Director of Public Prosecutions v Graham

[2021] VCC 137

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-01029

DIRECTOR OF PUBLIC PROSECUTIONS

v

PERRY GRAHAM

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2020, 27 January 2021
DATE OF SENTENCE:	18 February 2021
CASE MAY BE CITED AS:	DPP v Graham
MEDIUM NEUTRAL CITATION:	[2021] VCC 137

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentencing – fail to comply with reporting obligations –           knowingly possess child abuse material – use a carriage service to solicit child pornography – use a carriage service to transmit child pornography – use a carriage service to transmit indecent communications to a person under 16 years – use a carriage service to procure a person under 16 years to engage in sexual activity – use a carriage service to groom persons under 16 years – use a carriage service to menace – plea of guilty

Legislation Cited:                  Sentencing Act 1991 (Vic)
  Sex Offenders Registration Act 2004 (Vic)
Cases Cited:  Mill v The Queen [1988] 166 CLR 59.

Sentence:Total Effective Sentence of 3 years and 8 months’ imprisonment, with a non-parole period of 15 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Vingerhoets (Sentence) Ms S. Holmes (Plea)	Office of Public Prosecutions
For the Accused	Mr W. Collins-Putland (Sentence) Ms S. Lenthall (Plea)	Victorian Legal Aid

HIS HONOUR:

1Perry Graham, you have pleaded guilty to:

·     one charge of failing to comply with reporting obligations (Charge 1), for which the maximum penalty is a term of imprisonment of five years;

·     one charge of knowingly possess child abuse material (Charge 2), for which the maximum penalty is a term of imprisonment of 10 years;

·     seven charges of using a carriage service to solicit child pornography (Charges 5, 6, 8, 12, 13, 14 and 16); and six charges of using a carriage service to transmit child pornography (Charges 3, 4, 17, 18, 22 and 23), for each of which the maximum penalty is a term of imprisonment of 15 years;

·     three charges of using a carriage service to transmit indecent communications to a person under 16 years (Charges 7, 9 and 11), for which the maximum penalty is a term of imprisonment of seven years;

·     one charge of using a carriage service to procure a person under 16 years to engage in sexual activity (Charge 10), for which the maximum penalty is a term of imprisonment of 15 years;

·     five charges of using a carriage service to groom persons under 16 years (Charges 15, 20, 21, 24 and 25), for which the maximum penalty is a term of imprisonment of 12 years; and

·     one charge of using a carriage service to menace (Charge 19), for which the maximum penalty is a term of imprisonment of three years.

2The offending ran from 6 June 2016 to 17 October 2017.  Tendered as Exhibit 1 on the Plea was a Summary of Prosecution Opening, dated 28 October 2020.  I annex a copy of that document to these sentencing reasons and incorporate the details therein contained into these sentencing reasons. Briefly stated the circumstances of your offending were as follows. 

3On 17 June 2015, you were placed on the Sex Offender Register for 15 years following your conviction for a registrable offence.  In consequence, you were thereafter subject to the statutory reporting requirements.

4You attended for your annual review in June 2016 and again in June 2017.  At those reviews you purported to provide all required information.  In October 2017, Victoria Police received information that you were in contact with a
14 year old female on Skype messenger.  Police obtained screenshots of the conversation between you and the 14 year old child, the details of which are to be found at paragraph 8 of Exhibit 1. During that conversation, you told your correspondent that you wanted to show your penis to her and to ejaculate inside her (Charge 15).

5On 17 October 2017, police attended at your home address in Noble Park North.  You were arrested and a warrant was executed. Various devices were seized and later analysed.  These devices included an Acer laptop, an Apple iPad and an Apple iPhone 6S.  It is the analysis of those devices that underpins the charges on this indictment.  Revealing the extent to which you had viewed child abuse material, both from stored files and from the internet, the sites that you had visited, the search terms that you had used to find sites and your online communications with various correspondents.

6You had failed to provide to the Sex Offender Register the email username [email protected] located on your iPhone (Charge 1).  Across the three seized devices, being the Acer laptop, the Apple iPad and the Apple iPhone 6S, were found the following child exploitation material:

·        541 images in category 1;

·        166 images in category 2;

·        18 in category 3;

·        259 in category 4;

·        19 in category 5;

·        135 in category 6; and

·        two in category 7. 

7There were in total 1140 images and files containing child abuse material across the various devices. That material included 259 images and files in category 4, that is to say images depicting children involved in penetrative acts with adults (Charge 2).

8During analysis of your iPhone, police identified online conversations dating from 10 March 2017 to 29 September 2017 between yourself and various participants using the Kick and Line internet chat forums. Those conversations involved sending and receiving images and videos of children in sexually explicit positions and poses, including penetrative sexual activity, eliciting these images from various young participants and engaging in sexualised chats with underaged persons.

9These conversations underpin Charges 3 to 25 on the indictment.  Their content is set out in detail at paragraphs 28 to 46 of Exhibit 1 and I do not repeat them here.  The sexually explicit conversations are with children of both genders, aged between 12 and 17, and consist of persuasions and demands for the children to perform acts or send sexualised images of themselves. The transmission of child abuse material included sending, to more than one correspondent, a video file depicting a naked boy, aged eight to nine years old, engaged in penile/vaginal intercourse with a naked female, aged approximately 11 to 12 years old.

10During a Record of Interview conducted on 17 October 2017, you admitted that all of the seized devices were yours.  You acknowledged that the iPhone contained child abuse material, but stated they were on your phone after your friend had used it and you had not yet deleted them. These images had been on your phone for three to four months and during that period you had accessed them.  You also admitted you had forwarded images to random people, but could not now remember how many images had been distributed.

11You sent the videos because people “asked for a video or for certain videos”.  You acknowledged your reporting obligations under the Sex Offender Registration Act 2004.  You admitted having various conversations of a sexualised nature with underage females.  You claimed that you would access teen chat sites in order to report older guys using those sites to the site moderator, a clearly false assertion on your part.

12I turn now to your personal circumstances.  You were born in December 1995. You are now 25 years of age and were aged 21 at the time of this offending.  You were born in Melbourne, the eldest of four children, and grew up in Springvale with your siblings and your parents.

13There was some marital conflict in the home and your parents separated when you were 17 years old.  At the age of 16, you were apparently removed from the family home by the Department of Health and Human Services (DHHS).  You remained in residential care until the age of 18, when you moved to supported accommodation.  At the age of 16 you left High School, but re-engaged with education by attending Swinburne TAFE whilst still under DHHS care. You left the course before attaining any qualifications. 

14You report no issues of alcohol or substance abuse.  Apart from brief employment at a Coles supermarket, you have been unemployed.  You report some age appropriate sexual partners in the past, albeit all conducted online. It appears that your main relationships have been in the virtual world through online gaming forums, an important part of your life I am told. 

15You have a relevant prior history.  On 17 June 2015, for an offence of sexual penetration of a child under 16 years of age, you were placed upon a Community Corrections Order (CCO) for a period of 18 months, with both punitive and therapeutic conditions. The victim in that matter was your then girlfriend, who was aged 14 at the time of your offending against her.  You were then aged 18.  You were also placed upon the Sex Offenders Register with a mandated reporting period of 15 years.

16In August 2016, you were convicted and fined for failing to comply with your reporting obligations when you failed, as required, to provide current email addresses.  That offending also led to contravention proceedings in respect of the earlier CCO. In January 2017, that CCO was confirmed. 

17Following your arrest on 17 October 2017 in respect of these matters for which you fall to be dealt with today, you were interviewed and released, pending further enquiries. Those enquiries included a contemplated analysis of your various devices by e-crime.

18It seems that after your devices were seized you promptly acquired new ones and recommenced your offending.  Most significantly, on 18 January 2019 you were again arrested, interviewed and later charged in respect of offending committed between 21 August 2016 and 18 January 2019, a period of significant overlap with the offending in front of me today.

19This new offending proceeded through the courts and on 19 December 2019 you were sentenced by Her Honour Judge Cannon in this Court to a Total Effective Sentence of four years' imprisonment, with a non-parole period of 20 months for one charge of using a carriage service to transmit child pornography, one charge of failing to comply with reporting obligations, one charge of using a carriage service to access child pornography, three charges of using a carriage service to groom, one charge of using a carriage service to solicit child pornography and one charge of possession of child abuse material.

20On 13 January 2020, four weeks after Her Honour's sentence and a full 27 months after your arrest on these matters, you were charged in relation to these matters.  At your Plea hearing on 19 November 2020, I ordered a further report upon you be completed. 

21Exhibit 5 on the Adjourned Plea was a report dated 19 January 2021, prepared by Dr Simon Vincenzi, clinical forensic psychologist, at Forensicare. I had specifically requested that Dr Vincenzi address risk and any personality traits contributing to your offending in the absence of any such material being in front of the Court on your Plea.  Dr Vincenzi stated:

“Mr Graham appeared to have a very poor insight or a high degree of defensiveness about his offending behaviour.  He denied being able to recall any of this offending, frequently stating that, "It doesn't seem like something I'd do".  Cognitive distortions regarding his offending were difficult to ascertain given that Mr Graham categorically denied having any memory of engaging in any of the sexual offending or even understanding why he would engage in such behaviour.  He did however engage in minimisation, stating that he didn't see his offending behaviour as problematic as other people have engaged in worse behaviour, sexual intercourse with children, and, "Gotten away with it."

22In his conclusion, Dr Vincenzi states:

“Mr Graham has few friends, has never worked, often has long term intimate relationships with people he has never met in person and spends a significant amount of his life living virtually.  This may lead to a sense of intimidation in relation to adult relationships and may contribute to a view of underage females as impressionable and non-threatening by comparison.  His lack of insight may help explain why he is now engaged in multiple sex offences despite the negative repercussions to himself and to others.  He hasn't had the opportunity to learn from his mistakes as he never considers them.  he copes with feelings of anger and likely feelings of guilt or shame by avoiding thinking about them, distracting himself and largely disengaging from the world around him.  Speaking with Mr Graham also gives the same impression of avoidance.”

23You reported to Dr Vincenzi that you were finding your time in prison to be comparable to your time in the community, given your tendency to avoid the external world.  As to your personality profile, Dr Vincenzi wrote:

“Whilst he exhibits multiple problematic personality traits, these do not appear to have directly contributed towards his offending, except to the extent that they helped him avoid feelings of guilt and remorse that may have otherwise caused him to cease engaging in such behaviour.”

24Finally, using peer reviewed assessment models and his clinical judgment,
Dr Vincenzi placed you at a moderate to high risk of sexual recidivism.  These offences, and those dealt with by Her Honour Judge Cannon, were regarded as one offence cluster for the purposes of that risk assessment. This was in accordance with current best practice.  Offence specific treatment is strongly recommended to reduce your risk of further offending, addressing, in particular, minimisation, your attitudes condoning sexual offending, your problems with self-awareness, stress and coping mechanisms.

25Mr Graham, sexual offending against and involving children will always be viewed as serious offending.  There is an absolute prohibition on sexual activity with a child which is founded upon a presumption of harm.  This prohibition is intended to protect children from the harm that is presumed to be caused by premature sexual activity; that is activity before an age when a child can give meaningful consent.

26Sexual activity between adults and children can have a lasting impact upon the emotional and psychological wellbeing of the victims of such offending.  The online world is recognised as a fertile landscape where predators can roam, seeking out children, unseen by other authority figures and unseen by parents. The online world permits offenders to employ techniques of intimidation and coercion which are designed to ensure the child's participation. The stranger danger of old can now be brought into the home at the click of a mouse.

27It is in response to that threat that Parliament has seen fit to increase penalties for offending which is all too easily committed online.  Offending of this kind is today becoming increasingly prevalent as more and more young people and children live out their entire lives in the virtual world.

28Offences involving child abuse material are, likewise, all too prevalent today.  The possession of and trading in such images is not, Mr Graham, a victimless crime.  Those who possess and trade such images constitute the market for an industry built upon the exploitation of children, yielding enormous profit to the gangs who run it.

29That criminal trade, Mr Graham, quite simply would not exist without consumers such as you, and the Court will do everything it can to give effect to the intention of Parliament and to protect children.  Your offending, in my view, reveals not only a sexual deviancy which is of great concern in one as young as you, but in addition an almost chilling and casualised indifference to your victims.

30Your offending was variously persistent, harassing, threatening, callous and predatory.  In the literal sense of that word, you were going on a hunt to see what was out there in the virtual world.  You demonstrated, as your search terms make clear, a determination to find sites offering sexualised images involving children.

31The language used and the exchanges in which you engaged reveal an entrenched sexual depravity. You also willingly traded child abuse material as freely as boys in another era would have traded football cards of their favourite sporting heroes, and you used it as a currency in an attempt to gain more images. In doing so, you again demonstrated a casualised indifference to the victims portrayed in the images that you traded and again demonstrated how entrenched your deviant desires had become. 

32Your offending is serious, as the maximum penalties imposed by Parliament make clear.  I have no hesitation in finding that you well knew what you were doing was wrong and your moral culpability is, in my view, high. You have been assessed as a moderate to high risk of sexual re-offending, but of particular concern is your continued denials and minimisation. 

33Mr Graham, in sentencing you I must impose a sentence that is of a severity appropriate in all the circumstances of your offending. There are many factors that I must take into account under both Commonwealth and State legislation and these include, non-exhaustively, the nature and circumstances of the offence, including your moral culpability, the maximum applicable penalty, any injury, loss or damage that resulted from the offence, the degree to which you have shown contrition, the fact that you have pleaded guilty to the charges, the utilitarian benefit in your guilty plea, the degree to which you have cooperated with law enforcement agencies, principles of general deterrence, the deterrent effect that any sentence or order under consideration may have on you, the need to ensure you are adequately punished for your offending, your character, your attendance, your age, your means, your physical or mental condition, your prospects of rehabilitation and delay, if any.

34It is common ground that the primary sentencing purposes for offending of this kind are general and specific deterrence, just or adequate punishment, denunciation and protection of the community.  Equally, there is no dispute that the extraordinary and inexplicable delay in bringing this matter before the Court has, as a matter of accepted principle, severely constrained the sentencing options available to the Court.

35No sufficient explanation has been provided to me as to why it took 27 months from the date of your arrest until you were charged.  The matters for which you fall to be sentenced today were not in front of Her Honour Judge Cannon when she sentenced you on 18 December 2019 for offending that was similar, (but had much fewer charges in number) and committed during and after this offending. All of these matters could and should have been dealt with at the same time.  I am unable still to fathom how that which occurred was permitted to occur and the responsibility lies firmly with the Prosecution authorities. However in view of your continued offending, it could not be submitted that you had particularly suffered from having these matters left unresolved, nor that you had used the intervening time to rehabilitate yourself, as you clearly had not.

36There is an inherent and recognised unfairness in such a delay which must be reflected in any sentence of this Court.  You have lost what lawyers call the opportunity for concurrency, and the principle of totality must be at the fore of my sentencing considerations.

37Further, I was told on the Adjourned Plea that you had not been able to access sex offender treatment while these matters remained pending, as Corrections required a firm date as to your eligibility for parole before setting a date for commencement of any treatment. This is of particular concern given your deviant desires and the urgent need for sex offender treatment.  No proper assessment can be made as to your prospects for rehabilitation until you have engaged in that treatment.  Thus, it seems to me, most regrettably, that both your rehabilitation and protection of the community have been ill served by the delay.

38Accordingly, having regard to the principle of totality and exposition as per the case of Mill,[1] in my view the correct approach is to consider what would have been an appropriate total sentence, both in terms of head sentence and minimum term, had all matters been in front of Her Honour Judge Cannon in December 2019 and then to impose a sentence which is consistent with that determination.

[1] Mill v The Queen [1988] 166 CLR 59.

39This approach, in effect, is looking through the past darkly.  The approach requires an assessment of the overall or total criminality and in that assessment it may be necessary to impose a disproportionately lenient sentence.  Such an approach was urged upon the Court by both Counsel for the Prosecution and for the Defence.

40The task has been made easier by the concession on behalf of the Commonwealth Director that an aggregate sentence was available to the Court.  Ms Holmes, on behalf of the Director, submitted that in accordance with such an approach some further imprisonment is required on the current matters before me. I agree. 

41Your Counsel, Ms Lenthall, argued against any disproportionate increase in your current sentence and urged a disposition providing you with an opportunity for a prolonged period of supervised reintegration into the community whilst on parole, should you obtain parole.

42I have tried to fashion a sentence both in form and in substance which strikes the correct balance having regard to the gravity of your offending, your youth, your pleas of guilty, your risk assessment, detention in the time of COVID-19, and the overarching requirements of totality.

43On Charges 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25, that is to say all the Commonwealth charges, you are convicted and sentenced to an aggregate term of imprisonment of three years and three months.  The sentence will commence today.

44On Charge 1, failure to comply with reporting obligations, you are sentenced to a term of imprisonment of four months. 

45On Charge 2, knowingly possessing child abuse material, you are sentenced to a term of imprisonment of 12 months.

46I direct that five months of the sentence on Charge 2 is to run cumulative to the aggregate sentence on Charges 3 to 25.  This makes a Total Effective Sentence (TES) of three years and eight months’ imprisonment.  You must serve a term of
15 months before you become eligible for parole.

47The effect of my sentence, as I have worked it out, is that your new sentence end date will be 17 October 2024, your current end date being
13 November 2023, and that you will become eligible for parole on 17 May 2022, your current eligibility date being 6 July 2021. 

48That at least provides Corrections with a firm date for your eligibility for parole and it is my hope that Corrections will take some action and begin to place you on the treatment program that you so clearly need.  It is apparent that these are entrenched desires, but I am not an expert and certainly there is a need for that treatment to begin as soon as possible. 

49Pursuant to s 6F of the Sentencing Act 1991 (Vic), on Charge 2, Mr Graham, you are sentenced as a serious sexual offender and I direct this be entered into the Records of the Court.

50Pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty you would have been sentenced to a TES of six years and nine months’ imprisonment, with a non-parole period of four years and three months.  In passing that sentence, I have also tried to align with the sentence imposed by Her Honour Judge Cannon to keep some synonymity. It is not a perfect exercise, but I have done the best that I can.

51Pursuant to the Sex Offender Registration Act 2004 (Vic), you are again defined as a registrable offender, Mr Graham, and the reporting period is for the remainder of your life.

52Mr Graham, you understand, you are a young person, all young people are using virtual platforms with alarming alacrity.  What is important now that you are a registered offender for life is that every year when you go for your review you have to declare every known domain name that you are using, every avatar, every online identity. I would imagine, Mr Graham, that your recent experience has shown you that when you go online people notice and people find you. 

53The provisions of the Act are intended to protect children. Those who fail to give the information that they are obliged by law to give are prosecuted, and when they come in front of the Courts are almost invariably sentenced to prison. The further and more times that you fail to comply, the longer the prison sentence will be. The maximum penalty is five years’ imprisonment.  It is an indication of how serious the courts and the law view the requirements of registration. 

54HIS HONOUR:  Mr Collins-Putland, custody management issues?

55MR COLLINS-PUTLAND:  I do not think that there is anything for me to raise that's necessary at this stage.

56HIS HONOUR:  Thank you for that.  Ms Vingerhoets, thank you for your attendance today. 

57MS VINGERHOETS:  Yes, thank you Your Honour, if I could just raise, I understand there's a disposal order?

58HIS HONOUR:  Those orders will be signed in due course and sent to you.  Mr Graham, I wish you good luck with the treatment.  One of the great gifts of life is our ability to change. The treatment which will be made available to you is designed to show you the way forward to get your desires back on track.

59I will stand down.  Have a good afternoon.