Director of Public Prosecutions v Emmerson

[2019] VCC 1661

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

AT SHEPPARTON

CRIMINAL DIVISION

CR-19-01049

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREA EMMERSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	17 September 2019
DATE OF SENTENCE:	10 October 2019
CASE MAY BE CITED AS:	DPP v Emmerson
MEDIUM NEUTRAL CITATION:	[2019] VCC 1661

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	L Monagle	Commonwealth Director of Public Prosecutions
For the Accused	J Kretzenbacher	Docherty Legal

HIS HONOUR:

1       Andrea Yvonne Emmerson, you have pleaded guilty to one charge of procuring a person under 16 years of age for sexual activity, one charge of transmitting indecent communication, and one charge of using a postal service to send indecent material to a person.  They are Commonwealth matters and carry maximum penalties of 15 years, 7 years and 7 years. 

2       You also pleaded guilty to one charge of possession of child abuse which is a Victorian offence and that carries a maximum penalty of ten years.

3       You are now 29 years of age and you pleaded guilty at the earliest reasonable opportunity.

4       I accept that that plea of guilty is accompanied by appropriate remorse and you must of course get the utilitarian benefit of that plea of guilty.

5       You have no prior convictions of any description and as I understand no matters subsequent.  You have been on strict bail conditions now for an extended period of time and as I understand the circumstances you have not breached any of them.

6 Firstly pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

7       Because of the nature of the offending you will be placed on the Sex Offenders Register and I advise you the reporting conditions will be for life and I will now ask that you sign an acknowledgment of that. 

8       The situation here is that it is conceded that a form of custodial sentence is inevitable and I do this from the outset because of the nature of the offending and the nature of yourself.  It is a situation where I agree with that proposition that there has to be a custodial sentence but because of the circumstances of it all I did not intend to make that sentence active.  Because of the situation of the submissions of the Crown and I will be giving the reasons for that in some detail, I simply say that at the outset so that you do not spend the next half an hour in a state of total anxiety.

9       The offending occurred in pretty unusual circumstances.  You had a, to say the least, very strange childhood and a very strange upbringing.  You yourself, and I will be going through this in some detail, were groomed and have been sexually offended against by a stepfather and it would appear a swimming coach.  You first met your husband at the age of 14.  I have been given a photograph of you and him when you were around about that age and it is a most concerning photograph indeed when one looks at how old you appear to be.  Obviously I would not make that photograph public but it shows the way your life in terms of relationships started.  As I say I will be going into more detail about all that later on.

10      The young man who was a party to these conversations has provided a statement and does not wish to be called a complainant or a victim.  His mother became aware that he was talking to you online.  You would be speaking late at night and she became aware that you were going to travel to West Australia to meet him.  She refused to allow you to meet him but agreed to speak to you on his behalf.  In January of 2018 you met with her in a café in Western Australia and told her that you were in love with her son, that you had a bad relationship with your husband, that you were aware of her son's age, and that you knew that what you were doing was not right.  She pointed out that you further said that you could not say whether or not you would have had sex with her son if the mother had not found out about the meeting. 

11      It was agreed at that point in time that you would have no further contact with him. 

12      In around June or July of 2018 the mother became aware that contact had recommenced and went to the local police.  Almost unbelievably to me they told her that they could not help her.

13      In any event various items of circumstantial evidence were found by the mother and they included the items the subject as I understand it of Charge 3, and it was clear that there was a at least online relationship between the two of you. 

14      You were arrested in October of 2018 and you made a number of partial admissions to the police.  You said that yourself and the boy were best friends that you had met playing Overwatch, that you were part of what is known as a discord group which I accept is discussing problems with all sorts of people and you were the convenor if that is the correct word, of that.  He said he was 17 years of age but you realised that he was 14.  You said that you spent about four to five hours a day talking online and you agreed that the conversations that occurred between you, you knowing he was under 16, had become sexual.  You were continuing to speak to him at that period of time and you agreed that you went to Perth and agreed that you did not in fact meet the victim because of the mother.

15      You at that stage it would appear according to the statement of the mother were indicating some form of suicidal ideation, and you denied in that you had actually travelled to have sex with the victim.  Your conversation with the mother was that you did not know whether you would or not.

16      The young man turned 16 years old on 16 September 2018.  In other words he had already turned 16 by the time that you were interviewed. 

17      Your mobile phone revealed online communications.  I think this is a situation where I will direct that the Crown opening remain on file.  It is clear that those conversations that took place involved the discussion of sexual activity in fairly graphic terms.  It is clear that went on for some period of time.  It was clear from those, and from other people that you spoke to that you intended the relationship to continue but it seems clear that after around the time of January 2018 that the intention if there was one to have a sexual relationship was not to take place until he was over 16.

18      The procuring in this situation involves you travelling to Perth and puts it into by simple reason of that in my view a more serious category.  The other charges as was effectively conceded by the Crown on their own would not really result in a custodial sentence.  Charge 2 is consumed within Charge 1 and even though it might have contained an element of custody in these circumstances because I am going to impose a custodial sentence on Charge 1, I will not take it that far.  Charges 3 and 4 certainly in my view do not warrant a custodial sentence and but for your having gone to Perth I deeply suspect you may never have even been charged with them or if you had, it would have been dealt with in a Magistrates' Court.

19      The situation here is that whilst you did try to make contact and in my view that always puts it into a higher category. But this is certainly not the highest and for reasons I will explain in a moment I think that it is objectively and subjectively at the lower end.  As your counsel pointed out in her submissions there are matters which often take this sort of offending into very serious circumstances.  However here there was no coercion or threats, you did not go online to specifically seek contact with a child and I will be dealing with that again in a moment.  In other words there was no hunting of potential 'victims'.  There was no adoption of a false persona by you to win the trust of any child.  There was no relationship of care and supervision between you and the child.  The images, and I have been through this during the course of the plea, were category 1 and 6 and of a low culpability in my view.  And as I have already pointed you yourself were the victim of child grooming.  It is a situation where the aggravating features which so often exist and why I think that the community takes such a dim view of this offending are in your situation not there. 

20      I accept the authorities that the circumstances of this offending would ordinarily result in active imprisonment, I am not going to go into a historical debate about the difference between active imprisonment and a suspended sentence, and I have looked at comparative cases.  As I said ordinarily it would carry active custody but in my view the circumstances here are extra ordinary.  I do not take it into account as mitigating anything but insofar as community protection is concerned you of course will now be on the Sex Offenders Register for life and will have to comply with that so accordingly for the rest of your life it will be a form of supervision.

21      The crime carries in the ordinary course of events an active period of imprisonment essentially because of general deterrence.  Specific deterrence in your case I think are not necessary.  There must of course be an element of denunciation in the sentence that I impose and there must be an element of punishment. 

22      The victim as he is called on the Victim Impact Statement though he says he is not, has put in a document which I will read shortly.  I do not want to get into a debate about the presumption of harm in offending such as this, I do not know whether that presumption is rebuttable or irrebuttable but there can be all sorts of circumstances where the child involved suffers ongoing trauma because of the offending.  It seems to me that any trauma being suffered by the child is due to the consequences of the matter having been discovered rather than any inherent damage to himself.  As I say, I have mentioned this once before in a matter that went before the Court of Appeal and I do not propose to debate it all again, but you certainly do not have the traumatised victim that is often the case and the used and abused child that is often the case.

23      In matters personal to you, tendered on your behalf was a report from Warren Simmons, psychologist.  I know of him and his reports and it is a very interesting and very detailed report.  As I have indicated to counsel prior to the commencement of the plea, there are matters involved in that which I do not think anyone other than the parties are entitled to know about and I will not be referring to them, but I have taken them into account.  I direct that that report remain on the court file so that anybody with a genuine interest in it can seek to view it.

24      There is also material from King Fisher Counselling who have been seeing you since all this occurred.  There is a statement about your husband which you have provided to police and there are hospital discharge summaries and there is a bundle of other statements including material from your mother.  I simply say that often in these situations as a sentencing judge one is faced with a whole raft of assertions from the Bar table but very much to her credit, your counsel has been able to provide me with material confirmation of all the matters that have been referred to in her submissions.

25      Another matter involved in this is that you face the risk of deportation.  I can take it no higher than that.  You will spend a period of time I would have thought as well as having already spent a period of time, fearing that deportation.  It is now a significant time since the offending occurred, and again I take that time lapse into account.  You spent that entire time afraid of what the consequences of this might be.  To your credit during that period of time you have maintained employment and you have endeavoured to get on with your life. 

26      Insofar as the plea of guilty is concerned, and I do accept this, you in circumstances with your husband were told that you would be killed if you pleaded guilty.  You had the courage to plead guilty.  Ultimately through the assistance of the informant in this matter you have some form of protection by way of an intervention order and you now have a safe place to live away from your husband.  Again on the basis that what I have been told is correct about this, I am concerned about the reaction of the police in this State when these matters were brought to their attention in terms of the threat and the like and the violence to you.  It says and I think it is apparently clear to anyone who was in court that what has occurred in the conduct of this matter is very much to the credit of counsel involved and also very much to the credit in my view of the informant.

27      I then go to your history which explains I think how all this has come about.  It is outlined both in the submissions and in more detail in Mr Simmons' report and I will summarise from that report knowing that the entire document is an exhibit.  Your personal history is as I have indicated extraordinary.  It reads like some sort of southern United States novel.  You were born in Georgia in the United States, a town I am told about the size of Bendigo.  Your mother worked for the sheriff's office and is still alive and continues to work.  Your father died in 2009 when he was aged in his mid 50s and you never met him.  Your mother got into a relationship with a man called John who was then known as Buddy who was in his late 40s.  They ultimately separated and your mother is currently single. 

28      It would appear that there was nothing pleasant about your childhood.  As a child in that southern town you were subjected to aggression, your mother was very aggressive, and you were spanked frequently for what was not to you perceived as serious behaviour. Your mother was in the Southern Baptist church as was your grandfather as I understand it.  Your mother was really not available emotionally to you as she was working all the time.  Her father, that is your maternal grandfather essentially looked after you and you have happy memories of dealing with him.  You told Mr Simmons that he was a more nurturing man and he would basically bath you, feed you and tell you stories until you fell asleep.  You got on very well with him, occasionally you would go fishing together and generally enjoyed life with him.  Your grandparents had been divorced and become estranged when your mother was very young.  You told Mr Simmons that your mother had been raised solely by your grandfather and about the age of 11, you and she lived with the grandfather and it was a struggle financially.  You were always well fed and well clothed.  You had some contact with other relations and very little contact with the family of the stepfather.  After he moved in when you were about six or seven, a house was purchased and you moved out from your grandfather's house and his, what I would have thought was his protection.  You were upset when they left and received a beating for your troubles.  Your mother could not afford childcare and you were left alone all day from the age of seven.  You were not allowed to go outside or answer the door, Buddy worked nightshift and would sleep all day and your mother worked day shift.  The fought a great deal and did separate at one point in time.  You had concern that your mother was really just using Buddy as you said 'a pay check.' 

29      He apparently was a drunk and although not violent was an annoying man and they were not happy.  As I have indicated your mother was a very religious woman and you described her as evangelical.  She is a progressive Southern Baptist and I do not think I need to go into the details of all that.  Her standing in the church obviously was important and you were inducted effectively into that and a lot of your social communication for what it was worth was with the church group in that small town in that area in your teens.  You did play sport, you were a good swimmer and indeed competed at a fairly high level.  They separated for a while and ended up in financial distress and cars were repossessed and the house was sold. 

30      Where your difficulties really commenced are that when you were 11 your maternal grandmother revealed that she was suffering from breast cancer and told your mother.  The two had not spoken for years but your mother then travelled to care for her and it was during that period of time that Buddy commenced abusing you.  After a period of abuse you threatened to disclose it and he then made you effectively live outside the house for a period of about four months.  Ultimately you relented and said that you were not going to disclose him, came back inside and the abuse continued.  That abuse continued until you were round about aged 19, so it would have been continuing when you were in another relationship as well.  It would occur several times a week and involved penetration. On one occasion at around about the age of 14, you were loaned out to one of his friends.  You never disclosed that abuse and you have never sought treatment up until these times.  You said sometimes he could be pleasant towards you but you were certainly not encouraged to have friends or to go out or anything along those lines.

31      Insofar as school was concerned you went to Grade 4, whatever that is in the state of Georgia, and did reasonably well but had few friends.  You were harassed because of the poverty of your family and had some trouble at school.  You were then taken out of school and home schooled.  You did pretty well in everything except mathematics and completed high school at the age of 18.  You then undertook classes in our equivalent as I understand it of TAFE and at 15 from then on it you worked.  You have had a number of jobs and you have always done well in them.  I am told here today that you have now been promoted in the work that you are currently engaged in and that is very much to your credit particularly bearing in mind the stresses that you have been under over the last 12 months.  You were a director of content and logistics with an organisation in America until you came to Australia in January of 2016.  By that time you were married and I will go through that history in a moment.

32      I accept totally that the circumstances of the commencement of these conversations online were where you were in grave difficulties with your husband who was having mental health issues.  The group that you were talking to was simply discussing personal problems and was essentially a friendship group.  As I have already indicated I have no doubt that you did not enter it for the purpose of obtaining underage sexual activity or whatever it might be with anybody.  I think a normal type relationship existed, albeit the age difference, and it was in the circumstances of his  maturity and your emotional background that those conversations became sexual and therefore obviously by definition criminal. 

33      At the age of 14 you met your now or ex-husband online playing the game 'World of Warcraft.' He introduced himself as being six years older.  You were communicating online and explaining that he would come visit and stay for a while.  You thought he was good looking and knew he was older. He came in January of 2004 and stayed for several weeks and again he came in August of 2005.  At that stage you engaged in online sexual activity with him but nothing intimate had occurred. 

34      In the summer of your 16th birthday your mother sent you to Australia explaining that you would be staying with Andrew's mother and father.  You were in Australia for six weeks and you said you spent most of that time drunk and engaging in lots of sex.  You said that he would show you off naked to his friends and on the next trip here he proposed to you with you accepting what you saw as your 'ticket out of home.'  He wanted to get married immediately but you did not want to.  After your 17th birthday you married in the United States but that marriage apparently was not recognised by the Department of Immigration in Australia.  You went back to work and after you turned 18 travelled back to Australia for a few weeks during which time you became pregnant.  You were pressurised you believed by his family to have a termination which you did not.  You returned to the United States where you gave birth to your eldest son who is now aged ten.  As I have indicated I have seen the photograph of you and him at around about I understand it the age of 14 or so and it is as I think I have already indicated, disturbing vision. 

35      After the eldest child was born your husband travelled back to the United States and remained for six weeks and seemed happy.  You returned to work after three weeks and your grandfather started to care for the child.  Your husband did not want to move to the United States and subsequently came back to Australia in 2009.  There were a number of comings and goings insofar as America and Australia are concerned during that period of time and the marriages was not particularly stable.

36      In November of 2011 you conceived and the child, Ava, who is now aged six, was born.  You said that it was around that time there was a significant argument between the two of you and he started screaming at you which was something he had never done before.  As I understand it this was the commencement of physical violence towards you and he head butted you.  You call the police and nothing was done about that.  After that period of time was when he started to become verbally, physically and sexually aggressive.  In 2004 your grandfather, your protector as I perceive it here, died.  He had managed the financial affairs and you it all been a mess. 

37      You came back to Australia and the first year of that everything was fine but in July of 2016 your husband commenced having anxiety attacks and paranoid.  He was paranoid that you would leave him, it was affecting his work and he eventually got to the stage where he basically could not work.  That got worse and worse and worse and ultimately it was in those circumstances that this conversation, this emotional release if I can put it that way, commenced with the young man. 

38      Again I do not think I need to go through the psychiatric history, it is fairly self-evident.  Insofar as Mr Simmons is concerned he pointed out the psychosexual history which essentially is that abuse, apart from even the abuse at the hands of your stepfather at the age of 15, the sexual relationship with the swimming coach who was aged in his early 20s, there have been other sexual partners but they would appear to have been those very formative years for a young girl, the important ones, those two, and the husband who went over there. 

39      As I indicated during the plea I do not want to be amateur psychologist about all this, but sitting here one sees over the years hundreds literally of these sort of circumstances and certainly it is comprehensible to me how someone with that background who perhaps locked in at around about that age, sexualised at a very young age, could find comfort in that sort of discussion with a person of around about that same age.  As I say I am not getting into the amateur psychologist of it all but I have got no doubt that that could be even a subliminal cause of this misunderstanding.

40      The opinion of Mr Simmons in the end was that you at this time were feeling socially isolated.  Your childhood had been abusive both emotionally, physically and sexually, and you married to escape.  He says that your childhood may have left you vulnerable to substance use but there is no problem with that.  He said that the experiences, and this is what I was referring to a moment ago, with the abuse by the stepfather as well as the abuse by the swimming coach, as he said, certainly clouded the boundaries of you with regard to what is acceptable sexual behaviour.  As another judge once said to me before, it is realistically as if “having the sexual morality compass askew”.  I can totally understand how in circumstances where you were getting comfort albeit in a verbal sense from this young man, that it was allowed to continue.  There appears to have been as he described a distortion of your sexual identity as a result of the abuse that you suffered and it has had a significant effect in how all this came about.

41      So it is a very different story to what one normally gets here.  One normally sits in this chair with someone in the dock who has taken on a false identity to lure children into some sort of sexual net and then made some attempt to abuse them.  I think it is fair to say that yours is almost the direct opposite of that and that is the basis upon which I sentence.  Also I think what I do finally insofar as this matter is concerned, is read the statement made by the young man involved.  He is obviously an intelligent young man, and I think it confirms the view that I have taken how all this came about and it confirms the professing by yourself of that this was something that simply developed and was in no way shape or form predatory.  He said, and he read this in court,

42      'In my time knowing her, Andrea was somebody who had a positive effect on everyone she met.  She was always kind and friendly and was never unjustly rude or unkind to anyone.  Her friends who heard nothing from her miss her dearly and everyone who knew her speaks incredibly fondly of the times they shared together.  Our community of friends' - this being the online I am assuming – 'shared so many wonderful times with Andrea and have been waiting for the day they get to speak to her again since her sudden disappearance from the internet last year.  Andrea was in our group of friends many peoples' shoulder to cry on.  Myself and our friends have had nothing but good times with Andrea and without her our community has been missing someone who means so much to everyone.  The sudden disappearance of Andrea was an incredibly sad time for myself and losing one of my closet friends has been one of the most difficult things I have ever had to go through.  I spent the past months trying to get past the events of the investigation and hope that myself and everyone else involved is continuing to do the same.  We all deserve to be happy and I hope that Andrea and myself can have happy lives with those we care about once this is all over.  I have no ill wishes towards Andrea or anyone else involved in this investigation and only wish for life to go back to normal as possible for everyone.'

43      I do not think it could have been expressed any more clearly as to what his views are and what the consequences of all this have been.  But at the end of the day general deterrence have got to play a part in all of this.  You cannot have people having this sort of sexual engagement and attending to meet with people under the age of 16.  It is a frightening prospect, it is becoming more and more prevalent and the consequences, whilst not in this situation, but in many others can be dire.  Accordingly general deterrence has to play a very significant part.

44      That being so, I note that the prospects, and you are working at the moment and I have indicated I have read all the material that is there about jobs and everything, I do not think I need to go through that.  You have now got somewhere safe.  The police have not put you in a situation where you are protected from your husband.  You do have the fear of deportation but you can at least now endeavour to get on with your life.  As I said at the outset of the sentencing remarks, your history and the way this all came about and the circumstances of it in my view are extraordinary and accordingly I do not propose to impose an active custodial sentence.  However for reasons of general deterrence there must be a custodial sentence imposed and it must be one of not miniscule proportions. 

45      Accordingly and I will ask counsel to tell me if I have got this wrong, on Charge 1, a sentence of imprisonment for eight months and I direct that that sentence commence today.  I direct that you be released immediately upon entering a reconnaissance to be of good behaviour for three years with a $1,000 surety. 

46      On Charges 2 and 3 I will make it a Community Corrections Order and that will be for three years as well.  It will be with conviction and it will commence today. The terms will be the same conditions as suggested by Corrections which were mental health assessment, or any psychiatric treatment and programs to reduce reoffending. 

47      In saying that I am fully aware that the odds are very high that once you commence that Community Corrections Order, and that is one of the reasons it is three years, you will have to do the sex offenders program.  That is a very onerous program and because you are living away from the city you will have to go to Melbourne on numerous occasions.  And it will place a significant burden on you.  Being aware of the principles involving Community Corrections Order you have to do that, it is clearly a punitive matter and I think in those circumstances I do not need to do any work hours.

48      Insofar as the State charge is concerned, for reasons of simplicity, and nothing else, I think rather than try and set out a total different Community Corrections Order and having two running concurrently which would be I think ridiculous, on that charge I will adjourn it for 12 months on an undertaking to be of good behaviour and that adjournment will be with conviction.  That is on the State matter.

49      I simply do that ladies because it is a simpler way of doing it putting it bluntly.

50      Section 6AAA in this situation is a very difficult concept.  I will simply say this. Pursuant to s.6AAA had this matter not proceeded as a plea and there had been a plea of not guilty with the obvious lack of remorse that would indicate, I would have sentenced you to be imprisoned for a period of 12 months to be released after serving six.

HIS HONOUR:  Now does that make sense ladies?

COUNSEL 1:  Yes Your Honour.

COUNSEL 2:  Yes.

HIS HONOUR:  There's no other orders anybody wants me to make?

COUNSEL 1:  No Your Honour.

COUNSEL 2:  No.

HIS HONOUR:  All right we'll get that reconnaissance signed.  All right there's a couple of documents there that will need to be signed. 

COUNSEL 2:  Your Honour might - - -

HIS HONOUR:  Yes I'd ask you to, yes.  All right, just to advise you that with the Community Corrections Order, that's for a period of three years.  If you breach it obviously you get brought back to be resentenced.  And insofar as the adjourned undertaking is concerned, it's a similar set of circumstances.  I simply say this in conclusion of a very, very unusual matter, that it's my view that the materials objectively and indeed subjectively without taking it any further, warrant the imposition of a non-active custodial sentence.  I also make it clear that had I not taken that view, your personal circumstances and the history that you had and what you have undergone subsequently would have caused me to exercise mercy in any event. 

COUNSEL 2:  As Your Honour pleases.

HIS HONOUR:  All right that's all we need to do.  All right 10.30.

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