Director of Public Prosecutions v Garceau (a pseudonym)
[2018] VCC 878
•13 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW GARCEAU (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 April, 11 May 2018 |
| DATE OF SENTENCE: | 13 June 2018 |
| CASE MAY BE CITED AS: | DPP v Garceau (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 878 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – grooming for sexual conduct with child under 16 – procuring a minor for child pornography – using a carriage service to transmit indecent communication to a person under 16 – possession of child pornography – contravention of community correction order – youthful offender – dual diagnosis of ASD and ADHD – moderate risk of reoffending – specific deterrence – delay – totality
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; Younger v The Queen [2017] VSCA 199
Sentence:Total effective sentence of seven months’ imprisonment and two community correction orders with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N Burnett Ms C Duckett | Solicitor for Public Prosecutions |
| For the Accused | Mr T Hoare | Slater & King Lawyers |
HIS HONOUR:
1Andrew Garceau,[1] you have pleaded guilty to four charges on Indictment H10693567, namely one charge of grooming a child under the age of 16 for sexual conduct for which the maximum penalty is ten years’ imprisonment, one charge of procuring a minor for child pornography for which the maximum penalty is ten years’ imprisonment, one charge of using a carriage service to transmit indecent communication to a person under the age of 16 for which the maximum penalty is seven years’ imprisonment, and one charge of possession of child pornography for which the maximum penalty is five years’ imprisonment. The maximum penalties themselves show you how serious such offending is regarded by Parliament.
[1] ‘Andrew Garceau’ is a pseudonym.
2You also have admitted contravening a community correction order of 18 months’ duration that was imposed on 10 November 2015, dealt with by this court on 18 April 2018 when that order was confirmed with no additional penalty.
3Further, you have admitted to contravening a community correction order of 18 months' duration imposed on 20 June 2016 for a charge of sexual penetration of a child under the age of 16. You fall to be dealt with for this contravention today. The circumstances of that offending are set out below.
4I turn now to the circumstances of the offending.
5The index offending occurred between 26 June and 10 November 2015 at which time you were aged 18 and 19. You were a past student at a local high school, as was the victim, whom I will refer to as “V”. You and V became friends on Facebook, and V believed that you were a current student and classmate. In the middle of 2015, V moved interstate. Thereafter, in the virtual world, the offending took place.
6Charge 1, grooming a child under 16 for sexual conduct reflects your messaging with V, whom you knew to be 12 or 13. You initially lied about your age, indicating that you were 13, but admitted in a later SMS message your real age. In the communications between you and V, you graphically described your sexual desire and what you would do with V should she come and meet you. You persisted over time in attempting to persuade V to come to see you in person for the purposes of sex and, failing that, to engage in phone sex with you.
7Charge 2 relates to your request of V that she send you photographs of her vagina, nipples and breasts, "wet pussy", every time she "comes" and in return you would send a photograph of your "wet dick" when you "come". In response to this barrage of requests, V did send you some photographs, an act which she later regretted and of which regret she told you. You pressured her into sending naked photographs of herself and continually harassed her to have phone sex with you.
8Charge 3 relates to photographs you sent V of your naked penis whilst masturbating, videos of sex toys and the message that you would "put the purple one in your pussy as I'm fucking you up the ass."
9Charge 4 is a rolled up charge and relates to the analysis of your phone that was conducted after it was seized by police. The child pornography consisted of photographs V sent to you, wherein she was clad with a blanket covering her naked chest, the blanket is then pulled down exposing her breasts or nipple. According to the classification guidelines of the Australian National Victim Image Library, these images were category 1 child exploitation material; that is the lowest category that is available. Nonetheless, it is and remains child pornography.
10V was identified via the interrogation of your phone and she was interviewed. In that interview, she confirmed talking with you in relation to her age and she confirmed that you had requested photographs of her breasts, her vagina and her "wet fingers". She confirmed sending naked pictures of herself to you.
11You were interviewed in relation to these matters on 18 December 2015 and in that interview you made "no comment" as, of course, was your right.
12I now to turn to your criminal history.
13In late 2012 in the Children's Court, at the age of 16, you were dealt with for one charge of committing an indecent act with a child under 16. The child in question was your then five-year-old sister who was observed by your mother to be masturbating you. In respect of this offence you were placed on probation.
14On 10 November 2015 in the County Court, as indicated above, proceedings were brought by the Commonwealth Director of Public Prosecutions for the offence of using a carriage service to transmit indecent communication to a child under 16. You were placed on a community correction order for a period of 18 months. The offending consisted in five messages of one line each contained within one short SMS exchange. The victim of this offending, whom I will call “F”, was aged 14 and you were then aged 18. You and F were "seeing each other in a relationship." When questioned about the offending, you stated that you and F were in a relationship but you knew it was wrong to have sex with someone so young and you were determined to wait until F was old enough. In those responses, you were not being truthful.
15A report prepared for the court at that time by Ms Pamela Matthews, forensic psychologist, to whom you had lied, stated that the chat and “sexting” involved were consistent with both you and F's normal stage of adolescent development. She was of the opinion that the offending was not deviant and it was not predatory in nature, nor would it meet the clinical descriptor of "grooming."
16When you attended at the County Court for the proceedings relating to this initial offending against F in November 2015, your mobile phone was seized. The interrogation of that mobile phone revealed the index offences against V on Indictment H10693567. It is not clear to me why it took so long for you to be charged in relation to them.
17On 20 June 2016 in the County Court, you were dealt with for two charges of sexual penetration of a child under 16, and one charge of contravening a family violence intervention order. The victim in this matter was F, then aged 15; F being the very same child of whom you had said, when the earlier matter was being investigated, that you intended to wait until she was of age before having sex with her. You were sentenced to a term of imprisonment of 184 days, which was time served, and placed upon an 18 month community correction order with rehabilitative conditions.
18Between 28 September 2016 and 7 January 2017, you committed offences including possession of cannabis, possession of a controlled weapon, failure to comply with reporting conditions, engaging in child related employment, further failure to comply with reporting conditions, theft, tampering with a motor vehicle, committing an indictable offence whilst on bail, contravening a family violence order, theft, attempted theft for a motor vehicle, criminal damage, committing an indictable offence whilst on bail and possession of a prohibited weapon.
19These offences led to the separate contravention proceedings commenced by the Commonwealth (CR-15-01428) and the state (CR-16-00582) in relation to the community correction orders that commenced on 10 November 2015 and 20 June 2016 respectively.
20I note that in May 2017 at the Magistrates' Court, you were dealt with for the further offending between 28 September 2016 and 7 January 2017, and you were sentenced to a further 18 month community correction order with a condition of 120 hours of unpaid community work. You were also recommended for individual treatment of moderate to high intensity with a psychologist knowledgeable in the field of sexual reoffending and, if possible, knowledgeable in autism spectrum disorders. It was during the currency of that order that you began working with Colleen Crutchfield, psychologist.
21In summary, you have been put on three separate community correction orders, imposed in November 2015, June 2016 and May 2017. I have already finalised the contravention proceedings in relation to the community correction order made in November 2015 (CR-15-01428). The contravention proceedings in relation to the community correction order made in June 2016 are to be dealt with today (CR-16-00582). There are no contravention proceedings before me in relation to the community correction order made in May 2017.
22My decision to confirm the original community correction order and make no further order on the contravention proceedings brought by the Commonwealth Director of Public Prosecutions in relation to the community correction order made on 10 November 2015 (CR-15-01428) was informed, in part, by my assessment of the objective gravity of that original offending, your then circumstances, and the fact that you had already been dealt with for the contravention offences although not, of course, for the original offending. I did not make an order on the contravention offence itself having regard to my assessment of the objective gravity of the offending, and to the fact that you had been dealt with by means of another community correction order in respect of all of the offending giving rise to the contravention.
23Between January 2017 and October 2017, you were charged with no fewer than 26 breaches of your obligations under the Sex Offenders Registration Act 2004, and those breaches were by way of becoming Facebook friends with a number of young girls. There were nine charges of breaching your Sex Offender Registration Act 2004 obligations by using social media accounts without reporting your username, and one charge of sending a pornographic image to your 15 year old male cousin.
24You were arrested and charged in relation to these offences at the beginning of November 2017, were bailed with strict conditions, including not to use the internet, to abide by a curfew, reporting conditions, to comply with your community correction order, and to reside at your home address.
25To complete your chronology, in December 2017 you were involved in a single car accident, which led to a charge of careless driving.
26On 24 January 2018 you were remanded in custody due to allegations that you had been using the internet and Facebook with an undisclosed username. In relation to that matter, you have been refused bail and have been in custody since. That matter still awaits resolution.
27Thus it can be seen that the fresh offending captured by Indictment H10693567 in fact dates back nearly three years. The only prior criminal matter that you have is a matter that was dealt with in the Children's Court in 2012. However, when I come to consider your prospects for rehabilitation, your response to supervision is, in my view, highly significant and it presents a very poor prognosis indeed. You have been incapable of keeping off social media. You have been incapable of keeping to your obligations under the Sex Offenders Registration Act 2004. You also continue, it seems, to have an interest in pornography, which interest you are keen to share.
28I turn now to your personal circumstances.
29You were born in 1996, you are now aged 21 and you were between the ages of 18 and 19 at the time of the offending. You fall to be sentenced as a youthful offender in accordance with settled principles.
30You grew up in Victoria. Your mother and your birth father separated prior to your birth and your mother asked your father to stay away from you due to his drug addiction. Despite this, I am told he still had contact with you. Your mother re-partnered when you were five and you had a very troubled relationship with your stepfather. You lived with your grandmother for a long period of time until in 2012 you were permitted by the Department of Health and Human Services to live with your mother and your younger siblings. After your court appearance in 2012 you returned to live with your grandmother whilst she underwent chemotherapy.
31You attended local schools. You demonstrated behavioural difficulties due to boredom and you described yourself as the class clown. You reported that you felt socially awkward during your primary school years, that you did not fit in, and this led to you being bullied, teased and excluded. At your high school you continued to experience social difficulties. You preferred your own company. Asked to leave school half way through Year 11, you completed Year 11 and Year 12 at TAFE; however, you did not pass, due to your lack of focus arising out of your concerns for your grandmother's illness and her ongoing treatment.
32Exhibit D on the plea was a Community Corrections Contravention Report dated 30 June 2017 authored by Ms Adams, your case manager. She described that during your engagement, you presented with limited insight into your offending. Of particular concern is that during an appointment in early July 2016, when you were challenged in relation to your consistent use of your mobile phone, you declared that you would "happily walk down the street naked and wouldn't have a care in the world" and you further stated that you really did not care and you liked taking pictures of your penis. You reported that you have a high sex drive and you found it difficult to find females who could "handle" you. You appear to enjoy bragging regarding the girth of your genitals and your desire for sexual relationships, and you appear to use this as a front to avoid meaningful conversations. You have continued to place yourself in situations which put you at risk of breaching your obligations under the Sex Offenders Registration Act 2004 and your current disposition within the community. Ms Adams concluded that it would appear that "Mr Garceau continues to minimise the severity of his actions and lacks the skills to make appropriate risk management strategies."
33I was assisted by a report from Pamela Matthews, forensic psychologist, Exhibit M on the plea, and also by the oral evidence given by her on 11 May 2018. I was also provided with a report from Colleen Crutchfield, clinical and forensic psychologist who assessed you in 2012 and later began to treat you and prepared a report, Exhibit K on the plea dated 16 November 2017.
Ms Crutchfield also gave evidence in front of me on 11 May 2018.34The combination of the written and the oral evidence of Ms Matthews and Ms Crutchfield makes clear that you have quite significant developmental issues. Ms Matthews reports your presentation with autism spectrum disorder (ASD), a developmental disorder that impacts upon your social understanding, your interpersonal reactions with others, your ability to understand social cues and mores, and your ability to read social situations.
35In addition to being on the spectrum, you also have a long-standing diagnosis of attention deficit hyperactivity disorder (ADHD). This developmental disorder leads you to be impulsive and present with a high activity level. Put simply, you cannot sit still and you are literally on the go all the time. At age 13 you presented with a double depressive disorder, ADHD, severe oppositional defiant disorder and with a conduct disorder. You were on medication for these disorders for five years until you ceased the medication, at the age of 18, due to its impact upon your ability to sleep. There is no doubt, Mr Garceau, that you have significant vulnerabilities and that they present significant challenges for you in the future.
36Your local child health group, ASD Assessment Service, reported in May 2014 that you "present with dual symptoms of attachment difficulties and Asperger's disorder. In relation to symptoms, Mr Garceau struggles with most of the difficulties found in both population groups of complex trauma and ASD. They primarily relate to social difficulties, emotional meltdowns and chronic or acute anxiety. He struggles to apply one set of skill or rules to new situations which are similar, so each situation can often be a new experience and a challenge to him. He is arrogant about both his relational intellectual abilities, which can create aloofness and be further isolating, as well as helping to believe he does not need to learn or participate in learning."
37I understand there were significant attachment difficulties in your early childhood which, no doubt, in my view, contributed to your developmental disorder. Ms Crutchfield stated that you are getting greater insight into your situation, you are not being so flippant about it, not having such a negative view about your future. She describes your emotional perspective as being that of a 16 or 17 year old. In terms of your engagement with therapeutic treatment, she stated that when you attend for counselling sessions, your responses are good. She said, "Although he doesn't always turn up, he does let me know." You have shared with Ms Crutchfield your desire to find a decent partner and get a job. Ms Crutchfield observed that whilst in custody, you would be picking up the attitudes and behaviour that may be normal in that world.
38Ms Crutchfield's picture of you was echoed by the opinion of Ms Matthews, who is of the view that your developmental disorders and, in particular, the continued interpersonal difficulties in establishing friendships and psychosexual relationships have played a very significant part in the behaviour that brought you before the courts.
39Ms Matthews stated the need for you to continue treatment with Ms Crutchfield. The possibility of funding through NDIS needs to be explored and you need to be working and back on your medication. She points to your self-report that you are now spending more time with age appropriate young women and in
Ms Matthews' view, your risk of offending in a similar nature was not beyond moderate.40It continued to be her very firm view that from a rehabilitative perspective, it is clinically inappropriate for a vulnerable young man, as developmentally delayed and disabled as you, to continue to be incarcerated in or fully engaged in the adult correctional system.
41Your counsel, Mr Hoare, submitted that youth was a primary consideration in my sentencing discretion. Mr Hoare abandoned any submissions that the principles in the well-known case of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 were engaged, but submitted that I should have regard to the following mitigating factors:
(i) Your plea of guilty;
(ii) Your status as a youthful offender and the sentencing principles that are thus engaged;
(iii) Your dual diagnoses of ASD and ADHD and their manifest symptoms;
(iv) The significant delay between the offending and the eventual disposition;
(v) The consequential loss of an opportunity for concurrency;
(vi) The objective gravity of the index offence, which he submitted could be seen as falling into the lower end of the range;
(vii) The opinion of both Ms Matthews and Ms Crutchfield as to your developmental delays and how you would mature more slowly than others who do not have your developmental disorders;
(viii) The adverse impact of continued and sustained incarceration with adult sex offenders;
(ix) The principle of totality, having regard to the period that you spent in custody;
(x) The principle of just punishment.
42He submitted that the index offending does not warrant a lengthy gaol term and thus, objectively, a community correction order was within range.
43In sentencing you, I must have regard to a range of different factors. I do not see you as an appropriate vehicle for general deterrence, but I do see a need for specific deterrence, that is, I must deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and I should also promote, if at all possible, your rehabilitation. In short, I must try to balance your personal circumstances with the circumstances of your offending.
44There can be little doubt that the index offending reflected a sustained and persistent course of conduct during which you subjected your victim to your persistent and graphic desires, and harassed and bullied her into sending photographs of herself to you for your own sexual gratification.
45Social media platforms provide an opportunity for sexual offending that does not exist in the real world. It provides an opportunity for those determined to prey upon the young, and the courts will do everything they can to protect children from those who go online to hunt them out.
46You are, in my view, exhibiting very worrying tendencies of sexual deviance, such that consideration must be given to protection of the public and, in particular, protection of children. You may or may not be proud of your genitals, Mr Garceau, that may be false bragging or it may have a basis in fact, it absolutely matters not, but if you want to and are serious about finding a companion, you need to look at how you act in the field of sexual intimacy.
47In my view, the index offending was serious offending. Had you been an adult at the time of the offending, I would have sentenced you to a substantial term of imprisonment. However, I have regard to both the reports of Ms Matthews and Ms Crutchfield and to the evidence that they have given on the plea. I have regard to both your youth and, in particular, to the fact that your developmental age lacks considerably behind your chronological age. That combination has, in my view, played a significant part in your responses to court ordered supervision. As to the breaches of your obligations under the Sex Offenders Registration Act 2004, whilst your contraventions do not in any way aggravate the seriousness of the index offending, they do feed directly into my assessment of your prospects for rehabilitation.
48 After long consideration, I have come to the view that it is better for you and for the community at large that you should continue engaging in treatment and be guided, if possible, along the path to age appropriate sexual relationships. That is all the community wants of you, Mr Garceau. You can have casual sex to your heart's content provided that your partner agrees and they are not children. Accordingly, I intend to pass a sentence on the index offending that enables such a course, pursuant to Younger v The Queen [2017] VSCA 199.
49If you could stand please, Mr Garceau.
50On Indictment H10693567, on Charges 1, 2 and 4, you are convicted and sentenced to community correction order of two years.
51On Charge 3, you are convicted and sentenced to a community correction order of 12 months, to run concurrently to the community correction order imposed on Charges 1, 2 and 4.
52You have two community correction orders but they essentially run together. I will come to the conditions in a moment.
53In relation to the contravention proceedings in CR-16-00582, I find the breach proven. I cancel the order and re-sentence you to an aggregate term of seven months' imprisonment.
54In my view, this was serious offending. You were older than the child. You clearly knew that you should not have sex with her. You told people that you were going to wait until she was old enough but you did not. You were driven solely by your own sexual desire.
55Mr Garceau, the law is there to protect children from anyone who would prey upon them and even to protect children from themselves. They may say that they want to engage in sexual intimacy but if they are under the age of 16, that law says that they cannot. They are children and remain so.
56In fixing the term of imprisonment of seven months, I have regard to my assessment of the objective gravity, to the 184 days that you already spent in custody on the associated offence, Charge 1, which was declared in June 2016 as time served, to the time that you have spent on remand in relation to these matters, and to your response to the order. Whilst you continued to offend, in my view, you did attend as best that you could on the order for treatment.
57Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 141 days of the sentence that I have imposed upon you and direct that this be recorded in the records of the court. That means you have approximately six more weeks to serve.
58Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty to the offences on Indictment H10693567, I would have sentenced you to a total term of nine months' imprisonment.
59Mr Garceau, I appreciate your youth and the difficulties that you have had, but you must understand that the court is here to protect the community and to protect children. You now have now been sentenced to term of imprisonment. That has been done to hopefully get the message across to you that you must change your ways.
60The community correction orders have mandatory terms. The first and most important one is that you must not commit any offence for which you could be imprisoned. Mr Hoare will run through the rest of the conditions with you, but that is the most crucial one.
61In relation to the 12 month community correction order made on Charge 3, the Commonwealth charge, the only conditions are that you must perform 30 hours of unpaid community work and you must be under the supervision of a community correction officer for a period of 12 months.
62In relation to the two year community correction order made on Charges 1, 2 and 4, the State charges, you must perform 70 hours of unpaid community work over a period of two years as directed the regional manager. I also order that all hours of treatment and rehabilitation that you satisfactorily undertake are to be counted as hours of unpaid community work, so in other words, if you do your treatment, that times comes off the community work. If you fail to comply with this order, the Secretary to the Department of Justice may give you direction to perform additional hours.
63I have imposed a condition of supervision, so that means you must be under the supervision of a community corrections officer for a period of two years.
64I have imposed conditions of treatment and rehabilitation. You must undergo any mental health assessment and treatment that may include psychological or neuropsychological, psychiatric or treatment in hospital as directed, or residential facility as directed. That includes treatment for ADHD. There is now recognised treatment that is available for young adults who suffer from ADHD and I hope that you can be locked in to such treatment.
65You must engage in assessment and treatment with a psychologist who has been trained in the field of sexual re-offending. I would like you to continue with Ms Crutchfield.
66You must participate in programs and/or courses that address factors relating to the offending as directed by regional manager, and that would include sex offender programs.
67There is a residence condition; you must reside at your mother’s address for the duration of the order.
68For clarity, that makes a total of 100 hours of unpaid community work across both community correction orders being imposed today.
69I am giving you an opportunity to carry on turning things around; do you understand?
70OFFENDER: Yes, Your Honour.
71HIS HONOUR: But sometimes having choice and having an opportunity, what goes with that is responsibility, and I hope that is not too much for you.
72OFFENDER: No, Your Honour.
73HIS HONOUR: A further condition of the community correction order on Charges 1, 2 and 4 is that you comply with your reporting obligations under the Sex Offenders Registration Act 2004. I understand that they are burdensome but they are there for a purpose, and the purpose is to protect children. If you have a username, you must tell the authorities. It is that simple.
74I have to ask you if you consent to the orders being made.
75OFFENDER: Yes, Your Honour.
76HIS HONOUR: Ms Duckett, I have a disposal order in relation to an Apple iPhone and the child exploitation material.
77MS DUCKETT: That will be in relation to the materials that was seized.
78HIS HONOUR: I will make that order.
79MS DUCKETT: Then the only order, Your Honour, as I understand it is because Mr Garceau, of course, is reporting under the Sex Offenders Registration Act 2004.
80HIS HONOUR: Yes, it has to be made every time. The fact of conviction triggers the registration requirement. This arose only last week where a defendant was subject to registration for life, but on further conviction, there was a further order.
81MS DUCKETT: Yes.
82HIS HONOUR: Mr Garceau, you may have noted my speaking about the importance of you complying with your reporting conditions under the Sex Offender Registration Act. You are obliged to report under that Act for life. By virtue of the matters to which you have pleaded guilty, there is a further requirement for you to report for life. My associate will bring you a document of your obligations and you will need to sign it to acknowledge receipt of that document.
83Anything else, counsel?
84MR HOARE: No, Your Honour.
85MS DUCKETT: No, Your Honour.
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