Director of Public Prosecutions v Eaton

[2020] VCC 594

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01774

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN EATON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	11May 2020
DATE OF SENTENCE:	11 May 2020
CASE MAY BE CITED AS:	DPP v Eaton
MEDIUM NEUTRAL CITATION:	[2020] VCC 594

REASONS FOR SENTENCE
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Subject: Using a telecommunications service to groom a person under the age of 16 for a sexual act
Sentence: Recognizance Order  SORA  8 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov
For the Accused	Mr J. Mortley

HIS HONOUR: 

1Dylan Eaton, you have pleaded guilty to one charge laid under the Commonwealth Criminal Code by the Victorian Director of Public Prosecutions and it is a charge of using a telecommunications service to groom a person under the age of 16 for a sexual act.  The maximum penalty for this offence is imprisonment for 12 years or a fine equating to 720 penalty units  As you can see from the maximum penalty prescribed by the Parliament of this country, offending of this kind is regarded most seriously and that is because the very nature of the offence involves the exploitation and possible abuse of a child under the age of 16.

2There are numerous decisions of not only this court but appellate courts all over Australia which reinforce the need to treat any criminal offence against a child most seriously and the penalties are high because the government recognises that it is the role of the courts from time to time which must be invoked to protect children from this sort of behaviour.  Having said that, the circumstances of your offending are set out in a summary of prosecution opening dated 6 May 2020 which was tendered in evidence and marked as Exhibit A on the plea.

3Between 30 July and 2 August 2018 you engaged in a conversation via Facebook with the victim.  The conversations are set out and it is clear, in my view, that your intent in the discussion was to lead to a situation where you would meet with the victim at some point and begin a sexual relationship with her.  It is quite clear from the conversations transcribed in the prosecution opening that the victim was reluctant and did not in any way encourage your intent.

4Eventually she had the common sense as a 14-year-old young person to seek guidance from her mother and that is when your crime was disclosed.  The offending was relatively short lived and because of that and because it was, in my view, doomed to fail, your offending probably falls towards the lower end of the scale for this sort of crime.  You I think can count yourself fortunate indeed that the victim went to her mother when she did because that put a stop to what could have been far more serious offending on your part.

5That said, even though it is towards the lower end for this kind of offending, because it involves a child, the court must by its sentence deter others from engaging in this kind of offending.  You have been well represented if I may say so, by Mr Mortley who filed a comprehensive written outline of submissions on your behalf.  You were interviewed and charged on 27 August 2018.  There were other charged involved initially but you went through the contest mention system in the Magistrates' Court and eventually in May 2019 there were additional or alternative charges filed and a hand-up brief was served.

6There was a committal mention and then a submissions committal and the matter settled after some initial directions hearings in this court and you have pleaded guilty to the charge.  For the purposes of sentencing, I treat you as having pleaded guilty at an early time.  By your pleas of guilty you have saved the time and cost of a contested hearing and importantly in this case you have saved the need for the victim to have to come to a court like this and give evidence and be cross-examined by your counsel.  That means, in my view, in a case like this involving a young child, that your plea of guilty should be given great weight.

7Because you have pleaded guilty, the law provides that you should receive a reduced sentence and I will shortly indicate what I would have given you by way of sentence had you not pleaded guilty to this charge.  In short, you would have received a term of imprisonment.  You are now 27 years of age.  You come before the court without any prior convictions.  The offending in this case, as I say, was short lived over a period of a day or two.  You have had a difficult background and upbringing.

8You were brought up in a family that was somewhat deprived and Mr Mortley in his submissions has used the word poverty.  You were the subject of physical and sexual abuse from an older step-brother and you suffered in your early years because of the fact that your father was an absent father working on a fishing boat, often away for up to six months at a time.  You had to have specialist teaching at school.  You made poor academic progress and you did not attend school beyond year eight.

9You have had a number of attendances at hospitals and other places for mental health intervention from about the age of 14 due to suicidal ideation.  You were involved in a motor vehicle accident in February 2015 which caused you a number of injuries.  You have been assessed by a neuropsychologist, Dr Nola Ross, who assesses you with a full scale intelligence quota of 71 which is considered low, borderline.  You have particular deficits in working memory of an extremely low range and you have poor verbal skills.  Your reading is said to be at about year 10 level.

10Mr Mortley outlines in his submissions a number of ways in which unfortunately you have been poorly dealt with by members of your local community since the revelation of this offence.  That is to be very much regretted and in no way condoned but nevertheless you have been the victim of that abuse and it led you to express further suicidal ideation since the laying of these charges.  You have not reoffended in any way since the laying of these charges.  I am told and accept that there is a pending matter of an entirely unrelated nature, consequent upon police attending your home in the execution of a search warrant.

11You have entered into a relationship with a woman older than you, appropriately older than you and I am told that both of you are expecting a child to be born in the not too distant future.  Since this offence, you have not reoffended as I have already said but you have taken a number of steps which in my view shows that you are determined to do something appropriate to address this offence.  I have received into evidence as Exhibit 2, a letter from Gippsland community health which shows that in November and December 2018 you attended a number of counselling sessions with that organisation.

12Also received into evidence, a neuropsychological report from Dr Ross.  It is very clear to me, as a result of what is contained in that report that what are, some of what are known as Verdins' principles have application in this case, specifically principles 1, 2 and 6.  You are a person who because of your intellectual disability I think have reduced ability to exercise appropriate judgment, that is referred to in Dr Ross' report and it would have been active at the time of this offending.

13You are not a vehicle, in my view, which should have - where a sentence imposed should fully apply the sentencing principle of general deterrence.  In my opinion, in sentencing of you there has got to be a reduced reliance upon that principle.  Clearly you would suffer more than most were you to be sentenced to a term of imprisonment.  Because of your disabilities you would find a term of imprisonment much more burdensome than for most.  For these reasons the court must consider the type of sentence that it will impose.

14Mr Mortley in his written outline, understandably submitted that the court should impose a community corrections order with conditions.  Because you are a first offender, because you are still reasonably young, because you have a clear and documented intellectual disability, because you are employed and will continue to be employed in the Lakes Entrance area and because you are about to become a father, in my view, the sooner you find yourself out of the criminal justice system, the better.  The better for you and the better for your family and loved ones.

15And I note that you have been supported in the court today by your mother and your partner.  You have good family support and that gives me confidence in the disposition that I am about to impose that you will likely abide by that disposition.  Accordingly, on the charge of using a carriage service to groom a person under the age of 16, you will be convicted of that offence and pursuant to s.20 of the Commonwealth Crimes Act, I propose that you be released on a recognisance to be of good behaviour for a period of two years.

16OFFENDER:  What's recognisance mean?

17HIS HONOUR:  Well, I will explain it to you in a moment.

18OFFENDER:  Okay, sorry.

19HIS HONOUR:  And there will be a further condition that you attend upon Gippsland Lakes Community Health and engage in any counselling that you may be advised to engage in and comply with all of their lawful instructions to you.  Now, what that means is this, Mr Eaton, there will be a conviction recorded against your name, you understand?

20OFFENDER:  Yes, sir.

21HIS HONOUR:  The recognisance means that you enter into an undertaking which you will be asked to sign shortly, that you will be of good behaviour for the next two years and you will comply with the condition, namely, the condition to be of good behaviour and a condition to attend upon Gippsland Lakes Community Health and comply with their directions as to counselling and all other lawful instructions to you, do you understand?

22OFFENDER:  Yeah, it's the same as like a bail hearing but without the bail hearing part, correct?

23HIS HONOUR:  Well, it is not like a bail hearing but you have just to be of good behaviour.

24OFFENDER:  Yeah.

25HIS HONOUR:  Not commit any offences and you have to attend upon Gippsland Lakes and do what they tell you to do.

26OFFENDER:  Yep.

27HIS HONOUR:  Do you understand?

28OFFENDER:  Yeah, I understand.

29HIS HONOUR:  Now, if you do not, if you commit another offence punishable by a term of imprisonment or you do not go to Gippsland Lakes or you do not follow their lawful directions, you will be in breach of the recognisance, do you understand?

30OFFENDER:  Yes.

31HIS HONOUR:  And that is for the next two years.  And you can be brought back to me and re-sentenced?  Do you understand?

32OFFENDER:  Yes, Your Honour.

33HIS HONOUR:  You will have breached the agreement that you are making with the court effectively.  Do you understand?

34OFFENDER:  Yes, Your Honour.

35HIS HONOUR:  Now, I can only make that order if you agree to do it.

36OFFENDER:  Yes, I agree to it.

37HIS HONOUR:  Do you agree to do that?

38OFFENDER:  Yes, Your Honour.

39HIS HONOUR:  Very well.  Now, the offence is what is called a class 2 offence for the purposes of the Sex Offenders Registration Act 2004. Because you have been convicted of the offence, you are now a registrable offender under that Act, you understand?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  And you will have to report to police pursuant to that Act for the period of the next eight years.  You understand?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  Now, this is where it can get complicated.  The Sex Offenders Registration Act 2004 is a very serious piece of legislation and you need to get proper advice as to what it means for you, you understand?

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  It is very strict and it is very, some might say, Draconian.  You might not understand what that means.

46OFFENDER:  No, I don't ‑ ‑ ‑

47HIS HONOUR:  But it is very strict.  If you get a telephone, you have to tell the police what the number of it is.  If you have got an internet account, you have to tell the police, you understand?

48OFFENDER:  Yes, Your Honour.

49HIS HONOUR:  If you buy a new car you have to tell the police and you have to tell them the colour of the car, you understand?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  If you change the colour of the car you will have to tell the police.  Virtually everything you do, you have got to tell the police so that they can keep track on you and the purpose of that is that you do not commit any other offences against children, do you understand?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  So, because of the nature of this offence and because it is treated so seriously, you are stuck with it I am afraid, do you understand?

54OFFENDER:  Yes, Your Honour.

55HIS HONOUR:  And you will have to comply with that.  And the reason why I am going to so much trouble to tell you about it is, that if you commit any offence under the - if you breach that Act, you breach the reporting requirements, that can trigger an offence and breach your recognisance, do you follow?

56OFFENDER:  Yes, Your Honour.

57HIS HONOUR:  So, I want you to make sure and I want those that are acting for you to make sure that you clearly understand your obligations under that Sex Offenders Registration Act because we have people coming back into this court routinely for having breached that Act, sometimes unwittingly, but they breach it.  Do you understand?

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR: So, you need to speak to your solicitors or Mr Mortley about that. Now, for the purposes of s.6AAA of the Sentencing Act, had it not been for your pleas of guilty to the charges, I would have sentenced you to a term of imprisonment of nine months.  Any questions arising out of that? 
Ms Karamicov?

60MS KARAMICOV:  No, Your Honour.  Thank you, Your Honour, no.

61MR MORTLEY:  Nothing further, Your Honour.

62HIS HONOUR:   Yes, very well.  Now, come out of the dock if you would please, Mr Eaton, take a seat behind Mr Mortley.  We are just having a bit of difficulty, Ms Karamicov printing the recognisance for some reason.  There is some technical problem.  So, that will be resolved a lot sooner if I leave the Bench so that I do not place pressure on my associate.

63MS KARAMICOV:  No problem.

64HIS HONOUR:  So, I will just leave the Bench for a short time whilst that is done.

65MS KARAMICOV:  Thank you, Your Honour.

66(Short adjournment.)

67HIS HONOUR:  Thank you, Ms Karamicov, I understand that we now have the correct form?

68MS KARAMICOV:  Yes, the form has been emailed across to both Your Honour's associate and Mr Mortley ‑ ‑ ‑

69HIS HONOUR:  Yes.

70MS KARAMICOV:  The form, however, requires on the template the giving of a security.

71HIS HONOUR:  No, well ‑ ‑ ‑

72MS KARAMICOV:  And it specifies a particular sum.  I do not think Your Honour ordered that though, did you.

73HIS HONOUR:  No.

74MS KARAMICOV:  So, that section will just need to be deleted.

75HIS HONOUR:  Yes.  Yes.  I see.  It is called a security but it is not in the form of a surety.  It is not akin to a surety.

76MS KARAMICOV:  Yes.

77HIS HONOUR:  It does need a figure put in there though.

78MS KARAMICOV:  Yes. 

79HIS HONOUR:  We will make it $1,000.

80MS KARAMICOV:  Yes, Your Honour.

81HIS HONOUR:  Mr Eaton will not have to pay it unless there is some breach of the recognisance.

82MS KARAMICOV:  Yes.

83HIS HONOUR:  And it does not require a surety for that.  So, could you put a $1,000 in there ‑ ‑ ‑

84ASSOCIATE:  It will not allow me to ‑ ‑ ‑

85HIS HONOUR:  All right, well, I will just do it by hand.

86ASSOCIATE:  Now, I can.

87HIS HONOUR:  Can you.  Toorloo Arm.  Toorloo.  Yes, could you have
Mr Eaton sign that please.  Now, Mr Eaton, that completes the formal parts today.  You must comply with the terms of the recognisance order that you have just entered into.  You must not commit any offences for the next two years and you must attend that community health clinic and obey their lawful directions.  Do you understand?

88OFFENDER:  Yes, Your Honour.

89HIS HONOUR:  Now, if you are in any doubt about it, get some legal advice but there will be a recording of all the warnings I have given you today, you understand?  So, if you come back here we will have a transcript of it, all right?  Just so that you understand.  Very well.

90OFFENDER:  Thank you, Your Honour.

91HIS HONOUR:  Thank you, Mr Mortley, thank you, Ms Karamicov.

92MR MORTLEY:  Thank you, Your Honour.

93MS KARAMICOV:  Thank you, Your Honour.

94HIS HONOUR:  Adjourn the court, 10 o'clock.

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