Director of Public Prosecutions v Duncan
[2022] VCC 2164
•2 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY DUNCAN |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2000 | |
DATE OF SENTENCE: | 2 December 2022 | |
CASE MAY BE CITED AS: | DPP v Duncan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2164 | |
REASONS FOR SENTENCE
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Catchwords: Usea carriage service to make available child abuse material and possess or controll child abuse material obtained or accessed using a carriage service.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Pan | CDPP |
| For the Accused | Ms S. Parsons | Doogue & George |
HER HONOUR:
Gregory Duncan, you have pleaded guilty to the following Commonwealth offences: using a carriage service to make available child abuse material, and possessing or controlling child abuse material obtained or accessed using a carriage service. The maximum penalty for these offences is 15 years. If I am minded to impose a term of imprisonment for this offending, the legislation requires that you establish exceptional circumstances if I propose to release you immediately on entering the relevant undertaking. I was provided with detailed written submissions from both parties, and I have taken that material into account. In sentencing for Commonwealth matters, the court is required by s16A(1) of the Act to impose a sentence or make an order that is of a severity appropriate in all the circumstances of your offending. The court is to have regard to the non-exhaustive matters set out in s16A(2) of the Act.
1 The circumstances of your offending are set out in the prosecution opening on plea dated 24 October 2022, Exhibit A, and can be summarised as follows.
2 Your offending was discovered when another individual was charged in August 2021 with similar offending using the Fastmeet platform. The details of this platform as a form of chat line are set out in paragraphs 2 to 5 of Exhibit A.
3 In respect of Charge 1, Fastmeet provided police with audio files and call logs of recorded-message-based conversations, which led to a number of people being identified, including you. Your offending occurred on two days in December 2020 when you utilised this chat service and referred to sexual activity with a 15-year-old and, on the other day, a 16-year-old boy. These conversations constituted child abuse material, or CAM. The full transcript of the audio messages that you exchanged are extracted in Annexure A, Exhibit A.
4 Charge 2. On 26 October 2021, police attended your house, and your phone and laptop were seized. An analysis of the devices revealed two videos and four images of CAM material on your phone. Two of the images were stills from one of the videos. The videos and three of the images were classified as Category 1 and the other images Category 2. A description of each of the items is contained in a table set out in paragraph 16 of Exhibit A.
5 You were interviewed by police and admitted that you had used the chat line Fastmeet and recalled chatting about young children. You used the chat line on and off and had met people there. You had had an episode of depression, and the offending possibly could have happened during that time.
6 You were not aware that it was illegal to talk about CAM, and you found men who pushed boundaries a turn-on as it was so different from your life. You did not think there was CAM on any of your devices, and you did not think you had transmitted CAM.
7 As to your personal circumstances, I received the following material: a psychological assessment report by Dr Matthew Barth, a psychologist, dated 14 November 2022, Exhibit 2; participation in sex offender treatment report by Mr Burrows, a psychologist, dated 13 November 2022, Exhibit 3; and a bundle of character references, Exhibit 1. Your personal circumstances are canvassed in Dr Barth's report, and I take that material into account.
8 Briefly, you are currently aged 59. You were born and raised in rural Victoria with your parents and siblings. You had a happy childhood. Your parents were socially active within their community, and you are a part of a large extended family. Your mother is deceased, but she remained close to your elderly father and your siblings.
9 You completed Year 12 and then qualified as a pharmacist after university studies. You worked for several years as a pharmacist in Shepparton. You then became a lecturer at Monash University and finally a senior research fellow. You have cancelled your registration with AHPRA because of these charges and do not require this registration to continue your work. I was informed that your present position at the university remains, as most of your work occurs remotely, although you do have an office on campus.
10 You have been in one significant intimate relationship in your adult life with Mr Nicholas Port, which lasted about 10 years. You are now separated, though you remain good friends and have recently started a successful beverage business together. I understand he was in court to support you and that he also provided one of the characteristics references as part of the bundle in Exhibit 1. You have a strong support network in the community, as evidenced by the other character references filed on your behalf and their presence in court. They attest to your friendship, loyalty, generosity, and caring nature, and view this offending as out of character and contributed to by the impact of COVID on your daily life.
11 As to your mental health, you suffered from symptoms of depression since 2001 and have been treated with medication and therapy at various times. In the context of this offending, you experienced a deterioration in your symptoms during the COVID pandemic in 2020 and 2021. You were living alone and, in accordance with the strict lockdown rules, had very limited social and familial contact. Additionally, your work was relatively solitary. Some of the material filed on your behalf indicates the change in you during the lockdown period, that your significant reduction in social interaction was causing you extreme loneliness, and that your mental health was clearly suffering.
12 Dr Barth opined that the intensity of your current symptoms was primarily due to the stress associated with these proceedings, though I recognise that you had experienced issues with mood disturbance at various periods during your adult years. You currently are prescribed escitalopram, which has assisted in improving your symptoms. You do not have any history of drug or alcohol abuse.
13 As to the actual offending, Dr Barth noted:
14 'Whilst Mr Duncan has engaged with a variety of sex chat in recent years and he expressed a primary orientation towards sexual interaction with adult men, such comments, notwithstanding the offending committed by Mr Duncan, clearly raise serious concerns about his sexual adjustment. Specifically, the deviant nature of the material he generated during the chat session with the other person in this matter are profoundly problematic. In this context, he engaged actively in the creation of overtly deviant material to facilitate deviant fantasy.
15 These factors point to sexually deviant offence-supporting cognitions regarding children and sex. Correcting these cognitions has been an integral feature of his treatment with Mr Burrows. At the time of the assessment, Mr Duncan was able to display a good ability of challenging these cognitions. He was able to demonstrate a well-developed appreciation for not just impacts on the children who are depicted in CAM and the destructive consequences of discussing sexual behaviours with children with other people. This, in turn, has formed the basis for a genuine remorse for his conduct.
16 Notwithstanding this, Mr Duncan's insight into his offending and, in particular, the deviant sexual arousal patterns which underpinned his conduct, is still limited. To his credit, Mr Duncan has expressed a strong desire to continue with the specialist treatment he requires. Treatment which continues to address the problematic features of Mr Duncan's interpersonal and sexual adjustment is warranted'.
17 As to your character and antecedents, you have no prior convictions and no outstanding matters. As indicated, the material filed on your behalf from friends, and support in the community, attest to your good character. I accept the authorities establish this factor is to be given limited weight in offences against children of a sexual nature given this kind of offending is often committed by persons of otherwise good character.
18 I take into account your plea of guilty. It was an offered at an early opportunity. Your pleas saved the cost to the community of a trial and has a utilitarian value. The value of your plea is enhanced as a consequence of the impact that COVID has had on this court and the backlog of cases impacting on the administration of justice in this state.
19 I accept your plea is indicative of remorse. This is consistent with the material provided to the court both from your friends and professionals. Dr Barth indicates:
20 'Mr Duncan expressed considerable shame and disgust for his conduct. He said the kind of fantasy in which he had engaged with the other man now appeared repugnant to him. He expressed guilt for his behaviour and stated that "I facilitated the sexual objectification of children. I never thought about the real-life consequences of it until I started treatment with Jeff. I am repentant, and I am deeply ashamed"'.
21 I was informed you have not revealed this offending to your family members, which is consistent with the shame that you have expressed.
22 As to the nature and gravity of your offending, the relevant principles in these kinds of cases are well established, and the parties accepted that they were, as set out in the submission filed on behalf of the prosecution (see paragraphs 19 to 20).
23 In respect of Charge 1, the material was made available on two separate days. The forum on which your messages appeared was not secretive or connected to the Dark Web. Additionally, it was conceded that your remarks were not reflective of the truth of activities undertaken by you. They were both brief conversations and occurred almost two years ago.
24 In respect of Charge 2, there were a total of two videos and four images. Two of the images were stills from one of the videos. In comparison with other cases, the volume of CAM was very small. The content of the material, however, was serious, depicting a prepubescent male child performing fellatio on an older male, and a video of a prepubescent child masturbating himself, both falling under high categorisation of CAM material. The material is not alleged to be for the purpose of sale or further distribution or that you profited from the offending.
25 Even taking into account that you are before the court on two different CAM offences, your offending as a whole is in the lower range of seriousness. There is an intrinsic harm caused by sexual offences involving children. Your conversations have a tendency to normalise exploitative sexual activity involving children. With CAM, the harm done to the children exploited has been described as profound, exacerbated by the continued circulation of images on the internet.
26 General deterrence is the primary consideration for offending involving the online exploitation of children given the vulnerability of children online and the need to protect them. This is particularly so with the advent of the internet, giving a means to allow predators to use the internet anonymously.
27 In addition to general deterrence, specific deterrence has a role to play to ensure you do not offend again. However, its significance is reduced given your lack of priors, the nature of this offending, and your prospects for rehabilitation.
28 There are features that augur well for your rehabilitation. You have no priors, there was a plea of guilty, and you have expressed remorse. You have strong support in the community from friends. You have stable and consistent employment. Most significantly, you have engaged in treatment to address your offending. In respect of the risk of you reoffending and relevant results of his testing, Dr Barth opined:
29 'The risk factors identified as having high relevance in Mr Duncan's assessments are the deviant sexual cognitions which motivated his offending, the deviant sexual fantasies which underpin his behaviour, and his noteworthy intimacy deficits. Risk factors identified as moderate relevance are Mr Duncan's coping mechanisms are simplistic and his insight into his conduct is still developing.
30 On a more positive note, Mr Duncan's behavioural adjustment in the community has been stable. He doesn't have any prior criminal history, no history of significant substance abuse problems, and he has an excellent employment record. Moreover, his offending spanned only a brief period of time. This mitigates his risk. Furthermore, Mr Duncan's engaged well in the offence-specific treatment provided to him. Whilst his progress is incomplete and further treatment remains ahead of him, if he is to comprehensively address his issues, his commitment towards his rehabilitation is a positive prognostic factor.
31 In summary, when evaluating the relevant factors of the RSVP-V2, Mr Duncan's overall risk of sexual recidivism is best understood as falling into the low-moderate risk category. It should be noted that the recidivism that is extant in Mr Duncan's case relates entirely to online or non-contact sexual offending. However, with the completion of a specialist sex offender treatment program, this risk is expected to reduce'.
32 This opinion is consistent with that of Mr Burrows, who notes you have developed some good insight into your offending behaviour and begun to address the relevant interpersonal and sexual issues. You have also successfully restructured your offence-supporting cognitions and expressed remorse for your actions. Both professionals recognise the need for you to continue to engage in treatment to reduce your risk and your preparedness to do so.
33 I was provided with a table of comparable cases, particularly where the exceptional circumstances test was relevant. I have considered those cases. They provide guidance as to the sentencing principles applicable for specific offences, though each case depends on its circumstances and those of the individual before the court.
34 The prosecution has submitted that despite the two offences representing separate and distinct offending, partial cumulation was appropriate before you were released on one recognisance release order encompassing both offences (see s19 sub-ss5 and 6). The prosecution submitted that, having regard to all relevant matters and the gravity of the offending conduct, a sentence of imprisonment with time to serve before release on recognisance release order was the only appropriate disposition - that is, in light of the nature of the offending, that you have limited insight into your offending, and in order to achieve general deterrence, specific deterrence, denunciation, and protection of the community, an actual term of imprisonment to serve is warranted as no exceptional circumstances exist. It was not disputed that the approach set out in the prosecution's submissions as to exceptional circumstances was correct (see paragraphs 3 to 5 of the prosecution's submissions).
35 Your counsel submitted that all sentencing purposes could be met with the imposition of a community correction order, which would allow you to remain in the community and to continue to receive the treatment you are currently undergoing to address your offending behaviour. I had you assessed as to your suitability for such an order. Alternatively, it was submitted that if I was minded to impose a term of imprisonment, by virtue of a combination of factors, exceptional circumstances had been established and that you should enter a recognise release order, to be released immediately with the condition you continue treatment.
36 Section 17A of the Act provides that a court sentencing a federal offender must not pass a sentence of imprisonment unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
37 I have considered the circumstances and the totality of your offending, particularly the content in respect of Charge 2 and the seriousness with which the legislature treats this kind of offending. Also relevant is the short duration of the offending and the amount of material involved in your offending. I have also considered matters personal to you, particularly the professional opinions regarding your insight into your offending and the likelihood you will benefit from further treatment. I am also mindful of the Court of Appeal decision of Boulton and the nature of a community correction order as a sentencing option.
38 Having received a favourable report from Corrections, I propose to place you on a community corrections order for a period of three years. You will be required to do 50 hours' community work, and there are other conditions, as recommended in the report, relating to treatment and supervision. Pursuant to the Sex Offenders Registration Act, given your offending, you will have a reporting period for a period of 15 years. I understand there is no pre-sentence detention. Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a term of imprisonment of 12 months with you being released on a recognisance release order in six months. Is there anything else?
39 MS PARSONS: Nothing further, Your Honour.
40 MS PAN: Nothing, Your Honour.
41 HER HONOUR: Thank you. Thank you, I will just stand down.
42 MS PAN: I'm just printing out the - - -
43 HER HONOUR: All right.
44 MS PAN: - - - corrections order.
45 HER HONOUR: We can do that now. All right, great.
46 MS PAN: Thank you.
47 MS PARSONS: Your Honour, may I approach my client?
48 HER HONOUR: Sure.
49 MS PARSONS: Thank you. Is this your signature?
50 OFFENDER: Yes.
51 MS PARSONS: Thank you. That has been completed, Your Honour.
52 HER HONOUR: Thank you. I will just stand down.
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