Director of Public Prosecutions v Edwards
[2021] VCC 238
•10 March 2021
| IN THE COUNTY COURT OF VICTORIA | (R) Revised (Not) Restricted (S) Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-02222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL EDWARDS |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 10 March 2021 | |
CASE MAY BE CITED AS: | DPP v Edwards | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 238 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms F. Holmes | |
| For the Accused | Ms S. Wallace |
HIS HONOUR:
1 Mr Edwards, you have pleaded guilty to two charges of using a carriage service to groom a person under 16, one charge of transmitting child pornography material and one charge of transmitting indecent communications to a person under 16 and using a carriage service. These are offences created by the Criminal Code of the Commonwealth.
2 The maximum penalty for Charges 1 and 2 is 12 years imprisonment. They are charges of using a carriage service to groom. For Charge 3 it is 15 years imprisonment. This is the offence of transmitting child pornography material. For Charge 4 it is seven years imprisonment. This is a charge of transmitting indecent communications to a person under 16.
3
The circumstances giving rise to these charges are set out in the summary of prosecution opening for plea, which is Exhibit A. Charge 1 says, between
9 April 2018 and 11 April 2018 and on 17 July 2018, you used a carriage service to transmit a series of communications to a person you knew by name but I will use the initials MN. You believed MN was under 16. Your intention was to make it easier for you to engage in sexual activity with this person. On 9 April 2018, you befriended MN on Facebook. The account for MN was in fact run by a covert police operative. The profile listed her date of birth as 2 February 2003.
4
You and MN exchanged messages. Your account was in the name of 'Danny Edwards'. You told MN you were 39 and MN told you she was 15. Between
9-11 April you sent a number of brief messages. The prosecution opening gave examples. Twice you tried to call MN but your calls went unanswered. After an unsuccessful attempt to re-engage on 8 June 2018, you succeeded on
17 July 2018, sending a series of brief messages. They appear in the prosecution opening also. After trying to ring MN that day, you stopped. These circumstances constitute Charge 1.
5 In relation to charge 2, on 24 July 2018 you befriended AT on Facebook. AT was again a covert police operative with a stated date of birth of 1 June 2005. You used the account name 'Daniel Eds'. After confirming AT's age as 13, you sent a series of messages, now set out in the prosecution opening at paragraph 18. After that you sent a series of more explicit messages. You tried to call AT on 24 July unsuccessfully. After a message from AT contact ceased following your response.
6
In relation to Charges 3 and 4, on 4 October 2018, you befriended BR on Facebook. BR is a profile run by a covert police operative. BR said she was 14 in response to your question. On 10 October you communicated with BR on Facebook. You sent sexually explicit messages. They were read out in court and I will not repeat them. You then sent an animated clip to BR. It was
four seconds long played on a continuous loop and it depicted an adult male anally penetrating a female child who looks about 10 years old. Contact between you and BR finished on 10 October.
7
On 6 March 2019, you were arrested and interviewed. You have one appearance in court. On 14 February 2011 you were found guilty of stalking another person and without conviction placed on community-based order for
12 months with conditions as to unpaid community work, supervision and participating in a justice plan.
8 On 7 November 2019 you pleaded guilty to these charges at a committal hearing. Despite the sentencing in your case is governed by Federal and not State law, the timing of your pleas of guilty is relevant. Since your case has been through two committal mention hearings, your pleas of guilty are reasonably early pleas, being made short of halfway in the hypothetical criminal process, starting with being charged and ending in a trial. I accept your pleas of guilty are evidence of remorse.
9 You are 42. You have an older brother Jo and an older sister Julie. You live with your parents in Kyneton now and have always done so. Your father is retired and your mother is engaged in home duties. You attended primary and secondary schools in Kyneton, leaving school midway through year 10 when you were expelled. You then attended Sunbury TAFE, studying horticulture. Although you found the course difficult, it appears you completed it. Since about the age of 18 you have received a disability support pension. You have also engaged in some employment; gardening, chopping wood, driving for a plumbing service, and a cleaning service. You have had two long-term relationships, one lasted four-and-a-half years, the other eight years.
10 Jeffrey Cummins is a clinical and forensic psychologist of great experience. At the request of your solicitors he interviewed you on 21 August last year. Without formal testing Mr Cummins considered you were mildly intellectually impaired. He found that there was no personality disorder, only a mild intellectual disability. He assessed your risk of reoffending as at least in the category of moderate to high or at least an above average risk. He thought it imperative you should engage in offence specific treatment on a one-to-one, not group basis. He thought a justice plan was appropriate. He thought you would be particularly vulnerable in prison, noting your earlier bullying at school.
11 Linda Borg is a neuropsychologist. On 18 October 2020 she assessed you at the request of your solicitors. To assess the level of your intelligence, Dr Borg asked you to do a series of tests. She found your full-scale intelligence quotient was 57. She considered this figure was a reliable summary of your ability. This figure means you are in the lowest two per cent of the population, or put another way, 98 per cent of the population would perform better than you.
12 From her scale, you are in the impaired scale. Using the DSM-5, the disability was mild. She agreed with Mr Cummins' assessment of your risk of reoffending. She agreed that offence specific therapy should be on an individual, not group, basis. Your mental functioning is well below other persons of your age. It affects you in this way (in this regard, I am referring to paragraph 45(iv) of her report),
“Whilst Mr Edwards does demonstrate inefficiencies in his capacity to reason, adapt, problem solve and moderate behaviour, he exhibits a clear understanding of the wrongfulness of his conduct. Hence, while it is my clinical opinion that his disability is not causally linked to his offending, I do consider that his disability may have been a contributor to his behaviour, given his obvious impairments he exhibits with respect to decision making.”
Even though you have been in custody twice before, imprisonment would increase your vulnerability and your propensity to follow others. Dr Borg also saw merit in a justice plan.
13 Simon Vincenzi is a clinical and forensic psychologist. At the court's request he interviewed you on 19 January 2021. Initially, Dr Vincenzi corrected the court's misconception of your intellectual functioning. According to the neuropsychologist Dr Borg, your intelligence quotient was in the impaired range or extremely low, which is the lowest range used by the Wechsler Adult Intelligence Scale. Dr Vincenzi considered you a moderate to high risk of sexual recidivism. You were not suffering from a mental illness. Your offending was your way of coping with a particularly difficult time you experienced. Your mental health issues and very low intellectual capacity would contribute to making a sentence of imprisonment weigh more heavily on you. You would be more susceptible to manipulation.
14 In the second-last paragraph of his report, Dr Vincenzi said, 'Based on the measures administered, Mr Edwards falls in the moderate/high risk category of future sexual offending. It is recommended that Mr Edwards engage in an offence specific treatment program to reduce his risk of sexual offending, such as one offered by Forensic Intervention Services (“FIS”). This program can be completed in the community or in prison, provided that his sentence or order is of sufficient length. FIS have a specialised team for working with offenders with intellectual disability called Disability Support Pathway. Typically, their program involves group treatment, however, they may be able to accommodate individual treatment if they assess it to be prudent. Alternatively, if Mr Edwards is registered with Intellectual Disability Services, he can be referred to Disability Forensic Assessment and Treatment Service.' That is not the end of the paragraph but that is as much of it I wish to quote.
15 With the offence of using a carriage service to groom and the offence of transmitting indecent images, each of the purposes of sentencing are important. In this regard I am paying regard to the Crimes Act (1914). With child pornography, general deterrence is the paramount sentencing consideration because of its prevalence and the ready availability of such pornography, particularly on the internet. In your case, there are no victims as such. Although the child in the video is clearly a victim, she is unidentified and probably unidentifiable.
16 Dr Borg's testing revealed you respond to events emotionally without thinking. As she put it - and this is at paragraph 42 of her report –
“Whereby Mr Edwards demonstrates severe impulsive tendencies, meaning that his responses will often be context dependent, hence, based on emotion or needs as opposed to rational thought.”
To an extent, this reduces your moral culpability. I do accept you are remorseful for your offending. Despite the submission of the prosecution, I do not consider an immediate sentence of imprisonment is required, even though coupled with a community correction order.
17 In view of the psychological material, the purposes of sentencing will be best served by rehabilitating you and reducing your risk of sexual reoffending to a low level. Notwithstanding the seriousness of your offending, I sought and have now received a report in relation to a community correction order. With your consent, I propose to convict you of each of the offences and place you on a community correction order for two years. Apart from the core conditions, the order will have these special conditions:
(a) You will perform 200 hours of unpaid community work over two years. I note the current suspension of community work programs due to the restrictions imposed because of the pandemic, however, I would not expect those restrictions to last for the entirety of this order. I have reduced the number of hours in anticipation there will be a delayed start to this condition.
(b) You will be supervised, monitored and managed as directed by the Secretary.
(c) You will undertake a program(s) that address factors related to your offending behaviour.
All of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
HIS HONOUR: Ms Wallace, could you ask Mr Edwards whether he consents to the making of such a community correction order?
MS WALLACE: I have, Your Honour, and I understand he does consent to a corrections order being imposed.
HIS HONOUR: In those terms?
MS WALLACE: Yes. Yes, Your Honour. I had explained that it was likely regarding the treatment conditions and that hours may be imposed but Your Honour would consider regarding the self-function of those hours through treatment, which I understand Your Honour has also imposed.
HIS HONOUR: All right. In that case then I will make such an order. Mr Edwards, through you, Ms Wallace, he must attend at the offices of the Bendigo Community Correctional Services at 3 William Vahland Place in Bendigo by
4 pm on 12 March, which is next Friday. Each of the charges was committed by you as an adult and as a Class 2 offence under the Sex Offenders Registration Act [2004] they are registrable offences and, with my sentence, you are registrable offender. Since you've been found guilty of four Class 2 offences, you must report for the rest of your life. Have you also explained that to him, Ms Wallace?
MS WALLACE: I have when we first had the plea listing of this matter, Your Honour, and he understands those obligations but, at the completion of today, I'll once again go through them in detail and the onerous nature of the proactive reporting. But they have been put to him previously.
HIS HONOUR: All right. Ms Holmes and Ms Wallace, is there any other matter you wish me to address?
MS HOLMES: No, Your Honour, thank you. I was just double-checking in my mind about - - -
MS WALLACE: There's no pre-sentence detention or anything like that.
MS HOLMES: No, and no 6AAA, given the nature of the sentence, so thank you, Your Honour.
HIS HONOUR: All right. Well, I thank both counsel for their assistance in this matter. It's taken a little while to get to this stage. I will sign the community correction order. I'm not sure of the exact process as to Mr Edwards signing it. I suspect it'll be sent by my associate to your instructing solicitors,
Ms Wallace, for them to arrange for him to sign. I'm assuming he is presently coming into this proceeding from their offices in Bendigo. Would I be right in that supposition?
MS WALLACE: He is, Your Honour, and the staff are there to assist him. If that is done this morning, he's able to immediately sign acknowledgement and provide that by return fax, e-mail or scan.
HIS HONOUR: And similarly, there would be documents relating to the Sex Offenders Registration that would need to be sent to him and I presume it can be sent the same way.
MS WALLACE: It could, Your Honour, and I understand my instructor is present there to explain it this morning and, again, once I complete my other proceeding today, I can again explain it to Mr Edwards if required.
HIS HONOUR: Normally I would give you the opportunity, Ms Wallace, to use this audio-visual link to speak to Mr Edwards about what's happened, because given his level of functioning, I very much doubt he made a great deal of sense of what I said. Unfortunately, I've got a case starting in not too far from now and I won't be able to let you have this link, so you'll have to speak to him some other means.
MS WALLACE: Thank you, Your Honour. I'm able to facilitate that.
HIS HONOUR: All right. All right, unless there's anything else, then I'll have my tipstaff adjourn the court temporarily.
MS HOLMES: Thank you, Your Honour.
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