Director of Public Prosecutions v Finnin
[2019] VCC 2054
•6 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00260
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN CORNELIUS FINNIN |
---
JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June, 25 September and 26 October 2019 | |
DATE OF SENTENCE: | 6 December 2019 | |
CASE MAY BE CITED AS: | DPP v Finnin | |
MEDIUM NEUTRAL CITATION: | [202019] VCC 2054 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – use a carriage service to procure a person under 16 years of age for sexual activity contrary to s474.26(1) of the Criminal Code (Cth) – guilty plea – previous criminal history
Legislation Cited: Criminal Code (Cth), s474.26(1); Sex Offenders Registration Act 2004 (Vic), s7(1)(b), s34(1)(c)(ii); Crimes Act 1914 (Cth)
Cases Cited:R v Finnin [2009] VCC 1090; FCJ v The Queen [2012] VSCA 292; Director of Public Prosecutions v Finnin [2013] VCC 1313; R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions v Chatterton [2014] VSCA 1; R v Gajjar [2008] VSCA 268; Kebriti v R [2019] VSCA 275; Director of Public Prosecutions (Cth) v Singh [2017] VSCA 146
Sentence:3 years imprisonment to be released after serving 14 months of the term of imprisonment upon giving security by recognisance of $1,000.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms K. Breckweg (Plea) Ms V. Hogarth (Sentence) | Commonwealth Director of Public Prosecutions |
For the Accused | Ms H. Bate (Plea) Mr B. Barratt (Sentence) | James Dowsley & Associates Pty Ltd |
HIS HONOUR:
1 John Cornelius Finnin, you are charged that between 7 September 2018 and 19 September 2018, at Seaford, in Victoria, being 62 years of age, you used a carriage service to transmit communications to the recipient Will Cooper, being someone you believed to be under 16 years' of age, with the intention of procuring the recipient to engage in sexual activity with you. The offence to which you have pleaded guilty carries a maximum penalty of 15 years' imprisonment.
Circumstances of offence
2 The circumstances of your offending are set out in the ‘Prosecution's Opening Upon Plea’ which was tendered and marked Exhibit A. I set out below the relevant matters from Exhibit A.
3 On 17 April 2018, you posted an advertisement on Craigslist.com.au. It read as follows:
‘School Boys Wanted – m4m (Seaford, Carrum, Chelsea, Frankston Area)
body: big
height: 6’3’ (190cm)
status: single
I am a 60 year old, good looking down to earth easy going guy who is looking for a young boy on a regular basis for some fun. I like my boys slim, even skinny, slender and smooth. I am into fucking, sucking, rimming, cock on cock, naked play and lots more. I like boys with fetishes too. I am happy to teach a boy what he wants to know, so first timers, inexperienced, shy and timid boys can be assured of understanding, respect, discretion and great sex. I can host or pick up, no worries. I will even consider a reward as enticement. As I said I am looking for regular, so once a week would be good, or more if you are able.
Now understand, no one under or over 18 please. You must reply with stats, what you’d like to do and a picture. If you respond with a one liner, you won’t get a response, it’s as simple as that. You can send a face pic, or a body pic, or whatever you are comfortable with or both. I will send you a pic and a phone number to organise a meet, or you can contact me straight away in Kik: Puer_Eternus
I treat each boy with respect and discretion, so please don’t waste my time with endless ping pong emails, questions and general fucking around.
Come on boys, stop playing with your cocks and get in touch.’
4 The advertisement was located online by a witness who, out of concern, reported it to police on 18 April 2018.
5 As a result of this information an investigation was conducted with the assistance of the Joint Anti-Child Exploitation Team (‘JACET’). On 7 September 2018, a police officer with JACET engaged you via Kik Messenger by posing as a 14 year old boy using the assumed identity of Will Cooper (‘Cooper’). Your Kik Messenger profile name was ‘Johnny Boy’. The profile picture for Johnny Boy was an identifiable image of you.
6 Between 7 September 2018 and 19 September 2018 you communicated with Cooper in a sexually explicit manner. The communications between you included the following:
7 On 10 September 2018 you asked Cooper, 'How old?' to which Cooper replied, '14, 15 in November.' On the same date, at your request, Cooper sent you an image of a young male. You told Cooper, 'Don't take any risks on my account though.' You continually asked Cooper if he was interested and wanted to meet.
8 On 10 September 2018 you asked:
‘Did you want to meet?’
and:
‘I understand. It’s really up to you, what you want. Normal is expressing what you want and being comfortable in meeting. I can assure you privacy, safety, honestly and discretion. Tell me what you are comfortable with. I understand you’re nervous. So am I, as you are underage.’
9 You received a reply from Cooper as follows:
‘I’m comfortable trying new things … I haven’t done much yet – only fooled around with guys at school …’
10 You replied:
‘I get it. I suggest I pick you up at Seaford Station. I live really close to it. My face is small and cozy, if that suits you.’
and
“Place … sorry.”
11 During the course of the communication, you sent Cooper your mobile phone number.
12 On 11 September 2018 you sent Cooper an SMS text message from your mobile phone number which read:
‘I sent you a message on KIK, but thought you might want to chat here.’
13 On 13 September 2018 you initiated a conversation with Cooper stating:
‘Oh, I thought maybe you come here and we have some fun, try some stuff, the things you would like etc, up to you. It’ll be great. I just thought maybe I was being eager, that’s all. I just so want to meet you, hopefully for all the right reasons. After all, I am a boy lover and your so my type, so didn’t want to be shitty about it. Sorry.’
14 On 14 September 2018 you asked:
‘So Will, do you think we will be able to meet up this weekend, or will the week after you break up for the holidays suit you better? So dying to meet you :).’
15 On 17 September 2018 Cooper wrote to you, stating:
‘Hey ive got a half day on Wednesday this week.’
16 You engaged with Cooper and organised to meet at Seaford Railway Station. You stated:
‘Ok, well I am at Seaford. There is a bus stop right outside the station. We can walk from there. It’s only a short walk. What time would you like to meet?’
17 Cooper replied:
‘I can get down there around 12 or around that time?’
18 On 17 September 2018 you stated:
‘All of the above. Overall though, looking forward to meeting you and sharing something special and hoping that we like one another and that I can teach you things that you will like and that you will be able to use in the future. Also, it may seem strange but for you zzl hope you will learn to trust me and confidence in me. I know how hard it can be, being young, gay, not out and not being able to be yourself. I hope you find me a nice and decent guy.’
and:
‘Just got in. Car was in for service. Your inexperience will be of no consequence Will. Hopefully you will learn a lot and continue to do, whilst having heaps of fun at the same time. Cam (sic) you tell me what you’d like to learn about?’
19 On 18 September 2018 you wrote, ‘I love boys your size, really.’ You asked Cooper if he masturbates and whether he masturbated a lot. You added, ‘Last boy I was with jacked at least four five times a day.’ You continued, ‘So tell me the things you’d like to learn tomorrow? So I can ensure I please you’, and ‘I am so looking forward to showing an inexperienced boy the joy of gay sex.’ In response to Cooper asking you whether it would hurt, you said:
‘If you want to be fucked for the first time it will hurt like hell, but there are ways to build up to it. We don’t have to do it first time and I am not big so well take it easy. If it hurts to[o] much, we just wont do it, but to be honest first time is always the worst.’
20 Throughout the conversations you continually asked Cooper to conduct video calls so that you could confirm that he was 14 years of age.
21 On 19 September 2018 you wrote to Will stating:
‘Hi Will. I guess at this stage your not coming. That’s ok. Whilst I am disappointed, I am not angry or annoyed. Not sure what’s wrong. Perhaps there is something you’re not telling me. When you avoided the video chat, a couple of times, I was suspicious that there was something up. Anyway, all good. If your still, interested, I guess you’ll be in touch. Maybe you couldn’t make it for good reasons, just hard to know when I don’t hear from you. If not just let me know. If I don’t hear from you, I’ll delete all texts between us. Hope to hear back from you, but if not the very best of luck. Stay safe and take care.’
22 On 19 September 2018 police executed a search warrant at your home in Seaford. They seized a number of electronic devices, including your Samsung Galaxy mobile phone. You were arrested and taken to Frankston Police Station. You refused an interview stating, 'Yes I understand the allegations.' You were charged in relation to your offending. An analysis of your mobile phone depicted Kik Messenger chat logs between you and Cooper.
Background and personal circumstances
23 I turn to your background and personal circumstances. You are now aged 63 having been born in December 1955. You were 62 at the time of the offence. You were born in Ireland. You are the oldest of three children and were raised in a strict Irish Catholic family characterised by your father's extreme alcoholism and violence. You reported to a psychologist that the physical abuse occurred on an almost daily basis which sometimes resulted in broken bones. Your mother, who is now aged 83, lives in Ireland and you have telephone contact with her approximately once or twice a week. Your father is deceased. At the age of 12 you received a scholarship to attend a boarding school. It would appear that you excelled at secondary and tertiary levels graduating with distinctions from Trinity University. You married in 1985 at the age of 30 and moved to Australia in 1986. You separated from your wife in 1998 but have remained close, despite your offending. Together you have three children who are in their late 20s and early 30s. You also have an adopted child. Your children are aware of your prior criminal offending as well as the matter before me.
24 You reported to a psychologist that your first homosexual experiences occurred at boarding school in your early to mid-teenage years. It was not until 20 to 30 years later that you came to terms with your sexual orientation. You reported that acknowledging your homosexuality in Catholic Ireland in the 1960s was not an option for you. You also stated that you struggled with your sexual identity for a long time knowing that you were different but still wishing to live a normal life. Following separation from your wife, you entered a same sex relationship with a younger man that ended when you took up a position as a diplomat in Germany.
25 With regard to your employment history, I was told that you have held a number of senior managerial positions in Australia and overseas, as well as having been a senior public servant and diplomat. You were the chief executive officer of Fire Power Holdings Group Limited in 2006 and 2007. Whilst in that employment, you discovered a major fraud being perpetrated on the shareholders and you provided substantial assistance to the authorities in the investigation of that fraud.
Criminal history
26 I turn to your criminal history. On 25 August 2009, following a trial in the County Court, you were convicted and sentenced to a total effective sentence of imprisonment of 11 years' and 10 months' with a non-parole period of eight years'. This was in relation to charges involving breaches of s.7(1) of the Prostitution Control Act 1994, s.45(2), Crimes Act 1958, s.47(1) Crimes Act, ss.474.27, 474.26 and 474.19 of the Criminal Code Act Commonwealth 1995. You appealed to the Court of Appeal against your convictions and were successful in part.
27 A verdict of acquittal was entered in respect of three counts. Your appeal in respect to seven counts pursuant to s.7(1) of the Prostitution Control Act 1984 was dismissed. In respect to those matters the Court of Appeal sentenced you to a total effective sentence of five years' with a non-parole period of three and a half years'. The Court ordered that you be re-tried in respect of 13 counts.
28 The re-trial was due to commence on 22 April 2013. On that day you pleaded guilty to five charges as follows: Sexual penetration of a child under 16; committing an indecent act with a child under 16; using a carriage service to groom persons under 16 contrary to the Criminal Code (Cth); using a carriage service to procure persons under 16, contrary to the Criminal Code (Cth); and using a carriage service to transmit child pornography material contrary to the Criminal Code (Cth).
29
Following a plea hearing you were sentenced by Judge M Sexton on
3 September 2013. According to the Victoria Police criminal history report you were sentenced as follows: For sexual penetration of a child under 16,
30 months' imprisonment; indecent act with a child under 16, six months' imprisonment; using a carriage service to procure persons under 16, six months' imprisonment; using a carriage service to groom persons under 16, four months' imprisonment; using a carriage service to transmit child pornography, three months' imprisonment. A total effective sentence of two years' and 10 months' imprisonment with a non-parole period was imposed.
I have not set out Her Honour's orders with respect to concurrency and cumulation. Her Honour noted when sentencing you, that you were undergoing the sentence imposed by the Court of Appeal and which was to expire on 22 July 2014. Her Honour also ordered that you pay compensation in an amount of $26,250. Her Honour placed you on the Sex Offenders Registration Register for life.
30 On 29 September 2010 you were convicted at the Melbourne Magistrates' Court for contravening a restraining order and you were sentenced to five months' imprisonment, wholly suspended. You were further ordered to pay compensation in an amount of $21,500.
31 I am told that following Judge Sexton's sentence you were released from prison on 3 June 2016. Having spent approximately seven years in custody. You did not undergo any sex offender treatment programs whilst in prison. That is something on which your counsel strongly relied in her submissions before me and about which I will have more to say shortly. Thus the offence with which I am dealing occurred some two years' and three months, following your release.
32 Since being released and because of your offending and criminal record, you have struggled to find employment. Your counsel tendered a psychological report of Dr Dion Gee, Forensic Psychologist. That report is dated 29 May 2019 and is marked Exhibit 1. Dr Gee was also called to give evidence at the plea hearing.
33 Dr Gee interviewed you on 24 May 2019 and conducted a number of psychometric assessments. He had access to a number of documents, including the psychological report of Ms Carla Lechner, Clinical Psychologist dated, 30 July 2013. I was not provided with a copy of Ms Lechner's report at your plea hearing. Dr Gee noted that you demonstrated a compromised appreciation of the nexus between your psychopathology, or personality function, and those causal mechanisms underpinning your aberrant behaviour.
34 You presented with a reduced appreciation of your risk profile and struggled with the connection between your mental state or impaired mental functioning and the risk for future aberrant behaviour. You reported to Dr Gee minimal contact with mental health services. However, Dr Gee stated that such assertions were somewhat inconsistent with the accounts provided in collateral information. He noted, for example, information in Ms Lechner's report that you were under the care of a psychiatrist for about two years' and that you had been prescribed anti-depressant medication. When asked by Dr Gee about previous contact with counselling or psychological services you were noted to be somewhat circumspect. You reported to Dr Gee that whilst in custody serving your sentence, you asked for programs but they were refused.
35 At paragraph 25 of his report, Dr Gee states:
'Of particular salience within the present context, accepting the somewhat unusual (and indeed problematic from a risk management perspective), situation where Mr Finnin is yet to participate in a formal sexual offender intervention program, it is perhaps unsurprising that he currently presents with reduced insight into those causal mechanisms, that underpinned both his initial aberrant conduct, and subsequent relapse in aberrant sexual behaviour.'
36 I note from Dr Gee's report you told Ms Lechner that although you pleaded guilty in 2013 to sexual penetration of a child under 16, you also stated, 'I'm responsible and accountable for what I did. If I had believed he was under 16 years of age, I wouldn't have touched it with a barge pole.' Your comments to Ms Lechner, which were confirmed in your interview with Dr Gee, appear to be at odds with your plea of guilty to that charge.
37 In relation to the offence before me, you told Dr Gee that you were completely responsible and accountable. You reiterated to him that you did not set out to engage in sexual contact with someone under the age of consent, having placed an advertisement for an individual aged 18 years'. You told Dr Gee that after you were advised that the person with whom you were communicating was 14 years' of age, you thought that you needed to stop but you could not say why you did not stop. You told Dr Gee you were lonely and did not think about the consequences.
38 Dr Gee stated at paragraph 38 of his report:
'With hindsight and self-reflection Mr Finnin had some appreciation - albeit reduced - of the wrongfulness of his conduct. In light of this, Mr Finnin struggled to proffer insightful comment in regard to the harmful nature of his actions on the victim, with his current understandings being somewhat conflicted; and seemingly restricted to the broader ripple effects of his conduct on his life/interpersonal circumstances…Overall, Mr Finnin presented with a reduced appreciation of his risk profile; struggling to appreciate several of the causal mechanisms underpinning his recent relapse into aberrant sexual behaviour.'
39 Under the heading 'Current psychometric evaluation' Dr Gee stated that your response profile was indicative of an individual presenting with a socially acceptable appearance and resistance to admitting personal shortcomings. He stated that you are inclined to view psychological problems as a sign of emotional or moral weakness thus protectively denying any unseemly traits or symptoms. Dr Gee was cautious as to your responses on psychometric assessment and stated that his findings only partially account for your psychopathology. Dr Gee noted at paragraph 42 of his report that your character pathology was suggestive of a turbulent personality with histrionic and anti-social features. Habitual patterns underpinning your maladaptive ways of thinking, feeling, behaving and relating that may interfere with your ability to function productively. He stated that overall you demonstrate patterns of unpredictable behaviour, scattered thinking and brash and impetuous actions and moods, punctuated by outbursts of momentary anger and fearful anxiety.
40 Under the heading 'Psycho-sexual fantasy offence cognitions' Dr Gee stated:
'Overall accepting Mr Finnin's response profile on psychometric assessment, he was seen to acknowledge/advance a degree of distorted/problematic cognition/sexual imagery that is associated with and/or justifying of aberrant sexual behaviour involving children. This finding mirrored Mr Finnin's presentation during interview, and was commensurate with a history of aberrant behaviour in a man whom - despite having been incarcerated in Victoria for over seven years' up until 2016 - is yet to undergo offence-specific/offence-related intervention in regard to those causal mechanisms underpinning his history of aberrant sexual behaviour.’
41 In Dr Gee's opinion, through numerous maladaptive processes, you presented with:
(1) cognitive distortions that appear to make you vulnerable to act in an aberrant manner;
(2) intimacy and social skills deficits;
(3) emotional and behavioural mis-regulation; and
(4) a degree of distortion/deviance in your underlying sexual scripts which includes the sexualisation/sexual objectification of post-pubescent male children.
42 Dr Gee does not consider you meet the diagnostic criteria for a personality disorder. He states that you ‘nonetheless present with turbulent, histrionic and anti-social personality features that have emerged from within [your] traumatic formative development.’
43 Dr Gee considered that your past conduct shares features consistent with ‘[o]ther paraphilic disorder involving non-consenting individuals’, wherein you seemingly demonstrated a pattern of atypical sexual arousal, manifested by sexual thoughts, fantasies, urges or behaviours in which the focus of the arousal pattern involved others who are unwilling or unable to consent.
44 Dr Gee considers that you fail to control your behaviour responding rapidly to situational cues based on cognitive and behavioural scripts that support and facilitate sexual offending. You demonstrate deficits of insight relating to your mental health needs and struggle to understand the nexus between your presenting symptomology and current or previous life experiences. Further, in the opinion of Dr Gee, you display a compromised appreciation of the need for self-regulation and you present with a reduced understanding of your risk profile and potential future risks.
45 As to the risk of your engaging in sexual violence in the future, on the static 99R assessment tool, you presented at an above average risk. Using the RSVP tool, you presented a moderate or low moderate risk of sexual offending, and on the SAPROF assessment your current circumstances, a moderate level of protection against a relapse into sexual violence. Taken together, Dr Gee is of the view that you present with a low to moderate, if not tending toward moderate, risk of re-offending sexually in the future. This means that you are somewhat less likely than the typical convicted sex offender to re-offend, if not provided appropriate and timely intervention.
46 With regards to the nexus between your impaired mental functioning and the offence, whilst your impaired mental functioning may have pre-disposed you to act in an aberrant manner, Dr Gee is of the opinion that there does not appear to have been a direct causal nexus between the two. Dr Gee is of the firm view, that you require treatment through a sexual offender intervention program as well as psychological intervention.
47 At the request of the prosecutor Dr Gee was called to give evidence at the resumed plea hearing on 25 October 2019.
48 He gave evidence as to the pathways to offending and considered that you fell within what is known as the ‘approach automatic’ pathway. In essence, persons falling into this category are neither wanting or not wanting to offend but when, to use Dr Gee's words, 'The world drops on them’ they do not have the mechanisms to refrain from offending. Dr Gee was of the view that it was unfortunate that you did not receive treatment whilst in custody because it may have reduced the likelihood of your moving into the ‘approach automatic’ category from the ‘avoidance’ pathway - that being a pathway where persons may not want to offend, but do not have the mechanisms to stop themselves.
49 It was clear from Dr Gee’s evidence that you lacked insight into your offending and that you held distorted beliefs as to relationships with younger post-pubescent persons. Dr Gee stated that treatment would have addressed your lack of insight and cognitive distortions. Dr Gee also stated that whilst he viewed you as being of low to moderate risk, treatment would reduce the risk but not eliminate it.
50 Under cross-examination Dr Gee stated that there was no questioning your ability to tell right from wrong. He was unable to say definitively that had you received treatment in custody, such as the sex offender treatment program, you would not have re-offended. However, he believed that the risk would have been reduced, had such treatment been obtained. Dr Gee agreed that you declined to participate in the sex offender treatment program because you wanted to complete your studies at the prison you were at, which itself did not offer a sex offender program. Dr Gee stated that the principal thing that treatment can address is getting you to understand the way in which you see the world is not accurate. One of the cognitions that you endorse apparently is that post-pubescent children are not harmed by having sexual contact with adults.
51 At the request of the prosecution I ordered that a psychiatric report be prepared pursuant to s.8A of the Sentencing Act. That report was prepared by Dr Maria Triglia, Consultant Forensic Psychiatrist, with the Victorian Institute of Forensic Mental Health and is dated 19 September 2019.
52 You were interviewed by Dr Triglia on 26 August 2019. In relation to the offending you told Dr Triglia that your advertisement on craigslist which stated, '…no one under or over 18 please' was ambiguous and the product of a typing error. You told Dr Triglia that you knew it was wrong to continue contact with a person you believed to be a 14 year old boy and said to yourself, 'Don't do it.' You were not able to answer why you continued the communications. You told her that you did not attend the planned meeting with Cooper as in the end you had refused to go. You also told Dr Triglia that you had psychiatric treatment for approximately two years between 2006 and 2007. At that time you were experiencing severe stress after becoming a whistle blower in the company at which you were working.
53 In relation to your seeking a mental health plan from your general practitioner following your release from prison, you told Dr Triglia that you believed you needed assistance to help with getting a job. You described to her your experience of being in custody as the worst experience of your life and that you did not participate in the sex offender program as it was not offered. Dr Triglia took note of your family and personal history which, as previously reported by you, was an extremely difficult and abusive early childhood. You told her that you were expelled from your first boarding school at the age of 13, after being found to have been sexually involved with another student. You described yourself to Dr Triglia as having been promiscuous with peers at secondary school.
54 You told her that you had worked in the Middle East for several years, initially for oil and gas companies and then in hotel management. You also worked in Sri Lanka. You then moved to Australia in 1984 and worked in hotel management before entering the diplomatic service. You were the regional director of a number of embassies and were based in Frankfurt for four years. Upon leaving the diplomatic service you were employed at Fire Power as the CEO and it was there where you detected financial irregularities and fraud.
55 You reported to Dr Triglia that following the separation from your wife, you have been involved in two significant long-term relationships with substantially younger same sex partners. The first of seven years duration and the second of five years' duration. At paragraph 37 of her report, Dr Triglia stated:
'With respect to insight, Mr Finnin did not believe he had significant depression, anxiety or a mental illness. While he thought that counselling could be of benefit he identified practical support with finding work, as being the issue he wished to address. He acknowledged his part in his current offences, but was unable to describe motivations or his thought processes involved in them. He was somewhat minimising of his role in his prior offences. He indicated he wished to participate in the sex offender program and was aggrieved he had not previously been offered this treatment.'
56
Dr Triglia considers that you suffer an adjustment disorder with mild depressed mood and mild anxiety. She agreed with Dr Gee that you do not meet criteria for paedophilic disorder. She stated there is no evidence of a personality disorder, although you have longstanding difficulties identifying and describing your emotional state. In a supplementary report dated 1 October 2019,
Dr Triglia stated that the information available to her did not suggest that you had a mental illness at the time of the offence. Rather, your account suggested that you were lonely, wanted a partner and you were sad about the circumstances in which you were living. In her opinion, the symptoms you presented with of mild depression and mild anxiety are likely to be temporary and resolve when the stresses cease. Dr Triglia considered that your symptoms are relatively mild but in her opinion would make prison somewhat more onerous for you than a person of normal health.
57 At the resumed plea hearing on 25 October 2019, I was provided with a bundle of documents obtained from Corrections by your lawyers through the Freedom of Information Act. That bundle was tendered and marked Exhibit 9. In essence, the correspondence between yourself and various personnel at the Department of Justice demonstrated your desire to participate in the sex offender treatment program before your earliest eligibility date for release on parole. You were assessed as suitable to participate in a sex offender program and you were recommended to take part in a moderate high intensity treatment program. You were advised by letter dated 24 January 2014, signed by Ashley Feelin, Acting Manager, Sex Offender Programs, that such a program is only delivered at Marngoneet Correctional Centre.
58
You responded that you were not prepared to transfer to Marngoneet to participate in the sex offender program as you were completing studies in criminology and criminal justice through Griffith University at Langi Kal Kal prison. In your letter to Mr Joseph Mollica, Psychologist, Deputy Manager, Specialised Offender Assessment and Treatment Service, dated
3 September 2015, you stated the following:
'I understand completely that the program for which I have been assessed is only conducted at the Marngoneet Correctional Centre, but I have been offered nothing else locally. I re-iterate surely something is better than nothing. However if you are not prepared to offer me anything else locally, then I have no alternative but to accept that.'
59 It is thus apparent that whilst you were prepared to participate in programs designed to address your offending behaviour, you were not prepared to move from Langi Kal Kal Prison whilst you were undertaking your degree course. You stated in one of you letters that:
'My current studies are equally as important as I took on this endeavour, both at my own cost and obviously as a rehabilitative mechanism. Staying where I am therefore, in order to complete the program, I view as critical.'
60
Thus, it is clear you prioritised the completion of the degree course over participation in the sex offender program. As a result, you did not become eligible for parole and you served the full sentence. In all of the circumstances, I do not accept that there was a failure on the part of the Department of Justice to give you access to the specialist sex offender program. You refused the program as late as 3 September 2015 and on 1 October 2015, you were told by way of letter from Mr Mollica that as your prison term was due to expire on
3 June 2016, you were no longer eligible to commence a sex offender treatment program.
61 I now turn to the submissions of your counsel Ms Bate on your behalf.
62 Ms Bate properly conceded the seriousness of your conduct. It was submitted that a term of imprisonment would normally be expected but that your case warranted a departure from an immediate term. The basis for that submission, in the main, was the asserted failure of corrections to provide access to a specialist sex offender program. However, as the documentation in Exhibit 9 clearly shows, you were in fact provided with the opportunity to engage in such a program but you refused because it would have meant transferring to Marngoneet Prison and the disruption of your studies. As stated, I do not accept the asserted failure.
63 Ms Bate informed me that you were released at the expiry of the full term of your sentence and you were not subject to any supervision, save for that required under the Sex Offenders Registration Act 2004. It was submitted that upon your release you struggled to find employment given your offending history and that with no income, you initially moved in with family members. I note that your daughter attended court on the first day of your plea hearing and continues to remain supportive of you. However, as set out in Dr Triglia's report, your relationship with your sons has become strained by reason of your most recent offending.
64 As to your offending, Ms Bate informed me that following your release you struggled with loneliness. You placed an advertisement looking for a sexual relationship. When you became aware that the person with whom you were communicating stated that he was 14 years of age, you did not cease your communications with him. Whilst not relying upon Verdins’[1] principle one, Ms Bate nevertheless relied upon the matters set out in Dr Gee's psychological report to explain your behaviour. She referred, in particular, to paragraphs 53 and 58 of his report. At paragraph 53, Dr Gee stated that you do not attempt to refrain from offending, but rather, you failed to control your behaviour responding rapidly to situational cues based on cognitive and behavioural scripts that support and facilitate sexual offending.
[1]R v Verdins & Ors (2007) 16 VR 269
65 At paragraph 58, Dr Gee stated that:
'Against the backdrop of interpersonal and social skills deficits, emotional and behavioural misregulation, cognitive distortions and a degree of atypical sexual arousal, you may have been in a position where you were more vulnerable than the average person to act in a manner, without having given due consideration to the consequences of your actions.'
66 Despite your re-offending Ms Bate submitted that you are nevertheless capable of rehabilitation and in need of a specialist sex offender program. I am prepared to accept that submission in light of Dr Gee's evidence. Ms Bate also relied upon the fact that in placing the advertisement, you did not take any steps to conceal your identity and, as the advertisement suggests, you were advertising for an 18 year old man with whom you could engage in sexual activity. However, it was conceded that as of 10 September 2019, you understood that the person with whom you were communicating was 14 years of age.
67 It was also submitted that although you arranged to meet up with Cooper at the Seaford railway station, you did not actually attend the proposed meeting. This was because you wanted verification by way of video call as to Cooper's identity which was not forthcoming.
68 Ms Bate submitted that many of the aggravating features often seen in such offending were not present in your offending. For example, there was no request for explicit photographs, there was no request to keep the communication secret. You did not invite the person with whom you were communicating to enter a chat room; and you were not forceful in your demands. It was submitted that your offending falls at the lower end of the scale of seriousness.
69 As to why you have not participated in any program since your release from custody, Ms Bate submitted that by reason of you not engaging in a program whilst in custody, you have reduced insight as to your treatment needs and that you relied upon an assessment that you were of low risk of re-offending. It was submitted, nevertheless, that you did obtain a mental healthcare plan from your doctor, but that you were not able to find a psychiatrist in your area that was prepared to accept the bulk-billing system of payments. You instructed that you could not afford to pay for psychiatric services. However, as you reported to Dr Triglia, it was your belief that this proposed counselling was to assist you to find employment.
70 Ms Bate relied upon your early plea of guilty as providing utilitarian benefits to the community and also indicating some remorse. I am prepared to accept that submission. Further, it was submitted that you have already suffered extra curial punishment. You have been subjected to much harassment in the community by reason of your offending. Your case, I am told, was the subject of much media attention. I note also that you have been harassed by neighbours and that you have recently taken out a personal safety order against one of them. You were on one occasion physically assaulted by a man who called you a paedophile. I am prepared to take this matter of extra curial punishment into account as weighing in your favour in the sentence I impose.
71 Ms Bate also relied on the fact that when you were sentenced by Judge Sexton, you received a penalty of six months imprisonment for a similar charge to the one you face here. Insofar as it is suggested that this is some sentencing precedent relevant to my sentencing discretion, I do not accept that I am bound to impose a similar sentence. No detail was given as to the circumstances of that earlier offending save for what appears briefly in the sentencing reasons of Judge Sexton and the judgment of the Court of Appeal. Further, Her Honour was required to have regard to the principal of totality in sentencing you. I am not required to have regard to that principle.
72 You are also not entitled to be treated as a first time offender as you were when you were sentenced by Judge Sexton. I note that at paragraph 31 of Judge Sexton's sentence, Her Honour sentenced you as a person of good character and noted that you had not committed any offences before the matters came before her and none since. That of course, does not mean that you get punished for your prior convictions, rather your prior convictions are relevant to the question of your character, the need for specific deterrence in the sentence to be imposed and to your prospects of rehabilitation. Ms Bate, relying on Dr Triglia's report, submitted that your symptoms, which give rise to an adjustment disorder, would make imprisonment more onerous for you than a person in normal health. Thus, it was submitted, Verdins principle five applies in your case. I accept that submission and will have regard to it in the sentence to be imposed.
73
Finally, I was reminded by Ms Bate that a term of imprisonment should not be imposed unless I was satisfied that there was no other option available to me.
Ms Bate submitted that in all of the circumstances of your case, I could sentence you to a community correction order or a recognizance release order with an immediate release.
74 Ms Breckweg, who appeared on behalf of the Commonwealth Director of Public Prosecutions, submitted that the circumstances of your offending were too serious for anything other than an immediate sentence of imprisonment. With regard to the arguments concerning Correctional Services failure to provide you with the sex offender program, the learned prosecutor relied on the authority of the Director of Public Prosecutions v Chatterton,[2] where the Court of Appeal stated at paragraph 73:
'In any event dissatisfaction with past failure of the Corrections authorities to provide suitable treatment cannot come close to justifying the imposition of sentences that are themselves manifestly inadequate.'
[2] [2014] VSCA 1
75 Ms Breckweg submitted that your studies were a higher priority for you than entry into the sex offender treatment program. As already stated, I accept that submission. Also, as stated above, I do not find that there was a failure to offer you the opportunity to participate in an appropriate sex offenders program.
76 As to the nature of your offending Ms Breckweg submitted that the offence was serious having regard to the nature of the proposed sexual activity, the grooming nature of your conduct, the period of time over which you offended, the age difference between yourself and the person with whom you believed you were communicating, and the offer of financial reward. I was referred to a number of sentencing cases for offences contrary to s.474(26)(1) of the Criminal Code. These were set out in a table of comparative cases. I have had regard to that table and the sentences imposed therein. They are but one of a number of factors to be considered in sentencing you.
77 At the initial plea hearing on 13 June 2019, the prosecution's submission was that I should impose an immediate term of imprisonment and fix a non-parole period. However, at the resumed plea hearing on 25 October 2019, the prosecution position was that in light of the further information, I should deal with you by means of an immediate term of imprisonment together with a recognisance release order with conditions that you attend for assessment and treatment at a sex offenders program.
78
In sentencing you I am required to have regard to each of the relevant considerations set out in s.16(1) of the Crimes Act 1914 (Cth).
I have set out above the circumstances of your offence. In my opinion, the offence you have committed is a serious offence. It carries a maximum penalty of 15 years' imprisonment.
79 I have regard to the following matters in considering the seriousness of your conduct. First, you were aged 62 at the time and it was your belief as of 10 September 2018, that the person with whom you were communicating was 14 years of age. Secondly, you communicated with him over a further nine days after you formed that belief. Thirdly, the messages you sent may clearly be regarded as grooming and are sexually explicit in nature. The nature of the sexual acts contemplated included penetrative anal sex. Fourthly, the original advertisement included the offer of a reward and there is no suggestion that it was retracted in any way once you became aware of the age of Cooper. You were aware from Cooper's messages that he was responding to your ‘craigslist’ post. Fifthly, you were clearly willing to engage with a relatively sexually inexperienced 14 year old child and teach him what you described as the joys of gay sex. Sixthly, you were willing to prey on and exploit an innocent and vulnerable child. Seventhly, you were prepared to arrange and meet with Cooper, although you did not proceed with this. Your reason for not meeting was because Cooper did not make a video call to you, so that you could confirm he was a 14 year old boy.
80 The fact that you were communicating with a police officer and not a 14 year old boy is of no consequence. Recently in Kebriti v R[3], the Court of Appeal affirmed as the correct approach that which was stated in R v Gajjar[4] that:
‘An offender’s conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.’[5]
[3] [2019] VSCA 275
[4] [2008] VSCA 268
[5] Ibid at [56]
81
The Court in Kebriti also stated that the procurement offence is complete, whether or not a meeting takes place. [6] Whilst I have regard to the matters put on your behalf by Ms Bate, concerning the gravity of your offending, in all of these circumstances I do not accept that your offending falls at the lower end of the scale of seriousness. The absence of the aggravating factors to which
Ms Bate referred does not mitigate the penalty to be imposed. Yours is, despite the absence of those aggravating factors, a serious example of this offence.
[6]Kebriti (ibid) at paragraph [30]
82 I take into account your plea of guilty and I am prepared to find that you have shown some contrition for your offence. In addition to your plea of guilty being some evidence of remorse, I also take into account the character references that were tendered on your behalf and which were not challenged.
83
A number of your referees speak of your remorse for your offending. However, the true extent of your remorse is difficult to measure in the absence of evidence and what is, according to Dr Gee, your limited insight. I again, refer to
paragraph 38 of Dr Gee's report, which I quoted earlier in these reasons.
84 As already stated, I have had regard to the written character references tendered on your behalf. I note that they also speak of your dedication to your family and other positive qualities such as assistance to others, hard work and loyalty. I have also had regard to your letter to the court which was tendered without objection and marked Exhibit 4. Whilst I am prepared to give some weight to the matters raised in your letter, you did not give evidence on oath or affirmation as to those matters. I note you have had difficulty with reintegration on your release from prison. In relation to your offending, you say that you made a stupid and arrogant mistake, for which you are responsible and accountable. You also say that you are remorseful and deeply sorry.
85 I note in particular, you state that when you placed the advertisement you were seeking someone that was 18 years' of age and not someone under that age. That is what the advertisement itself states. It also states in clear terms that you were not seeking anyone over 18 years. I am not prepared to accept, without evidence, that the latter part was a typographical error as you instructed your counsel. In any event, on becoming aware that the person with whom you were communicating was 14 years of age, you did not desist in your efforts to engage with him. Further, for reasons already stated, I do not accept your assertion in your letter that it was because of a bottleneck at Marngoneet that you were unable to participate in the sex offenders program. Your letter speaks of the pain and hardship that your offending has caused you and your family and your concern will no doubt continue into the future.
86 This may be a matter that motivates to you with respect to your rehabilitation. As to your prospects for rehabilitation, they clearly depend upon your undertaking the necessary psychological treatment required to address your issues as outlined in the reports of Dr Gee and Dr Triglia. I am prepared to accept that you are genuinely motivated to address your issues through appropriate treatment and that you are still able to rehabilitate. I accept the submission of Ms Bate that your rehabilitation is necessary for the protection of the community and I will impose a sentence that has regard to the need for you to be given opportunity to participate in an appropriate treatment regime.
87 There is also a strong need to deter you specifically from committing offences of this kind. It is a significant consideration in the sentencing exercise, given the need to protect young persons from your sexual predation. This is particularly so, given your history of offending and the fact that you have not undergone any sex offender rehabilitation since your release from prison. I am also required to have regard to the deterrent effect that any sentence under consideration may have on other persons. In R v Gajjar[7] the Court of Appeal stated,
'In cases of procuring for sexual purposes, contrary to s.474(26)(1), it is clearly appropriate to give paramount consideration to the principle of general deterrence.'
[7]Gajjar (Ibid) at paragraph [27]
88 In the Director of Public Prosecutions Commonwealth v Singh[8] the Court of Appeal stated that provisions such as s 474.26(1) of the Criminal Code (Cth) are:
‘… designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue.’
[8][2017] VSCA 146 at paragraph [45]
89 The Court went on to state that:
‘Deterrence, both general and specific, is the paramount sentencing consideration. It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.’[9]
[9]At paragraph [45]
90 And at paragraph 64, the Court stated:
‘The seriousness of the offence under s 474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of the nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of non-custodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.’
91 I am also required to ensure that you are adequately punished for the offence you have committed. In my opinion, having regard to all of the above considerations as well as the matters put to me during the plea hearing, adequate punishment can only be achieved by requiring you to serve an actual term of imprisonment. Mr Finnin would you please stand.
92 You are convicted and sentenced to three years' imprisonment. Pursuant to s.20(1B) of the Crimes Act 1914, you are to be released after serving 14 months' of the term of imprisonment upon you giving security by recognisance of $1,000 to comply with the following conditions:
(a) that you be of good behaviour for a period of five years'; and
(b) that you be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee for two years; and
(c) that you are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee;
(d) that you report to the Frankston Community Corrections Centre by 4 pm within two clear working days of your release from prison; and
(e) that you report to and receive visits from a Community Corrections Officer or Officers; and
(f) that you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
(g) that you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and
(h) that you are to obey all lawful instructions and directions of Community Corrections Officers.
93 Mr Finnin do you understand each of those conditions? You'll have to say something, sir.
94 OFFENDER: Yes Your Honour.
95 HIS HONOUR: Yes. Do you agree to abide by those conditions?
96 OFFENDER: I do Your Honour.
97 HIS HONOUR: Do you understand that if you breach the recognizance release order that I have imposed and any of those conditions, you can be brought back to court and be dealt with for a breach of the order, as well as re-sentenced on the original offences?
98 OFFENDER: Yes, Your Honour.
99 HIS HONOUR: All right, well I'll ask you to sign that order. Mr Barratt will hand you a copy of the order and you may approach Mr Finnin.
100 MR BARRATT: Yes Your Honour. Thank you Your Honour.
101
HIS HONOUR: I should declare that this order has been issued because
Mr Finnin was charged with the following federal offence, that of using a carriage service to procure a person believed to be under 16 years' of age, contrary to s.474(26) of the Criminal Code. I have sentenced Mr Finnin to a term of three years' imprisonment and the court has decided that the defendant be released after serving 14 months' of the sentence, if the defendant complies with the conditions of this order. I'm sorry Mr Finnin, we're going to have to ask you to sign again. Whilst that's being done, Ms Hogarth it appears to me that Mr Finnin is required once again under my order to be placed on the Sex Offenders Register.
102 MS HOGARTH: I agree. Perhaps Your Honour might want to make a declaration pursuant to s.34 of the Sex Offenders Registration Act, but his period of reporting would be for life?
103 HIS HONOUR: I'm sorry? For life, yes.
104 MS HOGARTH: For life.
105 HIS HONOUR: Yes. Mr Finnin I know that you are already on the register but as a result of my sentence today, you again become a registrable sex offender. I know this has occurred in the past and you are currently on the register, however, the registration process starts anew for the convictions entered on or conviction entered on this indictment. The charge to which you have pleaded guilty is a Class 2 offence. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life under s.34(1)(c)(2). I am required to hand you certain documentation which notifies you of your reporting obligations and I will do so now even though you've previously received this documentation. I will ask you to sign and acknowledge that you've received this documentation please, just check that it's all there. Are there any other matters counsel?
106 MR BARRATT: No Your Honour.
107 HIS HONOUR: No, all right.
108 MS HOGARTH: No Your Honour.
109 HIS HONOUR: Thank you Mr Finnin, if you could accompany the Corrections Officers please. All right, thank you please adjourn the court.
- - -
0
7
0