Director of Public Prosecutions v Edkins (a pseudonym)

[2022] VCC 1328

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

LINCOLN EDKINS (A PSEUDONYM)

---

JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June & 10 August 2022
DATE OF SENTENCE:	15 August 2022
CASE MAY BE CITED AS:	DPP v Edkins (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1328

REASONS FOR SENTENCE

---

Subject:CRIMINAL LAW

Catchwords:              Indecent act with or in the presence of a child under 16 - Production of child pornography - Possession of child abuse material – Guilty plea – Remorse – Victim impact – Trust – Grandfather - Psychological report – Previous good character – Mature aged first offender – Delay – Ill health – Rehabilitation.

Legislation Cited:      Sex Offender RegistrationAct 2004 (Vic).

Cases Cited:The Queen v Unal Okutgen (1982) A Crim R 262 - Worboyes v The Queen [2021] VSCA 169 - R v Verdins [2007] VSCA 102 - R v Eliasen (1991) 53 A Crim R 391 - R v Van Boxtel (2002) 11 VR 258 - Smith v The Queen VSCA 208.

Sentence:                  TES: 3-year Community Correction Order.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Kermath	The Office of Public Prosecutions
For the Accused	Ms E. McKinnon	Furstenberg Law

HER HONOUR:

1Lincoln Edkins,[1] you have pleaded guilty to one charge of indecent act with or in the presence of a child under 16, production of child pornography and possession of child abuse material.  Each of these offences has a maximum penalty of 10 years' imprisonment.

[1] A pseudonym.

Circumstances of Offending

2The factual basis of your offending is contained in a summary of prosecution opening for plea. This document was tendered and marked Exhibit A on the plea and I do not propose to recite the document in full now.  Rather, I will briefly summarise the circumstances of your offending.

3In July 2011 your daughter arranged for you to care for your granddaughter at your home for three days whilst she was in hospital. Your granddaughter was four years old.  On an unknown date in the evening during this time you were bathing your granddaughter.  You got her out of the bath and had her in your lap, sitting sideways.  You used your hands to spread apart her vaginal lips.  You touched and looked at her vagina, and that is Charge 1, indecent act with a child under 16.  Your granddaughter found the sensation, 'funny' and 'weird', but did not feel any pain.

4In mid-April 2013 you went to your daughter and her husband's house for dinner.  You gave your granddaughter a bath and whilst she was in the bath you took photographs of her vagina, and that is Charge 2, make or produce child pornography.

5Sometime shortly after the 2013 incident your granddaughter told her father that you had taken photographs of her vagina whilst she was in the bath. Her father told your daughter, who later telephoned you and confronted you with the allegation.  You admitted that you had done it, 'in a moment of weakness', or words to that effect.  You assured your daughter that you had deleted the images.

6From that time your relationship with your daughter and her family was strained. Later, your daughter and her family moved overseas and you were advised that you were not to visit.

7Sometime after your daughter's family returned to Australia your daughter was talking to an old friend, who was a pre-school teacher.  Your daughter told the
pre-school teacher, her friend, what she knew of your offending.  Her friend advised she was obliged to report the matter to police and that is what occurred. On 14 October 2019 your granddaughter completed a VARE interview.

8On 29 October 2019 your daughter telephoned you and the call was recorded with the assistance of the police.  During that call you made admissions:

(a)in relation to the first incident you said you, 'may have', touched the victim on the vagina when she was in your care, but could not recall the circumstances of when or where it occurred.  You said the incident occurred only once, was 'momentary', and you did not 'press' her vagina.  You agreed your actions were wrong;

(b)in relation to the second incident you said you had taken, 'a number', of photographs during the one incident. You said, 'they were all deleted', after the conversation you had had with your daughter back in 2013.  You sincerely regretted it and could not understand why you did it.

9On 13 November 2019 police executed search warrants at your home in. A hard drive was seized. You were transported to the Box Hill police station and interviewed.  You exercised your right to make no comment when allegations were put to you.

10In August 2020, the hard drive that had been seized from your home was analysed and 87 images were located on it which constitute child abuse material.  There were six images that contained no sexual activity, three images that contained solo/sex acts between children, one image involving an adult
non-penetrative, and 77 images that were animated or cartoon in nature, and those involved The Simpsons, and that was Charge 3, possess child abuse material.

Gravity of Offending

11Any sexual offending perpetrated against children is inherently serious. The maximum penalties are an important yardstick when considering the objective seriousness.  The maximum penalty for each of the charges to which you have pleaded guilty, as I have said, is 10 years' imprisonment.

12Mr Edkins, your offending in relation to Charges 1 and 2 is aggravated because of your relationship with the victim.  You are her grandfather, and you were caring for her at the time you offended against her.  The victim was entitled to feel safe and loved in your care but instead you committed a gross breach of trust and abused her by touching and looking at her vagina.  Further to this, your granddaughter was only four years of age on the first occasion of abuse.

13Two years later you again offended against your granddaughter.  Although on this occasion she was not strictly under your care and supervision, you were entrusted to bathe her whilst at your daughter's home for dinner.  You again breached the trust invested in you by taking photographs of the victim's vagina. Your offending was detected shortly after this time as your granddaughter complained to her father about what you had done.

14When confronted by your daughter you made admissions and deleted the photographs when requested to do so.  I think you might have done it before speaking to her but you had assured her that you had deleted the photographs.  This is clearly very serious offending.

15A report from Mr Jeffrey Cummins, psychologist, was tendered on your plea and marked as Exhibit 5.  At paragraph 43 of his report Mr Cummins said, 'at interview he reported embarrassment, shame, regret and remorse concerning his offending'.  Mr Edkins, your behaviour was deplorable.  You should be thoroughly ashamed of yourself.  To act in this way to your own granddaughter is despicable.

16Further to this, six years later, when you were arrested for the offending against your granddaughter, police located child abuse material.  It almost goes without saying that offences involving the possession of child abuse material are also inherently serious.

17Mr Edkins, it is important that you understand that the possession of child abuse material supports an industry founded on the exploitation of children.  It exploits and profits from the vulnerability and innocence of children who are not only incapable of consenting to the production and/or use of these images, but who are also incapable of protecting themselves.  There is a clear presumption of harm to the children who are the ultimate victims of your offending.  The harm is both immediate and long lasting as their images will likely remain accessible indefinitely.

18In determining the objective seriousness of your offending in regard to the possession of child abuse material I have had regard to the following factors:

(a)the nature and content of the material was largely animated cartoon images of the Simpsons.  The other material contained either no sexual activity or solo sex acts and there was only one adult
non-penetrative;

(b)there were 77 animated images and only 10 other images.  I consider this to be a small amount of images in comparison to other cases before the courts;

(c)there was no suggestion that the material was for sale or further distribution and in fact it appeared that the material had not been accessed since 2010;

(d)there was no suggestion that you were likely to profit from the offending.

19For these reasons I consider your offending in relation to the possession of child abuse material to be toward the lower end of the scale for this type of offending.

Victim Impact

20A Victim Impact Statement was received from your daughter.[2]  It was short and to the point.  Simply put, your offending has had a massive and devastating impact on your daughter and her family.  It has caused a great deal of pain and suffering.  You breached your daughter's trust and now she feels as though she must protect her children from you.  The impact of your abuse upon your granddaughter has been emotionally devastating and long lasting.

[2] Exhibit B on the Plea.

21I take the impact of your offending on your granddaughter and also your daughter into account in sentencing you.

Background

22You are now aged in your 70s.  You were born and raised interstate until you were 10.  At that time you moved to Melbourne and have lived here since then. Both your father and mother are now deceased, having both died from dementia related symptoms.  You have one older sister, with whom you are close.  I was told she knows of your offending and remains supportive of you.

23In your childhood years you had a difficult relationship with your mother, who you described as a nervous person.  Your mother had hearing difficulties after your birth and by the time she was aged 50 she was profoundly deaf.  You were a sickly child, suffering from polio, measles, mumps and chickenpox.  As a result, your school attendance was poor at times.  In addition, in Year 9 you were diagnosed with chronic anxiety, which was reflective of your mother's difficulties and in particular, her deafness.  You saw a psychiatrist around this time for what I understand to be several years.  At one stage during your secondary school years you were admitted to a psychiatric hospital and subjected to LSD treatment.

24After secondary school you went on to complete an electrical engineering degree.  You were conscripted into the army for national service and held the position of Engineer class 1.  You undertook officer training but were not involved in combat and were discharged from the army after two years and three months. Since that time you have worked with your sister, after the death of her husband, in two separate manager roles.  By far your longest job was as a purchasing manager, where you worked for two decades before being made redundant.  You have had some paid employment as part of your volunteer work supporting the homeless since then.  However, this work has ceased as a result of your offending because your working with children check has been cancelled.

25Your most significant relationship was with your wife. You started dating in the 1970s and married a year later. You had three daughters together. Your wife was a primary school teacher. Tragically in the early 2000s your wife was diagnosed with leukaemia and died six weeks later in Peter MacCallum Cancer Centre.  You reported to Jeffrey Cummins, psychologist, that you suffered an extended phase of grief following your wife's death.  I will return to Mr Cummins' report shortly.

26Since your wife passed you have dated at least two women, most recently you started dating your current partner. Although your relationship is no longer intimate you remain great friends and talk every day, usually by way of Skype.  Your current partner wrote a letter to the court, detailing your deep understanding of the wrongfulness of your conduct, your sadness and remorse, your suffering at having in effect lost your family, and your feeling of being alone in the world.  Your current partner has found you to be a kind and helpful person, who has volunteered at the choir you both attend, and by working with homeless people through your church. She remains supportive of you, and I note that she attended court for your plea and is in attendance again today.

27As a result of your offending you have no contact with both of your daughters or their families.  This has had a huge impact on you at this stage of your life.

28A brief medical history from your Medical Centre was tendered on your plea.[3] This document revealed that you have suffered from prostate cancer and in have recently been diagnosed with atrial fibrillation, for which you are prescribed medication, including a blood thinner.

[3] Exhibit 4 on the Plea.

Prior Convictions

29This is your first appearance before the court, now aged in your 70s. Good character is an important and significant factor in your favour. This is particularly so, given that you are a mature age first offender.[4] This is, of course, qualified by the gravity of your offending and other sentencing purposes.

[4]The Queen v Unal Okutgen (1982) A Crim R 262.

30As I have mentioned, you are a person who has given up your time to volunteer to help those in the community who are less fortunate.  You have done this by being involved with programs to assist homeless people.  In addition, you have volunteered your time at local groups.  As a result of your offending, you are no longer able to participate in the volunteer work you once did.

Plea of Guilty

31I accept your plea of guilty was entered at the earliest possible opportunity within six weeks of the initial filing hearing. Further, I accept that you were motivated to plead guilty early to avoid your granddaughter and daughter any further distress.

32Your plea has significant utilitarian value in that it has spared your family members, in particular your young granddaughter, the trauma of having to give evidence and thereby relive the trauma of your offending.  You have also spared the court the time and expense of what would have been a lengthy and emotional trial.

33In addition, I accept your counsel's submission that a plea of guilty during the COVID-19 pandemic is worthy of greater weight in mitigation and should attract a more pronounced amelioration of sentence than at other times.[5]

[5]Worboyes v The Queen [2021] VSCA 169.

34Accordingly, I propose to allow a significant discount for your plea.

Remorse

35Mr Edkins, your counsel submitted that you are extremely remorseful for your offending.[6]  This submission was supported by various sources of evidence. Firstly, your daughter acknowledged that when confronted back in 2013 you were apologetic and promised it would never happen again.  Secondly, in the pretext call in 2019 you told her how sorry you were.  Third, your expressions of remorse were repeated in the psychological report of Mr Cummins, the letter from your current partner and in the pre-sentence report that was prepared by Corrections.

[6] Exhibit 2 on the Plea.

36In my view, the most significant expression of your remorse is that you participated in offence specific counselling with Geoffrey Burrows, a forensic psychologist with Melbourne Central Psychology, for two years.  I accept that you have taken the very important step of accepting responsibility for your offending and undertaking treatment.  I accept that your remorse is genuine.

Delay

37Delay is an important mitigatory factor I have taken into account in your case. You have lost the benefit of having this matter dealt with when you were younger.  It is now between 9 and 11 years since your offending occurred. In that time there has been no, 'contact', reoffending.  This is of course qualified by the fact that child abuse material was found upon your arrest, although this material, as I have said, did not appear to have been accessed since 2010.

38I note that you were arrested in November 2019 and not charged until February 2021.  This matter has been hanging over your head since that time and you have had the uncertainty of not knowing what penalty you might receive and if you were to be incarcerated or not.  In the two years since your arrest, as previously mentioned, you have sought counselling from Geoffrey Burrows and have attended on a fortnightly basis.

39Although the longer period of delay is not something usually given great weight in sentencing, given there are multiple reasons why a victim of sexual abuse may fail to report, I do, however, take into account that it has now been in the order of 10 years since you engaged in any contact offending.  This provides the court with some demonstration of rehabilitation.

Mental Health

40As I have mentioned, a psychological report authored by Mr Jeffrey Cummins was tendered on your plea and marked Exhibit 5.  Mr Cummins provided the following opinions:

(a)you have a number of medical conditions and have recently been seen by a gerontological psychiatrist, who has determined via an MRI, that you have some frontotemporal atrophy.  Both of your parents died at a time when they were suffering from significant symptoms of dementia;

(b)you are a low risk for committing a further sexual offence;

(c)you have been receiving offence specific treatment for two years via
Central Melbourne Psychology;

(d)you are suffering from a major depressive disorder, which has been recurrent in type and of at least moderate severity.  This appears to have been triggered by your wife's death;

(e)you are not a particularly psychologically minded person.  You had little insight into the significance of your mental health symptoms, which include negative, ruminative thinking, intermittent concentration difficulties and disturbed sleep.  If you were incarcerated it is very probable that your mental health would deteriorate, irrespective of whether or not it is correct that you are currently experiencing some early organic signs of dementia.

41I accept the opinions of Mr Cummins.  I consider that Limb 6 of Verdins is enlivened in your case.[7] That is, there is a serious risk that your already compromised mental health will deteriorate further should you be imprisoned.  I take this into account in sentencing you.

[7]R v Verdins [2007] VSCA 102.

Physical Ill-health

42The principles in relation to ill-health and its impact on sentencing are well established.  Poor physical health or disability may be relevant to sentencing where imprisonment will be a greater burden to the person as a result of their health, or where there is a serious risk of imprisonment having a grave effect on the person's health.  If either of these circumstances exist, then the court should mitigate the penalty imposed.  The degree of mitigation depends upon the circumstances of the particular case. The greater the burden on the accused person or the greater the likelihood their health will deteriorate, the greater the allowance that should be made by the court.[8]  Of course, this does not allow the court to impose an inadequate sentence.

[8]See R v Eliasen (1991) 53 A Crim R 391; R v Van Boxtel (2002) 11 VR 258; Smith v The Queen VSCA 208.

43In your case, although only brief medical material was filed, it is clear that you have suffered from prostate cancer in 2007, and that currently you have issues with osteoarthritis, a bad back and, more recently, you have been diagnosed with atrial fibrillation and frontotemporal atrophy.

44In these circumstances, I accept that imprisonment would be a greater burden for you than someone in good health.  I take this into account in mitigation of your sentence.  There was no evidence before me that would indicate that your health is likely to deteriorate if you were to be imprisoned.

Rehabilitation

45I consider your prospects for rehabilitation to be excellent in light of your good character, the support you have in the community from your current partner, your sister and one of your children, the lesson you have learnt from all of this and Mr Cummins' assessment of you as a low risk of sexual reoffending.  I am of the view that you are extremely unlikely to reoffend in the future.

Onerous Conditions in Custody Due to COVID-19

46I take into account the onerous conditions in custody as a result of the
COVID-19 pandemic were you to be imprisoned.  Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience.  The effects of the pandemic for prison remain serious, ongoing and fluid.  This is particularly so in light of community outbreaks of COVID-19.

Sentencing Principles

47I consider that the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment.  In my view, specific deterrence plays little or no role in the sentencing matrix, given your age, your background and the experience of having your home searched by police and you being arrested.  The sentence that I impose, I am sure, will sufficiently deter you from offending in the future and I do not expect to see you back inside a court in the future.

48Other sentencing principles that I must apply are parsimony and proportionality. Your counsel urged me to do no more than is necessary to punish you and submitted that this was less than usual given the circumstances of your case. She maintained that a sentence of imprisonment was not required to bring the message home to you and that a merciful sentence would be appropriate and consistent with the principle of parsimony.

Disposition

49So, Mr Edkins, could you stand?  I have had you assessed for a
Community Correction Order and you have been assessed as suitable for such an order.

50In relation to the charges of indecent act with or in the presence of a child
under 16, the production of child pornography and the possession of child abuse material, you are convicted and you are placed on a
Community Correction Order for a period of three years.  The conditions of this
Community Correction Order include:

(a)      300 hours of unpaid community work over that three-year period;

(b)      assessment and treatment for mental health;

(c)       assessment and treatment for programs to reduce reoffending;

(d)      and supervision.

51I will offset 100 hours of community work against the treatment.  So that means if you engage in counselling, any hours that you do can be offset against the community work.  So, if you were to do the hundred hours of counselling, that would reduce the community work that you are required to do to 200 hours.

52In addition to the conditions that I have imposed, there are standard conditions that you must comply with.  The first and foremost of these is that you are not to commit an offence punishable by imprisonment within the next three years. You need to report within two working days to your nearest Corrections office.

53You are required to advise your supervising Corrections officer of any change of address of where you are living or working within two clear working days, and it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the state of Victoria without their prior permission.

54Mr Edkins, if you reoffend you will breach the Correction Order.  If you do not comply with the conditions you will breach the Correction Order, and if you do that you will come back before me and you may be resentenced on the original charges.

55I can only place you on a Correction Order if you agree.  So do you understand what is involved in the order?

56OFFENDER:  Yes, Your Honour.

57HER HONOUR:  Do you consent to such an order?

58OFFENDER:  I consent.

59HER HONOUR: Alright. Pursuant to s11 of the Sex Offender RegistrationAct 2004,[9] I declare that you are a registrable offender as you have been found guilty of three class 2 offences. Pursuant to s34 of the Sex Offender Registration Act 2004 you are required to report for life.

[9] (Vic).

60Now, Mr Edkins, my staff will print some material for you.  I think my associate may have already prepared it, and that will be given to you and you will need to sign an acknowledgement that you have received it.  I will leave it to Ms McKinnon to go through that with you but it will have all the information that you need about your obligations under the Sex Offender Registration scheme.  Essentially, you will have to report to a police station in time, you will get a case manager, someone who will look after you, and you will need to supply them with certain information, and that will need to be updated, and you will have annual requirements and other obligations under that legislation, and that will continue for life.

61So, I have got the Community Correction Order here and I will hand that down to have Ms McKinnon check it and get you to sign it and then I will sign it after you have done that.  What I will do is I will stand down briefly so that
Ms McKinnon can explain the SORA material and then I will come back and do the rest.

62MS KERMATH:  Also, Your Honour, forfeiture orders for Charge 3.

63HER HONOUR:  Yes. 

64MS KERMATH:  Yes, it was in the last time.

65HER HONOUR:  Yes, it is.

66MS KERMATH:  That is the hard drive that contained the child abuse material.

67HER HONOUR:  Yes, and I will make the disposal order that has been sought by the Crown.

68MS KERMATH:  Thank you.  As Your Honour pleases.

69MS McKINNON:  Your Honour, just while we are bringing up other matters and
Your Honour is leaving the Bench, I would like to address the prospect of a pseudonym order - have you?

70HER HONOUR:  It will be pseudonymised and anonymised. All right, so I will stand down briefly so that you can explain the SORA information.

71MS McKINNON:  Yes, Your Honour.

72HER HONOUR:  And then we will get Mr Edkins to sign the Corrections order.

73(Short adjournment.)

74HER HONOUR:  All right, Mr Edkins, I have signed that order now.  I expect that probably for the next three years every day you go off to do community work you will think about what has happened and no doubt - I mean that is my intention anyway, that it be brought home to you in that way and you have just missed out on going to gaol so, yes, I hope that you - and look, I think you will do the order, I think you will do it well, so that is part of the reason why I decided that that is the way I should deal with things, so I wish you every success with it.  I hope you get something out of it, all right, and I do not think I will see you back before a court.  It is not a nice experience.  All right, thanks very much to the parties.

- - -