Director of Public Prosecutions v Gray
[2017] VCC 1972
•20 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN GRAY (A pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 5 December 2017 |
| DATE OF SENTENCE: | 20 December 2017 |
| CASE MAY BE CITED AS: | DPP v GRAY |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1972 |
REASONS FOR SENTENCE
---Subject: Production and transmission of pornography, Incest, Indecent Act
Sentence: 11 years imprisonment with 2 1/2 years non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | |
| For the Accused | Mr R. Langton |
HIS HONOUR:
1You have pleaded guilty to each charge on an indictment containing 9 charges. In these sentencing remarks you will be referred to by the pseudonym Jordan Gray. That is for your protection but more importantly to protect the identity of your children, who were your victims.
2Charges 1 and 8 are each charges of production of child pornography. The maximum penalty for this offence is imprisonment for ten years.
3Charge 2 is a charge of transmission of child pornography, for which the maximum penalty is also ten years' imprisonment.
4Charges 3 and 4 are each charges of incest for which the maximum penalty is 25 years' imprisonment.
5Charges 5, 6 and 7 are each charges of committing an indecent act in the presence of a child, for which the maximum sentence is ten years' imprisonment.
6Charge 9 is a charge of possession of child pornography for which the maximum sentence is 10 years' imprisonment.
7When you pleaded guilty, you also admitted prior convictions. None of your prior convictions are for offending of a sexual kind or involve children. They are thus largely irrelevant in this sentencing process.
8Your offending occurred in February of this year. The circumstances of your offending are contained in a prosecution summary that was tendered in evidence and read in open court by the learned prosecutor Mr Moore. Your counsel Mr Langton agreed that the summary accurately reflects the facts upon which I can proceed to pass sentence upon you. It is not necessary that I here repeat that which is set out in the summary, except in an abbreviated way. These sentencing remarks need be read, however, in conjunction with what is set out in the summary.
9In February of this year you were the sole carer of your daughter aged nine and your son aged three. These two children were the victims of your offending. You had separated from the mother of your children, who was your third wife. You were aged 47. You have two other adult children from two previous marriages.
10In early 2017 you came to the attention of Queensland Police, which was targeting internet child pornography and sexual offending. It was identified that you were the owner of an album of photographs entitled "single dad" that were located on a Russian based website.
11On 6 February, undercover police began communicating with you using the internet in the result that you sent images of your children (photos and videos) to the undercover operatives. (Charge 2.)
12Three of those images were of your son and were pornographic in nature, depicting your son exposing his penis and anus. Those photographs were taken by you. (Charge 1).
13You also sent photos and videos of your daughter which were pornographic. They were also taken by you. (Charge 8).
14The video depicts you digitally penetrating your daughter's vagina over a ten minute period whilst she reclines on a bed. (Charge 4)
15You are also depicted naked from the waist down as you digitally and with your erect penis, penetrate your daughter (Charge 3) and at the same time with her hand masturbating your penis (Charge 5). You can also be seen placing your penis near your daughter's mouth (Charge 6) and on her buttocks (Charge 7).
16When forensically examined, the camera that you used was found to contain seven other pornographic images of your daughter and three laptop computers and a USB drive seized during the search contained hundreds of child pornographic images (Charge 9).
17Mr Langton, in his written outline, provided a helpful break up and description of the child pornography found in your possession relevant to Charge 9. The prosecution did not take issue with his submissions on this point. Forensic examination of the computers, laptops and USB drive found in your possession located 903 items of which 499 could be categorised as legal. This accounts for 55 per cent of the items located.
18A further 369 items were categorised as being within Category 1 on the CEM scale, representing a further 40 per cent of the images located. Thirty-five images fall into more serious categories of child exploitation material, representing 5 per cent of all of the images located. Mr Langton submitted and I accept, that the number of images of child pornography possessed by you is not high, especially when compared with other cases unfortunately often seen in the court.
19For the purposes of Charge 2, I accept that your communications with the covert police operative were confined to three and a half hours on one day on 6 February 2017, but you were prepared to and did transmit images and a video of your own children.
20Your offending is clearly very serious and it has not been suggested otherwise. I accept that none of the charges are representative and are stand-alone charges and I must sentence on the facts that relate to each of those charges alone.
21I accept that the offending constituting Charges 3 to 7 is confined to a period of just over 10 minutes on 18 February 2017 wherein you subjected your daughter to a number of vile sexual acts. Because your offending in Charges 5, 6 and 7 is part of the one episode of offending with Charges 3 and 4, I have not accumulated any of the sentences I will impose on those charges.
22Mr Langton submitted that the penetration was confined to the outer labia of your daughter's vagina. I accept that this might be so of the penile penetration. Having viewed the offending video made by you, the digital penetration appears much more invasive and penetrative.
23For this reason, I have made the sentence imposed on Charge 4 the base sentence. Mr Langton submitted that your offending in Charges 3 and 4 falls towards the lower end of the scale. I do not accept this to be the case, having viewed the video. I accept there is no evidence of your daughter having been injured by you. I was told and accept your children are now back in the care of their mother and are back at school and appear emotionally adjusted. Time will tell whether they have been psychologically damaged. Experience of the courts is that often it is not until many years later that children abused have psychological reaction to offending of this kind.
24The making and publishing of the video whilst you were engaging in sexual acts with her is not put as an aggravating factor of the offending in Charges 3 to 7. It is a separate offence. I am mindful of that and have sentenced accordingly.
25The courts have repeatedly said that offending by adults against children in a sexual way will not be tolerated. Children must be protected from people such as you who derive sexual pleasure out of sexually abusing them. The offending in Charges 3 and 4 is obviously the most serious offences here.
26In 1997, Parliament increased the maximum sentence for incest from 20 years' imprisonment to 25 years' imprisonment, thereby indicating the Parliament's intention that this kind of offending be regarded most seriously. More recently, the High Court in DPP v Dalgliesh [2017] HCA 41, and on remitter, the Court of Appeal in DPP v Dalgliesh [2017] VSCA 360 reinforced the seriousness of this kind of offending and the importance for any sentence on incest charges to properly reflect the application of general deterrence and where appropriate, the need to protect children.
27For these reasons the sentence imposed by the court must have proper regard to application of principles of deterrence (both general and where appropriate, specific), just punishment, protection of the public and your rehabilitation. The sentence must also appropriately denounce your offending. Your counsel in his written and oral submissions appropriately acknowledged that in passing sentence upon you I must apply these principles.
28You have pleaded guilty to the charges and I treat you as having indicated that you would do so at an early stage. You offered to plead guilty to these charges on 8 June 2017, having been charged on 8 February 2017. Your plea offer came two weeks prior to a committal mention date. You have been remanded in custody since then, a total of 295 days pre-sentence detention.
29Because you have pleaded guilty and offered to do so at the earliest possible opportunity, you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass. By your pleas of guilty you have saved the time and costs of a trial and your pleas have saved the complainants from again having to give evidence against you and be cross examined by your counsel in front of a jury. I accept that your pleas of guilty evidence genuine remorse by you for your crimes.
30You were born in February 1970 and you are 47 years of age. Mr Langton tendered and relied upon a lengthy psychological report prepared by Dr Gee dated 16 September 2017, which I marked as Exhibit 2. That report sets out much of your background. Dr Gee thought that your cognitive functioning was estimated to fall within the low-average to average range.
31You told Dr Gee of your family background. You are one of four children, all boys. You were raised within an intact family unit, with no reported familial history of mental health concerns. There was no domestic violence within the family and you had stability, both within the home and in your schooling. You have a good work record. You told Dr Gee you have struggled to form supportive social networks. You have no close friends and do not maintain close family connections. You are socially isolated and apparently have few acquaintances.
32You told Dr Gee you drink alcohol, describing yourself as an alcoholic and you told him you have experimented with illicit drugs, with a long-term pattern of cannabis use. From what you said to Dr Gee it is clear you have insight into the gravity of your offending and the harm you have done to your children.
33Dr Gee was of the opinion you do not present with any enduring psychotic illness and you do not meet criteria for paedophilic disorder or paraphilic disorder. Dr Gee also opined you fulfil diagnostic criteria for alcohol use disorder in remission in a prison environment, coupled with an enduring disturbance in personality functioning. Dr Gee gave this opinion about your offending behaviour at paragraph 36:
"Accepting Mr Gray's past aberrant behaviour, he does not currently meet, nor has he seemingly ever fulfilled the DSM-V or ICD-10 World Health Organisation 1992 criteria for paedophilic disorder, nor has he ever seemingly met diagnostic caseness for other paraphilic disorder. Regarding the sexually aberrant behaviour, whilst it proves somewhat difficult to allocate Mr Gray to a specific offence pathway, given his psychopathology and trauma sequelae and reduced appreciation of difficulty unpacking the offence process, it appears that his aberrant behaviour, based solely on the information available at the time of the current assessment, sees him falling along an avoidant pathway to offending, a pathway characterised by under-regulation.
That is, Mr Gray presents with a desire to avoid sexually aberrant behaviour, but lacked the requisite skills and competencies to meet his needs in more adaptive prosocial and meaningful ways. As such, his sexual behaviour appears motivated by an implicit need for self-regulation, rather than an explicit desire to commit sexually aberrant behaviour, because of an ingrained deviancy. Accepting that Mr Gray appears to lack insight into the needs of others, he further experiences disruptions in functioning, through mental state decline, compromised self-regulation, substance use, trauma symptoms, disassociation and the use of sexual behaviour to self soothe. That further erodes his psychosocial interpersonal understandings.
Thus, Mr Gray's aberrant sexual behaviour appears best construed as an unsophisticated attempt at social connectedness, intimacy and sexual gratification in a man with compromised psychosocial competence, isolation, loneliness, diminished identity, self-worth, reduced affective awareness, thwarted interpersonal functioning, reduced restricted prosocial sexual outlets and dysfunctional self-regulation. This pathway allocation certainly fits with Mr Gray's apparent loss of control, disinhibition, the negative evaluation of himself and the offending during the post-offence period and with hindsight, the seeming appreciation of the wrongfulness of his conduct.
It also accounts for his unsophisticated attempts to distance himself from his past behaviour and his difficulty understanding the scope of harm he has caused. Overall, Mr Gray's offending appears underpinned by an enduring difficulty obtaining a meaningful identity stable, sensible autonomy, with him struggling to reflect on what is in his best interest and to develop strategies that promote such interest whilst avoiding harm to others."
34Dr Gee thought that you were at a moderate risk of re-offending. In passing sentence, I have taken all of this into account. I recognise that you now can see that what you did was wrong and you are remorseful. Nevertheless, I regard your prospects for complete rehabilitation as, at best, guarded. Time will tell. The video that you made of the sexual acts you engaged in with your daughter suggests to me you are a man with deep psychological problems and you will require appropriate treatment to arrest these problems.
35Because I will sentence you to a term of imprisonment on each of the charges, you will be sentenced on Charges 3 to 9 as a serious sexual offender.
36In determining the length of any prison sentence imposed on Charges 3 to 9, protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances, within section 6D of the Act.
37This does not mean that the principles of proportionality and totality in sentencing are to be disregarded, unless in the exercise of discretion. I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for. In my view, the overall effective sentence I propose will properly and adequately provide for protection of the community. I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence.
38Further, in sentencing you on Charges 3 to 9 as a serious sexual offender for serious sexual offences, the terms of imprisonment that I impose on those charges must, unless I otherwise direct, be served cumulatively upon other sentence I impose on you on Charges 1 and 2. I will impose some cumulation and order some concurrency, which I regard as appropriate, taking account of all the circumstances discussed.
39I am required to cause to be entered in the court's records that I sentence you as a serious sexual offender on Charges 3 to 9. I direct that it be entered into the records of the court that I sentence you on Charges 3 to 9 as a serious sexual offender.
40In making submissions on disposition, Mr Langton, I think, recognised the fact you face a lengthy term of imprisonment. He emphasised the matters I have referred to above and stressed that your offending was confined to a short period, with there being no evidence that you were a long-term user or viewer of child pornography on the internet, your conversations with the covert police were confined and the number of pornographic images accumulated were relatively low in number. Mr Langton recognised the seriousness of the offending in Charges 3 to 7, but submitted it was confined to a ten minute period, with there being no other evidence to suggest any other offences against your daughter, in particular. Mr Langton asked me to view all of the offending as confined and to moderate the sentence accordingly and provide for a relatively lengthy period on parole.
41Mr Moore submitted all of your offending was serious and called for the imposition of a lengthy term of imprisonment. In passing sentence I have taken all of these submissions into account.
42On Charge 1, you are convicted and sentenced to a term of imprisonment of two years.
43On Charge 2, you are convicted and sentenced to a term of imprisonment of two years.
44On Charge 3, you are convicted and sentenced to a term of imprisonment of five years.
45On Charge 4, you are convicted and sentenced to a term of imprisonment of six years.
46On Charge 5 you are convicted and sentenced to a term of imprisonment of two years.
47On Charge 6 you are convicted and sentenced to a term of imprisonment of two years.
48On Charge 7 you are convicted and sentenced to a term of imprisonment of two years.
49On Charge 8 you are convicted and sentenced to a term of imprisonment of three years.
50On Charge 9 you are convicted and sentenced to a term of imprisonment of two years.
51I direct that two years of the sentence imposed on Charge 3 and one year of the sentences imposed on each of Charges 1, 2 and 8 cumulate upon the sentence imposed on Charge 4, and upon each other, making a total effective sentence of 11 years' imprisonment.
52I direct you serve a minimum term of seven and a half years' imprisonment before being eligible for release on parole.
53I declare there has been 295 days pre-sentence detention and direct that 295 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court, and be deducted administratively.
54For the purposes of section 6AAA of the Act, I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of 15 years and I would have fixed a non-parole period of 12 years.
55Because you have been convicted of each of these offences, you are a registrable offender within the Sexual Offences Registration Act, with reporting obligations for life.
56The prosecution seeks the making of a forensic sample order pursuant to s.464ZF of the Crimes Act 1958. The making of that order was not opposed and for the reasons stated in the order, I have signed it, which means that whilst in custody, a police officer may approach you to take a forensic sample from your body in the form of a swab from your mouth and should you resist, he may use reasonable force to take the sample.
57The prosecution seeks forfeiture and disposal orders in relation to various items and paraphernalia seized from you. These orders were not opposed and I have signed them.
58Now, Ms Price, it will be necessary for Mr Gray to sign an acknowledgment that he is a serious sexual offender.
59MS PRICE: Yes.
60HIS HONOUR: I wonder if you could have him sign that now please?
61MS PRICE: Yes, I'll step back and have him do so.
62HIS HONOUR: Sorry, not a serious - a registrable offender ‑ ‑ ‑
63MS PRICE: Yes.
64HIS HONOUR: ‑ ‑ ‑ under the Sex Offenders Registration Act.
65MS PRICE: Acknowledging he receives these materials.
66HIS HONOUR: Yes.
67MS PRICE: He's signed that acknowledgment.
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