Director of Public Prosecutions v Dowdle, Donald
[2012] VCC 1701
•5 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00265
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DONALD DOWDLE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2012 | |
DATE OF SENTENCE: | 5 November 2012 | |
CASE MAY BE CITED AS: | DPP v Dowdle, Donald | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1701 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M. Hood | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K. Kothrakis | Doogue & O’Brien |
HER HONOUR:
1 Donald Dowdle, you have pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age for sexual activity contrary to s.474.26(1) Criminal Code (Cth).
2 The maximum penalty applicable for this offence is 15 years' imprisonment.
3 You have also admitted your criminal record which commenced with offending dealt with in 1984, and the most recent Court appearance at Heidelberg Magistrates’ Court on 13 February 2006. You have previously appeared six times at Court.
4 Primarily your prior offending involved dishonesty offences and injury offences/damage. I note you do not have any prior criminal history that relates to offending of a similar nature to that currently before me.
5 Your crime arises from events which took place between 12 November 2011 and 1 December 2011. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the prosecutor. I proceed to sentence you on the basis of the facts so summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case, in my opinion, are most serious and disturbing. Your behaviour was totally unacceptable. Your responses in your record of interview unfortunately reflected your lack of appreciation and/or understanding of the seriousness of your offending. Such is relevant when considering your rehabilitation prospects.
6 I turn briefly to a summary of your offending.
7 On 12 November 2011 you entered an internet chatroom on icq.com. Using the pseudonym “Melbm” you commenced a private online conversation with “Caitly”. Unknown to you, Caitly was a covert member of Victoria Police. At the outset of the conversation Caitly advised you she was 13 years of age and lived in Melbourne. You stated you were 40 years of age and also lived in Melbourne.
8 In that same conversation you said you did not mind if she was 13 and asked whether Caitly cared that you were older. At your request, Caitly described her physical appearance and told you her name was Caitlin. You asked whether Caitlin preferred talking with older (men). You said you look at age as just a number. You said “you do like young”, and “does it make me look weird if I say I have a look at girls your age?” You asked if Caitlin wore a school uniform, indicating you found a girl in uniform “sexy”. You said age was “simply a number to me”. You said you had thought sometimes about kissing a 13 year old and asked if it made you “sound like a sicko wanting to kiss a girl your age”.
9 You asked if Caitlin wanted to stay in touch with you and asked her “wood you think I was weird if I said I would sleep with a 13 year old? It’s a question only”. You asked her if she was “smooth” between her legs.
10 You provided Caitlin with your email address in order for the online conversation to continue via MSN Messenger. I note you provided your email address which is, in part, inconsistent with the scenario you paint in your record of interview regarding your commencement on the online chat. You subsequently requested Caitlin send you her picture via email.
11 An online conversation between yourself and Caitlin continued thereafter on MSN Messenger. On one occasion you asked “wood you love to have an older bf…u cood get out to see…without your mum knowing”. You stated “I wood treat u so gentle in bed…I wood teach u nicely when making love with u”. “I would gently lick your nipples for u n suck on them” and you requested that Caitlin send you a picture via the mobile phone. You also said that you “wood do it with a girl your age” and you had “always had a liking for young”. Further sexual discussion emanated from you.
12 You stated that you were aroused by 13 to 14 year olds in their school uniforms and that you would allow Caitlin to sit on top of you to feel “how nice n hard” you were. You reiterated Caitlin should not tell her mother she had an older boyfriend.
13 You requested Caitlin be your girlfriend and were again involved in sexual discussion including describing your penis. You then provided your mobile telephone number to Caitlin. You requested “we shood make a time to meet up” as you were not joking about her being your girlfriend and asked if she knew an area where you could meet unseen. You suggested Mentone Beach was a possible meeting place as “it’s away from your mum”. Again you stated you did not care that Caitlin was 13 years of age.
14 In this offending you provided Caitlin with your email address unsolicited and not requested by Caitlin, requested her to send a photo to you via email and also provided your mobile telephone number to Caitlin, not requested by Caitlin.
15 Thereafter, there were online conversations on 22 November, and again on 26 November.
16 On 22 November Caitlin sent a message to you via MSN Messenger indicating she had not been online as she had been “grounded”. On 26 November, despite the opportunity for you to not reply to that message, you nevertheless responded and asked whether Caitlin wished to meet you and that you were free on Mondays. You said you missed her and suggested she should converse with you online when her mother was not home.
17 The following day, 27 November, Caitlin responded to your message saying she had been staying with her father. You asked if she was still interested in being your girlfriend and catching up with you.
18 On 29 November you and Caitlin commenced an online conversation using MSN Messenger. Again, you expressed you “always had a liking for young” and further sexual discussion by you occurred. You described in detail the sorts of things you would like to do with “Caitlin” (sexually). You assured Caitlin she need not worry about becoming pregnant as you would wear a condom. You again suggested meeting at a beach, providing it was “far enough away from your mum”. Caitlin ended the call, indicating her mother was coming. You then left five offline messages for her, including stating you liked the idea of she and yourself being girlfriend/boyfriend and stating you did not care about age, that it was “just a number”.
19 On 30 November 2011, Caitlin logged onto her Facebook account and saw a Facebook (friend) request from your Facebook account. She did not respond.
20 On 1 December 2011 you sent a total of 15 SMS messages to Caitlin’s mobile phone confirming the meeting at Seaford Railway Station, and again referring to sexual matters.
21 Caitlin requested you bring a bag of chips to the meeting and you asked “do u like Doritos?”
22 On 1 December 2011 you left two voicemail messages on Caitlin’s mobile phone stating you had arrived at the carpark and asking her to identify herself at the station. I have said Seaford and Mentone, I think it is supposed to be Seaford, is that right? For some reason Mentone has crept in there, it could be the same place. I think it was Seaford, I'll just change that, if that is right. Is it Seaford or Mentone?
23 MS HOOD: It is Seaford, I think there were initial discussions about Mentone, I will just check that, Your Honour.
24 HER HONOUR: I will have to reflect it correctly.
25 Your behaviour in contacting Caitlin, whom you believed to be a real person, was persistent and inconsistent in many respects with the account you gave of that contact to police in your record of interview.
26 On 1 December 2011 at 9.30am you were seen walking on a path between the carpark and foreshore of Seaford Beach where you were arrested by police.
27 A search of your car located near the foreshore uncovered a packet of Doritos corn chips.
28 You were interviewed by police in a record of interview conducted on that same day. You described the police actions as “entrapment”. You said you had used “words only” and had no intention of having sex with a minor. You said you had “conversations with her online, that’s it” and that you were “not hurting anyone”. You said you attended at Seaford because Caitlin had told you to. You said you went there to tell Caitlin not to contact you again and to leave you alone. You said you had to do this face to face because “some people do not get the message”. You said you could not convey the message that she was to go away and leave you alone via text messages as some people, you said, needed to be told face to face.
29 You said you may have had conversations with Caitlin of a sexual nature but you did not know. You said you were only having “a little bit of fun on the computer”. You denied being attracted to young girls. You said you had no intention of doing anything with Caitlin and that you were not “turned on by a 14 year old girl”. You said Caitlin had made the arrangement to meet, not you. You denied you were going to have sex with a minor.
30 The chronology of your offending behaviour that I have previously set out in these Reasons for Sentence is inconsistent with your account of your involvement with Caitlin in the record of interview and causes me concern regarding your minimisation of the seriousness of your offending.
31 I accept that you made admissions to your offending, albeit at times limiting and minimising it.
32 There are, however, some mitigating factors when sentencing you. You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. I take into account in your favour that you indicated your intention to plead guilty to this charge on 24 February 2012 at a committal mention hearing. You had therefore indicated your intention to plead guilty to these charges at that stage.
33 I accept your plea of guilty is of significant utilitarian value and an indication of your remorse, although I am concerned about the responses given by you in your record of interview regarding genuine and real remorse for your offending behaviour.
34 As I have previously noted, you do have prior convictions and therefore do not come to the Court as a person of previous good character. I do note that you do not have any offending of a similar nature as that before me. Nothing subsequent is alleged.
35 I have been told something of your personal history and circumstances. You are 45 years of age as at the time of sentence.
36 Ms Kothrakis referred to your background history as containing a number of significant adverse aspects. You had also been diagnosed with Major Depressive Disorder (MDD) stemming from an unhappy childhood and a dysfunctional family. You suffered abuse and neglect as a child and were a victim of bullying. You were also physically abused by your older brother.
37 During your youth you faced a number of misfortunes including three house fires, and resultant loss of your possessions.
38 You did not complete Year 9 and had a number of behavioural issues. After leaving school you became involved in criminal activity and also began cannabis use.
39 As you grew up you became close to one of your brothers who unfortunately committed suicide, resulting in the loss of support you received from him. You have had employment over the years in unskilled and semi-skilled positions.
40 You commenced a relationship some years ago which lasted approximately nine and a half years. There are three children of that relationship which ended in 2010. From approximately 2006 to 2007, the Department of Human Services had been involved with your children and you had had an ongoing battle with the Department of Human Services to facilitate access to your children. Not surprisingly, as a result of this charge before this Court, you had not been able to see your children, such being a condition of your bail. Your lack of ability to see your children had impacted greatly upon you. You instructed you were aware your offending behaviour had led to your inability to have contact with your children.
41 Whilst you did not have a close relationship with your mother, you had recently returned to live with her and also with your partner. However, as a result of this charge your mother had again rejected you.
42 A number of reports were tendered before me during your plea.
43 The first from Ms Carla Lechner, Clinical and Forensic Psychologist, dated 9 April 2012. She noted, as do I, that whilst you do have a prior criminal history, there is no prior history of this type of offending. I was also advised by Ms Kothrakis during your plea there was nothing subsequent as I have previously stated.
44 Ms Lechner also outlined some of your background and history confirming much of which I was told by Ms Kothrakis. Ms Lechner, however, noted your inability to adequately account for your offending actions was of concern to her. In her opinion it may be the case that you had hebephilic sexual interests which she suggested needed to be further assessed by the Sex Offenders' Treatment Program.
45 Ms Lechner referred to your three children, then aged 10, 8 and 5. You were also reported as having a 3 year old child, Shaun, to the same mother, however claimed uncertainty in relation to Shaun’s paternity. All the children are apparently in DHS care.
46 You described your problem behaviour at school as against a background of physical violence by your father towards you. Your parents separated when you were approximately 11 years of age. You initially stayed with your mother but then moved to live with your father in around Year 9. By mid-teenage years you were rebelling against your parents and engaging in minor criminal activities.
47 You described your partner in your most current relationship as being supportive.
48 At interview with Ms Lechner, you evidenced a range of symptoms of depression at a clinical level which she concluded was partly reactive to your current circumstances. Your history also indicated a longstanding mood disorder. There was no evidence, she said, of disordered thought in form or content or of perceptual abnormalities. You impressed as capable of reflecting on the impact your behaviour had on yourself or others, although you were easily overwhelmed by social and emotional factors that clouded your judgment. She described you as emotionally immature. You acknowledged your role in your offending, and made no attempt to shirk responsibility or to minimise the seriousness of your offending with her, although you continued to maintain the position that you were ‘entrapped’ by police regarding this offending.
49 Ms Kothrakis submitted you now had a greater appreciation of the criminality of your behaviour. As I discussed with Ms Kothrakis during the course of the plea hearing, I have some real concerns about your reported lack of awareness of the criminality of your behaviour. There is no doubt you believed the person to whom you were talking was 13 years of age. The correspondence between you does not support your response to Ms Lechner that you only arranged to meet with Caitlin to “tell her to piss off", with no intention to touch her. You described your behaviour as stupid.
50 At the time of interview with Ms Lechner, you presented with symptoms of depression at a clinical level. You saw yourself as a victim of persecution. In her opinion you would benefit from practical skills’ training, communication and stress management. She recommended further investigation for your sexual offending, remaining concerned that you would engage in self-defeating behaviour, especially as you were sensitive to previous DHS investigations.
51 Turning to her summary and opinion your involvement in this offending, Ms Lechner concluded, may be a function of your immaturity and poor stress management or could be an unhealthy sexual interest. Further specialist assessment was recommended by her. In addition, you had been under stress in recent years, mostly as a result of your contact with the Department of Human Services, also as a result of your mother’s stroke and father’s deteriorating dementia. At interview, you had limited ability to reflect on the impact your behaviour had on yourself and others. You had a low tolerance for frustration.
52 Regarding your offending, Ms Lechner stated you found it very hard to explain your involvement. Your explanation for meeting the victim was, she described, ‘facile’.
53 There was a report from Dr Anthony Cidoni, Psychiatrist, dated 16 May 2012, specifically to address whether or not you had any psychiatric condition either now or at the time of the offence. At interview Dr Cidoni observed you lacked insight into your offending and particularly the victim being under age.
54 You described in relation to your past psychiatric history, your history of depression, citing three periods of depressed mood over a period of approximately ten years, worse in the years after your children were removed from your care. At the time of interview, you were in the third week of treatment with anti-depressant medication and had two psychology sessions.
55 Regarding your current offending, Dr Cidoni noted it was very difficult for you to discuss your offending behaviour. You felt that it was a stupid mistake. That you were feeling down at the time and needed someone to talk to. When pressed you eventually admitted you were curious about talking to a 13 year old and that you may have had some curiosity about kissing a 13 year old. This was very difficult, it seems, for you to admit.
56 Dr Cidoni concluded you suffered from a major depressive disorder (MDD) which caused you significant depressive symptoms. At the time of your offending your depression however did not make you disinhibited or affect your ability to understand wrongfulness or think clearly. He considered the treatments you were now receiving were appropriate.
57 Your offending indicated some curiosity by you in terms of sexual contact with minors, although, to him, there was insufficient evidence to be clear as to whether or not you suffered from hebophilia. He considered it important for you to have ongoing psychological input into the potential impact of your offending on the victim and to try and explore why you had underlying sexual desires towards under aged girls.
58 In his opinion, your risk of re-offending and prospects of rehabilitation were guarded at this stage. In his opinion you would experience imprisonment as being more difficult than if you did not suffer from a depressive condition. That there was an associated suicide risk and as such you should be closely monitored.
59 There was a report prepared by Ms Lara Sullivan, Psychologist, dated 22 October 2012. You presented to her for counselling in May 2012. You disclosed you had been experiencing ongoing stress and anxiety for approximately five years. It was clear to her you felt you were under pressure as a result of the DHS involvement with your children.
60 You further referred to your father’s dementia and your mother’s stroke. You did not know why you committed the offence for which you are before me, saying you did not recall the incident clearly. You said you were not really even “aware that you were in contact with a minor”. You described a prolonged period of intense psychological stress in your life as outlined within Ms Sullivan’s report. You had attended counselling on a regular basis since your referral and had been a motivated client who engaged fully in all sessions and was committed to continuing the process.
61 There was also a report from Dr Aaron Cunningham, Forensic Psychologist, dated 24 October 2012. Dr Cunningham outlined further details of your background history and circumstances which I will not repeat at this stage.
62 As with the other reports, there was reference to your drug and alcohol history. Dr Cunningham reported your longstanding symptoms of depression which related to a history of you having been bullied and emotionally abused. You presented with a diagnosis of Major Depressive Disorder (MDD). Psychometric assessment was also conducted. The results placed you in the moderate risk needs range of re-offending. To reduce your risk of re-offending it was suggested you would benefit from intervention to treat your MDD, cease use of alcohol, cannabis and benzodiazepines, and maintain stable accommodation and employment.
63 Regarding your risk of future sexual offending, you presented as a moderate risk. You denied any sexual interest in children. In the opinion of Dr Cunningham, you did not currently meet the criteria for a diagnosis of paedophilia. You did not present with insight into the underlying causes of your offending behaviour. In his opinion, you would benefit from further treatment to explore the underlying causes of your offending behaviour.
64 Dr Cunningham noted a number of current protective factors that may reduce your risk, including your current supportive relationship, that you were currently engaged with psychological treatment and now presented with insight into the wrongfulness of your offence behaviour.
65 In the opinion of Dr Cunningham, if left untreated a term of imprisonment would weigh more heavily on you compared to an individual without MDD. He noted you were currently engaged with psychological treatment and that you would further benefit from drug and alcohol counselling. Stability in accommodation and employment would also assist your rehabilitation.
66 Ms Kothrakis, was not relying upon the principles of R v Verdins (2007) 16 VR 269, specifically the restatement of the Tsiaris (1996) 1 VR 398 Principles 1 and 2. This was an appropriate concession.
67 Ms Kothrakis urged however the material before me supported the applications of the restatement of Tsiaris principles 5 and 6. I discussed this at some length with both Ms Kothrakis and also the prosecutor Ms Hood. In my opinion, the material before me does not support the application of Verdins, however under general sentencing principles, I accept it is relevant in mitigation of your sentence that a term of imprisonment will weigh more heavily upon you compared to an individual who did not have your depressive symptoms, and such is relevant when sentencing you.
68 Three references were also before me.
69 There was a reference from Jade Gibbs, undated, your current partner. She was aware of this offending behaviour and said it was out of character for you.
70 She confirmed your difficulty with access to your children and that had upset you greatly. She confirmed you were currently seeking assistance for your depression.
71 There was also a reference from Eliana Sarmiento, Caseworker at Salvation Army Flagstaff Crisis Accommodation, dated 15 October 2012, confirming you were at that accommodation from 22 May 2012 until 30 July 2012. Ms Kothrakis advised during your plea the circumstances in which you were required to find accommodation.
72 Whilst at that accommodation you engaged well with staff and other residents, and held a job as kitchen hand. You discussed your depression with her.
73 There was also a reference from Laura Rutley, dated 24 August 2012, Hospitality Operations Manager at Rivers Café & Providore. You had been working with her since February 2012. You were polite to all staff and undertook tasks without fuss or hesitation. She was happy to have you at Rivers Cafe.
74 Ms Kothrakis submitted that through the various professionals you had now spoken to, you no longer played the “victim card”, rather accepted your conduct was inappropriate. Whilst you initially lacked insight, you were now aware your offending behaviour was wrong. The prospect of imprisonment had left you distressed and Ms Kothrakis urged this would be a further strong deterrent for future re-offending.
75 Regarding your rehabilitation prospects, I have guarded optimism. However, I do take comfort in the fact you are in a relationship which appears to be positive. Also that you have voluntarily undertaken psychological treatment to address your offending behaviour and that there seems to be an acceptance by you now that your offending was wrong.
76 Ms Kothrakis conceded that general deterrence and specific deterrence were relevant sentencing considerations when sentencing you for this offending. That is so.
77 Ms Kothrakis submitted that whilst a term of imprisonment was appropriate for your offending, she submitted that you could appropriately be dealt with by being released forthwith on a Recognisance Release Order.
78 Ms Kothrakis, however conceded a number of aggravating features of your offending included the explicit sexual nature of the discussions between yourself and Caitlin, that there was an agreement to meet her, the age difference between yourself and Caitlin as you believed it to be, and the frequent contact between you and Caitlin.
79 Ms Hood, on behalf of the prosecution, submitted the charge was serious and legislative changes had increased the penalty for this offending to reflect the seriousness of it.
80 She referred me to the Second Reading Speech of 4 August 2004 and forwarded me a copy of that.
81 Ms Hood submitted general deterrence, whilst not specifically referred to within s.16A Crimes Act (Cth) 1914 was relevant when sentencing you. Such was conceded by Ms Kothrakis, and was an appropriate concession, consistent with the law.
82 I was also referred to the decision of R v Gajjar [2008] VSCA 268 at [64].
83 Ms Hood submitted general and specific deterrence applied when sentencing you. That this type of offending was very difficult to detect.
84 Turning specifically to s.16A(2) Crimes Act (Cth) 1914, Ms Hood addressed matters the Court must take into account. That the length of your offending behaviour occurred over a significant period of time, being approximately three weeks. Also, that the contact was frequent over that time.
85 Ms Hood submitted your offending was not a spontaneous one-off incident. There were multiple communications between yourself and Caitlin, including a number of sexually explicit contacts.
86 Ms Hood submitted that from the outset you believed Caitlin was 13 and that your discussions became sexual shortly after being aware of her age. Including you referring to specifics of the sexual activity you wanted to be involved in with her, and detailing what you would like to do to her. You were aware Caitlin was supposedly sexually inexperienced.
87 Ms Hood described your contact as persistent including attempts to flatter her and urging her to keep your relationship secret. In addition, you attended the meeting place arranged by yourself with Caitlin.
88 She said there was a 32 year age gap between yourself and Caitlin and you knew it.
89 Ms Hood correctly conceded you pleaded guilty at an early stage to this offending and that such was a relevant sentencing consideration.
90 That Caitlin was a covert police operative was, submitted Ms Hood, simply a lack of an aggravating feature.
91 Specific deterrence was also a relevant sentencing consideration.
92 Referring to your prospects of rehabilitation, Ms Hood submitted the contents of the first two reports in date order before me offered little to be hopeful about regarding your rehabilitation. It would appear since the third report and in the fourth report you had some awareness of the wrongfulness of your offending behaviour and had attempted to address it.
93 Ms Hood submitted none of the principles stated in Verdins were activated on the material before me. However, she conceded it was a relevant consideration that you would probably find prison more difficult than a person who did not have a major depressive disorder.
94 I turn to some authorities relevant to the charge before me.
95 Section 474.28(9) Criminal Code makes it clear it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person. This is relevant as in your case there is the absence of a real victim. Such is a relevant sentencing consideration, however this does not necessarily exclude imprisonment as being the appropriate sentencing outcome.
96 The absence of an actual child victim means that there is the lack of an aggravating feature. Whilst there was a degree of entrapment on behalf of Caitlin, you were not an “unwary innocent”, having voluntarily participated and instigated various communications, such as providing your Gmail and mobile phone contact.
97 Section 474.26(1) is designed to be preventative and likely to be detected only through use of undercover police techniques – see R v Gajjar (to which I have previously referred) paragraph 44.
98 In relation to offending of this type, in Gajjar the Court stated:
“However in cases of procuring for sexual purposes contrary to s474.26(1), it is clearly appropriate now of you to give paramount consideration to the principle of general deterrence. It follows from that proposition that it must be open to a sentencing judge to give less weight to prior good character in such cases that it might otherwise bear.”
99 You are not sentenced as a person of previous good character, although I note again you do not have any prior offences for similar offending.
100 There is no doubt there is concern by Parliament regarding the offending to which you have pleaded guilty.
101 In Gajjar the Court referred to the Explanatory Memorandum for the Bill which contained this offence.
“In line with the tough federal offences sex tourism offences in the Crimes Act 1914, new offences will also target online ‘grooming’ activities by sexual predators. Unfortunately, adults are increasingly exploiting the anonymity of the internet to forge relationships with children as a first step in luring them for sexual abuse. The Bill provides a responsible criminal law response to these abhorrent practices.” [31]
102 The maximum penalty applicable for this offence of 15 years’ imprisonment, as I have said, indicates the Court regards this as serious offending – see Gajjar at [42]. Regarding the maximum penalty, in R v Fuller [2010] NSWCCA 192, the Court stated:
“Apart from the need to appropriately punish and deter individual offenders, there is a significant need in the interests of the community to impose a sentence that will, insofar as may be possible, effectively deter other would be offenders.” [36]
103 In Gajjar, the Court analysed a number of authorities and principles which could be drawn from them:
“They showed that the legislature viewed conduct of this kind as deplorable…And offenders’ conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.” [56]
104 In Tector v R [2008] NSWCCA 151 the Court stated that:
“A communication, for example, that expresses an intention to engage in sexual intercourse in contrast to some lesser form of sexual activity is a relevant circumstance in the assessment of the gravity of an offence.” [96]
105 Your contact with Caitlin involved graphic and salacious reference to penetrative sexual activity as well as other sexual acts with her. You were the instigator and driving force of those communications.
106 General deterrence is a primary sentencing consideration when sentencing for this offending, as has been stated by the Courts, including in Gajjar and DPP v Hizhnikov [2008] VSCA 269. In the latter, the Court of Appeal approved the statements of principle on reasoning in Western Australia v Collier (2007) 178 A Crim R 310.
107 I accept on the material before me you accepted the probability that Caitlin was 13 years of age and that you engaged in a number of sexually explicit statements with her over a period of approximately three weeks involving approximately 21 conversations via various forms of communication – see [21] and [23] of the prosecution opening, in particular which referred to multiple contacts.
108 The age difference between yourself and Caitlin is also significant. You acknowledged you were much older, around 40 years of age and believed she was 13. In addition, it would appear that from the communications you were aware Caitlin was inexperienced sexually. I note, also, your offending ceased when you attended at Seaford Railway Station for the purposes of meeting Caitlin. You were at the Station however intending to meet her, supported by the presence of an unopened packet of Doritos in your car. I do not accept your explanation for so attending was to meet her to have her cease contact with you.
109 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this as the authorities say.
110 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.
111 There is also an element of specific deterrence when sentencing you, albeit you do not have any prior convictions for this type of offending there were a large number of communications between yourself and Caitlin over that approximately three week period.
112 I am called upon to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
113 I have taken into account matters known to me referred to in s.16A(2) Crimes Act (Cth) 1914. I am aware that I must impose a sentence that is of a severity appropriate in all the circumstances of the case whilst taking into account all matters in mitigation. I am also mindful of s.17A of the Act which states I should not impose a sentence of imprisonment unless, having considered all other available sentences, I am satisfied no other sentence is appropriate in all the circumstances.
114 In my opinion, a term of imprisonment is the only appropriate disposition to reflect all sentencing considerations including not only the gravity of your offending but all matters personal to you and in mitigation of your sentence.
115 Before we go any further, what I am proposing is a term of imprisonment that also includes, after a short period of time, a Recognisance Release Order, so that will have to be prepared. But as I go through it, some of these conditions may no longer apply so I would ask you to keep an eye on this in case some of these conditions are wrong, but this is what I am proposing.
116 You can remain seated, Mr Dowdle, because this will take some time. The only reason it is taking a bit longer than perhaps it would otherwise is because this is a Commonwealth sentence and experience shows we need to make sure we get it right because the wording is slightly different from the State sentence. But nevertheless, your counsel will probably explain what is going on.
117 On Charge 1, you are convicted and sentenced to 2 years' imprisonment. That sentence commences today, being 5 November 2012.
118 I direct that you be released under s.20(1)(b) Crimes Act (Cth) 1914 after serving 4 months of that sentence on your recognisance in the sum of $1,000 on the following conditions:
(a) that you be of good behaviour for 20 months, which is the difference between the sentence of 2 years and the 4 months you are to serve;
(b) that you be under the supervision of the Deputy Commissioner of Community Correctional Services & Sex Offender Management or his or her nominee for 20 months upon release. Is that one still a condition, I just want to check?
119 MS HOOD: Yes, if Your Honour's intending to - - -
120 HER HONOUR: Yes I am -
(c) that you attend for assessment and, if assessed as suitable, treatment for the sex offender program or programs to reduce re-offending, as directed by the Deputy Commissioner, Community Correctional Services & Sex Offender Management or his or her nominee. Is that still an appropriate condition?
121 MS HOOD: Yes, Your Honour.
122 HER HONOUR: I now have a gap here -
(d) that you report to and receive visits from a Community Corrections officer or officers. What is that condition? Revisits or what? That you report to and receive - - -
123 MS HOOD: From a Community Corrections Officer or Officers.
124 HER HONOUR: Very well, that is in. Is that still one of the conditions?
125 MS HOOD: Yes the proforma form I have also refers to reporting to a specific Community Corrections Office.
126 HER HONOUR: I have that at (e) -
(e) that you report to where?
127 MS HOOD: At the time I believe that Werribee was the closest - - -
128 MS KOTHRAKIS: He is residing in Laverton.
129 HER HONOUR: Report to Werribee, is that closest?
130 MS KOTHRAKIS: Yes, Your Honour.
131 HER HONOUR: Do we have an address for that or not?
132 MS HOOD: Yes, Your Honour, I have got 25-79 Watton Street.
133 HER HONOUR: How do you spell it?
134 MS HOOD: W-A-T-T-O-N.
135 HER HONOUR: Werribee?
136 MS HOOD: Yes.
137 HER HONOUR: Very well -
Werribee Community Corrections Centre, 25-79 Watton Street, Werribee;
HER HONOUR: The next is -
(f) that you notify an officer at the specified Community Corrections Centre, i.e. Werribee, of any change of address or employment within two clear working days after the change; Is that still a condition?
138 MS HOOD: Yes, Your Honour.
(g) that you not leave Victoria except with the permission of an officer at the Community Corrections Centre at Werribee; Is that right?
MS HOOD: Yes, Your Honour.
(h) you obey lawful instructions and directions of the Community Corrections officer. Is that still applicable?
MS HOOD: Yes, Your Honour.
HER HONOUR: I will come back to you in a moment but they are the conditions, I do not think there is anything else on the conditions, is that so?
MS HOOD: No, that's correct.
HER HONOUR: We have got that right. I will just get you to stand, I have not finished, there is still more to go but I will get you to stand where we are at, at the moment. Thanks, Mr Dowdle.
Basically what I am doing is I have sentenced you to 2 years' imprisonment, that sentence commences today, being 5 November 2012, you will serve 4 months of that sentence subject to any PSD, we will come to that in a minute that you have already served. And at the end of that 4 months you will then be on a Recognisance Release Order in the sum of $1,000 which, as I understand, you do not forfeit unless you breach this order for the remaining 20 months, that's 2 years less the 4 months equals 20, so you are on that order for 20 months. Under certain conditions, as I have already stated you are under the supervision of Correctional services for 20 months after your release. Also you attend for assessment and if you fail, suitable treatment for the sex offender program. Also that you report to and receive visits from a Community Corrections Officer or Officers and then you must report to Werribee Community Corrections Office at the address in Watton Street, Werribee upon your release following this 4 month period. Also you have to notify an officer at that Community Corrections centre if you change your address or if you change your job within two clear working days of any change. Also you must not leave Victoria except with the permission of an officer of the Community Corrections Centre and you must obey all lawful instructions and directions of that Community Corrections Officer.
139 The Act requires, before I make such an order, that I explain to you the purpose and the effect of the proposed order, which is, in brief, after you have served 4 months gaol you will then be on this Order. I must explain the consequences of any non-compliance by you with the Order.
140 The purpose and effect of a Recognisance Release Order is to grant you conditional freedom after you have served a period of 4 months of the sentence that I have just imposed on the condition that you be of good behaviour for a period of 20 months. If you breach the Recognisance Release Order, which comes into effect after you have served 4 months, you will be brought back before the Court, and most likely (and I would expect) before me, to be dealt with for the breach and to be re-sentenced. I would assume it is me and I would ask it be noted on their various files that it be me. From today you will be required to serve a period of 4 months in custody, less any pre-sentence detention, before you are released on the Order, and I will return to that later.
141 Following the completion of the 4 months, you will be released back into the community on an undertaking to be of good behaviour for a period of 20 months and you will have to comply with the conditions of the Recognisance Release Order that I have just read out. Do you understand that, Mr Dowdle?
142 PRISONER: Yes, Your Honour.
143 HER HONOUR: If you commit any further offences in the 20 month period or fail to comply with any of those conditions that I have just read, you will breach that Recognisance Release Order and will be brought back before the Court to be re-sentenced by me. At which time, the Order may be extended or revoked and you may be required to serve the remaining term of imprisonment in custody. A breach would also mean the amount of $1,000 would also be forfeited. You should also bear in mind that having given your recognisance, if that is what you do, either you or the Commonwealth Director of Public Prosecutions may apply to vary the Order or discharge it. Do you understand those matters, Mr Dowdle?
144 PRISONER: Yes, Your Honour.
145 HER HONOUR: I declare that you have spent 7 days in custody, up to and including yesterday, 4 November 2012, by way of pre-sentence detention.
146 Pursuant to s.6AAA Sentencing Act, but for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 years with a non-parole period of 18 months' imprisonment.
147 The offence to which you have pleaded guilty means that you are obliged to comply with reporting conditions imposed by the Sex Offenders Registration Act 2004. The offence before me is a Class 2 offence and registration is mandatory for 8 years.
148 In a moment my associate will provide to you the documents relevant to that Act and you will be asked to sign and acknowledge receipt of the documents. You are not being asked whether you agree with the order or not. I have made the order, all you are being asked to do is acknowledge receipt of the pieces of paper that my associates gives you in relation to the Registration Act.
149 Were there any other orders sought?
150 MS HOOD: No, Your Honour.
151 HER HONOUR: Not that you know of. Pre-sentence detention correct is 7 days up to and including yesterday?
152 MS HOOD: Yes, Your Honour.
153 MS KOTHRAKIS: Yes, Your Honour.
154 HER HONOUR: Is there anything you wanted clarified, Ms Kothrakis, in relation to the conditions?
155 MS KOTHRAKIS: No, Your Honour, there is not.
156 HER HONOUR: Do you have a copy of the order there?
157 MS HOOD: Yes, Your Honour, I will just show my friend.
158 HER HONOUR: Absolutely. Seaford and Mentone, is that one and the same?
159 MS HOOD: There were initial discussions about meeting at Mentone and then eventually it was decided to meet at Seaford.
160 HER HONOUR: So there it is that combination initially Mentone but then it became Seaford.
161 MS HOOD: Yes.
162 HER HONOUR: Very well. My associate is going to speak to you about two things, one is the Recognisance Release Order, whether or not you consent, that you have had explained to you, acknowledging you have had it explained by me and, in particular, potential ramifications should you breach it. You are being asked to sign that and also the acknowledgment of receipt of the Sex Offender Registration Regulations.
163 Very well, thank you very much. Is there anything further?
164 MS KOTHRAKIS: No, Your Honour.
165 HER HONOUR: Very well, remove Mr Dowdle please.
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