Director of Public Prosecutions v Gardiner
[2021] VCC 681
•26 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00352
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD GARDINER |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2021 |
DATE OF SENTENCE: | 26 May 2021 |
CASE MAY BE CITED AS: | DPP v Gardiner |
MEDIUM NEUTRAL CITATION: | [2021] VCC 681 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Criminal Code Act 1995 s 474.26(1); Sex Offenders Registration Act 2004 s 46(1), (1A); Bail Act 1977 s 30B; Crimes Act 1914 s 16A
Cases Cited:Western Australia v Collier (2007) 178 A Crim R 310; DPP (Cth) v Hizhnikov [2008] VSCA 269 at [24]; R v Gajjar [2008] VSCA 268; R v Verdins & Ors [2007] VSCA 102; Wilson v R (Cth) [2020] NSWCCA 211; Moore v R [2018] NSWCCA 26; Gifford v The Queen (2016) 263 A Crim R 373
Sentence:Total Effective Sentence of 3 years, 4 months and 1 day; Non-Parole Period of 1 year and 11 months on Commonwealth Sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Keks | Commonwealth Director of Public Prosecutions |
For the Accused | Mr D. Carolan | James Dowsley & Associates |
HIS HONOUR:
1Edward Nathaniel Gardiner you have pleaded guilty to the following offences which carry the following maximum penalties: Charge 1, use a carriage service to procure a person believed to be under 16 years of age for sexual activity, 15 years' imprisonment; Charge 2, fail to comply with reporting obligations, five years' imprisonment; Charge 3 is the same, five years' imprisonment and summary charge, use a carriage service to procure a person under 16 years of age for sexual activity whilst on bail, three months' imprisonment or 30 penalty units.
2You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.
3The Crown tendered the Summary of Prosecution Opening as Exhibit A. A summary of your offending is as follows.
4On 9 October 2006, after you were convicted of sexual offending against a child, you were registered for life under the Sex Offenders Registration Act. Your obligations included, inter alia, providing police with your updated personal details and to report any username or identity that you used on the internet.
5In 2020, you commenced a relationship with a woman. In the course of that relationship, you used Facebook and a Facebook username 'Edstar Edward' (Charge 3).
6On 18 September 2020, a search warrant was executed at your home in Cranbourne West. Police seized an Apple iPhone and conducted a preliminary review of the mobile phone during the execution of the search warrant. The application Snapchat was installed on the mobile phone and logged in using the username 'snapper101e' (Charge 2).
7Relevantly:
a)Information contained in the application revealed that you joined Snapchat on 10 August 2013; and
b)That you had exchanged messages with approximately 300 other Snapchat users, the majority of whom had female names.
8On 10 October 2020, police obtained another Apple iPhone and a laptop that had been used by you. An analysis of the mobile phone revealed several chat communications using text messaging, Skype and Snapchat between you and persons who described themselves as being under 16 years of age between 2013 and 2015.
9Analysis of the laptop revealed that you had visited websites whose purpose was to allow young people and teenagers to chat online, with a recorded last visit in 2018.
10You failed to report the use of your Snapchat username, and the use of a Facebook account, to police in compliance with your obligations as a registered sex offender.
11An analysis of your mobile phone revealed that between 11 August 2019 and 14 March 2020 (that is, over a 7 month period), you used the application Snapchat to communicate with a person you believed to be a 14-year-old girl, 'Ella'. During the conversations with 'Ella', you send highly explicit messages, including descriptions of sexual acts, fantasised sexual acts and meeting 'Ella' for sexual activity. You acknowledged in the conversation 'Ella's' age of 14, and the risk of 'get[ting] in trouble' due to the 'age gap'. On 15 June 2020, 'Ella' sent four photos to you depicting a naked female aged between 14 and 20 years exposing her vagina and breasts. These photos had been saved to your Snapchat application (Charge 1).
12You were on bail when you sent communications on 26 January 2020 that constitute part of the offending which is the subject of Charge 1 (Summary Charge 5).
13You were interviewed by police on 18 September 2020 and made no comment. You were remanded in custody in September 2020 and you have now spent 250 days on remand by way of pre-sentence detention, excluding today. I will reckon that period as already served.
14You entered a plea of guilty at the committal mention on 27 November 2020.
15It is necessary to say something about your prior criminal history at this point.
16On 4 August 2004, you were convicted of making and producing child pornography, publishing child pornography and knowingly possessing child pornography. You used to your mobile phone to send three pornographic images of a child of approximately 10 years of age. You were placed on a 12 month community-based order for this offending.
17On 9 October 2006, you were convicted of committing an indecent act with or in the presence of a child under 16 years, two charges of loitering in a public place frequented by a child and two charges of stalking. You were sentenced to an aggregate period of 12 months imprisonment to be served by way of an Intensive Correction Order.
18Then, in 2010 and again in 2014, you were convicted and fined for failing to comply with your reporting obligations under the Sex Offenders Registration Act.
19It is against this background that I will now consider the gravity of, the objective gravity of your moral culpability for this offending.
20The offence of using a carriage service to procure a person who you believe to be under 16 years of age for sexual activity is an inherently serious offence; as demonstrated by the maximum period of imprisonment of 15 years.
21Further, the charges of failing to comply with reporting obligations are also serious, but made more so by your persistent evasion of your reporting obligations over a lengthy period of time.
22It is evident that you have operated under a deal of secrecy and guile to commit the three principal offences in order to evade detection.
23It is a fact that over the years you have continued to trawl the internet looking for children.
24The exchanges, on your part, outlined in the Prosecution Opening in respect of Charge 1 are nothing short of vile. You communicated, in explicit language, your satisfaction at Ella's expressed young age of 14 years, and then you set out in explicit, crude detail your fantasised wish or desire to perform sexual acts of oral penetration on her, and then you wished you could have done so when she was 8 years old.
25In addition, you received photographs from 'Ella', and, if somewhat tentatively, proposed a meeting with that person.
26I take into account, as your counsel submits, that the plan to meet never came close to fruition. Further, there is no evidence about 'Ella' – there is certainly no evidence that the person with whom you communicated was in fact a
14-year-old female. Of course, I note that the offence to which you have pleaded guilty is not dependent on that.27The psychological material suggests that you are not a paedophile. I will return to this later in these remarks, but I do find that you are a persistent trawler and a predator.
28You now have four convictions for failing to comply with reporting obligations.
29As I said earlier, general deterrence must play a dominant role in your sentencing. In addition, specific deterrence must loom large, as must protection of the community and also denunciation. Your offending must be met by an appropriate sentence of imprisonment.
30I now turn to your personal circumstances.
31You are 44 years of age being born on 1 June 1976. You are the youngest of 11 siblings.
32You had an unremarkable childhood until approximately 12 years of age when your father died. You reported that during a visit to your father in hospital, you were asked by your father to increase his drip output. Believing that it would assist your father, you report that you complied. Your father died a short time later. You continue to blame yourself for the death of your father and consider that 'everything changed' following his death. Your mother struggled with addiction to prescription medication following your father's death. You were also physically abused by your older siblings. At age 13, you witnessed your older sister attempting suicide.
33You were an average student at school, and generally felt socially connected to your peers throughout schooling.
34You held long-term employment as a product developer working for an automotive manufacturer until 2018.
35When you were aged 17, you entered into a relationship which produced a daughter. That relationship ended after six years. You have not maintained a close relationship with your daughter since she was a child.
36Between 2000 and approximately 2007, you used marijuana regularly. Over the past 25 years, you have extensively and excessively consumed alcohol. Whilst you consumed alcohol twice weekly during your twenties, your alcohol consumption escalated throughout your thirties and forties.
37Between 2010 and 2018, you were in a stable relationship with your partner. You then had an acrimonious separation which involved Family Court proceedings.
38Following the breakdown of your relationship, you lost your job, commenced drinking heavily, abusing cannabis and gambling. The years between 2018 and 2020 were a particularly low point in your life.
39In 2020, you entered a relationship with Ms Acacia Knights. Ms Knights is aware of your offending history and remains supportive of you. She has spoken to you about your offending and states you have expressed your remorse to her.
40Since you have been in prison, you have undertaken the following courses: Alcohol and Me, Cannabis and Me, Check Your Thinking, and Healthy Balance. The pandemic lockdown limited your opportunities to undertake other courses.
41I have a letter from James Stewart, post-release case manager of the Nexus program. The letter indicates that you are eligible for intensive case management through the Nexus program and then a further additional 21 months of support through the Bridge Centre upon your release. It is not entirely clear to me that you meet the eligibility conditions. However, the letter was provided on the assumption that this service will be available to you upon release.
42Your time in custody on this occasion was affected by the COVID-19 pandemic lockdown. The immediate effect was a reduction and suspension of vocational and personal improvement courses, restrictions on your ability to move around the prison, a severe reduction in work available and a suspension of visits.
43The other more insidious effect of the pandemic and lockdown was the stress and the isolation – that is the fear that the pandemic would penetrate into the prison system, and so isolation has been used as a strategy to limit close contact.
44I shall take this into account as a mitigating factor in the sentencing process.
45I was provided with the psychological report of Dr Dion Gee dated 7 April 2021. In his report, Dr Gee concluded that your offending was committed against a psychological background of early trauma, emotional dysregulation, and intimacy deficits. Dr Gee considers that you suffer from complex post-traumatic stress disorder which seemingly emanated from the circumstances of your father's death.
46Interestingly, Dr Gee concludes by reference both to both the DSM-5 and the World Health Organisation ICD 11 that you do not meet, and probably never met, the diagnostic criteria for paedophile disorder. Rather he concludes that your offending arises from your 'difficulty in obtaining a stable sense of autonomy and meaningful sense of identity…'
47When I look at:
a)The explicit nature of your messages set out at paragraphs 22 and 23 of the Prosecution Opening 02.15.16, in which refer to your sexual desires towards a 14 year old; and then
b)When I take into account your vast and long-time trawling of Snapchat, so far as that is relevant, to communicate with hundreds of females;
c)Then I look at you retaining and using hidden internet identities;
d)Then using those identities to go into teen social media and chat rooms; and
e)Finally, I look at your prior convictions in 2004 for making and possessing and publishing child exploitation material in relation to a 10 year old, and then the indecent act in relation to a child under 16,
I can conclude that regardless of your personality traits or disorders, you have a long history of sexually targeting children. The community must be afforded a measure of protection. The community denounces your conduct. The sentence I impose must carry a real measure of general and specific deterrence.
48On testing, Dr Gee concluded that you still have a distorted/problematic cognition that is often associated with justifying aberrant sexual behaviour involving children. Dr Gee referred to the fact that you have previously undertaken the sex offender treatment program and stated his concern that you do not appear to have learned from it; although you did have some of what he called 'lightbulb' moments when he questioned you.
49I conclude that your offending is objectively very serious and your moral culpability for your offending is indeed very high. I come to that conclusion even putting aside the peripheral matters of your trawling internet in 2018. I just look at your behaviour now that you are being sentenced and it is clear that you must face stern punishment on the three principal charges.
50Mr Carolan, who appeared on your behalf, submitted the following factors should operate to mitigate your sentence:
a)Your early plea of guilty. The plea of guilty occurred at committal mention stage, which carries substantial utilitarian benefit;
b)Moreover, Mr Carolan submitted that your plea to a more serious charge in order to settle the matter was indicative of remorse;
c)The findings of Dr Gee, psychologist, including that you have reasonable prospects of rehabilitation and a complex mental health diagnosis;
d)Next, Mr Carolan submitted you have a supportive partner; and
e)Finally, he submitted that I should take into account the effects of the COVID pandemic lockdown. As I have said, I already will.
51Mr Carolan submitted that a sentence of imprisonment is an appropriate disposition in all the circumstances and in that respect he cited
Western Australia v Collier and DPP v Hizhnikov.[1][1] Citing Western Australia v Collier (2007) 178 A Crim R 310; DPP (Cth) v Hizhnikov [2008] VSCA 269 at [24]; R v Gajjar [2008] VSCA 268.
52You have relevant prior convictions, and were aware of your SORA obligations, which renders specific deterrence a relevant consideration. It is conceded as aggravating that the offending occurred notwithstanding your SORA requirements. (I will be careful not to doubly punish you for this).
53Mr Carolan further submitted that the offending falls between low-to-mid-range on the scale of objective seriousness as there was only a plan to meet up, and no inducement was offered by you.
54You have been in custody, as I say, for 250 days. It is your first time in custody. Dr Gee's report provided that while your time on remand has been a period of stability and detoxification, it has been a very difficult experience, considering your fragile mental state.
55Ultimately, Mr Carolan submitted that I ought impose a period of imprisonment with a Recognisance Release Order on Charge 1 (Commonwealth charge) and an aggregate sentence of imprisonment on the State charges.
56Mr Keks for the Crown submitted that the sentence I impose must have regard to the factors enunciated in s.16A Crimes Act 1914, and in particular to the following factors:
a)The objective seriousness of offending;
b)Each charge is a serious example of its kind. The CDPP particularly emphasised that the circumstances of Charge 1 aggravated the offending in Charge 2, (and not the other way around).
c)Your moral culpability is high given your criminal history for similar offending;
d)Following this, your relevant prior criminal history, which includes failing to comply with reporting obligations and for sexual offences involving children and the use of telecommunication services;
e)You appear to lack insight into your conduct, despite the favourable finding in the report of Dr Gee that you pose a 'moderate' risk of reoffending and that you have a 'reasonable prognosis of rehabilitation';
f)Your offending attracts general deterrence, and specific deterrence. The protection of the community is also an important factor.
g)Mr Keks noted that s.16AAB Crimes Act 1914 (Cth) only applies to offending after 23 June 2020 and so I have not taken that into account in my sentencing calculation.
h)Next, the Crown agrees that your pleas of guilty were made at the earliest opportunity. As such, the sentence I impose must take into account the utilitarian benefit of those pleas.
i)Finally, the Crown agrees that I must have regard to your prospects for rehabilitation, but not so as to displace the need for punishment of appropriate severity. Mr Keks did not specifically challenge Dr Gee's findings in respect your prospects for rehabilitation, but nevertheless urged caution in light of the psychologist's findings as to your lack of insight.
57Mr Keks submitted I ought not conclude that your moral culpability for your offending was reduced (by reference to the Verdins principles) but he did submit that principles 5 and 6 of Verdins did have some applicability in this case.
58Ultimately, Mr Keks submitted that the sentence I impose upon you should attract a non-parole period.
59The prosecution provided me with a table of comparable cases. I assess the cases of Wilson, Moore and Gifford as more serious than your offending – in each, there were advanced plans to meet with the child victims for sexual activity. In Wilson and Moore, the offenders were arrested at proposed meeting sites. Whilst in Gajjar, the offender also arranged to meet with his proposed child victim, the offender in that case left the venue and was arrested by police after leaving. Gajjar was only charged with a single offence and had no prior convictions.
60Ultimately, I must be cautious in using comparable cases. Rather, I must decide the sentence in this case according to the circumstances, my assessment of the objective gravity of your offending, your moral culpability and taking account of mitigating circumstances, such as I can.
61I find the question of your insight, and the prospects of rehabilitation troubling. I accept that your plea of guilty was made at an early time; it certainly does have utilitarian benefit and is probably attended by remorse (in accordance with
Mr Carolan's submission). Moreover, on the question of remorse I accept
Ms Knight's reference and the fact that you have expressed some remorse to her for your actions.62What is troubling however is the fact that as late as the date of psychological testing (which occurred after the plea of guilty was entered), you were still failing to acknowledge the aberrant nature of your offending; even after having previously completing the sexual offender treatment program. Dr Gee noted that you had a few ‘lightbulb moments' but it appears you had either not learned or not remembered your learning from previous sex offender treatment.
63Despite the submissions of your counsel, and despite the conclusions of Dr Gee that you do not suffer from a paraphilic disorder and that you have reasonable rehabilitation prospects, I can only conclude that your rehabilitation prospects are in fact poor. You have a lot of work to do and you will require a lot of intervention to properly acknowledge the aberrant nature of your offending and the triggering factors which, for so long now, have caused you to seek out underaged teenage children for sexual activity.
64In the end, I have decided that the overall sentence I impose should be underpinned by the imposition of a non-parole period rather than a recognisance release order. I have concluded the seriousness of your offender, your moral culpability and your prior history all combine to require you to be subject to comprehensive supervision and support (if you are granted parole) upon your release.
65So the sentences I impose are as follows:
66On Charge 1, the charge of use a carriage service to procure a person believed to be under 16 years of age for sexual activity, you are convicted and sentenced to 3 years and 1 day.
67On Charge 2, failing to comply with reporting conditions, you are convicted and sentenced to 9 months' imprisonment.
68On Charge 3, failing to comply with reporting conditions, you are convicted and sentenced to 9 months' imprisonment.
69On Summary Charge 5, use a carriage service, et cetera, whilst on bail, you are convicted and sentenced to 2 months' imprisonment.
70Now I propose, Mr Keks, that the sentence on Charge 1 commences 4 months after today. That is the date of sentence. And I therefore propose that the total effective sentence be a sentence of 3 years, 4 months and 1 day.
71I propose a non-parole period of 1 year and 11 months before
Mr Gardiner is eligible for parole. I reckon the period of 250 days of
pre-sentence detention, excluding today, reckoned as already served.72Mr Gardiner, the sentence that you are to serve is an overall sentence of 3 years, 4 months and 1 day, with a non-parole period of 1 year and 11 months because the non-parole period is only attracted to the Commonwealth sentence.
73The Sex Offender Registration is registration for a period of life. That declaration of course follows on from the fact that Mr Gardiner is already registered for life from his previous offending.
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