Director of Public Prosecutions v Eager (a pseudonym)

[2019] VCC 773

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

AT MELBOURNE
CRIMINAL JURISDICTION

THE QUEEN

v

BLAKE EAGER (a pseudonym name) 

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2019
DATE OF SENTENCE:	29 May 2019
CASE MAY BE CITED AS:	DPP v Eager (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 773

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords: Using carriage service to procure persons under 16 years of age contrary to sub-section 474.26(1) of the Criminal Code (Cth) – Using a carriage service for child pornography material contrary to sub-section 474.19(1) of the Criminal Code (Cth).

Cases Cited:  DPP (Cth) v Vikram Singh 2017 VSCA 146.

Sentence:Convicted to an aggregated sentence of 15 months imprisonment. You are to serve six months of the 15 months imprisonment before be released on a three year recognisance release order in the sum of $2,000. 

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APPEARANCES:	Counsel	Solicitors
For The Queen	Mr J. Saunders (Plea) Ms N. Kohn (Sentence)	Commonwealth Director of Public Prosecutions
For the Accused	Mr M. Fitzgerald (Plea) Mr T. Manicolo (Sentence)	Doogue and George Defence Lawyers

HIS HONOUR:

1Blake Eager[1], on 12 April 2019, you pleaded guilty to two charges on indictment No: CR-18-02300 in the County Court at Melbourne. 

[1] A pseudonym.

2Charge 1, was using a carriage service to procure a person under 16 years of age to engage in sexual activity with you.  This charge has a maximum penalty of 15 years imprisonment. And Charge 2, using a carriage service to solicit child pornography material, this charge also has a maximum penalty of 15 years imprisonment. 

Circumstances of your offending

3Your offending occurred between 13 July 2018 and 19 July 2018. 

4The prosecution tendered the Crown opening upon the plea dated
27 February 2019.  This document was Exhibit “A” on the plea.  I noted the contents of that document and sentence you on the factual basis set out therein.

5The summary of your offending is that you were a 45 year old man at the time of the offending.  You resided with your parents in Doreen and worked at the Wholesale Fruit and Vegetable Market at Epping.  Your offending arose from what I refer to as a sting operation performed by the Australian Federal Police. 

6On 13 July 2018, a covert operative purporting to be a 14 year old female named Sienna, added you as a Facebook friend.  Sienna's Facebook homepage detailed that she was a 14 year old female and contained a picture of a blonde female.  The friend request was accepted by you and the two of you began chatting on Facebook messenger application, text message and WhatsApp between 13 July 2018 and 19 July 2018.  On multiple occasions, you requested nude videos and pictures of Sienna and ultimately arranged to meet her at the South Morang railway station to have sex with her.

7On 13 July 2018, you engaged in chat via Facebook messenger with Sienna.  The messages clearly show that you knew Sienna was 14 years old.  You referred to the term ‘jail bait’ in reference to her.  You sought images of a sexual nature from Sienna.  You sent Sienna a video of you masturbating.  You sent Sienna pictures of yourself naked.  You sought naked pictures of Sienna so that you would know if she was interested in being taught and having sex with you.  You told Sienna not to tell anyone about those communications.

8Later on 13 July 2018, you changed your platform communication to WhatsApp.  The communications from you were sexual in nature and you sought to arrange a meeting with Sienna.  You even sent her a video of yourself slapping your penis on the bathroom counter. 

9You and Sienna then discussed about meeting in person.  You told her that you wanted to meet her the next day and that you finish work at 8 am. You explained to Sienna how she would get to South Morang railway station and where you would pick her up.  You told her that it would be even better for her to skip school and that you would drop her back at the train station at the time consistent with her having returned from school that day.

10The conversations between you and Sienna continued over a number of days until you ultimately “arranged” to meet at the South Morang railway station on
19 July 2018.  The day before, that is 18 July 2018, and before you and Sienna were to meet, you told her that: 'You were looking forward to tomorrow and that they, ‘will have a lot of fun and will be the first time you have sex and play with a dick and me play with your pussy'.  They were the words that you had used.  You then told her that when she kisses you in the car, ‘she should grab your cock and reminded her that she cannot tell anyone about it’.

11On the day of 19 July 2018, you left your home address and drove to the South Morang railway station.  You continued to communicate with Sienna via WhatsApp and sent a final voice recording to her giving her directions where to go when she arrived at the South Morang railway station.  You sent her a voice message telling her the following; 'It's just a little safer because they've got cameras everywhere and we don't want to see us two together before arriving at the train station'.  You have then purchased skin brand lubricant at a Woolworths close to that station.

12You were approached by police parked in the South Morang railway station.  When questioned by police as to what you were doing at the train, you stated that, ‘you were just going to hang out’, and that, ‘you had told her that we were not going to do anything’.  You then told police that your intention was to ‘just see why she was doing this because you used to be a nurse’ and that you were going to tell her that she should not be doing this.  You were then arrested. 

13You took part in a cautioned field interview there at the railway station.  You maintained that you were not offending and not going to do anything.  You were later interviewed in a formal record of interview at your home address by police. 

14In that formal interview, you made selected no comment statements and continued to deny the offending, but you made the following comments.  I am reading from the police summary:

15When asked about a conversation on WhatsApp where the offender describes a sexualised meeting, that is you described a sexualised meeting with Sienna in the hotel room, you told police that:

·'It was just screen print and something you had done with one of your exes who found it sexy;

·You told her you were 34 because you knew she was younger, but not 14, as in you thought she was 19 or 20;

·You said you thought she was catfishing you when she said she was 14;

·You then said you kept asking her if she was sure if she wanted to have sex, but that you were not going to have sex with her;

·You told the police that Sienna had sent you some naked pictures because you want to know if she was real;

·You told the police you did not want naked pictures, you just wanted a picture of her face because you thought that she was going to be a 40 year old lady';

·When questioned as to why you asked for naked photos, you responded that you wanted the photos to see who she was because you were worried she was going to be an older lady;

·You told the police that Sienna organised the time and date to meet; 

·You said that you were nervous about the whole situation because you did not want to see her, you were just going to watch movies with her and that you were not going to do anything;

·You then kept saying that you did not want to meet her;

·You said it was Sienna's decision to contact you on WhatsApp;

·You took yourself off Facebook chat because you did not want to continue communicating with her, however she kept contacting you;

·You said that you deleted your messages because you did not want anything to do with her anymore and was going to block her so you did not have to see her;

·You asked for her phone number because you did not believe she was who she said she was on Facebook;

·You continued to talk to Sienna even though you thought she was catfishing you because you were lonely and wanted to have a chat with someone.

·You cannot explain why you told her that you had deleted the images of her. 

·The lubricant was not for Sienna, you said it was for other girlfriends of yours;

·You stated that it was weird talking to a younger girl and that you became 'A bit naughty sending stupid shit', as you described it and that she wanted to meet up;

·You said that she wanted to meet you to pick her up and wanted to drink;

·You noted that you were aware that Sienna went to school. 

15They are the circumstances of your offending.

Personal Circumstances

16You were 46 years of old on Monday of this week.  You were 45 years old at the time of your offending.  You resigned your employment at a fruit and vegetable market in December 2018.  You were born in Melbourne to parents of foreign heritage.  You have one older brother who was born overseas.  You grew up in a loving and caring family environment. 

17You attended Catholic primary and secondary schools to Year 10 level.  You then transferred and completed Year 12 at a local public high school.  After school, you successfully completed an advanced certificate in hospitality and tourism at TAFE.  Following that qualification, you worked as a chef from the ages of 19 to 25 years old.  You later worked as a forklift driver and wood machinist for four years. 

18In late 2006, early 2007, you moved to Brisbane with your then partner Zoe.[2]  Your cannabis use increased and your employment became more casual.  In 2010, you separated from Zoe and returned to Melbourne to live. 

[2] A pseudonym.

19In 2010, you then completed a personal carer's course in aged care and you moved onto a studying role nurse course for some sixteen months, but did not complete it.  You worked as a personal carer. 

20You also worked at Ingham's Chickens and in the construction industry.  Your last employment was for three years in administration at the fruit and vegetable market.  You have had a good work history.

21You have an 11 year old son who lives with your former partner Zoe in Queensland.  You have paid child support for that child, but not seen your son for approximately the last five years.  You have had a long term use of cannabis since the age of 21 to 22 years old.  At the time of the offending, you described heavy use of cannabis and alcohol.  Whilst you were living in your parents' home, they were overseas and you felt isolated and depressed.  You attended your general practitioner Dr Al- Khalidy after your arrest.  You were placed on a mental health treatment plan, but had not complied with it fully. 

22You have no relevant criminal history.  You were placed on a bond without conviction for a charge of theft in 2014. You have traffic offences in Queensland between the years of 2005 and 2008. 

23You have been assessed by Mr Jeffrey Cummins forensic psychologist for the purpose of these offences.  Mr Cummins report, which is dated 15 March 2019 was Exhibit “2” on the plea.  Mr Cummins made the following statements in respect of his assessment of your risk of reoffending.

'In terms of the domain of psychological adjustment, at interview, there was no evidence of denial of a sexual offending and no evidence of attitudes condoning sexual offending.  In my opinion, at the time of the offending, he had problems with self-awareness and was clearly engaging in distorted thinking.  At the time of offending, he was having problems with stress and coping as evidence through his binging on alcohol and cannabis.  He was never physically or sexually abused as a child. 

In terms of mental disorder domain, because of the duration of the alleged offending, he does not attract any specific diagnosis of sexual deviance, such as paedophilia or more specifically, hebephilia, which is a sexual attraction to a person who is post-pubescent, but under the legal age.

He was not diagnosed with psychopathic personality disorder.  In my opinion, and on his account, at the time of the offending, he was experiencing some symptoms of anxiety and depression because he was feeling psychologically suffocated living back with his parents and was also feeling his parents were quite controlling of him.  Nonetheless, in my opinion, at the time of the offending, he was not suffering from a major depressive disorder or generalised anxiety disorder.

Given all the information currently available concerning Mr Eager, it is my opinion his current risk of reoffending is assessed as at moderate to high, which indicates it is imperative for him to engage in offence specific treatment.  Nonetheless, I would expect him to actively and enthusiastically engage in offence specific treatment, which would most likely see his risk drop to low moderate relatively quickly'.

24Mr Cummins proffered an explanation for your offending as your dependency on cannabis and alcohol acted as disinhibitors when you offended.  There was no child pornography found in your possession on your phone, or on your computer.  Mr Cummins noted that you acknowledged being sexually aroused in the course of your offending and that you were in possession of lubricant when you were arrested by police.

25I note that at the time of the plea in this case, you had not notified or advised your parents of this offending, but subsequent to that plea and your incarceration on remand for this sentence, you have contacted your parents and been in contact with them and they appear here in court to support you today and will obviously support you in the future.

Sentencing Considerations

26The two charges that you have pleaded guilty to are Commonwealth charges.  Section 17A of the Crimes Act 2014 provides that a court shall not pass a sentence of imprisonment for a federal offence, unless it is satisfied, after having considered all other available sentences, that no other sentence is appropriate in all circumstances of the case.

27Section 16A(2) sets out a non-exhaustive list of factors a court is required to consider when sentencing a federal offender such as yourself;

(a) The principles of general deterrence;  

(b) The nature and circumstances of the offending, including your moral culpability;

(c) The maximum penalties applicable to the charges that you face; 

(d) If the offence forms part of a course of conduct consists under the serious criminal acts, or same or similar character to that course of conduct;

(e) The fact that you have pleaded guilty to the charges;

(f) The degree to which you have cooperated with law enforcement agencies in the investigation of the offences themselves;

(g) The deterrent effect of any sentence or order under consideration may have on you personally.  That is, specific deterrence;

(h) The need to ensure that you are adequately punished for your offences;

(i) Your character, antecedence, age, means, physical and mental condition;

(j) The probable effect of any sentence or order under consideration may have on your family or your dependents; 

(k) Your prospects of rehabilitation; and

(l) The fact that prison is, as I have said before, the last resort.

28You have pleaded guilty at the earliest time in these proceedings.  Your plea of guilty and cooperation with the police indicate and demonstrate some remorse on your part and I accept that to be the case in your case. 

29Your plea of guilty has a utilitarian value.  You have allowed the orderly administration of justice to take place,  there is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence to the legal process which has been set up to protect the community.  As I have said before, you have no relevant criminal record and no charges outstanding.

30The Court of Appeal in the case of DPP (Cth) v Vikram Singh, reported at 2017, VSCA 146, made the following pronouncement of principle in respect of these type of charges.  The section refers to it by number.

'Section 474.28 (9) provides that it does not matter that the recipient to whom the sender believes he or she is transmitting the communications is a fictitious person represented to be the sender as a real person.  In that regard, while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.

These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue.  It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment.  Deterrence, both general and specific, is the paramount sentencing consideration.  It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors'.

31That is reported at paragraphs 44 and 45.

32This statement of principle does not mean that imprisonment must be imposed in every case.  I was referred to a number of comparable cases which had a range of sentencing dispositions.  The method and nature of offending varied considerably and whilst I am required to consider current sentencing practices, it is only one of the considerations I must take into account. Ultimately, I am required to formulate a just sentence according to law and comparable cases are of limited utility in that the task due to the differences in their factual matrix. 

33In this case, you did not initiate the communications via Facebook with Sienna, who in fact was a covert operative police officer.  However, once contact was established, you enthusiastically pursued your victim.  You thought your victim was 14 years old.  You sought and engaged in sexually inappropriate exchanges, including sending and requesting sexual images from Sienna.

34You were predatory in your pursuit of Sienna, in the sense that in a short period of time you moved the conversations to meeting her at the South Morang railway station.  You planned the meeting in a manner that you could avoid detection by the cameras at the train station.  You were prepared to engage in sexual activities and part of that is that you were bringing along the lubricant with you, in your meeting with Sienna.

35Your offending is serious.  The maximum penalty of 15 years is indicative of the seriousness the community places on this offending.  Such offending can harm children who are vulnerable to abusive and predatory approaches such as your behaviour in this case.  By its nature, this offending is kept secret from third parties such as parents, or the carers of children. 

36In your case, there was no stored child pornography material on your electronic devices, which is usually the case with offenders such as yourself.  Nevertheless, you clearly knew what you were doing was wrong and your moral culpability is demonstrated in your communications to Sienna. 

37In mitigation I take into account your plea of guilty to which I have referred to earlier in these reasons.  I take into account that you have no relevant prior criminal history.  You have no matters outstanding.  Your personal background is unremarkable.  You have engaged in heavy use of alcohol and cannabis at the time of your offending.  You reported feeling isolated and depressed to

Mr Jeffrey Cummins when your parents travelled overseas, leaving you in their home alone. This may explain your lapse to criminal activity, but does not excuse your criminality attached to this offending. 

38Mr Cummins has assessed you as being a moderate to high risk of reoffending.  This assessment places your prospects of rehabilitation in a doubtful category.  I assess your prospects of rehabilitation will be enhanced, if the sentencing disposition includes a condition of sex offender rehabilitation treatment.  In your past you have a good work history, limited contact with the criminal justice system and a supportive family. As I have said before, at the time of the plea, you had not told your family of these offences, but you have now and they are here in court to support you. 

39The two charges in this case arise from common actions on your part, which constitute both a procuring offence and the soliciting offence.  It is just and appropriate in those circumstances to have the offences dealt with in the one penalty. 

40The offending requires a term of imprisonment to be served.  The principles of general and specific deterrence are paramount.  The community demands the law to protect children and a just sentence dictates that a term of imprisonment is the only appropriate disposition.

41Would you stand please?

42On Charges 1 and 2, you are convicted to an aggregate sentence of 15 months imprisonment.  Further, you are to be placed on a three year recognisance release order in the sum of $2,000 to be released from prison, after serving a period of six months of that 15 month sentence.  The other condition of the recognisance release order is that you are to attend for assessment and you have been assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Corrections Service and the Sex Offender's Management or his or her nominee.

43You have been convicted of two offences and hence under the Sex Offenders Registration Act, you are required to report for a period of 15 years.  The paperwork for that reporting will be prepared and given to you to sign in a moment.  On my calculation, the pre-sentence detention to date is at 47 or 46 days?

44MR MANICOLO:  Forty-seven.

45MS KOHN:  It's 47, not including today.

46HIS HONOUR:  Yes, thank you.  I declare that you have served 47 days pre-sentence detention in respect of this sentence.  Can I ask that that recognisance release order be prepared and ‑ ‑ ‑

47MS KOHN:  Yes, Your Honour, my instructor has forms which she'll complete now.

48HIS HONOUR:  Thank you.  You can take a seat.  Thank you, Mr Eager.  Madam Prosecutor, Commonwealth sentences have all sorts of nuances of its own, so I just want to clarify a couple of things.  If I declare that this sentence commences this day ‑ ‑ ‑

49MS KOHN:  Yes, Your Honour.

50HIS HONOUR:  ‑ ‑ ‑ and then declare the pre-sentence detention,  does that mean that this prisoner serves a further, roughly four and a half months from now?

51MS KOHN:  That's correct.  So he'd be released after serving six months in total.

52HIS HONOUR:  Starting the day I've put him in, which was 12 April?  When I say put him in, I put him on remand.  That is what I'm trying to clarify.

53MS KOHN:  Yes, Your Honour.  My understanding is that if the date is declared as commencing today, then that's correct, that the prisoner's detention will be deducted ‑ ‑ ‑

54HIS HONOUR:  Yes, thank you.

55MS KOHN:  ‑ ‑ ‑ from that period of time.

56HIS HONOUR:  Thank you.

57MS KOHN:  I'll just provided copies for my friend to check.

58HIS HONOUR:  Thank you for that.

59MS KOHN:  Thank you, Your Honour, I can provide it to your associate.

60HIS HONOUR:  Thank you.  I'll just have a look, thank you.  Can I just hand that back down to you both, I've just made - I just want to check that my amendment on the back of it reflects what my order is.

61MS KOHN:  Yes, Your Honour, that looks appropriate to me.

62HIS HONOUR:  Could you just show Mr Manicolo.  I'm just wondering whether the first - on the first page it should say it's 15 months imprisonment as opposed to six, that is the serve time, that's what I'm asking you both.  I haven't changed that.  I only want him to serve six.

63MS KOHN:  Yes, Your Honour.

64HIS HONOUR:  Yes.

65MR MANICOLO:  I think it's supposed to be six, because that's ‑ ‑ ‑

66HIS HONOUR:  That's the time.

67MR MANICOLO:  That's the time at after which he'll be released from custody.

68HIS HONOUR:  Very well.

69MS KOHN:  I agree, Your Honour.  That's correct.

70HIS HONOUR:  Yes, thank you.

71MR MANICOLO:  And that amendment that Your Honour makes on the second page makes clear though the sentence ‑ ‑ ‑

72HIS HONOUR:  What it is.

73MR MANICOLO:  ‑ ‑ ‑ is otherwise 15 months.

74HIS HONOUR:  Yes.  Thank you.  If you wouldn't mind attending at the back of the court with your client, ‑ ‑ ‑

75MR MANICOLO:  Yes.

76HIS HONOUR:  ‑ ‑ ‑ together with my associate and there's the sex offender's register ‑ ‑ ‑

77MR MANICOLO:  Yes, Your Honour.

78HIS HONOUR:  ‑ ‑ ‑ documentation as well.

79MR MANICOLO:  Yes, Your Honour.

80HIS HONOUR:  Mr Eager just before you go, you have got about four and a half months to serve on this sentence.  I want you to understand though that I have put you on a recognisance release order in the sum of $2,000.  You do not have to pay the money now.  If you breach the recognisance release order, you will, but you will also have that 15 months - the remainder of the 15 months hanging over your head.  Do you understand that part?

81OFFENDER:  Yep.

82HIS HONOUR:  One of the conditions of the recognisance release order is that you attend and complete a sex offender's register program upon your release because they will not have time whilst you are inside, while you are in gaol and that the period of the recognisance is for three years.  So you are on a good behaviour bond for three years starting now.

83So you have the support of your family.  You have got to honour that support when you get out and go back to your otherwise normal life that you had before this offending, all right?  Good luck with that.

84OFFENDER:  Thanks, Your Honour.

85HIS HONOUR:  Thank you.  Remove the prisoner.  You can remove the prisoner, thank you.  I thank counsel and those who instruct for their assistance in this matter, thank you.  Mr and Mrs Eager, stick with him. 

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