that involve the sexual exploitation of children3. The courts recognise that significant lifelong harm is caused to children who are sexually abused.

14A sentence involving an immediate term of imprisonment is ordinarily warranted.

15Where general deterrence is of significance, personal mitigatory factors such as prior good character, age and prospects of rehabilitation must therefore be given less weight than might otherwise be given. The subjective circumstances of an offender must not overshadow the objective gravity of the offences. Specific deterrence, denunciation and punishment are also important

2 Crimes Act 1914 (Cth) pt 1B.

3 Phibbs v The King [2023] VSCA 123 (24 May 2023).

sentencing considerations.

16The relevant authorities also discuss the factors that are pertinent in determining the objective seriousness of offending relating to possession and access to child abuse material, as outlined at paragraph [31] of the Prosecution submissions. These include: the nature and content of the material, including the age of the children involved and the gravity of the sexual activity; whether the material was intended to be sold or further distributed; the number of items; videos and images; and the degree of planning, organisation, sophistication or deception used to acquire, store, disseminate or transmit the material; whether the offender gave or received any payment or material benefit in the offending and the length of time for which the material was possessed4.

17Operating within this framework and turning to Charge 1 on the indictment, it is a rolled-up charge representing three instances of offending. I take into account the quantity of the material and also its depraved content. Also, I have taken into account the confined period of the offending, noting that the three videos were sent within a period spanning 17 minutes. In all the circumstances I accept the Prosecution submission that the offending in relation to Charge 1 falls toward the lower end of the range of seriousness for offending of this nature.

18Charge 2 is also a rolled-up charge representing your possession of child abuse material across two separate devices. You possessed a total of 22 files containing child abuse material. The material, as I have already outlined, was classified under both Category 1 and 2. There are cases, including the comparable cases provided by Counsel, that involve the possession of a greater amount of material, also possessed over a greater period of time. However, I accept the Prosecution submission that the content is also highly relevant and in this instance the content was particularly depraved, depicting children as young as infants engaged and subjected to cruel and degrading

4 See e.g R v De Leeuw [2015] NSWCCA 183 and Director of Public Prosecutions (Cth) v Garside

[2016] VSCA 74.

treatment. I consider that this offending sits within the lower to mid-range in terms of seriousness.

19By way of context, your Counsel submits that at the time of the offending the subject of Charge 1, Melbourne was experiencing its sixth COVID lockdown. This period was difficult and isolating. In your case, this was also compounded by the loss of your father. You were struggling to cope, had increased your drug use and were utilising social media-based forums to connect with friends, including Mr Bailey, with whom you were communicating with for months, prior to any offending. I take into account this broad context, but of course it does not in any way excuse your offending.

Plea, Contrition, and Co-Operation

20You entered a plea of guilty, Mr Perri, at the earliest opportunity, which entitles you to an important sentencing discount. Your plea carries utilitarian value. It also demonstrates your willingness to facilitate the course of justice and accept responsibility. I further accept that your plea is indicative of remorse. This is also consistent with your disclosure of this offending to your family and close friends and of your reported motivation to address your issues and assume responsibility.

21Also, I take into account that you co-operated with police during the search warrant executed at your premises. You voluntarily provided the police with passwords and PIN codes to each device, as well as to a ‘hidden folder’ on your mobile phone upon request.

Personal Circumstances, Character, and Antecedents

22Your personal history was outlined by your Counsel and comprehensively canvassed in the report of Mr Simon Candlish of 27 June 2024.

23In brief, you were 49 years of age at the time of your offending and you have now turned 50. You were raised in the northern suburbs of Melbourne by Italian

migrant parents, whom you describe as both loving and supportive.

24Your mother was responsible for home duties while your father was employed for a short period on a tobacco farm and later as a bricklayer. You have two sisters and several nephews and nieces. In 2015 your father was diagnosed with Progressive Supranuclear Palsy, a condition similar to Parkinson’s disease. Your father was cared for at home by your mother and in around 2016 you relocated from regional Victoria to assist her in caring for him. In your family’s letter, they express their gratitude for the ‘mental and physical caregiving’ you provided your father during this period. Your friend, Ms Minuzzo, also describes your care giving as ‘truly remarkable and [your] immense dedication [as] evident’.

25Your father passed away, as already noted, during one of the earlier Covid lockdowns and his rapid illness and passing has had a profound impact. You continue to live with your mother.

26The police search was conducted in the family home, and in the presence of your mother, which caused you deep shame. You have been very open with her and your sisters about your offending and they remain supportive.

27You completed high school and describe yourself as an ‘average student’. You have a strong work ethic. From the age of 12, you started working part-time. On completing high school you have also worked full-time up until the date you were charged. After year 12 you secured work as a costume designer in the musical theatre industry and thrived in this field of work for some 17 years. You also worked at Woolworths to supplement your income when there were no shows running. At the age of 36 you secured work as an orderly in a hospital. You enjoyed this work and found it meaningful, leading ultimately to you studying to become a nurse. For the last ten years you have worked as a nurse in numerous hospitals and nursing homes. This is work that you enjoyed and took pride in. Your friend, Ms McCrohan, a registered nurse, who has known

you for nine years, also worked with you in Residential Aged Care. She describes you as having been, ‘an outstanding nurse who demonstrated beautiful care to the residents in both nursing care and emotional care’.

28After being charged your licence was suspended. Your friends, Ms McCosh and Ms Mihalakis reflect as follows: ‘We understand he was suspended from his nursing position which he adored so very much and clearly broke him during this last year. He was hoping to do something innovative to the Melbourne nursing industry.' You accept that it is highly unlikely that you will ever be able to return to working as a nurse given the nature of these charges. While this is not a certainty, I do accept that it is likely that your conviction on these matters will significantly impact your ability to work as a nurse again. It is not alleged that your employment as a nurse was in any way used in the commission of your offending. I therefore accept that the likely loss of opportunity to work as a nurse as a result of your conviction and sentence is a form of extra curial punishment, which I take into account.

29I do note that you are fortunate to have other skills. In 2022 and 2023 you undertook and completed your certificates in hairdressing and barbering and are now qualified and have work available to you. Your friend, Ms Wood, first met you through your studies in this area and describes you as someone who would help the students and offer moral support.

30You have had three age-appropriate relationships and are currently single with no dependants. You have a close network of friends who are aware of the charges, and remain supportive.

31As for your physical health, you were diagnosed with diabetes and currently prescribed medication by your GP, whom you see regularly.

32Notwithstanding, Mr Perri, your relatively stable history, you have consistently used illicit drugs since the age of 18, commencing with the social use of NRG, speed, cannabis, LSD and ecstasy, and progressing to  a long-term

methamphetamine addiction. Your methamphetamine use initially commenced in the context of using with others and then from the age of 40 you used on your own, both by smoking and injecting it. At the time of the offending, you increased your use and you were injecting the drug every second day. You told Mr Candlish: “I’m an addict, I don’t know how to not be an addict.” You have taken some steps to address this addiction, which I will return to shortly.

33Also, notwithstanding a loving and supportive home, your background has been characterised by trauma and abuse, as outlined in the report of Mr Candlish. I accept your Counsel's submission, with reference to the relevant authorities that this invokes Bugmy considerations, in a general sense, and should cause some moderation to your moral culpability and the principle of general deterrence5.

34Mr Candlish’s opinions, as expressed at paragraphs [101] and [104] of his report, in particular, provide a foundation for such a finding. Your experiences have affected your attitudes and beliefs, and also contributed to premature sexualisation. He opines that you may: ‘not have been exposed to adequate role modelling regarding healthy coping and communication, as well as healthy emotional expression.’ He states: ‘he might have developed a sense of defectiveness due to childhood adversity.’ Your experiences reinforce ‘a problematic view’ of yourself ‘and sexual behaviour in general and reinforced a dysfunctional pattern of using sex to cope.’

35Further, Mr Candlish opines:

'His chronic use of stimulants and other illicit drugs across his life appears to reflect his desire for self-stimulation, perhaps related to underlying dissatisfaction and self-esteem issues, as well as representing a mechanism for avoiding strong and negative emotion. He developed a stimulant use disorder in the context of using methamphetamine during sexual activity.'

5 Bugmy v The Queen [2013] HCA 37.

36Your Counsel also submits that, while the voluntary consumption of drugs are generally not regarded as mitigatory, it may be relevant where the evidence shows reduced capacity for exercising judgment. She submits that Mr Candlish provides cogent evidence of the existence of your addiction, its severity at the time of the offending, and a causal link between the offending and the addiction. She also refers to your interview where you state that you do not recall committing the offences.

37As discussed at the plea hearing, the cases establish that voluntary drug taking will only constitute a mitigating factor in the rare circumstances where it is established that the offender did not have full knowledge of the mental state that would be induced by the taking of drugs6. While I accept that your use of drugs and stimulant abuse served as a disinhibitor, to be assessed against the effect of your own previous abuse upon your attitudes and beliefs, I do not accept your Counsel's submissions that your drug use is a mitigating factor. In discussing your offending with Mr Candlish, you provide some history to your exposure to child abuse material in the context of your group drug use. You reported that you had first encountered child abuse material at group sex events that you had either attended or hosted. Everyone was using methamphetamine at these events and some male attendees brought along USBs with both adult pornography and child abuse material. In respect of your transmission of child abuse material, you reflected: 'I don't know what possessed me to send it, I have known him for 20 years. I had never sent it before. I knew he'd be interested in it.'

Prospects of Rehabilitation

38In all the circumstances, Mr Perri, I consider that you have very good prospects of rehabilitation. As already noted, you have no prior criminal convictions and there are no subsequent matters alleged against you. Since your offending, you have also taken active steps to develop your insight and address your

6 Johnston v The Queen [2013] VSCA 362; Morrison v The Queen [2012] VSCA 22.

addiction issues and the underlying contributing factors.

39Between 20 March and 3 July 2024, you participated in the fifteen-session CEM-COPE ‘Coping with Child Exploitation Material Use Program group. You attended thirteen of the fifteen 120 minute sessions and you were described as having been a consistent contributor and as demonstrating, 'A willingness to improve [your] insight into [your] offending. Between September 2023 and February 2024, you also participated in, and successfully completed, a voluntary complex episode of counselling with Caraniche for Alcohol and Other Drugs. Your engagement was described as 'particularly good and consistent with only missing a few appointments due to sickness.'

40You have also been assessed for residential drug rehabilitation and the latest letter from the Salvation Army indicates that you have been pre-approved to participate in the Basin Bridge Rehabilitation Program. The program lasts for three months, and confirmation of admission will be dependent on your legal outcome.

41Mr Candlish assesses you as being a low risk of reoffending. While you experienced some arousal to the child abuse material you viewed, he did not consider that you meet the criteria for a paedophilic disorder. Rather, your deviant arousal occurred in the context of your own desensitisation and sexual objectification, and as already referred to, your own childhood experiences and abuse and premature sexualisation.

42Mr Candlish considers that your ‘stimulant use disorder’ and ‘consumption of, in particular methamphetamine, inhibits [your] capacity to resist engaging in child abuse material offending behaviour’. Your rehabilitative prospects, therefore, are linked to your motivation and your commitment to remain drug free.

43Mr Candlish makes a range of recommendations, including psychological interventions, to explore in particular your childhood and its impact, along with

your own cognitive distortions, treatment to address your substance abuse, which should include residential rehabilitation or else intensive drug and alcohol counselling support, and case management interventions to assist with stress and coping, along with risk management.

44Your Counsel submits that you are willing to participate in treatment and other sex offender treatment programs deemed suitable.

45I also take into account in my assessment of your rehabilitative prospects that you have a very good history of employment and that you have work available to you as a hairdresser and barber.

46Further, I take into account that you have strong family and friends' support. The testimonials before the Court collectively describe you as someone who is generous, caring, loyal, hard-working and is dedicated to overcoming your challenges, and, as your friend Ms Minuzzo puts it, breaking free from addiction.'

Sentencing Principles

47In sentencing you, Mr Perri, I must give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community, and I have already referred to some of these principles in the context of this offending. Rehabilitation is also a relevant sentencing consideration.

48I must have regard to current sentencing principles for offences of the kind that you have committed, and I have done so. I was provided with comparable cases by both Counsel that I have considered. However, plainly, each case will be different and will depend on the nature of the offending and also on the circumstances of the offender. The way in which these particular offences can be committed are varied, making a comparison quite difficult.

49I take into account the principles of parsimony, proportionality and totality in

your case. Given the offending is distinct in time and nature, I do consider that there is a need for some cumulation in order to reflect this.

50I am required to impose sentences that are of a severity appropriate to all the circumstances of the given offence. In your case, there was no dispute that a term of imprisonment is warranted and that it is appropriate to be ordered by way of a Recognisance Release Order. I agree that a term of imprisonment is required in order to adequately satisfy all the sentencing principles that are engaged and to clearly denounce your conduct.

51The primary submission of your Counsel was that you can be sentenced to a term of imprisonment but released forthwith pursuant to such an order.

52The relevant sections in the Act provide that an offender sentenced for a “Commonwealth child sex offence” can only be released immediately on a Recognisance Release Order if there are “exceptional circumstances”. Your Counsel relied upon a combination of factors, already canvassed, to satisfy “exceptional circumstances”. The Prosecution submit that the circumstances relied upon are capable of meeting this test and refer to relevant cases at paragraphs [20] and [21] of their submissions.

53In summary, Mr Perri, I consider that the following aspects of your case, taken in combination, do amount to exceptional circumstances: in terms of the offending, while it is serious, Charge 1 is at the lower end of objective seriousness, and Charge 2 is at the lower to mid-range; your early plea of guilty and demonstrated genuine remorse is a further factor; your positive prospects of rehabilitation and the steps that you have voluntarily taken to obtain treatment; your assessed low risk of recidivism; your lack of prior convictions; your newly acquired skills and the availability of employment and your supportive family and friends. Mr Perri, I make plain as well in those findings that I have further taken into account the report of Mr Candlish.

54I accept that these circumstances powerfully combine to warrant your

immediate release on a Recognisance Release Order.

Sentence

55Synthesising all relevant sentencing considerations, you are convicted and sentenced as follows:

·On Charge 1, three months' imprisonment.

·On Charge 2, six months' imprisonment.

·Charge 2 is the base sentence to commence immediately.

56Charge 1 – and I will do this in terms of commencement dates in a moment, Counsel – I am ordering one month cumulation on Charge 1.

57In other words, Charge 2 to commence immediately, Charge 1 to commence five months prior to the expiry of Charge 2, thereby cumulating one month7.

58HER HONOUR: That equals a total effective term of seven months' imprisonment. I order pursuant to s20(1)(b) of the Crimes Act 1914 (Cth) that you be released forthwith upon giving security by recognisance of $1,000 to comply with the following conditions:

·To be of good behaviour for a period of 18 months.

59There are further conditions that will also operate for that 18 month period:

·To be supervised – these are largely mandatory, Mr Perri, because of the nature of this offence.

·To be supervised by a Probations Officer;

·Obey all reasonable directions of the Probation Officer;

7 On 6 August 2024, a further order was made amending the commencement date to reflect the stated intention of the Court. The commencement date of Charge 1 is two months prior to the expiry of the sentence imposed on Charge 2.

·Not to travel interstate or overseas without the written permission of the probation officer;

·And to undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

60You are to undertake treatment or rehabilitation programs that are deemed necessary. Mr Perri, you are also to attend for assessment, and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending, as directed. In other words, they will assess you, and if they consider that you need to undertake that type of specific treatment then you will be required to. Do you understand?

61OFFENDER: Yes, I do, Your Honour.

62HER HONOUR: Thank you. And there are further conditions that are necessary to give effect to these mandatory conditions.

63You are to report to the Reservoir Community Corrections Centre located at 909 High Street, Reservoir, within two clear working days of the date of the order.

64In other words, we are Tuesday today, you can go in today but you have to attend there and report within two clear working days. They will set up your appointments and explain what is required of you, but you must do that.

65Also, you must report to and receive visits from a Community Corrections Officer and you must notify an officer at the relevant centre of any change of address or employment within two clear working days after the change.

66HER HONOUR: For the period of 18 months these are the conditions that you must abide by. Do you understand that?

67OFFENDER: Yes, I do, Your Honour.

68HER HONOUR: Now you can breach such an order if you don't comply with

conditions or commit an offence punishable by imprisonment within the duration of the 18 month period. Do you understand that?

69OFFENDER: Yes, I do, Your Honour.

70HER HONOUR: All right. If you were to do that then it is open and what could happen in other words, is that the matter would return before me and you would be dealt with for breaching your recognisance order. I would have a number of options available to me, if that were to occur, including requiring you to serve the term of imprisonment that I have imposed. Do you understand?

71OFFENDER: Yes, I do, Your Honour.

72HER HONOUR: All right. And are you prepared to enter into this recognisance release order?

73OFFENDER: Yes I am, Your Honour.

74HER HONOUR: All right. I will have your Counsel and your instructor further explain the requirements under such an order, but it seems to me, Mr Cullen, Ms Allen, that that is sufficient to explain in broad terms the order, as I am required to.

75MS ALLEN: Yes, Your Honour.

76HER HONOUR: Yes, all right.

77I can indicate pursuant to s6AAA of the Sentencing Act 1991 (Vic), that had you not entered a plea of guilty I would have sentenced you to a term of some 16 months, to be released on a Recognisance Release Order after serving seven months. Mr Perri, that is an indication for you that by accepting responsibility and entering a plea of guilty as you have, and cooperating, it has resulted in an important sentencing discount, as you can see.

78Charge 1 and 2 each concern a class 2 offence under the Sex Offenders

Registration Act 2004 (Vic)8. Upon being found guilty of the charges you will be a registrable offender under the Act and will be required to comply with reporting obligations for a period of 15 years9.

79Mr Perri, that is a mandatory order and a mandatory term and I make it.

80You will also receive paperwork that explains to you what your obligations are. You will be required to sign it, acknowledging receipt of that paperwork. In very broad terms, you will have to attend an appointment. You will have to disclose and provide many details and particulars, phone numbers, car registrations; it is quite detailed. And you will be under an ongoing obligation to advise of any changes and also annual obligations to meet with the relevant agency. It really is important. Can I indicate this Court does deal with people who have breached those orders. It is really important that you understand it and that you comply with it, and that you have a system in place to ensure that you do that.

81OFFENDER: Yes, Your Honour. Yes. I'll (indistinct) do that.

82HER HONOUR: All right. Counsel, is there anything further?

83MS ALLEN: May it please the court.

84MR CULLEN: May it please the court.

- - -

8 Sex Offenders Registration Act 2004 (Vic) sch 2, items 28D(i), (iii).

9 Ibid s 34(1)(b)(ii).