Director of Public Prosecutions v Georgiou
[2016] VCC 1892
•7 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01214
CR-16-01218
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRENCE ANTHONY GEORGIOU |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November and 7 December 2016 | |
DATE OF SENTENCE: | 7 December 2016 | |
CASE MAY BE CITED AS: | DPP v Georgiou | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1892 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr S. Cash | George Vassis & Co |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the victim, family or witnesses.
HER HONOUR:
1 Terrence Georgiou, you have pleaded guilty to one charge of stalking, with the maximum penalty applicable to that offence of ten years’ imprisonment, one charge of obtaining property by deception, the maximum penalty applicable to that charge is ten years' imprisonment, and one charge of possessing child pornography. At the time of your offending, a maximum penalty of five years’ imprisonment was applicable.
2 Your offending in relation to Charge 1 occurred between 1 January 2012 and the 3 April 2015, and involved victim Chen Lee.[1] Charge 2 between 1 February 2015 and 31 March 2015, and Charge 3 on 26 March 2015.
[1] Chen Lee is a pseudonym.
3 It is not necessary for me to recount, in great detail, the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearings. It is sufficient, for present purposes, to simply say that the facts in this case, in my opinion, are most serious and extremely disturbing.
4 I turn to a brief summary of your offending.
5 Your victim at the time of your offending was between 37 and 40 years of age, and you between 47 and 51 years of age. At sentence you are 52 years of age. During this offending you were living with your wife in Clayton.
6 In approximately 2008, you and the victim formed a friendship through social ballroom dancing classes. You were also employed by Chen Lee to do garden maintenance at her home. Both the victim and your wife are Chinese. The three of you became friends and, at times, socialised and went on holidays together.
7 Between March 2013 and September 2013, you began sending the victim a series of emails in which you declared your feelings for her, stating there had not been a minute when you had not thought of her and how beautiful she was. You made comments regarding the friendship suggesting you (both) could have a bit of excitement. The victim replied and made it clear she was not interested in that proposal. From September 2013 you were aware of her lack of interest in you in the way you had urged.
8 Shortly thereafter, on 20 September 2013, you sent a lengthy text message to the victim’s husband in which you said you had seen condoms on the floor at the victim’s home, had caught her with someone else and that there was probably another man also, her lawyer.
9 Between September and November 2013, you sent more emails to the victim declaring your love for her, telling her you treated her better than your wife. Thereafter, the tone of the emails became aggressive. You were infatuated with the victim and when spurned became aggressive and angry.
10 Between those dates you sent emails to your victim outlining your perception of what you suspected were her infidelities (Exhibit A paragraph 5).
11 On 6 November 2013, you recorded a conversation you had with the victim in her bedroom, in which you asked her about her involvement as part owner in a massage business. You asked the victim for a kiss, which she refused. You were again rebuffed. You did not like that.
12 In January 2014 you followed the victim to her workplace, where you had an argument with her. Chen Lee said she no longer wanted to speak to you. On 14 January, Chen sent you two emails reiterating that position, and also advised you your contract to perform work at her house was terminated. Not even this stopped you.
13 On 29 January 2014, the victim applied for a Personal Safety Intervention Order against you at Ringwood Magistrates’ Court. An interim order was granted to 12 February 2014.
14 On 12 February 2014, the victim’s application for a final order was contested by you. You gave evidence on oath, stating you had gone to the victim’s home late one night to check the fairy lights and had seen the victim intimate with a man, not her husband, and that had motivated you to send text messages to the victim. Suffice to say Chen Lee’s activities were none of your business.
15 On 12 February 2014, a full Personal Safety Intervention Order was granted until 11 February 2015, and the Order was served upon you.
16 Both you and Chen continued to attend the same ballroom dancing classes, and twice in July 2014 and twice in August 2014, you followed her from the class to the car park.
17 On 7 February 2015, Chen found what appeared to be a camera installed in the ducted heating vent above her bed. Police attended and discovered the device was a “dummy” and not capable of recording. Police subsequently located photographs of that device on your computer, which showed the device as it was when first discovered by Chen.
18 On 13 February 2015, which was just two days after the expiration of the Personal Safety Intervention Order, you attended Middy’s store next door to the victim’s home. You spoke to a staff member and offered to mow their lawns for free if they would sign a contract saying they would pay you $10 per week. You said you needed an excuse to be in the area, in case anyone asked. You then told the staff member about the issues you had with the victim, including the Intervention Order.
19 That conversation was recorded and saved onto your computer. In that conversation, you stated you were going to be at that property once a week to “piss her off and to show that she couldn’t get rid of you that easily.” You stated you were not going to back down, you were not going to stay away, just going to "piss her off" (Exhibit A, paragraph 14).
20 On 9 March 2015, you made a Facebook post onto the Facebook account of Chen’s husband, which included a photograph of the victim while she was pregnant, showing her naked breasts and stomach region. There was a lengthy and disturbing message attached (Exhibit A paragraph 15). I will not read that into the transcript.
21 Chen confirmed the photograph was of her when pregnant, and that it had been stored on her old mobile phone. In 2013, Chen had deleted the contents of that old phone and given it to you, as your phone was not working and you needed a new one. Subsequently, you had retrieved all the deleted data on that phone, which included photographs.
22 On 17 March 2015, Chen had security cameras installed at her home. You attended and spoke to the man who installed the cameras, asking which areas were covered by the cameras and the cost. Photographs were taken by Chen of you at the premises.
23 Two days later, on 19 March 2015, you were arrested for stalking and interviewed at Oakleigh Police Station.
24 Five days later, on 24 March 2015, you attended Ringwood Magistrates’ Court for the Intervention Order hearing. While there, you took a photograph of Chen seated in the waiting room, which you then sent to a mutual friend with a crude comment about how Chen was dressed. That person forwarded the photograph and comment to Chen, who whilst at Court told police. Leading Senior Constable Sue Smith approached you at Court, inspected your phone and saw the photograph and comment in your inbox.
25 On 26 March 2015 (two days later), a search warrant was executed at your home in Clayton, and also at your mother’s home next door. At your mother’s home, a room was set up for you. Many items were seized, including laptops, mobile telephones, paperwork and computers.
26 I turn briefly to Charge 2. Between February and April 2015 you contacted Ringwood Magistrates’ Court on two occasions, purporting to be related to Chen Lee and requesting a copy of some paperwork which related to her be sent to 24 The Parade, Clarinda. On 12 May 2015, police attended at that address. The occupants told police you were a friend, and they had no knowledge of the Court correspondence being sent to their address. An unopened copy of the letter addressed to Chen was found at that address.
27 On 13 May 2015, you attended Box Hill Police Station by appointment and were arrested and interviewed regarding your offending. Initially you spoke freely about your relationship with Chen, however, upon further questioning, claimed you were only doing extra chores for her out of the goodness of your heart. Regarding the stalking allegations, you said Chen would ask you to come to her house and that she “liked it when you were there”.
28 When asked about retrieving data from the mobile phone Chen had given you, you said you “did not want to go into that subject”. When asked about the image of Chen pregnant and partially nude on Facebook, you said that could be any pregnant Asian woman.
29 In September 2015, a full analysis was conducted of the devices belonging to you. That analysis revealed thousands of files, videos and photographs relating to Chen from 2012.
30 The extent of your offending involving Chen revealed concerning, intrusive, obsessive and protracted stalking. That included:
a) A surveillance device installed above Chen’s bed (and three videos dated 20 October 2013). This coincided with your emails becoming aggressive.
b) 155 photographs and four videos of Chen’s underwear including some images in which you open the underwear to capture the inside of the crutch area. Those images were shared across multiple devices which belonged to you.
c) Photographs of Chen’s medication.
d) Multiple photographs and film of Chen’s home on a very regular basis, including during the period of the Intervention Order. Some of the images depicted you walking up a neighbouring driveway, looking over Chen’s fence and zooming the camera into Chen’s room.
e) Researching Chen using the internet.
f) Purchasing VicRoads vehicle extracts related to Chen’s car.
g) Obtaining ASIC extracts in Chen’s name.
h) Attending Chen’s business address and photographing her mail.
i) Attending Chen’s premises on hundreds of occasions between 13 November and 15 March, many of those during the period of the Intervention Order.
j) Researching associates of Chen and attending their business premises on multiple occasions.
k) Creating an email address in Chen’s name (16 December 2014).
l) Purchasing a SIM card and creating a Vodafone account in Chen’s name using 100 points of Chen’s identification including her passport number. You then arranged for the SIM card to be sent to an address in Clarinda.
m) Creating a Facebook account using Chen’s details. I note this occurred during the Intervention Order (such expired approximately 11 February 2015).
n) Contacting Court and police asking questions about Chen on many occasions during 2013 and 2014 regarding proceedings related to her.
31 In total, the analysis conducted by the police revealed sixty five occasions when you breached the Intervention Order over a period of twelve months, nine breaches in the first six months of the Order, followed by ten breaches in August 2014, eight in September 2014, eleven in October 2014, ten in November 2014, ten in December 2014, and seven in January 2015. You are not sentenced for breaching the Intervention Order as I discussed with Mr Cash, however your actions are relevant to Charge 1. I am aware of the distinction. To say you were obsessed with her is an understatement.
32 The prosecution case was that your behaviour escalated over time and I agree. It became more frequent towards the end of the initial Intervention Order, at which time you progressed from attending fortnightly, taking one to two photographs, to almost daily attendance, taking up to eight videos and 22 photographs on some occasions.
33 As previously noted, within forty eight hours of the expiration of the initial interim intervention order (11 February 2015), you attended Chen’s address, taking five videos and six photographs.
34 Further, during the five-week period between the initial and subsequent intervention orders (11 February 2015 and 19 March 2015), you attended the victim’s home and business address on at least eighteen occasions.
35 Turning to Charge 3, further analysis of devices seized from you revealed 40 images (25 original) identified as Child Exploitation Material (CEM) saved across three different devices that belonged to you. The prosecution described some of the images as particularly violent relating to young females.
36 On your Samsung S3 mobile phone SD card, there were 10 images found (across 4 categories of CEM, 1, 3, 4 and 5), on the Toshiba laptop a total of 30 images across each of categories 1-6.
37 In the prosecution summary, the images were described as young female children posing and performing sexual acts upon adults, being penetrated by adult males, or restrained by devices or adults.
38 Whether or not these needed to be viewed by me was to be determined by the prosecution, and in that regard, I discussed with counsel the decision of R v Garside[2].
[2]
39 At the hearing on 7 December 2016, I viewed the images. There is significant diversity between the content in each category, as is often found in these cases. In some images items are involved in penetration with clear signs of distress in the children; in Category 1 (whilst non-penetrative) shows a very young girl standing naked before a large group of adults clothed both seated and standing with the young naked girl surrounded ‘on show’; other images are of children crying and/or in visible signs of pain; in one a young naked girl is grabbed by the throat by an adult in the presence of another adult male; there are also young children tied up in provocative poses, albeit not penetrative. Any further description is unnecessary. No doubt the Informant will keep this material should it be required at any later stage. It reveals much more than simply categorisation on scale of 1-6.
40 In total, 40 images (15 were duplicates) had been copied by you and saved in different locations on your computer. Thirteen of the images, at some stage, had been deleted. Investigations revealed that you had accessed those images on numerous dates, 5 April 2013, 4 December 2013, 30 April 2014, 1 July 2014, 7 July 2014 and 25 March 2015, the latter the night before the search warrant was executed. I shall refer to your instructions regarding how you came to be in possession of those images shortly.
41 In excess of 10,000 images and videos of legal adult pornography was located across all the devices. I discussed this with Mr Cash, mindful as I am that there is nothing illegal about that material. Its relevance more to assessing your description of your lack of interest in adult pornography to Dr Walton, and your very recent instructions the child pornography was on Chen’s phone. The transcript will reveal that discussion and should be read in conjunction with these sentencing remarks for clarification.
42 A summary was also provided in Exhibit A of the other material located on the various devices that belonged to you, relating to material between 14 April 2012 and 11 March 2015 (that is over a period of two years and eleven months). That summary is contained in Exhibit A (pages 6-15). Your offending conduct as contained on those pages occurred on a very regular basis and should be read as part of these sentencing remarks.
43 To say, as your counsel, Mr Cash, submitted, you were infatuated with Chen does not adequately describe your persistence in stalking her.
44 On 21 October 2015, you were arrested at your home, at which time you concealed a recording device in your sock, in an attempt to record police. You subsequently participated in a formal record of interview.
45 Regarding the child pornography, you then claimed you had been set up by the victim and corrupt police, who must have put the images on your devices as a plant. I note you no longer maintain that position. You also said you thought a child was someone under 10.
46 Otherwise, you essentially made a ‘no comment’ interview regarding a number of various allegations. To answer that way, of course, was your right.
47 As I have previously stated, your offending behaviour in Charge 1 occurred over a very significant period of time and on many, many occasions with at times, in my opinion, sexual connotations to your offending. It is not surprising your victim was in fear as a result of it, although I note some of your activity was unknown to her until police attended your home.
48 In my opinion, your offending falls at mid to high end of gravity.
49 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so. I also accept your plea of guilty was entered at the earliest opportunity since being charged, as I understood it on 21 October 2015. You have been in custody since that date.
50 I was told that on 12 July 2016 at the committal stage, you entered your plea of guilty to the charges before me, that course having been discussed with the prosecution on 1 July 2016. I accept the submission by Mr Fisher, who appeared for the prosecution at your plea hearing, that it was not until your previous plea hearing your instructions were that the child pornography, the subject of Charge 3, had been originally on the phone given to you by Chen (and nor was this in your instructions to Dr Walton). I note just prior to sentence being handed down today the prosecution made the submission that the original informant in this matter may have had some discussion with you. However, what is clear is that was not your explanation given in your record of interview nor to Dr Walton.
51 The prosecution tendered a further statement sworn by Chen on 6 December 2016, which specifically addressed those instructions.
52 Mr Cash sought instructions from you. You did not intend to give any evidence regarding this, and nor did you want Chen cross-examined on this issue.
53 I am satisfied to the requisite standard (R v Storey[3]) the images relevant to Charge 3 were not from Chen Lee’s phone.
[3] [1998] 1 VR 359
54 Whilst I am prepared to accept that your pleas of guilty indicate some remorse for your offending on the three charges, I am concerned about the extent of your remorse, and in discussion with counsel, in particular on 7 December 2016, this was addressed in some detail. Having said that, I do not find you are not remorseful, and when sentencing you, I must seek to maximise your chances of rehabilitation as they may be, and I shall turn to that later.
55 You have admitted a prior Court appearance at Oakleigh Magistrates’ Court on 12 May 1992 on charges of criminal damage, being unlawfully on premises and use a listening device. You were convicted and the matter was adjourned on a Good Behaviour Bond for two years.
56 Mr Cash submitted regarding Chen, in this offending you described your relationship with her as involving a lot of socialising. Initially you would do gardening at her place and also see her at various places, two to three times a week. You said you bought things for her, made things for her house and that she in return bought things for you and apparently even allowed you to stay at a ‘family home’ in China.
57 Mr Cash, however, conceded your victim, Chen, had from a very early stage consistent with the prosecution opening (January 2014), specifically made it clear to you she did not want to have anything to do with you and that your contract to perform work at her house was then terminated.
58 Mr Cash agreed there was a sexual component to your offending, which included videoing her having sex. You said you now did not want to have anything to do with the victim.
59 Mr Cash also filed a written outline of submissions for your plea hearing (Exhibit 1). He referred to your background and history in some detail.
60 In brief, when you were approximately 7 to 13 (or 16), he submitted your family became involved with an American religious “cult”. The philosophy of that cult was ‘goodness and respect for others’. Your father ultimately became so involved with that group a fraud was perpetrated upon him, which caused your family to lose a lot of money.
61 Between those ages (7 and 16) you were, he said, indoctrinated into the need to document everything.
62 Whilst Mr Cash conceded your offending behaviour could be described as ‘obnoxious’, he submitted you had been conditioned by your background, although also conceded you had not exhibited this type of behaviour towards anyone else or to this extent.
63 You married in 2009 when you were 45, having met your wife through gardening jobs which was your then employment. You had lived together from when you were approximately 40 years of age. You were married to her at the time of your offending involving Chen.
64 Despite becoming aware of your offending, your wife, I was told, nevertheless saw a future with you and was prepared to “stick by you” and I received a written reference from her today.
65 There are no children of your relationship/marriage.
66 Prior to your remand on these charges, you had been living in Clayton, and your elderly mother lived next door.
67 You were a self-employed garden maintenance worker, and worked Monday to Friday.
68 Mr Cash submitted you were most recently involved with the Saint Germaine Church, such confirmed in evidence from Dr Atkinson (your friend), to which I shall later refer. At the Saint Germaine Church you played the organ, confirmed by Dr Atkinson and information regarding that Church, was also placed before me (Exhibit 2).
69 Your mother is 88 years of age. Your father is deceased. You have two sisters who both work. No family member has previously been before the Court for criminal offending.
70 Regarding the court appearance you have admitted, I was told that occurred approximately 25 years ago, and that of course is so. Also, you had then received a good behaviour bond, which you kept.
71 Those charges, as I understood, occurred when you were infatuated with that victim. Mr Cash acknowledged there were some parallels between that offending and your current offending before me, although urged, as I am aware, there is 25 years between that offending and the charges before me. I also note you have not otherwise been in trouble or come to the attention of the police. Nor is there anything pending. The prosecution, perhaps understandably given the date of that prior court appearance, did not have a police summary of it. It is, however, troubling that despite the length of the intervening period you resorted to this behaviour involving Chen Lee.
72 A report was tendered from Dr Lester Walton, Consultant Psychiatrist, dated 11 October 2016 who examined you on 2 October 2016 at Hopkins Correctional Centre (Exhibit 3). Dr Walton noted your one prior conviction and your description of that offending.
73 Regarding the charges before me, you told Dr Walton you met Chen at ballroom dancing in around about 2007, that it was usual for couples to dance with each other and that you found that sexually exciting.
74 You said you were approached by the victim for assistance regarding gardening and that you provided that service on a number of occasions. You also gave her flowers. You became “thoroughly infatuated with her”. Dr Walton noted that there was at no stage any sexual activity between you. There was, however, as can be seen in the prosecution opening, what I would describe as sexual infatuation with her.
75 Turning to the pornography charge, you told Dr Walton you did not have any particular interest in pornography, be it adults or children. I discussed with Mr Cash, however, your downloading of 10,000 images of adult pornography (not illegal I stress). I discussed generally with Mr Cash your contradictory instructions, referred to in part in the latest report of Dr Walton dated 25 November 2016 in particular relevant to Charge 3.
76 Your instructions to Dr Walton was that you were not aware the child pornography was there.
77 Mr Cash however conceded, consistent with your plea of guilty to Charge 3, you were aware the child pornography was there. I note the prosecution case is that you downloaded the images on to your Samsung S3 mobile telephone and also on your Toshiba laptop.
78 Mr Cash agreed you were not telling the truth to Dr Walton when you stated you were unaware the child pornography was there. You have also abandoned your answers in the record of interview relating to the images in which you claimed ‘you’d been set up’ by the victim and corrupt police who must have put them on your devise as a plant.
79 Regarding Chen, you told Dr Walton you were shocked and dismayed when you found that Chen was running a massage business and you also began to believe her as a ‘purveyor of untruths’. You told Dr Walton you confronted Chen about her hypocritical behaviour and infidelities and said that, “I don’t even get a kiss.”
80 According to Dr Walton, you remained in the grips of your infatuation for your victim, continuing to make contact with her. You agreed you became increasingly angry and that prompted you to contact Chen’s husband.
81 You now apparently freely acknowledged you were doing the wrong thing. I, however, am in no doubt you knew you were doing the wrong thing throughout this offending. Dr Walton noted, on the one hand, you seemed to express some remorse that you may have harmed the victim by your activities, yet on the other hand, saw yourself as very much victimised as well. The latter, in my opinion, tends to support the proposition you wanted to in essence ‘pay back’ the victim for her non interest in you.
82 Dr Walton referred to your “striking psychological immaturity”.
83 Further details were provided in that report regarding your personal history, much of which had been outlined by Mr Cash, in particular, your family’s involvement with the church and your father being financially exploited.
84 You told Dr Walton you left school at age 16 and established a gardening business.
85 You told Dr Walton in custody you received visits from your sisters, your brother-in-law and mother. Your wife was now living in Sydney with her mother and you had therefore not seen her as often. At your plea hearing on 7 December she had returned to Sydney it seems.
86 A written reference, undated, was placed before me from her. She lived with you (until recently) since 2002. She described you as a warm person, and at times stubborn. You have had your gardening business for over 30 years. She described you as a caring person and a family man. You love your sisters and mother dearly. Your father has passed away.
87 You have been an organist for more than 20 years, and according to her you had been a member of the St Germaine Foundation since 7 years old. You have said you were sorry for your offending and would not do it again.
88 You described to Dr Walton sound physical health throughout your life, apart from some arthritis affecting your knees and back.
89 In custody you said you had been applying yourself to courses and had completed a ten week course, ‘Change on the Inside’, and participated in Zentangles, a form of art therapy. You said you had also undertaken a ten week hospitality training course, and documentation was provided on 7 December 2016 referrable to courses undertaken by you in custody.
90 Alcohol and drug use, you said, had not been an issue for you.
91 Mr Cash was not relying on any principles of R v Verdins & Ors[4] when sentencing you, and that in my opinion, was an appropriate concession based on all the material before me.
[4] (2007) 16 VR 269
92 Mr Cash, however, submitted your immaturity played a part in your ‘misconduct’ as well as your background. He noted that, in the opinion of Dr Walton, you did not require any psychiatric treatment.
93 Dr Walton described you as of normal intelligence with no significant cognitive deficits. He did not regard your “quite intense and bizarre ideas as frank delusions” nor did he find evidence of psychosis.
94 Turning to his opinion, your current mood disturbance was currently reactive to your disillusionment with the victim and your current legal predicament. Whilst not a psychiatric illness, Dr Walton was of the opinion you had psychological issues, likely attributable to you and your father’s involvement with a cult figure.
95 In the opinion of Dr Walton your psychological under-development was relevant to your offending. Your behaviour, he said, was similar to that of a naïve teenager who had fallen hopelessly in love. I have difficulty reconciling that with the extent persistence and planning of your offending relevant to Charge 1 and in part, Charge 2.
96 You did not require psychiatric treatment, however, in the opinion of Dr Walton, it may be worthwhile for you to engage in individual psychotherapy. If such is offered to you whilst in custody, I urge you to participate.
97 You were someone Dr Walton said, who could express empathy towards others and he cited your care of your mother. Whilst that was not relied upon as ‘family hardship’ referrable to exceptional circumstances, I accept that whilst in custody you will be concerned about her wellbeing and have taken that into account as some mitigation of sentence.
98 I refer specifically to the report from Dr Walton dated 25 November 2016.
99 Dr Walton conceded when a person is demonstrated to provide inaccurate information, it is entirely appropriate to have a degree of caution and suspicion about the reliability of other information as well, and I discussed with Mr Cash my concerns regarding the various accounts/explanations proffered by you.
100 Dr Walton’s conclusions were he said based on not just information from you but also included the material provided to him and his observations.
101 He concluded you exhibited significant mood disturbance. Your immaturity was determined partly on your account of the offending but also the facts of your offending. You did, however he said, have the capacity for empathy, that conclusion largely based on the history you provided in looking after your mother.
102 Dr Peter Atkinson gave evidence before me at your last plea hearing and a reference dated 30 May 2016 from him was also tendered (Exhibit 4). In evidence he said he had known you for approximately 35 to 40 years, in part through Saint Germaine Church. These charges were inconsistent with your reputation at the church. He would often see you at church with females and that you were observed to treat them with courtesy. As a general rule, he said you were quiet and shy.
103 He referred to your involvement with the church, tending gardens, playing the organ, and described you as a valuable member of the church. Your offending, he said, was out of character. He thought there was family support for you.
104 In cross-examination, he said he had not visited you in custody nor had any phone calls from you, although there had been, as I understand it, a couple of letters sent between you.
105 Over the years he said you would do a lot of videoing, particularly around the church. He would see you not only at church but also at your house.
106 Turning to his written reference, he described you as a family man, helpful to your elderly mother, hospitable and with a successful gardening business. He described you as being gifted and an accomplished musician.
107 There was a reference from Dr Doran-Browne dated 9 October 2016. She has known you for over 40 years as a friend and through social and religious events. She described you as very hard working and generous. You helped family and friends with tasks around the house. You played the organ at religious services and were a member of the Theatre Organ Society of Australia.
108 A reference from Brenda Rawat, undated. You had worked as a gardener and handyman for her family for approximately 20 years. She spoke in glowing terms of your work at her home. Your family remained supportive of you. You provided some explanation for looking at data on the phone, and not realising how serious a restraining order was, she says.
109 A reference from your mother, dated 25 October 2016. She is shocked and very upset about your offending. You take care of her home, garden and repairs. She is 88 years of age and cannot walk without an aid.
110 There is a reference from your mother-in-law, dated 12 November 2016. You helped her move to Australia and lived in a granny flat at the rear of your property for many years. She now lives in Sydney. She said you are a hard worker, kind hearted and thoughtful. You work hard, your hobby was gardening and playing the organ. You had taken your mother and she interstate for holidays. You involved her in family occasions. You regret your actions.
111 There is a reference from Sudha Joshi, dated 11 August 2016. She has known you for approximately 20 years. You worked as a gardener for her. You are a good worker and a gifted musician. You took care of their house when she was overseas. The charges are out of character.
112 There is a reference from Mei Da Silva dated 15 August 2016, who has known you for over approximately ten years. You tended her garden over that time. She also developed a social relationship with you. Your offending is out of character. She says you are a decent, sincere, reliable and trustworthy person.
113 There was a reference from K & D Poliness, dated 25 September 2016, your sister and brother-in-law. They were shocked by your charges. You had displayed love for your family and friends. You were hardworking, thoughtful, honest and trustworthy. You were generous in terms of work and other aspects of your life. You played the organ at church. You are remorseful for your offending.
114 Your sister also gave evidence before me on 7 December 2016. She described you from the ages of 7 to 15 writing down car number plates and taking photos of cars and planes regularly as a result of the influence of one member of the church. You were struggling to deal with your inability to care for your mother whilst in custody.
115 There is a letter from you, undated, written whilst at Hopkins Correctional Centre. You regret your offending and the impact upon Chen and your family. You acknowledged your offending behaviour was inappropriate and were ashamed of it. I have some concerns regarding the extent of your remorse, as I previously stated.
116 Also tendered was a summary of Courses undertaken by you at Hopkins (Exhibit 5). It is pleasing you are using your time in custody usefully.
117 The further hearing of this matter was then adjourned to 7 December 2016.
118 Before the matter was formally adjourned, Mr Cash directed me to DPP v Anderson[5], a decision of Judge Quin of this court following the decision of DPP (Cth) and DPP v Garside[6]. It is very difficult comparing cases factually as matters vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender. In Anderson I note there was a delay in charging the appellant. Further, that accused had a number of medical conditions and had been on a regime of medication to control epilepsy for most of his life. A number of issues were also identified as contributing to the accused’s offending (paragraph 11 of that decision).
[5](2016) VCC 744
[6][2016] VSCA 74 [25]
119 It would appear also from that decision that the child pornography images were Levels 1, 2 and 3. Her Honour described that material as not involving participation in actual sexual activity and fell at the lowest level of classification. That is not my assessment of the material I observed in this case. The files also depicted prepubescent or those children aged around puberty, not extremely young children or toddlers in that case.
120 Her Honour also noted the total number of files being 29 (Anderson, paragraph 4). In Anderson the appellant also had a prior and relevant child pornography court appearance (which you do not).
121 Consistent with various authorities from the Court of Appeal and elsewhere across Australia, Her Honour noted as do I, that exploitation and abuse of children by offending such as yours, i.e. possession of child pornography, can cause irreparable and psychological harm to those children.
122 Mr Cash also referred me to the decision of R v Fulop[7], with which I am familiar.
[7] [2009] VSCA 296
123 He submitted there was no evidence this was for sale and further distribution, or that you would profit from it, and that there was not thousands of images (40 (15) duplicate). I am aware of all these matters.
124 There was a Victim Impact Statement before me from Chen. She has suffered considerably in the manner described in her statement. Your counsel, Mr Cash, did not seek to minimise the impact upon your victim of your offending.
125 Chen said your behaviour had worried her for years but that it had become ‘extremely bad’ in the past two years (her statement was sworn August 2016). She felt fearful for her life, and for the safety and security of her children and family. Your offending had impacted adversely upon her relationship with her husband.
126 Chen stated she had difficulty concentrating on work and had to take sick leave due to stress as a result of your offending.
127 She described her mental health following your offending. She experienced exhaustion, frustration, anxiety and felt devastated at times. She had to seek medical help and the support of a psychologist and counsellor. She had also taken medication to alleviate stress. She had headaches, shortness of breath and other health conditions which was referrable to the stress caused by your offending.
128 There had been a negative impact on her social life as various photos she thought would be private had been placed on social media websites. You had caused her huge embarrassment and she had lost friends and her reputation. She had difficulty trusting others.
129 She had to spend money on improving or increasing security measures and systems at her home and had also changed all the locks and installed a house alarm system, flood lights, surveillance camera and security door. She also wore a 24 hour security card and monitor by way of a personal alarm.
130 She was concerned she may need to move home, even of returning to China to avoid risks and damages she may be exposed to.
131 She has been an Australian citizen since 2008.
132 There is also the notion of social rehabilitation which is important. In DPP v Toomey[8], his Honour Justice Vincent citing DPP v DJK[9] (of course allowing for the very different factual circumstances in that case from yours, referred to the importance of social rehabilitation).
[8] [2006] VSCA 90
[9] [2003] VSCA 109, [17] and [18]
133 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
134 Your counsel, Mr Cash, urged the appropriate disposition for your offending would be time served to date with a community correction order, in the alternative a term of imprisonment of longer with a non-parole period and/or a longer term of imprisonment and then a community correction order. In other words, a disposition that did not just involve a term of imprisonment.
135 Mr Fisher, on behalf of the prosecution, submitted sentencing was a matter for me, and of course it is, but I do listen obviously to counsel's submissions and take them both into consideration, i.e. both counsel. It was a matter for me whether I determined a term of imprisonment with a community corrections order, or a term of imprisonment with a non-parole period was appropriate. He submitted while Chen may not have known of the extent of your activities at the time of them, your offending had a degree of sophistication and was persistent, calculated, regular and intrusive. I agree.
136 Ultimately, as I have said, I must determine the appropriate disposition in this case taking into account all relevant sentencing principles.
137 I am mindful of the decision in Boulton & Ors v R[10] and the subsequent pronouncements of the Court of Appeal relevant to those principles and I am referring to community corrections orders. A Community Corrections Order has both a punitive and rehabilitative aspect to it, and in Boulton the Court was urged to ‘rethink the conventional wisdom about whether prison is really the only option’.
[10] [2014] VSCA 342
138 Community Corrections Orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[11], Alam v The Queen[12], Marocchini v The Queen[13] and Hutchison v The Queen[14], of course being mindful of the different offending in those cases from yours (and recently Gul v The Queen[15]).
[11] [2015] VSCA 95
[12] [2015] VSCA 48
[13] [2015] VSCA 29
[14] [2015] VSCA 115
[15] [2016] VSCA 82
139 I did not however understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other Courts relevant to your offending now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
140 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges. Further, I note Priest JA observed in Hutchison that:
“… it should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
141 Regarding your rehabilitation prospects, I have some concerns. Your offending behaviour was troubling, extensive and persistent regarding Charge 1, and without satisfactory explanation regarding Charge 3. Your offending relevant to Charge 2 involved some sophistication and planning. You are, according to Dr Walton, immature and in need of counselling to address your offending behaviour. Whilst an element of immaturity is a consideration, this does not explain the extent of your offending. You were also married at the time, employed and active in the church were not protective factors for you, as you offended during those times. I remain concerned regarding your rehabilitation prospects.
142 Also, despite 25 years between your prior offending and that before me, it again involved in broad terms, ‘similar type’ offending though clearly not on the scale of your current offending.
143 As well as all matters personal to you, including your prospects of rehabilitation, as I find them to be, I must take into account general deterrence which is of particular importance when sentencing you on the charges before me.
144 I must also consider the need for specific deterrence and whilst I note your prior offending was 25 years ago, you nevertheless offended again and on multiple occasions over a significant period of time (relevant to Charge 1). You were not deterred. Also, your offending in Charge 3 involved you ‘revisiting’ the material on a number of occasions.
145 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood if your re-offending. This still causes me some concern.
146 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
147 In my opinion, to impose a term of imprisonment (of up to two years), together with a Community Corrections Order would not appropriately or adequately address the gravity of your offending even taking into account all matters in mitigation of sentence and personal to you. The sentences urged upon me by Mr Cash, in my opinion, are neither appropriate nor adequate.
148 When sentencing you I, of course, take into account the principle of totality.
149 I sentence you as follows.
150 On Charge 1, you are convicted and sentenced to 3 years’ imprisonment.
151 On Charge 2, you are convicted and sentenced to 10 months’ imprisonment.
152 On Charge 3, you are convicted and sentenced to 7 months’ imprisonment.
153 Charge 1 is the base sentence.
154 I direct that 5 months of Charge 2 be served cumulatively upon Charge 1.
155 I direct that 3 months of Charge 3 be served cumulatively upon Charge 1.
156 For clarity, the orders for cumulation are upon each other and upon the base sentence.
157 That results in a total effective sentence of 3 years and 8 months’ imprisonment, and I direct you serve a period of 2 years and 4 months before you are eligible for parole.
158 Pursuant to s.18(4) Sentencing Act 1991 I declare you have spent 413 days in custody (up to and including 6 December 2016), by way of pre-sentence detention, and I direct this be entered into the records of the court.
159 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, in other words, if you had pleaded not guilty to the charges on that indictment, I would have sentenced you to a term of imprisonment of 6 years, and set a non-parole period of 4 years and 6 months.
160 Regarding Charge 3, possessing child pornography, this is a single Class 2 offence pursuant to the Sex Offenders Registration Act, and as such it is mandatory you comply with the reporting conditions of that Act for a period of 8 years. Mr Cash agreed such a classification and duration applied to you, and after this sentence is handed to you, my associate will approach you simply to hand you documents regarding the Registration Act, you are simply being asked to sign acknowledging receipt of those documents. If you do not want to, you do not have to. You are not being asked to sign whether you agree to be on the order, I have made that order. It is just to get the documents to you. But still, if you do not want to sign it, it is up to you.
161 The prosecutor also made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. This was not opposed by your counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample and I do so on the basis of the seriousness of your offending. I must advise you the authorities may use reasonable force in order to obtain that sample.
162 At your initial plea hearing the prosecutor indicated they would be seeking a disposal and forfeiture order regarding a number of items seized from your home and at that stage was yet to be discussed with Mr Cash. This was discussed on 7 December 2016. You opposed the making of both the disposal and forfeiture orders. No detail was provided regarding the basis of your opposition in respect of either order.
163 In my opinion, having viewed the items sought to be forfeited and disposed of are appropriate, and I make the orders in the terms sought.
164 Are we right with the figures? The PSD was correct?
165 MS PROSECUTOR: Yes, Your Honour.
166 HER HONOUR: Excellent. Thank you both very much. Charge 3, Ms Jackson says she had got something wrong. I had you convicted and sentenced to seven months and I direct three months of that seven months be served cumulatively upon Charge 1. Have you got that?
167 MR CASH: So seven months and three months to be cumulative.
168 HER HONOUR: Correct.
169 MR CASH: Thank you.
170 HER HONOUR: So just to repeat it, Charge 1, three years. Charge 2, ten months. Charge 3, seven months. Charge 1 is the base. Five months of Charge 2 on Charge 1. Three months of Charge 3 on Charge 1, which is a total of, as I said, three years and it is five, six, seven, eight, in case there is any need. So are you right with that now? Ms Jackson did you get that right now?
171 ASSOCIATE: Yes.
172 HER HONOUR: Got it, good. All right, anything further?
173 MS PROSECUTOR: No, Your Honour.
174 MR CASH: No, Your Honour.
175 HER HONOUR: Thank you both for your assistance. You have to sign - you do not have to sign but you are going to be asked to sign, these are simply the documents that relate to the Sex Offenders Registration Act. Ms Jackson is obliged to hand them over, so that is what she is going to do. As I say, if you do not want to sign them, so be it. It is her job. I have signed all those orders for the Crown that I have wanted. You can go back if you want to or your instructor. This is just the Sex Offenders Registration Act.
176 Thanks, Mr Georgiou, you will have to go our first if you would not mind.
177 (Prisoner removed.)
178 Thank you again.
- - -
8
0