Director of Public Prosecutions v Garratt

[2020] VCC 1721

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01114

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN GARRATT

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2020
DATE OF SENTENCE:	26 October 2020
CASE MAY BE CITED AS:	DPP v Garratt
MEDIUM NEUTRAL CITATION:	[2020] VCC 1721

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — grooming for sexual conduct with a child under 16 — sexual penetration of a child under 16 years — sexual assault of a child under 16 — possession of a drug of dependence — possession of child abuse material — plea of guilty — standard sentence offence — victim impact statement — prospects of rehabilitation difficult to assess — general deterrence —just punishment — denunciation — specific deterrence —

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of six years and nine months with non-parole period of four years and three months

Section 6AAA declaration: total effective sentence of nine years with non-parole period of six years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A McKenry	Office of Public Prosecutions
For the Accused	Mr R Thyssen	Hilton-Wood Solicitors

HER HONOUR:

1Nathan Garratt, you have pleaded guilty to one charge of grooming a child under 16 for sexual contact, for which the maximum penalty is a term of imprisonment of 10 years (charge 1).

2You have also pleaded guilty to two charges of sexual penetration of a child under 16, for which the maximum penalty is a term of imprisonment of 15 years (charges 2 and 5). Sexual penetration of a child under 16 is a standard sentence offence and the standard sentence is a term of imprisonment of six years.

3You have also pleaded guilty to three charges of sexual assault of a child under 16, for which the maximum penalty is a term of imprisonment of 10 years (charges 3, 4 and 6). Sexual assault of a child under 16 is a standard sentence offence and the standard sentence is a term of imprisonment of four years.

4You have pleaded guilty to the possession of child abuse material, for which the maximum penalty is a term of imprisonment of 10 years (charge 8). And, finally, you have pleaded guilty to the possession of a drug of dependence (charge 7). This was a small quantity of cannabis which was for personal use only. The maximum penalty is five penalty units. You are convicted and discharged on charge 7.

5You have no criminal history and no other matters pending before the courts.

6Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’. In brief, the circumstances of your offending are as follows.

7You were the neighbour of the 14-year-old victim in this matter, Kirsten Ochoa.[1] Ms Ochoa was born in 2005. Ms Ochoa lived with her parents and sibling. You moved into the house next door. You were 28 years old and you were working as a truck driver at a mine in New South Wales.

[1] A pseudonym.

8You befriended Ms Ochoa and her family. You would go to her home and socialise with the family. Ms Ochoa’s parents noticed that you gave particular attention to Kirsten and would spend more time at the house when she was present.

9You began to communicate with Kirsten’s mother via social media. In these online conversations, you made threats of suicide, sent images of smashing your car with an axe, and expressed disappointment at not being included in family outings. You discussed Kirsten’s welfare and made offers to come over and talk, and for her to stay at your house or to take her out.

10In mid-January 2020, you began working away from home. You arranged for Ms Ochoa to care for your dog in your absence. You also added her on Snapchat, and you were able to communicate with her via this social media platform when you were away. Your conversations with her were initially about innocuous subjects, such as your dog.

11When you returned from working away, you arranged with Ms Ochoa’s mother to take her out to thank her for looking after your dog.

12You continued to communicate with her via Snapchat and your conversations eventually became sexual. You asked her if she would masturbate and if she snuck out with boys. You asked her if she would sneak out and see you, and you discussed how she could avoid being depicted on the CCTV cameras at her home.

13You asked her to send you ‘nudes’, meaning naked photos of herself. Ms Ochoa sent photos of her breasts and vagina. You sent photos and a short video of yourself holding your exposed penis and masturbating.

14You and Ms Ochoa discussed having sex, but she told you that she was not ready. When she told you that she did not want to participate in sexual activity with you, you told her that you were going to kill yourself. You also sent her memes from the internet referring to suicide, and images of yourself speeding or parking near the river, saying that you should drive into the river. You emotionally manipulated Ms Ochoa, telling her that you must mean nothing to her. You told her that age did not matter, and a photo located on your phone makes reference to this.

15You became angry if she associated with other males, suggesting she would rather be with them, even if that male was her uncle. You made sexualised comments to Ms Ochoa, suggesting that she and her 10-year-old friend should touch each other sexually, as you would find it cute. You said you were turned on thinking about the friend touching her.

16You purchased a pink lace Bonds bra and pants set for her and showed her other items that she believed were intended for her use, being a short school-style skirt and a small pink vibrator.

17You told the victim that you watched what she did at her home and could see her through the kitchen window. You asked her mother about the family’s plans and whether the victim was at school or not.

18On 2 March 2020, you waited until Ms Ochoa’s father had left the home, after which you walked in uninvited into the home, briefly spoke with her mother and then checked to see if Kirsten was in her bedroom.

19You persistently contacted her via Snapchat. You sent photos of your penis and requested naked images of her body parts. You discussed having sexual activity with her. When you felt that your victim, Ms Ochoa, was not giving you enough attention or not complying with your sexual demands, you would resort to sending her suicide threats. After Ms Ochoa ‘broke up’ with you, you created a private Snapchat story featuring suicide memes.

20You monitored her contact with other boys and men and accused her of wanting to be with them rather than you.

21All of the above conduct described spanned the period of 1 January to 7 March 2020 and is all part of charge 1, which is a rolled-up charge of grooming a child under 16 for sexual activity.

22I now turn to the contact offences and begin with charges 2 and 3 on the indictment. On Friday 24 January 2020, you drove Ms Ochoa to Mildura. You went to a film at the Deakin Cinema, sitting towards the back. Around half an hour into the film, you began kissing her lips and neck. You put a finger inside her vagina, and you moved your finger in and out and rubbed it around her vagina. You then got down on your knees and licked her vagina, moving your tongue up and down, both inside and around her vagina. The licking of the victim’s vagina and the penetration with the finger are both part of charge 2, a rolled-up charge of sexual penetration of a child under 16.

23Ms Ochoa’s shorts were down to her knees and she kept trying to close her legs. You then sat back in the cinema seat, pulled down your pants and placed her hand onto your naked, erect penis. That is charge 3.

24When the film finished, you and Ms Ochoa went shopping. You placed a television on lay-by and offered to purchase underwear and short skirts for her. You returned home at around 5:30pm.

25On Saturday 25 January 2020, Ms Ochoa asked her mother if she could accompany you to the river to fish and play with your dog. You drove her to a location beside the Murray River in the Merbein Common. The Merbein Common is an expansive bushland reserve with secluded areas for camping and recreation. You got chairs out and you sat her on your lap, where you kissed her and touched her breasts and thighs. She was telling you to stop. That touching is charge 4, a rolled-up charge. You then went to the back of your vehicle and told Ms Ochoa to come to you. You got on top of her and she pushed you off. You then inserted your finger into her vagina, and that is charge 5.

26You kept trying to pull down her shorts and also kept trying to put her hand down your shorts, which she resisted and pulled her hand away, and this is part of charge 4. This made you angry and you said, ‘Well we may as well go home seeing you don’t want to do anything’ and ‘You obviously don’t like me, there’s someone else’. You then returned home.

27In late February 2020, Ms Ochoa ‘broke up’ with you. She told you that it was wrong because you were a lot older. You said that age did not matter and that you had moved next door to her for a reason.

28On Tuesday 25 February 2020, you returned home from work and parked your vehicle in a shed at the rear of your property. At around 7pm, Ms Ochoa, believing you were away at work, came over to feed your dog. You appeared and you questioned her about why she had ended your relationship.

29You attempted to kiss and hug her and pulled her onto the bed with you. You then tried to put your hand into her pants, but she kept closing her legs and pulling away, and this is the basis of charge 6, sexual assault of a person under 16. You had a small pink vibrator in your hand, and you asked her if you could use the vibrator on her, to which she declined. You also gave her a silver ‘infinity heart’ necklace, which you told her was a late Valentine’s Day gift. That gift of the necklace is part of charge 1, the grooming charge.

30I turn now to charge 8, which was the possession of child abuse material. You asked the victim to take photographs of herself wearing the pink lace bra and pants which you had purchased and to send the photographs to you. She did as you requested.

31On Monday 24 February 2020, when you were at work in Pooncarie, New South Wales, you accessed the Kik application with the username ‘riddlemethis91’ and name ‘Nathan’. Kik is an instant messaging application targeted at teenagers, where users can have group or individual chats. From around 8:26am to 9:12am, you communicated with another user, ‘JP’, and you discussed a trade of images. You sent a video of an unidentified female holding a toothbrush to her genitals. You also said you had pictures to trade of your neighbour’s 14-year-old daughter. You then sent a video of female genitalia to which the other user ‘JP’ replied, ‘Your lucky guy’. You then sent a photograph of female buttocks in pink lace underwear and a photo of exposed female breasts with a pink lace bra. These images are of the victim in the underwear that you bought her.

32You commented on Kik, ‘Yeah ha ha she’s a little cum slut. Loves having me cum in her pussy or ass before she goes home’. You then continued to exchange intimate images of unidentified females. You further used Kik to communicate with various unidentified parties and engaged in sexualised exchanges with users who identified themselves as young females. You joined various chat groups with an interest in teenage girls and initiated sexualised chats with girls who were group members. Groups included ‘Post skschoolies 12 to 16 pic’, ‘P2P teen fun’ and ‘Teen nu’des’.

33Between 20 February and 11 March 2020, you also initiated sexualised conversations with females and sent a photo of your penis with no enquiries as to the receiving parties’ ages. You harassed one female online until she told you, ‘Don’t you get it, just leave me alone’, and ‘You are just at me all the time’.

34The victim’s parents had become increasingly suspicious about what was going on between you and their daughter. On 2 March 2020, the victim’s parents asked her about her relationship with you. She broke down in tears and disclosed that you had ‘fingered’ her at the cinema and at the river.

35She disclosed further to her mother on 4 March 2020 and made a video statement with police on 10 March 2020 in which she spoke fully about what you had done to her.

36You were arrested and a search warrant was executed at your home on 13 March 2020. A number of incriminating items were located by police, including the child exploitation material on your mobile phone. It was found to contain 11 child abuse images and videos, including those that were described in outlining your activities on Kik.

37The child abuse material was categorised as follows:

-Category one (no sexual activity): two videos (one of which is purported to be the victim) and four photos (two of which are purported to be the victim)

-Category two (solo or sexual activity between children): three videos (one of which is purported to be the victim) and two photos

38During the execution of the search warrant, a ziplock bag containing a small amount of cannabis was located above the pantry, weighing a total of 1.32 g, and that is the basis of charge 7. A cinema ticket for the Deakin cinema complex dated 24 January 2020 was also located.

39You were interviewed by the police. You told police you were in love with the victim and you discussed spending your lives together. You said that the victim had sent you sexually explicit photographs of herself and that you got rid of them. You said you gave the victim the necklace for Valentine’s Day to say, ‘thank you’, and that she meant something to you. You said that the vibrator and the skirts were purchased for an ex-girlfriend and you denied giving them to the victim. You denied watching the victim or monitoring her activities. You said you only phoned her once about your dog, and once or twice more. In relation to sending suicide threats, you said the victim was also suicidal.

40In respect of charges 2 and 3, that is, at the cinema, you said that you were kissing at the cinema and rubbed each other’s genitals outside of your clothing. You said that you did not remember putting your hand in her pants or vagina. You said, ‘in my mind it did not happen’. You said that you did not recollect the victim touching your erect, unclothed penis. You also said that you did not recall performing oral sex on the victim. You said that you thought the victim was 15. You said you discussed her being young, but not an age specifically.

41In respect of charges 4 and 5 at the river, you told police that you were kissing affectionately and rubbing each other on the outside of your clothing. When asked about penetrating the vagina of the victim, you said it had happened once for a minute. You said, ‘If you don’t want to I won’t’, and she said, ‘No, it’s okay’. You undid the top button of her shorts and put your hand inside her pants and your finger inside her vagina.

42In respect of charge 6, the charge of sexual assault, you denied intentionally hiding in your vehicle when you came home early for work. You said on this occasion, you gave the victim the heart necklace and cuddled on the couch.

43This matter resolved on 9 September 2020 at the committal mention stage. This is an early plea and it is accepted by the prosecution it carries significant utilitarian value, particularly in the present context of extreme stress on the administration of criminal justice in this State caused by the COVID-19 pandemic. By virtue of your plea, you accept full criminal responsibility for your actions, and I am also prepared to find it is indicative of remorse on your part.

44The victim has made a victim impact statement. She says that your offending has impacted on her mental wellbeing and has adversely affected her relationship with her family and with people generally. She says she feels guilty about what happened and blames herself.

45Ms Ochoa should know that none of what occurred is her fault. She was a 14-year-old child and you were a 28-year-old man. The responsibility for what occurred rests solely with you.

46You must have known that it was wrong to be pursuing and then engaging in sexual activity with a girl as young as Ms Ochoa. Your offending is objectively serious and has a number of aggravating features. In terms of the grooming, you threatened suicide and self-harm when you felt she was attempting to end the relationship or when you feared she was seeing boys or wanted to see boys of her own age. As her neighbour, you were able to watch her movements and monitor her behaviour, which you did.

47You persuaded her to send you sexualised images of herself in underwear that you got her to pose in. You also bought her a vibrator. In one of your sexual conversations, you talked about involving a 10-year-old child in your sexual activity. Your grooming of Ms Ochoa was emotionally manipulative, oppressive and potentially corrupting. You abused the friendship and trust of Ms Ochoa and her parents in order to offend against her.

48Your offending in the cinema against Ms Ochoa must have been a humiliating and degrading experience for her. That charge of sexual penetration is a rolled-up one consisting of penetration of the vagina with fingers and tongue. Charge 6, which occurred after you ‘broke up’, involved you effectively ambushing Ms Ochoa at your home when she was trying to end the relationship with you and trying to do you a favour by feeding your dog.

49Your offending lasted around two months, and I accept the prosecution submission that it escalated quickly from grooming to contact offending, and when the victim finally was able to end the relationship, you quickly moved online, seeking sexualised contact with females. This behaviour is not charged conduct, but I regard it as relevant in my assessment of your risk of future offending and in my assessment of your prospects of rehabilitation.

50The child pornography charge consists of only some 11 images, some of which depict the victim. The real gravity of the images involving the victim in my opinion is that you got her to produce the images of herself, and this is encompassed in the charge of grooming. So, I must be careful not to punish you for this aspect of the offending in respect of charge 8.

51I now turn to your personal circumstances. You were born on 18 November 1991. You grew up in Phillip Island in Victoria. Your parents separated when you were young, and you were brought up by your mother. You attended school until year nine. You were not academic, but you are of average intelligence and you are literate.

52You have worked a variety of jobs since leaving school, before ultimately getting a job as a dump truck driver at the mines in Pooncarie in New South Wales. You lived onsite when you were working. You were able to purchase your own home and you owned your own car. I am told by your counsel, Mr Thyssen, that one of the consequences of your offending is that you have lost your home and your car.

53A report of consultant psychologist Ian Mackinnon was tendered at your plea. You were assessed by Mr Mackinnon from custody via video on 30 September 2020. Mr Mackinnon also had the police summary, the victim’s video-recorded evidence, and your record of interview and other materials. You told Mr Mackinnon that you had had mental health issues including depression and anxiety since your early 20s, but that you were not on any medication, nor receiving any treatment. Mr Mackinnon concluded that you were not suffering from any major diagnosable psychological disorder. It was not submitted on your behalf that any of the principles of Verdins were engaged in sentencing you.[2]

[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).

54You told Mr Mackinnon that you had never been involved with minors and that your previous relationships had been with women of your own age. You told him that at the time of your offending you were distressed about the breakdown of a relationship with your girlfriend Ebony. You told him you were lonely and just wanted someone to like you.

55Mr Mackinnon gave the opinion that your offending occurred in the context of what he called your ‘psychosexual distress’ and he stated that your offending represented ‘an extreme aberration’ in your life history. Although it is the case that you have no prior offending, given the persistent and calculated nature of your offending, in my view, your offending cannot be described or characterised as ‘aberrant’.

56Furthermore, Mr Mackinnon’s opinion that you would not benefit from participation in a sex offender treatment program is, in my view, untenable, given that you have offended against a 14-year-old child with whom you told the police you were in love. In my view, it is self-evident that your behaviour is not some momentary lapse of judgment, but prolonged and disturbing conduct into which you still have not demonstrated any real insight. On this basis, I reject Mr Mackinnon’s opinion that your risk of reoffending in a similar manner is low and your prospects of rehabilitation are favourable.

57I find it difficult to assess your prospects of rehabilitation. You have no prior criminal history. You are clearly a hard worker and you have pleaded guilty. This is your first time in custody, and this will surely be a salutary experience.

58Mr Thyssen submitted I should take into account that you will be a registered sex offender for life. As I understood the submission, he submitted that your registration may to some extent address your risk of future offending. I reject that submission. As Mr McKenry correctly submitted, the authorities are clear that the consequences of sex offender registration may only be relevant to sentencing in ‘extraordinary’ circumstances, and such circumstances have not been demonstrated here.

59Mr McKenry submitted your prospects of rehabilitation are best described as guarded and you will require at some point offence-specific treatment. I agree with that submission. In any event, whatever my assessment of your prospects of rehabilitation, you are still a relatively young man, and this is your first time in custody. I must in any sentence I impose attempt to promote your rehabilitation.

60General deterrence, just punishment and denunciation are important sentencing considerations in cases involving the sexual exploitation and abuse of children. The law imposes an absolute prohibition on sexual contact with children in order to protect them from harmful premature sexual activities. Adults who transgress this prohibition must expect stern punishment.

61I also regard specific deterrence as a relevant sentencing consideration here, given that your offending was both serious and persistent.

62The prosecution submitted that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period. The defence agreed that this was the case. Charges 2 and 5, and charges 3, 4 and 6, are standard sentence offences. The standard sentence for charges 2 and 5 is six years’ imprisonment. The standard sentence for charges 3, 4 and 6 is four years’ imprisonment.

63A standard sentence is not the same thing as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter that I must take into consideration in the instinctive synthesis, and I do so.

64I must also take into account the maximum penalty for each of the offences. I must take into account current sentencing practices, although for standard sentence offences, I must only take into account cases where the offender has been sentenced under the standard sentencing regime.

65You fall to be sentenced as a serious sexual offender on charges 3, 4, 5, 6 and 8. The prosecution did not submit that a disproportionate sentence was called for, but I am required to consider protection of the community as the principal purpose for which sentence is imposed and to impose a cumulative sentence unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.

66I take into account that your time in custody will be more onerous with the current conditions necessitated by the COVID-19 pandemic.

67Taking into account all the matters that I am required to consider under the Sentencing Act 1991 (Vic) and the matters personal to you, the sentence I will impose on charges 2, 3, 4, 5, and 6 will be less than the standard sentence.

68Mr Garratt, you do not need to stand up in the circumstances, but I intend to sentence you as follows.

69On charge 1, you are convicted and sentenced to two years’ imprisonment.

70On charge 2, you are convicted and sentenced to four years’ imprisonment.

71On charge 3, you are convicted and sentenced to 18 months’ imprisonment.

72On charge 4, you are convicted and sentenced to 20 months’ imprisonment.

73On charge 5, you are convicted and sentenced to three years’ imprisonment.

74On charge 6, you are convicted and sentenced to 15 months’ imprisonment.

75I have already stated, but I restate, on charge 7, you are convicted and discharged.

76On charge 8, you are convicted and sentenced to six months’ imprisonment.

77Charge 2 is the base charge, and I make the following orders for cumulation: on charge 1, one year; on charge 3, three months; on charge 4, three months; on charge 5, one year; on charge 6, two months; and on charge 8, one month.

78That should make a total effective sentence of six years and nine months.

79Section 11A of the Sentencing Act 1991 (Vic) directs that, unless it is in the interests of justice not to do so, the Court must fix a non-parole period in this case of at least 60% of the effective total term of imprisonment. In your case, I am setting a non-parole period of four years and three months.

80Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of nine years with a non-parole period of six years.

81Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 227 days not including today, and I direct that this be entered into the records of the Court.

82You will be subject to mandatory sex offender registration. The reporting period will be for life. I do not require your signature on the documentation.

83I make the disposal and forfeiture orders sought by the prosecution. The application for these orders was unopposed.

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