Director of Public Prosecutions v Estrada (a pseudonym)
[2020] VCC 845
•17 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCE LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REX ESTRADA (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2020 | |
DATE OF SENTENCE: | 17 June 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Estrada (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 845 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – indecent act with a child under 16 (three charges) – sexual activity in the presence of a child (three charges) – produce child abuse material (one charge) – possess child abuse material (one charge)
Legislation Cited: Crimes Act 1958 (as amended), s47(1), s49F(1), s51C(1) and s51G(1); Migration Act 1958 (Cth), s501(3A); Sentencing Act 1991, s6D, s6E, s8K(3)(a), s18(4), s6AAA; Sex Offenders Registration Act 2004
Cases Cited: Guden v R (2010) 28 VR 288; Magedi v The Queen [2019] VSCA 102; R v O’Rourke [1997] 1 VR 246; Director of Public Prosecutions v Grabovac [1998] 1 VR 664; Director of Public Prosecutions v Josefski (2005) 13 VR 85
Sentence: Total effective sentence of 2 years and 6 months’ imprisonment with a non-parole period of 20 months.
Section 6AAA declaration: convicted and sentenced to a total effective sentence of 45 months’ imprisonment, with a non-parole period of 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J.D. Singh | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms K. Ballard | Stary Law |
HER HONOUR:
1 Rex Estrada,[1] you are to be sentenced in respect of three charges of indecent act with a child under sixteen (Charges 1, 2 and 3), three charges of sexual activity in the presence of a child (Charges 4, 5 and 6), one charge of produce child abuse material (Charge 7) and one charge of possess child abuse material (Charge 8) contrary to s47(1), s49F(1), s51C(1) and s51G(1) of the Crimes Act 1958 (as amended). The maximum applicable penalties for the offences are: 10 years’ imprisonment on each of the charges.
[1]A pseudonym
2 You pleaded guilty when arraigned before me on 28 May 2020.
Circumstances of offending
3 The circumstances of offending are well set out in the Amended Summary of Prosecution Opening dated 14 November 2019 tendered as Exhibit A. Rather than repeat the entire contents of that document now, I will annexe a copy of Exhibit A as Attachment A to these Reasons for Sentence. You accept the accuracy of the facts asserted in that document and you are to be sentenced on the basis of those facts.
4 Suffice it to say, for present purposes, at the time of offending you were living with your wife, and three children, Sean,[2] Dorothy,[3] and Melissa.[4] All of your children were under the age of twelve. You had been married to your wife for some twenty-four years, although approximately two years prior to your arrest, you and your wife had separated but were living under the one roof.
[2]A pseudonym
[3]A pseudonym
[4]A pseudonym
5 Sometime in 2016, your wife caught you in the kitchen as you were naked from the waist down with an erect penis. You were moving your mobile phone about, apparently attempting to take an image of your penis. Your daughter, Dorothy, was standing behind you. She did not appear to notice what you were doing. Your wife attempted to grab your phone but you took refuge, locking yourself in the bathroom. You claimed to be taking photographs of yourself.
6 On 18 June 2018, your wife found video footage on your mobile phone that you had taken of your daughter, Melissa. The image then panned to focus on your naked groin. The video shows you to have had an erect penis. Your wife contacted her sister and this set in motion a chain of events leading to investigation and the discovery of your offending.
Charge 1, indecent act with a child under the age of sixteen
7 This is a rolled-up charge to reflect a number of incidents committed against your daughter, Melissa, between 11 September 2016 and 28 December 2016. The incidents are more fully described in paragraphs 21-30 of the Prosecution Opening, Exhibit A, consist of you taking various images of yourself, either completely or partially naked, with a semi-erect penis in the vicinity of Melissa. Your daughter appeared to be unaware of what you were doing. In total you took approximately fifty images to this effect in the period covered by the charge.
Charge 2, indecent act with a child under the age of sixteen
8
This is also a rolled-up charge, consisting of a number of incidents committed against your daughter, Dorothy, in the period 11 September 2016 and
28 December 2016. There is considerable overlap between this charge and Charge 1, as both Dorothy and Melissa were present when you took many of the images. The details are more fully set out in Exhibit A, paragraphs 31-36.
Charge 3, indecent act with a child under the age of sixteen
9
This is also a rolled-up charge to reflect a number of indecent acts you committed against your son, Sean, between 12 September 2016 and
29 April 2017. There is some overlap between Charge 3 and Charges 1 and 2, in that some of the images you took were in the presence of all three children. There are however additional images that you took involving Sean alone. More particular details are contained in Exhibit A, paragraphs 37-43.
Charge 4, sexual activity in the presence of a child under the age of sixteen
10 This is a rolled up charge to encompass similar conduct to which I have earlier referred, covering the period 24 July 2017 to 15 October 2017. Again, you took a number of images in which you exposed your semi-erect penis whilst in the vicinity of Sean. Further details are to be found in Exhibit A, paragraphs 44-47.
Charge 5, sexual activity in the presence of a child under the age of sixteen
11 This is a rolled-up charge reflecting various acts committed by you in the presence of Dorothy in the period 24 July 2017 and 21 April 2018. There is some overlap with Charge 4, in that some of the images you took were also in the presence of Sean; however, there are additional images that you took involving Dorothy on her own. Further details are to be found in Exhibit A, paragraphs 48-53.
Charge 6, sexual activity in the presence of a child under the age of sixteen
12 This charge relates to four images that you took of yourself, exposing and holding your semi-erect penis in the presence of Melissa on 15 October 2017. This charge overlaps with Charges 4 and 5.
Charge 7, producing child abuse material
13 On 19 November 2017, you created an image showing one of your daughters laying over your lap. You superimposed text over the image, stating: ‘8 year old on my cock’. Although the image does not clearly identify which of your daughters is depicted, it is agreed that Melissa would have been eight years of age at the relevant time – see Exhibit A, paragraphs 56-58. The prosecution does not allege that either of you were naked or were actually engaged in sexual activity. It would appear that it is the caption that has rendered this image child abuse material.
Charge 8, knowingly possess child abuse material
14 Police seized a number of your electronic devices and analysed the contents. In total, they discovered some 4,911 images or videos of child abuse material. The images that you took of your children are not counted in this number. Of the 4,911 images or videos, 764 images were of child exploitation material in which there was no sexual activity. There were 1,473 images and 12 videos of child exploitation material of individual sex acts between children. There were 117 images and four videos of child exploitation material involving adults in which the acts did not include penetration. There were 79 images and nine videos of child exploitation material involving sexual penetration between adults and children. There were 21 images and 15 videos of child exploitation material involving sadism, bestiality and/or child abuse, and, finally, there were 2,401 images and 16 videos of child exploitation material, either animated or virtual. Further details are to be found in Exhibit A, paragraphs 59-89.
Arrest and interview
15 You were arrested on 19 June 2018 and your electronic devices and two USB sticks were seized. When interviewed by police, you made full admissions. You agreed that you had searched the internet for a wide range of things out of curiosity to see what was available. You denied being aroused by, or interested in, naked children.
16 As to the images you took in the presence of your children, you told police that you had not involved any members of your family knowingly. You said:
“The dark side of my addiction to pornography has involved me taking photographs of myself secretly naked with the children around. … They weren’t aware the photographs were being taken, nor were they aware of my nakedness.”
17 You told police:
“If the children were there … somehow that’s – it was even more wrong, more obscene, more disgusting.”
18 You said that the excitement came from “thinking nobody knows this is going on”. You told police that you derived excitement from the secret filming but then said ‘the juxtaposition of a naked man with young children is just – it’s just the worst thing you could imagine’.
19 As for the images downloaded on your various devices, you told police:
“Part of me convinced myself that I wasn’t harming anybody. Surfing the internet, it’s there, it’s available with one click. Everyone looks at pornography in the privacy of their own room, but that wasn’t enough … it wasn’t enough.”
20 During the interview, you expressed remorse for your actions, particularly as they pertain to your children. You stated:
“Thinking about it now makes me feel sick to my stomach. If I could undo it I would. If I could do anything to protect them I would.”
21
Following the interview, a Family Violence Safety Notice was issued and served upon you. You were released pending further enquiries. Following further analysis of the seized electronic devices, you were re-arrested on
23 June 2018. You declined to participate in a further record of interview.
Gravity of the offences
22 While there is no suggestion that you intended to, or ever did share the images that you created involving your children, the offences are inherently grave. As to the images you downloaded from the internet, this constitutes a very serious crime.
23 In assessing the gravity of the possess child abuse material charge, it is important to understand that both Parliament and the courts have noted that people like you provide a ready market for the production and dissemination of this type of pornographic material. In order to produce the material, children must necessarily be subjected to criminal acts involving their sexual abuse and exploitation. All decent and humane societies regard their children as precious and seek to protect them from all forms of harm, including sexual abuse and exploitation. The acts depicted in the various images and video films are serious forms of sexual misconduct against children and would be regarded universally as serious crimes.
24 Although you watched these videos and looked at these images in the privacy of your own home for personal gratification, you should know, as you apparently do, that these are not victimless crimes. The abuses perpetrated on the children in those images and films have forever been captured and spread in a medium that has global reach. There is no way to secure a complete destruction of the images, meaning that there is a permanent record of these acts. These child victims must live not only with the burden of what has happened to them, but worry for the rest of their lives that someone, somewhere may be watching their most intimate body parts or deriving some sexual pleasure from watching them participating in these activities.
25 All of the offences which you have committed must be regarded as serious. Principles of general deterrence, denunciation and condemnation of your conduct, as well as protection of the community, are important sentencing considerations.
Effect of your offending on your children
26 As I have mentioned, there is no suggestion that your children were aware of being filmed or being photographed. As a result of your offending, your family unit has broken down. When you are imprisoned, as inevitably you must be, you will be unable to support your family financially. Your wife has taken the children and relocated. The children have had to change schools.
27 Two victim impact statements were tendered: one from your wife[5] and one from your sister-in-law.[6]
[5]Exhibit D
[6]Exhibit E
28 Your wife read her victim impact statement aloud to the court. In it, your wife stated:
“… I am angry that he now denies our children a family unit where he is present. My children are innocent and they are completely devastated that their father is absent and has betrayed their trust.
…
Since the discovery of the defendant’s crime, the children and I were forced to leave our home. We are all now in therapy and counselling to make sense of it all and try and get our lives back to some sort of normality.
…
Since the crime, I have been enveloped in fear and uncertainty. I wonder if others found out as to how will we be judged, we have had other people’s children stay overnight on various occasions, I go through scenarios of what must be going through their minds, it causes me a lot of anxiety.
Our lives will be forever tainted by the defendant’s heinous crimes and we are the ones who now suffer because of his selfish choices.”
29 In her victim impact statement, your sister-in-law stated:
“I see my sisters’ (sic) life being turned upside down and my nieces and nephew are noticeably impacted by these unspeakable acts. I keep asking myself ‘how do we heal from this?’ ...how much do we really know about anybody close to our children, family, friends.., my trust is not so easily given anymore.. .I feel suspicious of everybody these days.”[7]
[7]The statement was tendered without objection. I regard the statement as admissible under s8K(3)(a) of the Sentencing Act 1991
Plea in mitigation
30 Your counsel, Ms Ballard, conceded the gravity of your offending, acknowledging that the only appropriate disposition in this case is the imposition of a term of imprisonment. That said, she identified a number of factors which she submitted combine to take a more lenient approach when sentencing you. I now turn to those factors.
Factors personal to you
31
You are now aged fifty-four years and were aged between fifty and fifty-two years at the time of offending. You were born and raised in the
United Kingdom. You retain citizenship of that country and have never taken out Australian Citizenship. Your father died in 1995 and your elderly mother still lives in the United Kingdom.
32 Your father was in the British Military and as a consequence, when you were a child, your family moved frequently. You spent time living in Singapore and in Germany.
33 You were educated at St Hugh’s College, a Catholic boarding school for boys, in Nottinghamshire. Although you received an excellent education there, at the age of twelve you also became the victim of sexual abuse at the hands of a priest. You were also the victim of bullying from other students, and you struggled with the separation from your family.
34 After graduating from school, you obtained a Bachelor of Arts, majoring in linguistics. You also obtained a Post-Graduate Certificate of Education. Ever since then, you have devoted yourself to teaching English as a second language.
35 At the age of twenty-four, you secured a job in Kuwait. In 1990, while living there, Kuwait was invaded by Iraq. You were briefly imprisoned by Iraqi forces. You later returned to the United Kingdom for a brief period, but then obtained employment as an English teacher in Saudi Arabia. It was there that you met and married your wife, Samantha[8], who is an Australian citizen.
[8] A pseudonym.
36 Your children were born in 2006, 2008 and 2009. The family spent time living in the United Kingdom and in Saudi Arabia and travelling in Australia, before you settled here permanently in 2013.
37 Since moving to Australia, you have worked consistently as a teacher. You resigned from your position at Melbourne College of English[9] just before this matter was first due to be heard in October of last year. You remained unemployed until recently, when you obtained a job teaching English as a second language via remote facilities.
[9]A pseudonym
38 In the period leading up to offending, as I said earlier, you and your wife were living separately and apart under the one roof. Your relationship was under considerable strain at the time that you committed these offences.
Guilty plea
39
Initially this case was to be dealt with in the summary stream at the Magistrates’ Court. Following the service of the brief and further amended charges, the matter was set down for plea on 4 March 2019 at the Heidelberg Magistrates’ Court; however, two days prior to the plea hearing, police served additional charges of possessing child abuse material, and the matter was adjourned for contest mention at the Melbourne Magistrates’ Court on
30 May 2019. At that contest mention, the matter again resolved and was ready to proceed by way of plea; however, the question of the appropriate forum was raised and it was determined that the case should be adjourned for committal mention.
40 At the committal mention, you indicated your intention to plead guilty. It is accepted by the prosecution that you indicated your intention to plead guilty at the first opportunity. I accept that you have never sought to test or challenge the prosecution case. No witness has ever been required to give evidence against you. In fact, none of the children have made Visual and Audio Recording of Evidence (VARE). Importantly, the victims have been spared the ordeal of giving evidence, both at committal and at trial.
41 When interviewed by police, you made comprehensive admissions and expressed extreme shame and remorse. I am satisfied, in all the circumstances, that you indicated your intention to plead guilty to these charges at the first reasonable opportunity.
42 In determining the weight to be given to your plea of guilty, I take into account the following factors:
(i) the timing of your plea;
(ii) you are entitled to a statutory discount because of your plea;
(iii) I accept that your plea is indicative of your true remorse;
(iv) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience, embarrassment and ordeal of giving evidence, both at committal and at trial;
(v) you have also spared the jury and those involved in the running of a trial the ordeal of having to view child exploitation material;
(vi) your plea is consistent with your co-operation with police evidenced in the Record of Interview;
(vii) there is enormous social utility involved in your guilty plea; and
(viii) by taking this course, I accept that you have facilitated the course of justice.
43 Taking all of these factors into account, I consider significant weight should be attached to the fact of your guilty plea.
Remorse
44 I accept that you are truly remorseful for your conduct. So much is clear from what you told police when first arrested and interviewed. So much is also clear from the considerable material that was tendered on your behalf.[10]
[10]See the various reports of Dr Mathew Barth, psychologist, exhibits 2 and 3; reports of Mr Geoffrey Burrows, forensic counsellor, exhibits 4, 5, 6 and 19; letter from Ms Anna Osman (a pseudonym), exhibit 7; references from Mr Oscar Nunez (a pseudonym), exhibits 8 and 9; references from Mr Abdullahi Yuksel (a pseudonym), exhibits 10 and 11; references from Mr Joey Chang (a pseudonym), exhibits 12 and 13. See also various personal references attesting to the prisoner’s remorse, exhibits 20 and 21
45 I might just pause there to indicate the references in that material is footnoted. I do not propose to read now the references.
46 You have also written a letter to the court,[11] during which you expressed your profound remorse. In that letter, you stated:
“Over the past two years, my remorse and shame for my actions have not diminished, but the insight into my criminal offences has grown. I realise that the repercussions have had a significant effect on Samantha and our children, on her family and friends, and on mine. The scars are deep and long-lasting but I hope that they will heal over time. What was not clear to me in the early stages of this case, however, was the deeper impact this type of offending has on society at large. Even though I was in the throes of an addiction, I knew deep down that what I was doing was wrong. But I convinced myself if nobody knew, then it wasn’t harming anyone. That is a total fallacy. Not only did I propagate an evil industry which feeds off the most vulnerable, it is the worst possible betrayal of trust to those I should be supporting, teaching and protecting.
Viewing and downloading child exploitation images is evil. Taking photographs of myself in sexual poses in the presence of my own children is even worse. I am guilty of both.
How I came to behave in this manner over an extended period from 2016-2018 is an extremely difficult thing to confront, but one for which I am receiving ongoing professional support.
The suffering I have caused my family and friends is unforgiveable, but I am sincerely doing my utmost to make amends. I, too, have suffered – justifiably so – and will continue to suffer until the day when I get to see my children again. I doubt I will ever forgive myself completely, but I do feel that I am moving in the right direction to redress the balance.”[12]
[11]Exhibit 22
[12]Exhibit 22
47 I am satisfied on the evidence before me that you are truly profoundly remorseful for what you have done.
Treatment
48
When interviewed by police, you expressed a desire for professional help.[13] Since then, you have participated in assessment and treatment from
Dr Mathew Barth, psychologist. You have engaged in twenty-five sessions as part of a sex offender treatment program. Dr Barth diagnosed you as suffering from an adjustment disorder with mixed anxiety and depressed mood. He notes the risk of deterioration in your mental health in a prison environment.
[13]Question and Answer 214
49 Dr Barth has written two reports on your behalf[14] and has signed off on four reports written by Mr Geoffrey Burrows, forensic counsellor, regarding your engagement and participation in a sex offender treatment program.[15]
[14]Exhibits 2 and 3
[15]See exhibits 4, 5, 6 and 19
50 Dr Barth noted the improvement in your progress as a result of engaging in the sex offender treatment program. Notwithstanding this, he considers that your insight into your behaviour is still developing and your fantasy management and relapse prevention skills are not yet second nature. They clearly need to be consolidated in the long term. Significantly, you have expressed motivation to continue your treatment with Mr Burrows when you are at liberty to do so.[16]
[16]Exhibit 3
51 Dr Barth made a comprehensive risk assessment.[17] After taking into account the combination of the historical, dynamic and protective factors, Dr Barth assessed you as posing a moderate risk of re-offending. He observed, however, that with your further participation in treatment and the protective factor of sex offender registration, it is likely that your overall risk of recidivism will ultimately be reduced.[18]
[17]Exhibit 2, paragraphs 51-56
[18]Exhibit 2, paragraph 56
52 Dr Barth considered the most pressing rehabilitative need for you is to continue your participation in specialist sex offender treatment. This would be the single most important factor in reducing your risk of recidivism. Dr Barth also considered that you need psychological treatment which contains your current emotional distress, enhances your coping and mood management strategies and improves your social skills. Dr Barth noted there would be some risk that your mood could deteriorate in a prison setting. It would therefore be important that you be provided with appropriate psychological treatment and support by prison mental health staff.[19]
[19]Exhibit 2, page 10
53 In his supplementary report,[20] Dr Barth observed:
“Mr Estrada continues to present as a man with significant psychosexual issues. To his credit, he has voluntarily engaged in specialist treatment and, despite initially displaying slow progress, he has persisted with the SOTP [Sexual Offenders Treatment Program] and remained committed to his rehabilitation. While it is clear that further treatment is required before Mr Estrada would be considered to have comprehensively addressed his offending behaviour and his dysfunctional sexuality, the progress that Mr Estrada has made thus far augurs well for his long-term prognosis. … .”[21]
[20]Exhibit 3
[21]Exhibit 3, paragraph 12
54 In his four reports, Mr Burrows outlined the treatment you have been receiving whilst participating in the sex offender treatment program.[22] Mr Burrows states:
“In summary, Mr Estrada has continued to positively engage in treatment and has made good progress in the SOTP [Sexual Offenders Treatment Program]. Nevertheless, longer-term intervention will be required for Mr Estrada to continue addressing his long-standing interpersonal and sexual issues. To his credit, Mr Estrada continues to express a strong commitment towards treatment. I can confirm that I am willing to continue treating Mr Estrada if he is at liberty to attend.”[23]
[22]Exhibits 4, 5, 6 and 19
[23]Exhibit 6, paragraph 7 and exhibit 19, paragraph 5
55 I note that you are currently being treated for depression, taking Lexapro. In this regard, you intend to wean yourself off this medication.
Prior good character
56 You have no prior convictions or court appearances. In addition, a number of references were tendered attesting to your prior good character. You have also contributed to the welfare of others and have supported good causes in the community.[24]
[24]See exhibits 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20 and 21
Deportation
57 As mentioned earlier, you have never taken out Australian citizenship, although you have lived here since 2013. You are a permanent resident. By virtue of the operation of s501(3A) of the Migration Act, you are subject to mandatory cancellation of your permanent resident status and will be deported from Australia upon completion of your sentence. As such, the burden of imprisonment will be greater for you than for someone who faces no such risk.[25]
[25]Guden v R (2010) 28 VR 288; Magedi v The Queen [2019] VSCA 102 at paragraphs [56]-[59]
58 You have already been isolated from your family but your imprisonment and eventual deportation will mean that there is very little prospect that you will see your children face to face for some time.
59 You have not lived in the United Kingdom since the 1990s and although your mother lives there, rebuilding a life in the United Kingdom upon your deportation at your age and with your history will be difficult.
COVID-19
60 The effects of the current world pandemic of COVID-19 will have an impact upon the terms of your imprisonment. You have faced quarantine upon induction when remanded and it may be that you will be unable to have visitors from time to time. Although there is no suggestion that any prison is currently encumbered by active cases of COVID-19, nevertheless your imprisonment will likely be more onerous because of the concern of possible infection and, in any event, because of the more restrictive conditions that may be imposed because of the pandemic.
Prospects for rehabilitation
61 I am satisfied that your prospects for rehabilitation are reasonably good. You have admitted to what you have done, you have expressed profound remorse and, most significantly, you have voluntarily taken positive steps towards your rehabilitation. Your attempts in this regard are based on a real desire to rehabilitate yourself. Although at present you are assessed as posing a moderate risk of re-offending in like manner, I also accept that with ongoing treatment, this risk will be somewhat reduced.
Sentencing submissions
62 As mentioned earlier, your counsel concedes that the only appropriate response to your offending is the imposition of a term of imprisonment. She submitted, however, that there should be considerable concurrency in the sentences imposed where there is overlap of conduct between the charges.
63 On behalf of the prosecution, Mr Singh acknowledged your early plea of guilty and your prior good character. He noted, however, that the offending against your children involved a breach of familial trust and occurred over a protracted period of time. In this regard, he noted that there were some eighty-six videos or images involving your children: Charge 1 involves 50 videos or images; Charge 3, 15 videos or images; Charge 4, 7 videos or images; Charge 5, 14 videos or images and there is one image of an unidentified child.
64 As to the possession of child abuse material, Mr Singh observes the large number of images or videos involved in Charge 8.
65 Mr Singh agreed that even though you fall to be sentenced as a Serious Sexual Offender for Charges 3 to 8, there should nevertheless be considerable (but not total) cumulation to reflect the fact that there is a degree of overlap between some of the charges. Even so, Mr Singh submits that your case stands as a serious example of serious offending.
66 Finally, Mr Singh submitted that the only appropriate sentence is the imposition of an immediate term of imprisonment with a non-parole period to be served.
Sentences to be imposed
67 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
68 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
69 Balancing all of the matters I have referred to, I have no option but to impose terms of imprisonment.
70 Please stand, Mr Estrada.
71 On Charge 1, indecent act with a child under the age of sixteen – you are convicted and sentenced to 12 months’ imprisonment.
72 On Charge 2, indecent act with a child under the age of sixteen – you are convicted and sentenced to nine months’ imprisonment.
73 As a result of the sentences that I have just imposed in respect of Charges 1 and 2, you now fall to be sentenced as a Serious Sexual Offender in respect of the remaining charges. As a consequence, in determining the length of the terms of imprisonment in respect of those charges, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed, and I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the relevant offence considered in light of its objective circumstances.[26] That said, the Prosecution does not seek the imposition of disproportionate sentences and I do not intend to impose them.
[26]See s6D Sentencing Act
74 On Charge 3, indecent act with a child under the age of sixteen – you are convicted and sentenced to nine months’ imprisonment.
75 On Charge 4, sexual activity in the presence of a child under the age of sixteen – you are convicted and sentenced to six months’ imprisonment.
76 On Charge 5, sexual activity in the presence of a child under the age of sixteen – you are convicted and sentenced to nine months’ imprisonment.
77 On Charge 6, sexual activity in the presence of a child under the age of sixteen – you are convicted and sentenced to five months’ imprisonment.
78 On Charge 7, producing child abuse material – you are convicted and sentenced to three months’ imprisonment.
79 On Charge 8, knowingly possess child abuse material – you are convicted and sentenced to two years’ imprisonment.
Serious Sex Offender provisions and the question of cumulation and concurrency
80 I now turn to the Serious Sex Offender provisions and the question of cumulation and concurrency.
81 Section 6E of the Sentencing Act provides:
‘Every term of imprisonment imposed by a court on a serious [sexual] offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
82 These provisions, however, do not permit the court to disregard principles of totality.
83 In determining whether to order any period of concurrency and, if so, how much, I must take into account the Serious Sexual Offender provisions, but I must also apply principles of totality and proportionality and avoid imposing a crushing sentence. I must fix appropriate individual terms in respect of each charge, recognising that the charges are discrete, with separate acts of sexual violation of such gravity that total concurrency would fail to do justice. That said, as mentioned, the prosecution has conceded that given the degree of overlap of offending, there should be substantial concurrency to reflect that fact.
84 Taking into account all relevant factors, I consider that there should be some cumulation in respect of Charges 1 and 2, the charges in respect of which you are not sentenced as a Serious Sexual Offender, and that there be some period of concurrency for some of the charges in respect of which you were sentenced as a Serious Sexual Offender.
85 I therefore direct that three months of the sentence imposed on Charge 1 and one month of each of the sentences imposed on Charges 2, 3 and 5 be served cumulatively with the sentence imposed on Charge 8, which is the base sentence, and with each other. The total effective sentence is therefore two-and-one-half years’ imprisonment.
Minimum non-parole period
86 In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period which is ‘to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom’.[27] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The factors that I am required to take into account are:
“(a) that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[28]
[27]See Director of Public Prosecutions v Josefski (2005) 13 VR 85, paragraph 43
[28]Josefski (ibid), paragraph 43
87 Taking all these matters into account, including your prospects of rehabilitation and the likelihood of your deportation, I direct that you serve a minimum period of 20 months’ imprisonment before becoming eligible for parole.
88 I note that you were sentenced as a Serious Sexual Offender on Charges 3, 4, 5, 6, 7 and 8 and I direct that this fact be entered in the records of the court.
Section 6AAA Statement
89 Under s6AAA of the Sentencing Act, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are as follows:
90 I would have convicted and sentenced you to serve a total effective sentence of 45 months’ imprisonment.
91 I would have directed that you serve minimum of 30 months’ imprisonment before becoming eligible for parole.
92 I direct that the sentences that would have been imposed but for your guilty plea be noted in the court’s records.
Pre-sentence detention
93 Under s18(4) of the Sentencing Act, I declare that the period of twenty days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
Registration Under the Sex Offenders Registration Act 2004
94 As a result of your convictions and sentences on Charges 1-8, you have become a Registrable Sex Offender under the Sex Offenders Registration Act. You are required to comply with the provisions of that Act. The delegate of the Secretary of the Department of Justice, in these circumstances my Associate, will now give you notice of your obligations under the Act. Because you have been found guilty of three or more of ‘Class 2 Offences’, the length of the reporting period is the rest of your life.
95 Please step back, Mr Day, to maintain physical distance, thank you.
96 Rex Estrada, you have signed an acknowledgment in receipt of the paperwork that I have just referred to; that is, the notice of your obligations under the Sex Offenders Registration Act; do you agree that that is your signature?
97 MR ESTRADA: Yes.
98 HER HONOUR: Ancillary orders. You may be seated, Mr Estrada.
Ancillary orders
99 Now I turn to the forensic sample order. Under s464ZF(2) of the Crimes Act, I order that you, Rex Estrada, undergo a forensic procedure for the taking of a scrapping from the mouth and/or a blood sample in accordance with subdivision 30A of part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
100 Having considered the seriousness of the circumstances of the forensic sample offences listed, I am satisfied that in all the circumstances the making of the order is justified for the following reasons. The seriousness of the circumstances of the offending warrant the order. The order is not opposed and the granting of the order is in the public interest.
101 Rex Estrada, I must inform you that if at the time of request you do not consent to the taking of a mouth scrapping under the supervision of an authorised member of the Police Force than the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted, do you understand?
102 OFFENDER: Yes.
103 HER HONOUR: Disposal order. Do either of you require the order to be read aloud? I do not think it is necessary.
104 MR SINGH: No.
105 HER HONOUR: But I will make the order. It is not opposed and I will sign it in the form that has been submitted for my signature.
106 MR SINGH: As Your Honour pleases.
107 MS BALLARD: Your Honour pleases.
108 MR SINGH: Your Honour, can I just address you on - - -
109 HER HONOUR: Just one more thing.
110 MR SINGH: Sorry.
111 HER HONOUR: Welfare. The issue of the prisoner’s welfare. Should a welfare letter be written on behalf of your client, Ms Ballard?
112 MS BALLARD: Your Honour, I apologise and confess, I actually don’t know exactly what a welfare letter is. My apologies.
113 HER HONOUR: The material that you supplied.
114 MS BALLARD: Yes.
115 HER HONOUR: Indicating your client’s mental health condition - - -
116 MS BALLARD: Yes.
117 HER HONOUR: - - - can be provided to the prison authorities. I cannot intrude on what they do of course whilst your client is in custody. But the court can request that welfare considerations be taken into account.
118 MS BALLARD: Thank you, I would ask that be noted as a custody management issue. Thank you, Your Honour, I’m grateful.
119 HER HONOUR: All right. Now, Mr Singh - - -
120 MR SINGH: Yes, thank you, Your Honour.
121 HER HONOUR: - - - you wanted to mention something.
122 MR SINGH: Minor matters, Your Honour. First, in relation to the first ancillary order, you mentioned in relation to indictment point-one, the actual indictment is point-two we’ve filed over a little while ago.
123 HER HONOUR: Indictment number point-two, is it?
124 MR SINGH: Two-four-two, point-two, yes.
125 HER HONOUR: Point-two, thank you very much.
126 MR SINGH: And second - - -
127 HER HONOUR: Well, I just note that also in the - - -
128 MR SINGH: Yes, for the - - -
129 HER HONOUR: - - - reasons for sentence.
130 MR SINGH: Thank you, Your Honour.
131 HER HONOUR: As well as the order - could I have that order back please, the forensic sample order.
132 MR SINGH: And secondly, Your Honour, my learned friend and I have negotiated this to be put on the transcript. The disposal order is not opposed and I’m grateful for that. It will be placed into the possession and custody of the commission of police. And consistent with my learned friend’s earlier request, once any relevant appeal period has expired the informant will then make his very best endeavours to go through the materials, given that it’s within the powers of the Police Commissioner to identify and locate any of the photographs of the children and give it to the accused man. It’s still a Herculean task, so it can’t be done at the moment. But I am told he will make his best endeavours once the appeal period is expired.
133 HER HONOUR: Well, I thank you very much for that. Right, is there anything else?
134 MS BALLARD: No, Your Honour.
135 HER HONOUR: Once again, may I thank you both on behalf of your respective clients for the sensitive way in which you have presented your respective cases, but also for the quality of the written material that was submitted. Thank you.
136 MR SINGH: As Your Honour pleases.
137 HER HONOUR: Yes, you may remove the prisoner.
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