Director of Public Prosecutions v Garay
[2013] VCC 792
•2 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00623
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK GARAY |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 May 2013 | |
CASE MAY BE CITED AS: | DPP v. Garay | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 792 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Bleazby | |
| For the Accused | Mr P. Jansen |
HIS HONOUR:
1 Patrick Garay, you have pleaded guilty to nine charges of producing child pornography, Charges 1, 2, 3, 4, 6, 8, 10, 11 and 13; four charges of indecent act with a child under 16, Charges 5, 7, 9 and 12; and one charge of possession of child pornography, Charge 14. The maximum penalty for production of child pornography and indecent act with a child under 16 is ten years' imprisonment. The maximum penalty for possession of child pornography is five years' imprisonment.
2 The prosecution made application for the taking of a forensic sample from you and for the disposal of certain items. The making of those orders was not opposed.
3 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. Charges 1 to 12 all concern a child, whom I will call Lisa for the purposes of these reasons for sentence. You were a family friend of Lisa's parents. You and Lisa's parents both come from South America. You had first met Lisa's mother when you were a child in South America. Later you were reunited through your community in Melbourne. You regularly visited Lisa's family before and after she was born. In later years you would babysit Lisa. You would also take her on outings in your courier van. Lisa was born in 2001 and at the time of the offending involving her she was between four and nine years old. You were between 31 and 36 years old.
4 In about May 2006, Lisa was in your care. You used a digital camera to take 34 images of Lisa. Certain of those images depict Lisa's genital area and buttocks with her clothing off. Other pictures show her down on her hands and knees with you pulling down her underwear to expose her buttocks (Charge 1).
5 On 11 June 2007, you were again caring for Lisa. You used a digital camera to take 25 pictures of her. She was in her underwear. The images show her partially naked and posing in a sexually suggestive manner. Again there are a number of images depicting her naked genital area and buttocks, there are also pictures of her on her hands and knees on the floor (Charge 2).
6 Between November 2009 and March 2010, you took 11 photographs of Lisa in your van. Lisa was in sexually suggestive poses and there were a number of images depicting her naked genital area and buttocks (Charge 3).
7 In about January 2010, you took 36 photographs of Lisa, inside and outside your van. In some images she was dressed, while in others she was partially naked. You told her to pose in a sexually suggestive manner. A number of images again depict her naked genital area and buttocks. You took photographs of her down on her hands and knees in the van (Charge 4).
8 On the same occasion, during the taking of some of those photographs, you pulled Lisa's underwear into the middle of her buttocks and also held her underwear to the side of her bottom. Those actions are the subject matter of Charge 5, of indecent act with a child under 16.
9 In about April 2010, you were looking after Lisa at your unit. You took 32 pictures of Lisa on that occasion. You told her to pose in a sexually suggestive manner. You exposed her anal and genital regions and took a number of close up photographs (Charge 6).
10 On the same occasion, for the purposes of taking photographs, you held Lisa's underwear to one side of her buttocks and took off her underwear to expose her anal and genital regions. Those actions are the subject matter of Charge 7, of indecent act with a child under 16.
11 In about August 2010, at your unit, you took 46 images of Lisa in a similar way to the previous occasions. Those images include close up photographs of her genital and anal regions (Charge 8).
12 In several pictures you are depicted with your penis near and between Lisa's buttocks and close to her anus and vagina while she was wearing underwear. Those actions are the subject matter of Charge 9, of indecent act with a child under 16.
13 On 5 December 2010, in the van, you took 11 pictures of Lisa posed in a sexually suggestive manner. In some images her underwear and buttocks are exposed (Charge 10).
14 On 15 December 2010, you invited Lisa to your unit. She went to your unit. You took 26 pictures of Lisa, including close ups of her genital area, buttocks and anus. You took pictures of her on her hands and knees on your bed and on your bedroom floor (Charge 11).
15 On that occasion you took photographs of your penis between her naked buttocks and close to her anus and vagina. It is those actions which are the subject matter of Charge 12, of indecent act with a child under 16.
16 On 18 March 2011, you were at your unit looking after an unidentified girl between four and seven years old. When the child was asleep, you took photographs of her exposed buttock and close ups of her genitals and anus as you held her buttocks apart with your hand (Charge 13).
17 In about mid-2011, you asked someone you had met to try and repair your laptop computer. That person tried to fix the computer. In the process of doing that a folder was discovered containing images of predominantly female children in sexually suggestive poses and engaged in sexual intercourse and various sexual acts with adults and other children. On 27 July 2011, the person who had tried to fix your laptop took it to the police and told the police about the images.
18 The police executed a search warrant at your unit on 28 July 2011 and seized a number of items. You were arrested and took part in an interview. You admitted that the laptop and other equipment seized was yours. You admitted searching the internet for pornography, including child pornography. You said you did not know that images of child pornography were saved onto your computer. The material recovered from the two laptops, two memory sticks and your mobile phone was analysed.
19 The summary of prosecution opening sets out the number of images and movies that were found. There were approximately 11,000 images. There were 13 movies. The majority of the images and all the movies had been downloaded from various internet sites and had been saved onto specific folders. That material is the subject matter of Charge 14.
20 The children depicted in the images and footage found on your equipment are predominantly female and range in age from about three months to 17 years old. The material is across a range of categories of seriousness with the vast bulk of the images being in Category 1, which is the least offensive type of material. The prosecution summary says that the material categorised as within Categories 4, 5 and 6 is particularly graphic, sadistic and disturbing. Of the approximately 11,000 images there were 294 images and six movies in Category 4, 47 images in Category 5 and 43 images in Category 6. During the analysis police recognised recurring images of Lisa and the other child. On 26 October 2011, another search warrant was executed at your unit. You were again interviewed and admitted that you knew Lisa.
21 A victim impact statement from Lisa was tendered as Exhibit C. She describes feeling frustrated, scared and angry. She found it difficult to tell her parents about what had happened. She also indicates that she has felt sad about the situation. She says that she has been helped a lot by a counsellor. It appears that fortunately Lisa is a strong and resilient person. That is demonstrated in what she wishes to tell the court. She says: "I also think that you should know that Patrick is the strangest, weirdest, meanest and most idiotic person and that I am sorry he took that path."
22 A summary of the classifications of pornography, which refers to the classifications used in this case, was tendered as Exhibit B. Category 4 materials include materials depicting penetrative sexual activity between children, or between a child and children or adults. Category 5 includes sadism, bestiality, or humiliation or other forms of child abuse. Category 6 includes anime, cartoons, comics and drawings, depicting children engaged in sexual poses or activity, illegal child exploitation material is categorised in six categories. As I have said, Category 1 is the least offensive.
23
In sentencing you, I have taken into account your personal circumstances which were set out by your counsel and are also described in the report of
Ms Carla Lechner, clinical and forensic psychologist, dated 30 November 2012, which was tendered as Exhibit 2.
24 You are now aged 38. You were adopted as a baby. You grew up in a middle class area in a South American country. During your childhood that country was involved in a civil war and the general environment was very unstable and insecure. In 1987 your family came to Australia. Your family did not settle well in Australia and in 1991 returned to South America. You had had difficulties at school in Australia because of language difficulties and this move further disrupted your education. The economic circumstances in your home country were very difficult, so in 1993 your family returned to Australia. You completed your VCE and began work as a car detailer. You spent some time in the United States.
25 About two years before this offending started, you began your own business, working as a contractor for Australia Post. Your business was successful and you employed other drivers and had five or six trucks. In 2007, you began using amphetamines in order to maintain long work hours. I note that at times you had used other drugs, in what might be described as recreational use.
26 You were in a relationship for a number of years with a woman whom you married in 2008. That relationship ended shortly after your marriage. You have told your counsel that that was when the offending started. You were taking drugs and started looking at pornography as a mode of looking for excitement. Your relationship broke up and your drug use got worse. You got into debt and in 2009 the business was closed. You then began work as a delivery contractor with one truck. You finished that employment in October 2012.
27 Your father and a friend were in court to support you. Your mother and sister were outside court. Your mother is not aware of the details of your offending.
28 Your counsel said that you link your offending with your drug use. Your counsel said you accept that what you did was wrong, but you struggle to understand why you offended in this way.
29 Ms Lechner says that you were open and honest about your offending, but that the protracted nature of your behaviour is concerning. She says you have limited insight in relation to the impact of your offending on the victims. She considers you would benefit from further assessment by the sexual offenders treatment program. She says that you currently exhibit a range of symptoms of mild/moderate level of depression and that your history suggests that you have suffered periods of depression associated with situational stress and a sense of emotional neglect or abandonment.
30 Ms Lechner says you express regret and shame for your offending. You now regard your behaviour as abhorrent and disgusting. Ms Lechner says that you show positive signs for rehabilitation, particularly your insight into the wrongful nature of your behaviour, your significantly reduced drug use and your honesty about your offending. She says that the protracted nature of your actions and your limited capacity for victim empathy is of concern. She says you are confused about your own reported experiences of sexual abuse as a child and how this may relate to the offending. She suggests that these are issues that require further exploration.
31 A report from Ms Lyn Chapman, clinical social worker, psychotherapist, dated 19 February 2013 was tendered as Exhibit 3. Your GP referred you to Ms Chapman in 2009. She says she saw you for 12 sessions and then saw you again in January 2012. Ms Chapman says that in 2009 you were suffering from anxiety and depression. She assessed your problems as being more complex and include grief issues resulting from the breakdown of your marriage. Ms Chapman says that you were somewhat obsessive and had unrealistic fantasies in relation to reuniting with your wife. She says in that context you engaged in destructive behaviour such as drug use and gambling. Her assessment was that you lacked insight and perhaps needed medication for depression. Ms Chapman says that in February 2012 your mental state had deteriorated and you were very confused and remorseful.
32 In sentencing submissions, your counsel conceded the seriousness of your offending and that the only appropriate sentence would be a sentence of imprisonment. While conceding that your offences were serious, your counsel submitted that there was an absence of aggravating features such as physical harm or dissemination of material. Your counsel also submitted that the escalation in your offending was minimal. Your counsel argued that your state of mind should be taken into account. You said to counsel that you had started browsing and that your activities became like a game. You said that you felt like you were in a trance. Your counsel suggested that your state of mind was demonstrated by your taking your computer with child pornography on it to someone whom you hardly knew.
33 In mitigation of sentence, your counsel relied on your previous good character and history of hard work. He also relied on your plea of guilty. The committal proceeded by way of a straight hand-up brief and the plea was entered prior to trial. Your counsel also relied on your expressions of remorse and shame and willingness to try to understand the reasons for your offending. Your counsel also asked that your co-operation in terms of the admissions you made and in giving the name of Lisa to the police ought to be taken into account in sentencing you.
34 Your counsel conceded that general deterrence would be a significant sentencing factor as would the protection of the community. Your counsel submitted that less weight ought to be given to specific deterrence, given that you had no prior or subsequent offending and had positive prospects for rehabilitation. He also asked that it be taken into account, in this context, that this would be your first time in court and first time in prison. Your counsel submitted that the appropriate disposition would be either imprisonment, or imprisonment combined with a Community Correction Order.
35 In relation to any non-parole period that might be set, your counsel submitted that I should take into account that you had already suffered considerable punishment and that you had led a productive life up to this offending. He said you have family support and a shorter non-parole period than otherwise could be considered.
36 The prosecutor, in sentencing submissions, submitted that it should be taken into account that your offending in relation to Lisa involved a considerable breach of trust. The prosecutor suggested that you have limited insight and appeared partly to be relying on explanations for the offending as an excuse. The prosecutor also submitted that it should be taken into account that the offending occurred over a period of time and on a number of occasions. The prosecutor's instructions were that the appropriate sentence would be a head sentence of four to five years, which a non-parole period of two to three and half years.
37 Patrick Garay, your offending is clearly very serious. Your behaviour towards the young child, Lisa, was truly disgusting. You were a trusted family friend and relied upon to take care of Lisa. You were trusted by her parents to take care of her. You were much older than her. Over a period of years you did exactly the opposite. You used this very young child to gratify your own sexual interests. You repeatedly engaged in similar behaviour over a number of years. As Lisa grew older, your behaviour escalated in a way that I regard as more than minimal. You touched her in indecent ways and exposed your penis to her and put it near her. It is no wonder that Lisa describes you in the terms that she does. The things that you did to Lisa were a terrible breach of the trust that she and her parents placed in you. You then took advantage of another child while she was asleep, and in your care presumably, to take photographs of her of an indecent nature. Again you used a young child to gratify your own sexual urges.
38 You had also clearly been viewing child pornography involving young girls and had downloaded considerable material. The limited amount of material I viewed showed a range of seriousness and offensiveness of this material consistent with the descriptions involved in the categorisation of the material. I find it extremely difficult to understand how any person could look at this material beyond a first initial look. Some of the material is highly offensive and shows very significant abuse of young children. In all, except Category 6, clearly children were being used and abused for the purposes of gratification of the sexual desires of adults that were involved in those activities.
39 From what you told Ms Lechner, it appears that having viewed various amounts of child pornography, you decided that you wanted your own set of images. You speak of the offending occurring in the context of you using ice. The material in the reports does not clearly explain how the use of ice may have affected your judgment or reasoning adversely, apart from Ms Lechner saying in the context of viewing pornography that ice use is often associated with sexual disinhibition and that your offending occurred in that context. Accepting that the use of ice may have had the effect of some degree of sexual disinhibition, given your repeated behaviour and the nature of your offending, I consider that the background of drug use provides some explanation of your offending, but does not reduce your moral culpability.
40 Your behaviour towards Lisa demonstrates a degree of obsessiveness and fantasising consistent with the type of thinking described by Ms Chapman in relation to your prospects of rehabilitation with your wife. It appears that you were engaged in the offending in respect of Lisa in a situation where you were trusted to take care of Lisa by her parents and presumably did not appear to be affected by illegal drugs. Much of the offending appears to have been deliberately planned and organised.
41 Your behaviour in relation to Lisa and the unknown child and the material you possessed suggests that you had a sexual interest in pre-pubertal girls and were prepared to act on that interest. I note that Ms Lechner says that your sexual behaviour is consistent with paedophilia of a non exclusive type, although she says whether this is solely attributable to the disinhibition often associated with ice remains unclear. She says you now report no such interest. I consider it highly unlikely that you interest was solely attributable to the sexual disinhibition associated with ice use, given the period of time over which you engaged in this offending and the type of offending in which you engaged. It may well be that with your cessation of ice use you are able to control your inclinations to a greater degree.
42 I sentence you on the basis that the diagnosis of paedophilia of a non exclusive type is appropriate. I accept Ms Lechner's conclusion that you ought to be further assessed and that it would be appropriate for you to be assessed by the sexual offenders treatment program. The seriousness of your offending warrants a significant sentence of imprisonment for the purposes of denunciation, punishment, general deterrence, specific deterrence and community protection.
43 I have taken into account in mitigation of sentence that you have no prior or subsequent criminal history and that you have a history of hard work.
44 You are entitled to a considerable discount for your plea of guilty. Your plea of guilty has saved the trauma, expense and inconvenience of a trial. I also accept that it is an expression of remorse. I have taken into account that you made some admissions and gave some, albeit limited, co-operation to the police. I accept that these proceedings and the consequences of you being charged have amounted already to some punishment. I do not accept that the collapse of your business was as a result of that given that it was closed in 2009.
45 It is of concern that you do not appear to be fully accepting your moral responsibility in relation to these matters and appear to attribute at least a partial cause of your offending to your use of drugs. I accept that you are genuinely remorseful and that you are prepared to take part in counselling and treatment programs. You have family support and a history of hard work. You have no prior history of this type of offending. These are positive signs for your rehabilitation. I consider that your prospects for rehabilitation are reasonable. Those prospects will be greatly enhanced if you gain further insight into your own offending and received appropriate treatment.
46 I consider that specific deterrence does need to be given some weight in your sentence. You need to understand that you will be even more severely punished if you engage in this type of behaviour again. I have taken into account that this is your first period of imprisonment and that it may be more difficult for you than a person who has spent considerable prior periods of time in custody.
47 I accept your counsel's submission that there ought to be limited, if any, cumulation in respect of Charges 4 and 5, Charges 6 and 7 and Charges 8 and 9 and Charges 11 and 12. Given that there was a certain overlap between the charges, in view of the activities which took place on each occasion, in effect I have made each of those sentences concurrent with each other.
48 In fixing the individual sentences and the degree of cumulation, I have taken into account each incident, that different victims were involved and that different types of offending was involved. I have applied the principles of totality and proportionality. In considering the application of those principles, I have taken into account that you will be sentenced to a term of imprisonment for Charges 1 and 2 and are to be sentenced as a serious sexual offender in respect of each of Charges 3 to 14 inclusive. Sections 6D, 6E and 6F of the Sentencing Act 1991 apply to these charges. I note that the protection of the community is required to be the paramount sentencing purpose and sentences are to be cumulative unless ordered otherwise. It was not submitted that a disproportionate sentence ought to be imposed for the purpose of community protection and I do not propose to impose a disproportionate sentence for that purpose. I have taken into account your remorse and prospects for rehabilitation in setting the non-parole period.
49 Patrick Garay, could you stand please.
50 Patrick Garay, you are sentenced as follows:
51 Charge 1, you are convicted and sentenced to 12 months' imprisonment.
52 Charge 2, you are convicted and sentenced to 12 months' imprisonment.
53 Charge 3, you are convicted and sentenced to 10 months' imprisonment.
54 Charge 4, you are convicted and sentenced to 12 months' imprisonment.
55 Charge 5, you are convicted and sentenced to 14 months' imprisonment.
56 Charge 6, you are convicted and sentenced to 12 months' imprisonment.
57 Charge 7, you are convicted and sentenced to 14 months' imprisonment.
58 Charge 8, you are convicted and sentenced to 12 months' imprisonment.
59 Charge 9, you are convicted and sentenced to 16 months' imprisonment.
60 Charge 10, you are convicted and sentenced to 10 months' imprisonment.
61 Charge 11, you are convicted and sentenced to 12 months' imprisonment.
62 Charge 12, you are convicted and sentenced to 18 months' imprisonment.
63 Charge 13, you are convicted and sentenced to 12 months' imprisonment.
64 Charge 14, you are convicted and sentenced to 18 months' imprisonment.
65 The sentence on Charge 12 is the base sentence. The 12 months sentence on Charge 4, the 12 months sentence on Charge 6, the 12 months sentence on Charge 8 and the 12 months sentence on Charge 11 are to be served concurrently with each other and concurrently on the sentence on Charge 12. One month of the sentence on Charge 1, one month of the sentence on Charge 2, one month of the sentence on Charge 3, three months of the sentence on Charge 5, three months of the sentence on Charge 7, four months of the sentence on Charge 9, one month of the sentence on Charge 10, four months of the sentence on Charge 13 and six months of the sentence on Charge 14 are to be served cumulatively on each other and on the sentence on Charge 12.
66 The total effective sentence is a period of imprisonment of 42 months. I fix 26 months as the period you are to serve before being eligible for parole.
67 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 60 months with a non-parole period of 42 months.
68 I declare that you have served 71 days by way of pre-sentence detention.
69 As I have said, you are being sentenced in respect of Charges 3 to 14 inclusive as a serious sexual offender. Each of the 14 offences is a Class 2 offence. Pursuant to the Sex Offenders Registration Act 2004, you are treated as being guilty of eight Class 2 offences. Accordingly you will be required to report and comply with other obligations for the period of your life. Shortly you will be given paperwork which explains your obligations to you.
70 I have made the order for disposal sought.
71
I have also made an order for the taking of a forensic sample from you. I have made that order because of the seriousness of your offending, that the order was not opposed and that the granting of the order is in the public interest. I consider the making of the order is justified for those reasons. Mr Garay, I am required to tell you that when the authorities come to take the sample, you are required to co-operate with them. The sample is usually taken by way of a saliva swab from your mouth. I am sure you will co-operate. If you do not
co-operate the authorities are entitled to use reasonable force and to take a blood sample from you.
72 Those are my reasons for sentence.
73 Counsel, have you had an opportunity then to do the addition again? Could you just have a look at that and I am quite happy to repeat it if you need me to repeat something.
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