Director of Public Prosecutions v Failla

[2020] VCC 984

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00623

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH FAILLA

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2020
DATE OF SENTENCE:	1 July 2020
CASE MAY BE CITED AS:	DPP v Failla
MEDIUM NEUTRAL CITATION:	[2020] VCC 984

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – using a carriage service to groom a person believed to be under 16 years of age for sexual activity – plea of guilty 

Legislation Cited:           Commonwealth Crimes Act 1914 (Cth) s 20(1)
  Sex Offenders Registration Act2004 (Vic) s 34
Sentence:  Total Effective Sentence of 10 months imprisonment
  Immediate Release on a 2 year Recognisance Release Order

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms G. James	Commonwealth Director of Public Prosecutions
For the Accused	Ms E. McKinnon	Ferraro Pruscino & Co

HIS HONOUR: 

1Joseph Failla, you have pleaded guilty to one charge of using a carriage service to groom a person you believed to be under 16 years of age for a sexual activity.  The maximum penalty for this offence is a term of imprisonment of 12 years. 

2Tendered on the Plea as Exhibit 1 was a Summary of Prosecution Opening, which represented an agreed statement of the facts of your offending.  I annex a copy of that document to these sentencing reasons.  In brief, the circumstances of your offending were as follows. 

3The profile of a 15-year-old female child named Sienna was uploaded to the Kik mobile instant messaging application.  The profile was operated by a police officer, conducting covert online duties (the Under Cover Officer (UCO)). 

4You used the Kik application to send messages to Sienna.  Your first contact comprised, “hey, Sienna,” and an emoji, and was sent on 14 August 2019.  On 19 August 2019, the UCO replied.  There was then a conversation between you and Sienna about your respective ages.  Sienna told you that she was at school and aged 15.  You told Sienna that you were 25 despite your profile, Joeyjoe82, suggesting otherwise.

5Thereafter, over the next 52 days, being the charge period, you communicated intermittently with Sienna.  Throughout your correspondence, you believed Sienna to be a child of 15 years of age.  The full content of these communications are set out at paragraphs 7 to 13 of Exhibit 1 and I do not repeat them here.  They consisted of progressively more sexualised comments and language, the mentioning of sex acts, asking Sienna about her sexual experiences and whether she masturbated, seeking pictures of Sienna both in and out of her school uniform, and sending a photo of yourself on 8 October 2019 in your underwear, standing in your closet and suggesting it would be nicer if Sienna was with you. 

6You also sent two files of yourself naked and masturbating; firstly on your bed and then masturbating in a public toilet cubicle. The first file was sent on 20 September 2019. On 1 October 2019, in response to your request, the UCO sent an image purporting to be Sienna.  That image clearly depicts a child under the age of 16.  On 10 October, after express questioning by you of Sienna about her sexual experiences, you sent the second file which, as I have said, shows you masturbating in a public toilet cubicle.

7On 30 October 2019, you were arrested at your home address in Taylors Lakes where police located your Samsung mobile phone that you had used to access the Kik app. 

8You were interviewed on that day.  In the course of that interview, you described your intimate mis-usage of Kik as “just a bit of personal fun” and that you had recently started using the app again because you were struggling with work stress and your home life.  It was self-esteem and stress issues that led you to using Kik as an escape to, “chat to random girls.” 

9You told police that you were not using Kik to seek out underage persons.  You told police you could remember Sienna and that you had told her you were aged 25 because you never disclose your real age on Kik.  You asked Sienna to send photographs of herself to you in her school uniform just to “see if she was ugly or not”, an observation which bespeaks a terrible view of women, Mr Failla.

10You reflected that asking Sienna for a photograph with her school uniform off was “a bad judgment day for you.”  You further told police that you knew the conversation and the sending of files to a 15 year old child was wrong, but that it made you feel better about yourself that someone may have found you attractive.  Your messaging, you told police, was not intended to groom as such, but rather was intended to find out if someone found you attractive. 

11You pleaded guilty to the charge at the committal mention on 1 May 2020 and I find your plea was entered at the earliest opportunity.

12I turn now to your personal circumstances. 

13You were born in September 1982 and you are now 37 years of age.  You were between 36 and 37 years old at the time of your offending.  You have no prior or pending criminal matters.  You are the son of Italian migrants and you have a twin brother and an older sister.  You were raised in Wandin East on your parent's berry farm.  Your childhood was uneventful. However, your parents were strict and had expectations that you and your siblings would work very hard on the family farm at the expense of other childhood experiences.  This impacted upon your ability to socialise with your peers.

14You attended Mount Lilydale High School, where you were bullied due to your Italian heritage.  After completing Year 12, you went on to continue working on the family farm.  You completed a two-year TAFE course in software development and then completed a Bachelor of Science, majoring in computing, at Swinburne University.  Your first proper job after completing your studies was at Accenture as a business analyst.  After five years, you left this job due to low pay and in 2011 you commenced a position at Telstra, where you have since been promoted to more senior roles in the product management division. Promotion has involved greater responsibility and it seems, for you, greater stress.  In 2019, Telstra began a restructuring program which only added to your workplace stress. 

15You met your wife Natalie in 2011.  This represents your only significant relationship.  In 2014, at the age of 32, you finally moved out of your parent's home and settled in Taylors Lakes.  You and Natalie married in 2015.  There have been tensions between your family and your wife.  You reported that your parents were very judgmental of your wife and rarely visited you in your family home. 

16You have two children, Maiya, age three, and Oliver, who was born in April 2019. The birth of your second child led to further stress between you and your wife and to intimacy issues.  It was in retreat from these stressors that you turned to online sex chats and it was online, of course, where you encountered Sienna.  The Department of Health and Human Services have since become involved in the care and custody of your children due to the protective concerns that your offending creates.  Your offending has, not surprisingly, been extremely disruptive of your marriage.  It is an unfortunate, but inevitable, ancillary to offending of this kind.

17You report your wife is extremely upset and angry with you and, although you remain married and residing in the family home, you believe the marriage is unlikely to last.  Indeed, no references or letters of support were tendered on your behalf from your wife or her family. 

18I also note that although you remain employed at Telstra, you have not told them about the matter before the Court.  It is therefore unclear to me whether you will be able to remain in your job should your employer become aware of your offending.

19Tendered on you Plea as Exhibit 4JF was a psychological assessment report from Dr Matthew Barth, psychologist, dated 9 June 2020 and as Exhibit 5JF was a report from Geoffrey Burrows, sex offender treatment program forensic counsellor, of the same date.  You have attended Mr Burrows on 18 occasions between 21 November 2019 and 2 June 2020, both in person and more recently by video conference. 

20Initially, you demonstrated a limited understanding of the destructive impact of your offending behaviour.  You further evidence defence supporting cognitions, which you relied upon to justify your behaviour, including the completely false belief that you were not causing any harm because you had no intention of meeting anyone in person. Such thought processes have been the target of treatment. 

21Cognitive-based therapy (CBT) has been employed to help you find healthier coping skills for your feelings of inadequacy.  Mr Burrows' opinion was that you have made good progress, but that further intervention is required. 

22Dr Barth described your personal history, including your detached and disconnected relationship with your parents, your work promotions and the attendant stress that such responsibility brought for you.  You reported to him that the combination of workplace stress and a deteriorating relationship with your wife following the birth of your son led you to feeling unwanted and unappreciated.  This feeling of isolation drove you online, where you sought relief from your troubles and you sought validation as a sexual being.  It was in this context that you commenced chatting with the UCO, purporting to be an underage girl, and offended.  This does not excuse your offending, but it does provide the context for it.

23You told Mr Barth you had ceased using all online platforms and you were adamant that you had never viewed child abuse material.  You further told
Dr Barth that:

“I was using sex chats to feel good about myself as an escape from the stress, then I lowered the age with the complainant.  I am really disgusted when I look back at what I did.  To harm a child's life by what I did for my own selfish needs.  I took advantage of a child for my own gratification.  I am just ashamed at my disgusting behaviour.  I want to use this experience to improve myself as a person.”

24Dr Barth described your overall risk of sexual re-offending as falling in the low to moderate category, but with successful completion of specialist sex offender treatment programs your risk was likely to trend towards the low range. 
Dr Barth's opinion was that you are currently experiencing a moderate level of depression and anxiety which are both chronic and reactive to your current predicament, but not of such a severity as to meet the diagnostic criteria for a mental disorder.  Your thought processes are free from disorder, with your intelligence estimated to fall in the average range, or somewhat above.

25Despite your good intelligence, you have experienced recurrent difficulties coping with stress and you have expressed your distress and frustration through behaviour, that is acting out, rather than resolving the underlying issues in a more mature manner, which would be, for example, “let us sit down and talk through our difficulties and see where we can go.” That is how adults should behave, Mr Failla. 

26Dr Barth stated:

“He resorted to online sex chat as a dysfunctional way of managing his stress, enhancing his self-esteem and avoiding the personal problems in his marriage.  In regard to specific offending, an underage complainant provided even less of a threat to his poor self-esteem and he was able to more readily achieve the attention and sense of control he desired.  This culminated in a distorted view of the sexual consciousness of the complainant and a poor ability to enforce appropriate sexual boundaries.”

27Dr Barth referred to the positive progress that you have made in the course of your treatment with Mr Burrows, whilst noting that it remained incomplete.  There is, I find, a clear need for you to continue in specialist treatment, addressing not only your offending but also the drivers for it. 

28I turn to the submissions of Counsel. 

29Ms James, on behalf of the Commonwealth Director, submitted most helpfully that general deterrence and specific deterrence were importance sentencing purposes in offending of this kind.  She accepted that there were sporadic communications over the charge period of 52 days and that your online chats had come to an end prior to your arrest.  However, you sent highly explicit messages and video files to a person you believed to be 15 years of age.  It was serious offending.

30Further, she submitted, correctly, that such offending was increasingly prevalent, and children required protection from those who would pursue them online.  Ms James submitted that absence of prior criminal history should be given less weight in offending of this kind.  Your prospects of rehabilitation were dependent upon your continued engagement with treatment and, thus, I should be cautious. She accepted that your guilty plea was entered at the earliest opportunity, although she submitted it was in the face of a strong Prosecution case. In conclusion, she submitted the sentencing principles of general deterrence and specific deterrence require that you serve an immediate term of imprisonment before any recognisance release order. 

31Ms McKinnon, learned Counsel on your behalf, accepted that yours was serious offending and that general deterrence was a primary sentencing purpose.  She acknowledged that such offending often attracted a custodial sentence, but urged in your case a disposition that did not require you to lose your liberty.

32In support of this submission, she relied upon the level of stress that you were experiencing in your life, which led you to seek respite online.  She was at pains to point out that this was not an excuse for your offending, but it did provide an important context to that offending.  She submitted that this context was supported by analysis of the 150 message, 4 photos and 3 video files over the 52 days of your offending.  They demonstrated, she submitted, your desire for affirmation, and that you were insecure and seeking attention.  You were the focus of the interaction, rather than your correspondent.

33She submitted that you had made no proposal to meet your correspondent, you did not ask for personal details, you did not encourage her to participate in any online sexual act and, although you lied about your age, you did not create a false profile.  You did not hide your identity and you did not ask Sienna to keep your interaction a secret, those being attributes that are often encountered in offending of this nature.

34Whilst the absence of a real victim does not reduce the objective gravity of the offending, there was no concomitant presumption of harm.  Your record of interview, she submitted, demonstrated a degree of cooperation and frankness. 

35Your plea of guilty was entered at the earliest opportunity, demonstrating a willingness to facilitate the course of justice and bringing with it the utilitarian benefit of saving the community the time and cost of a trial.  Your early plea, she added, was also evidence of your remorse.  Your remorse is further evidenced by your report to Dr Barth of your shame and disgust at your offending and the commitment that you have made to treatment. 

36The impact of your offending has been most destructive to your relationship with your wife and your children.  You do not believe that your marriage can be saved.  She submitted that your prior good character, your risk assessment, the progress you have made in treatment and the continuing support of your family of origin all tend towards good prospects of rehabilitation.

37Mr Failla, sexual offending against children will always be viewed as serious offending.  There is an absolute prohibition on sexual activity with a child which is founded upon a presumption of harm.  The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is activity before the age when a child can give meaningful consent.  Sexual activity between adults and persons under the age of 16 can have a lasting impact upon the emotional and psychological wellbeing and development of such victims of offending.

38The online world is increasingly recognised by law enforcement authorities and by the Court as a fertile landscape where predators can roam, seeking out children.  These online predators are unseen by other authority figures and they are unseen by parents.  The stranger danger of old can now be brought right into the home at the click of a mouse.  It is in response to that threat that Parliament has seen fit to criminalise communications intended to make contact offending easier, more possible and more likely.

39The offence to which you have pleaded guilty is a serious offence, as is clear by the maximum penalty of 12 years' imprisonment.  By your plea of guilty, you accept that your communications were intended to make it easier for you to procure your correspondent to engage in sexual activity with you.  That is the meaning in law of grooming.  However, grooming is apt to capture a wide spectrum of communications and the particular communications must be considered so as to assess the objective gravity of the particular offending in front of the Court.

40In assessing the objective gravity of your offending, I have looked again at the communications themselves.  I am satisfied on balance that they were primarily driven by your need for affirmation; that is, that they were intended to make you feel better about yourself.  They were absent the persistent request to meet, or for sexual acts to take place online, or for intimate images to be sent to you that is so often encountered in offences of this kind.  Nonetheless, you sent two files of yourself masturbating to a correspondent that you believed to be a 15 year old child, a fact of which you could be in no doubt, having seen the photograph sent to you, at your request, by the UCO. 

41You gave no thought to the impact of your offending upon your correspondent.  You were wholly concerned with yourself.  I accept that the birth of your second child and pressures at work prompted a period of intense stress which you, because of your personality, found difficult to manage.  However, you were not at that time a young man, but rather you were a father of two young children, approaching 40 years old, married and with a responsible job.  There was an age imbalance of over 20 years between you and your believed correspondent.

42In sentencing you, I must take into account a range of different factors and these include: the principle of general deterrence, that is deterring other people from behaving as you have done; the nature and circumstance of the offence; your moral culpability, that is the degree to which you are responsible for your actions and for the consequences of your actions; the maximum penalty applicable; any injury, loss or damage that results from the offence; the degree to which you have shown contrition; the fact that you have pleaded guilty to the charge and the utilitarian benefit in your guilty plea; the degree to which you have cooperated with law enforcement agencies in the investigation of the offence; the deterrent effect that any sentence or order upon you may have on you; the need to ensure that you are adequately punished for your offending; your character, antecedence, age, means and any physical or medical conditions; your prospects of rehabilitation; delay, if any; and the principles of parsimony.  That means I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case.

43Further, in determining whether a sentence or order under s 20(1) of the Commonwealth Crimes Act 1914 (Cth) is the appropriate sentence or order to be passed or made, I must have regard to the nature and severity of the conditions that may be imposed on or may apply to you under that sentence or order. 

44I have had regard to all the matters urged upon me by your Counsel.  For the avoidance of doubt, I have had regard to:

·        your plea of guilty entered at the earliest opportunity; 

·        your remorse for your offending, which I accept is genuine and is not merely you regretting the sorry state to which your actions have reduced you and your family;

·        your positive prospects for rehabilitation; and

·        your commitment to treatment, which you have demonstrated through your attendance on Mr Burrows, your developing insight into your offending and your risk of reoffending, as assessed by Dr Barth, as being low - should you continue treatment;  

45It seems to me most unlikely that you are going to come back in front of the Court again.

46However, as your Counsel accepts and as you must be only too well aware, this was serious offending.  The courts will do everything they can to protect children from those who will seek them out.  The sentencing purpose of general deterrence must be given sufficient weight, so as to deter others from such offending.  In all circumstances of this case, I find the only appropriate penalty is a term of imprisonment. 

47On Charge 1, using a carriage service to groom a person under the age of 16 years, you are convicted and sentenced to a term of imprisonment of 10 months. 

48I have considered this matter long and hard, Mr Failla, and I have come to the conclusion, looking back at the communication and reading again the report of Dr Barth, that I am going to order that you be released immediately on a Recognisance Release Order of two years duration, subject to the usual conditions, but with the additional special condition that you participate in sex offender treatment programs as directed.

49Mr Failla, the conditions of the Recognisance Release Order will be that you give a surety by recognisance of $750 to comply with the following conditions that:

·        you are to be of good behaviour for two years; 

·        you are to be under the supervision of the Deputy Commissioner of the Community Corrections Service and Sex Offender Management, or his or her nominee, for two years;

·        you are to attend for treatment for sex offender programs to reduce reoffending, as directed;

·        you are to report to Sunshine Community Corrections Centre, 499 Ballarat Road, Sunshine, by 4 pm on Friday 3 July 2020;

·        you are to report and receive visits from the Community Corrections officer or officers;

·        you are notify an officer at the specified community correction centre any change of address or employment within two working days after the change;

·        you are not to leave Victoria, except with the permission of an officer of a specified corrections; and

·        you are to obey all lawful instructions and directions of the Community Corrections officer.

50Are you prepared to enter into the Order?

51OFFENDER:  Yes, Your Honour.

52HIS HONOUR: Pursuant to s 34 of the Sex Offenders Registration Act2004 (Vic), you are now a registrable offender and subject to the provisions of that Act. You must comply with the reporting obligations under Part 3 of the Act for eight years.

53The requirements placed upon you are to provide your local police station, once a year, with your address, your car registration number, your place of employment,  and every single domain name, password, email address or any other online identity that you possess.  Failure to comply with those conditions is a criminal offence.

54Police officers take that very seriously and the courts view such breaches as a serious matter and inevitably pass terms of imprisonment for each breach. That document can be signed now too.

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