Director of Public Prosecutions v Fowler (a pseudonym)
[2018] VCC 1275
•16 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL FOWLER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 August 2018 |
DATE OF SENTENCE: | 16 August 2018 |
CASE MAY BE CITED AS: | DPP v Fowler (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1275 |
REASONS FOR SENTENCE
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Subject: Carriage service to solicit child pornography; carriage service to transmit indecent communications
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Community corrections order - 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Brown | |
For the Accused | Mr R. Edney (Plea) Mr A. Turner (Sentence) |
HIS HONOUR:
1Paul Fowler,[1] you have pleaded guilty to two Federal charges. The first charge is that over a period of more than four and a half years between May 2013 and January 2018 you used a carriage service to solicit child pornography. The maximum penalty for this offence is imprisonment for fifteen (15) years.
[1] A pseudonym.
2The second charge is that over the same period you used a carriage service to transmit indecent communications. The maximum penalty for this offence is imprisonment for seven (7) years.
3The circumstances of your offending are contained in a Prosecution Opening in writing. That document was tendered in open court and marked as an exhibit on the plea, and it was read in open court by the learned prosecutor Ms Brown. Your counsel Mr Edney accepted that the Prosecution Opening was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. In those circumstances it is not necessary that I again set out what is contained in the summary except in an abbreviated way. These sentencing remarks should, however, be read with what is contained in the Prosecution Opening.
4You were born in March 1981. You are currently 37 years of age and you were aged between 32 and 36 at the time of offending. Your offending was brought to the attention of AFP by an international police agency who had detected online offending by you in which you exchanged messages and videos on line with young girls that were sexually explicit and salacious in content. That offending was said to have occurred between 28th and 30th May 2016. A search warrant was later executed at your home and analysis carried out of computers and other electronic devices and an iPhone used by you showed you used social media websites to communicate with females aged 10 to 14 years old. The nature of your chats with young girls and the content of images exchanged with them is set out in the summary and it is not necessary that I repeat it here.
5You were interviewed by police in April 2013 for using a carriage service to transmit indecent communications. You were later convicted of this offence and possessing child pornography in the Heidelberg Magistrates’ Court on the 30th January 2014 and placed on a Community Corrections Order for a period of 18 months. There were conditions imposed for unpaid community work and for treatment and rehabilitation. That prior matter was admitted by you on your plea.
6A search warrant was executed at your home on 25th January 2018 and you were arrested. When interviewed at that time you told the police that your offending in these charges probably commenced about a month after you were interviewed by police in April 2013. You told the police there were times when you had tried to stop and you explained to interviewing police precisely what you had done.
7This is very important in this case. Without your admissions the police would not have had precise evidence as to the period of time that you had offended or the exact nature of your offending. You have been convicted largely upon your own admissions and you have been of great assistance to the police. From what you have told police I have no doubt you have full insight into your offending and the seriousness of it. I have no doubt you are remorseful. I accept that it was never your intention to actually meet any of the young girls involved. It was only to re-enact or copy the actions which had subjected you to sexual abuse as a child. Further, unlike many other cases which are often before the courts, you did not use the carriage service to transmit images of young females that you had come by to others with like interest. Indeed there is no evidence that you had contact via the internet with others of like mind.
8Nevertheless, your offending is very serious. It involves sexual offending against children, and it occurred for some time whilst you were the subject of a Community Corrections order for 18 months from the 30th January 2014.
9In sentencing for a Federal offence I must sentence you in accordance with Part 1B of the Crimes Act 1914 (Cth) (“the Act”). In determining the appropriate sentence for a Federal offence I must have regard to the relevant matters contained in s. 16A(2) of the Act. In passing sentence I have had regard to all of those relevant matters.
10In cases such as this the sentence must properly apply the sentencing principle of deterrence, here both general and specific, and the sentence must appropriately denounce your offending and I must have proper regard for your prospects of rehabilitation.
11You have pleaded guilty to the charges at the earliest opportunity and that is to your credit. By your pleas of guilty you have saved the time and costs of a trial and you have facilitated the course of justice and you have accepted responsibility for your offending. For that you are entitled to a reduction in the sentence that will be imposed and this will be reflected in the sentence that I will shortly pass. I also treat your guilty plea as evidence of genuine remorse on your part for this offending.
12Mr Edney filed with the court a helpful outline of submissions which I marked as an exhibit on the plea. He submitted that notwithstanding that your offending is serious, involving as it did offending against children and whilst you were subjected in part to a Community Corrections Order, that I should not impose a custodial sentence in this case.
13Ms Brown submitted that the sentence must involve a component of immediate custody. She too filed written submissions which I also marked as an exhibit on the plea.
14Although it was not suggested as a sentencing option, I have decided that the making of a further Community Corrections Order with appropriate conditions will achieve all of the purposes of sentencing in this case. In my view this case is exceptional for a number of reasons. Had it not been so, I agree the appropriate sentence is a term of imprisonment and the fixing of a non-parole period.
15I turn to the factors that make this case exceptional. The evidentiary basis for the period of time covered by the charges is solely based upon what you told the police in an effort to assist and get off your chest the burden of what you had been doing.
16There is documentary evidence that you were the subject of sexual abuse when aged five (5). You were abused by a young female teenage babysitter. Your offending re-enacts the abuse which you suffered as a child. It was a copying strategy. Your sexual abuse first came to light at primary school where you were bullied in the context of engaging in sexualised behaviour.
17I received into evidence a psychological report from Pamela Matthews and she gave evidence before me. In her report she says, inter alia:
“Developmentally Mr [Fowler] reports he was sexually abused as a young child by an adolescent young woman. Subsequently he developed sexualised behaviours at school which contributed in part to his being bullied at school. He reports retreat to the memory of his sexual abuse became a coping strategy which he used over a lifetime. In the context of a relationship breakdown in 2014 Mr [Fowler’s] retreat into sexual fantasy transformed with role reversal into the role of the perpetrator with pre-pubertal and post-pubertal girls on online social media platforms. In the writer’s view there is a clear connection between Mr [Fowler’s] offence behaviour and residual trauma from his own abuse as a five year old. Further, victimisation by his father and peers at school in the writer’s opinion has been damaging of his self-esteem and exacerbated his reliance on retreat into sexual fantasy as means of coping, particularly at times of psychosocial stress, hence there is also in the writer’s opinion a direct connection between this other aspect of his trauma history and his offence behaviour.”
18In my view this evidence goes a long way to explaining how it came about that you offended in this way and further reduces somewhat your moral culpability for the offending. I accept the evidence and report of Ms Matthews.
19When interviewed at questions and answers 47 to 53 you explained to the police what you did and why you did it. I will not repeat it here. I have read the entire record of interview. It is replete with expressions of remorse. You accepted full responsibility for the offending. It is clear when one reads the Record of Interview that you were endeavouring to unburden yourself with what had obviously been concerning you. Because of your full and frank disclosure the period of offending has covered a period of nearly five years whereas the police only had evidence without your admissions to a period of a couple of days. Ms Mathews gave evidence that now that you have disclosed everything to the police, this disclosure has enabled you to work better with your treating psychologist Peter Handley.
20Following your arrest on these charges you have sought treatment. I received into evidence a report from treating psychologist Peter Hanley with whom you have participated in 13 sessions of a Sexual Offender Treatment program. You have made good progress which indicates that the treatment is likely to reduce the risk of recidivism, but your risk of re-offending remains high. Mr Hanley said, inter alia,:
"Whilst his progress in treatment is promising, Mr [Fowler] remains an emotionally and interpersonally an immature man with significant psychosexual problems that require further treatment. His risk of recidivism is certainly not low, and there is a clear need for further sex offender treatment in order to reduce his risk to the community. Mr [Fowler] has committed to ongoing treatment with me, and I remain willing and available to provide further treatment.”
21Ms Mathews gave evidence that confirms this opinion. She said because you had been experiencing sexual fantasy for so long, whilst some progress in treatment had been made, it is positive but nevertheless guarded progress. Because of the length of time you have been engaging in this conduct she said it would be hard to turn around and that you would have to remain strong if this is to be achieved. Ms Mathews thought you would need a therapeutic relationship with a psychologist for the rest of your life. That is because whilst you feel guilty and ashamed of your conduct you cannot be helped without proper assistance.
22You were one of three children to your parents. Your relationship with your father is described as poor and abusive. You have a solid and supportive relationship with your mother and the support of your two sisters. Your parents are separated. You have a partner with whom you share two young children. The impact of this offending has strained the relationship with your partner. You are currently living apart but near each other. Your partner was in court to support you. Since this offending the Department of Health and Human Services has intervened. You can only see your children in the presence of your partner. You have a son from a previous relationship whom you have not seen since you were charged with this offending.
23You were bullied at school and this is documented. You completed year 12 with better than average marks. You commenced studying IT at a TAFE but did not complete the course.
24I received into evidence a report from your general practitioner whom you first consulted in January 2017. According to that doctor's record you had been seeing a psychologist since 2013 for anxiety and depression. Your general practitioner has prescribed you with Lexapro for depression
25You have worked in a variety of occupations. You now have your own on-line business.. You also developed a business recording proceedings in the Industrial Relations Commission but that business ceased upon the breakdown of a previous relationship. You have had various other jobs since.
26I have formed the strong view that the purposes of sentencing in this case can best be met with the making of a Community Corrections Order with conviction commencing this day for a period of three years with conditions. Such a disposition is available pursuant to s. 20AB of the Act. There will be a punitive component that you undertake 200 hours of unpaid community work and there will be conditions that you undergo programs and treatment for your mental health and programs to prevent re-offending. There will be a condition that you are not permitted to own a mobile phone and that you continue to attend upon Peter Handley psychologist and obey his lawful instructions and directions. The will also be a condition for judicial monitoring every 6 months.
27For the purposes of s. 6AAA of the Sentencing Act 1991 I state that had you not pleaded guilty to these charges I would have imposed a sentence of 4 years imprisonment and I would have fixed a non-parole period of 3 years imprisonment.
28The Director of Public Prosecutions has applied under the Sexual Offenders Registration Act 2004 that you be registered under the provisions of that Act. You are a registrable offender because you have now been convicted of four (4) Class 2 offences within clause 28A(i) of the Second Schedule to the Sexual Offenders Registration Act 2004. Section 6(1) of that Act provides that upon sentencing you for these offences you are a registrable offender. Section 34(1)(c)(iii) of the same Act requires that upon conviction for four class 2 offences you are a registrable offender for life. Henceforth you will have to comply with the provisions of that Act which are strict for the rest of your life and I suggest you take advice as to your obligations under the Act because a breach of them can of itself lead to further offending.
29Are there any questions arising out of that?
30MS BROWN: No, Your Honour.
31MR TURNER: No, Your Honour.
32HIS HONOUR: Would you come out of the dock please, Mr Fowler, and take a seat behind your counsel? Take a seat behind your counsel, if you would. Now, look, you need to understand this that you have heard my reasons for imposing a community corrections order.
33OFFENDER: Yes.
34HIS HONOUR: You have been on a community corrections order before. This one is a bit more - longer and it is stricter. Do you understand? You will have to comply with it in every way.
35OFFENDER: Yes, Your Honour.
36HIS HONOUR: Most importantly, you must not reoffend in this way or indeed in any way. If you commit any offence punishable by a term of imprisonment, you will be brought back and I will deal with you. Do you understand?
37OFFENDER: Yes, I understand.
38HIS HONOUR: And I will have the power to resentence you on these matters.
39OFFENDER: Yes.
40HIS HONOUR: Now, you have heard what I have said. I am giving you the opportunity. Are you prepared to enter into a community corrections order with those conditions?
41OFFENDER: Yes, Your Honour.
42HIS HONOUR: Very well. Would you explain it to your client please, Mr Turner?
43MR TURNER: Yes, Your Honour.
44TIPSTAFF: Thank you. Do you confirm that this is your signatures, Mr Fowler?
45OFFENDER: Yes, they are.
46HIS HONOUR: Very well. I have signed that order. I thank both counsel for your assistance with this matter. On the rising of the court, you are free to leave, Mr Fowler. I will just stand down shortly.
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