Director of Public Prosecutions v Hartshorn
[2021] VCC 891
•2 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00335
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY HARTSHORN |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 July 2021 |
DATE OF SENTENCE: | 2 July 2021 |
CASE MAY BE CITED AS: | DPP v Hartshorn |
MEDIUM NEUTRAL CITATION: | [2021] VCC 891 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea – Carriage Service – Under 16 – No criminal history – Guilty plea – Recognisance – Carer – Remorse – Offending out of character - Sex Offender Register – Parsimony – General Deterrence
Legislation Cited: Crimes Act (Cth)
Cases Cited: DPP v Worboyes [2021] VSCA 169 - R v Nahlous [2013] NSWCCA 90 - CDPP v Prowse [2020] VCC 1761 - Meadows v The Queen [2017] VSCA 290
Sentence: 15 months imprisonment to be released after 4 months on a $500 recognisance to be of good behaviour for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Simpson | |
For the Accused | Ms L. Andrews |
HIS HONOUR:
1Mr Hartshorn, you have pleaded guilty to one charge of using a carriage service to groom another person, being a person you believed to be under the age of 16, with the intention of making it easier to procure the recipient to engage in sexual activity with him, contrary to sub-section 474.27(1) of the Crimes Act (Cth). The circumstances of the offending were set out in the prosecution opening which was read earlier today and which I incorporate by reference.
2In brief outline, you Mr Hartshorn were on the internet, you were on Chat Hour, an application which apparently is for people over the age of 18 but you received a response from a person called ‘Katie’ who at the time was saying that she was a child aged between 10 and 11. She then invited you to switch to another application known as Kik. This all happened in February of last year and you continued the communications with her.
3In fact the person at the other end of the communications was an undercover or a police operative in Pennsylvania and the conversations proceeded over a period of about six weeks. Importantly, and what makes the offending of a mid-range of seriousness is, in the first three days of the communications, they very quickly degenerated or descended into explicitly sexualised conduct with Katie offering to, in a sense, provide photos of her boobs, but then she does ‘not do it for free’. And then it then moved to further discussion and you then indicated, 'I like naughty pics like other guys though I worry about it, you would not pay'.
4You actually sent her a photo of your adult daughter and then the matter then moved further and you started to engage in sexualised conversation with her including a statement by her, 'I just licked his …'. You said 'Wow, did you like it?' And she said, 'Until he squirted me in the face, lol' and then you said, 'LOL it's still hot'. And then it moved from there, this continued sexualised conduct and one of the conversations in those early three days was 'I don't want to get arrested'. So, that indicates that you knew full well that what you were doing was wrong and indeed on the 12th of February you sent her an image of your erect penis, and over the period of the discussions you sent her something like six or seven images of your penis and a one or two second video of your penis.
5The conversation then moved also to discussing about her virginity, and losing her virginity, and then you were fantasising about that and particularly young people. And you discussed with her how old she was and how it would be good. The conversation then moved to you putting your hand down your shorts and showing her a couple of photos of you with your hand down your shorts. So, the original communications were over a three-day period. There was a break and then Katie, the operative, re-engaged with you on 7 March. And as your counsel said there was no sexualised communication then, but in 10 March you then sent another communication to her and, again, it got into sexualised discussions and you transmitted another image to her.
6She responded back on the 12th and you responded saying 'It felt good' after you sent her the image of you with your hands down your pants. And you asked her to send you a picture which she did not do. There was another communication on 20 March and then further communications on the 29th till the 31st where there was discussions about sex education and she confirmed she was aged 10 and you were saying, 'I wish I could teach you physically'. And then by the 31st the communication ceased.
7So, the gist of the offence is engaging in communications with a person under 16 with the intention of making it easier to procure the recipient to engage in sexual activity. So, you were intending to have her engage in sexual activity with you. Your communications with her did not actually move to engaging in sexual activity, but the gist of this particular offence is actually the communications with the intent of making it easier for her to engage in sexual activity: easier for you to procure her. So, it is a grooming-type offence.
8And as the prosecutor says, it carries a 12-year maximum sentence of imprisonment which three months after this offending, the maximum penalty was increased by the Parliament to 15 years' imprisonment. The offending ended on the 31st of March or the communications ended then. The police obtained a search warrant and raided the unit next door to where you were living in Warragul but you told them that you in fact were living in the other unit, invited them in and fully cooperated with them, gave them your devices which they checked and in a sense, unusually, there was no other pornographic material or anything like that found on the devices which would be consistent with this offending, you being a 56 year old, 54 at the time, first offender, lapsing into this offending in circumstances where you were depressed, you had had a falling out with your partner next door, the person you were caring for and so in that sense it was uncharacteristic offending.
9But you were then arrested by the police, interviewed and you made full cooperation with the police and full admissions in relation to the offending. You admitted that there had been another communication, the only one you could remember, were three girls and there was some reference to a younger, to a seven or eight-year-old and that is put as context or uncharged evidence, an uncharged act, but you were only to be sentenced for these communications with the unknown operative known as Katie.
10So, I am required to characterise this offending and assess the seriousness of it. First you admitted that you knew it was wrong in the record of interview and indeed in the communications with her, so that goes to increase your moral culpability for the offending. But in terms of the seriousness of the offending, as your counsel put - she asked me to characterise it of a less serious nature due to the relatively limited number of images exchanged or sent by you to her and also the relatively narrow period over which it occurred, and within that period there were sort of three or four blocks of two or three days and then gaps and then it was reinstituted by the operative, in a sense inviting you to get back into the communications and you took the bait.
11So, that does put the offending, I would assess it as of a lower range of seriousness in the whole range of offending that come before the courts for these particular grooming offences and indeed for the range of grooming offences that are addressed by that division of the Crimes Act (Cth). So, as I said, when you were interviewed, you made full admissions in relation to the offending and you expressed remorse, you cooperated with the police, you were sorry for what you have done and those matters are put in your plea submissions by your counsel and I incorporate the plea submissions by reference and give you full credit for those matters.[1]
[1] Exhibit 1 on the Plea.
12Turning to the sentencing principles and what I am required to do, I am required to take into account all the matters in s16 of the Crimes Act (Cth). And I do that. First, I do take into account your plea of guilty, that is an expression of remorse. It was combined with cooperation with the police and you are entitled to a full credit for that. And there is a utilitarian value. It saved the police preparing for a trial and a committal. The matter, as your counsel put it, was originally erroneously put in the summary stream in the Magistrates' Court. That caused some delay in the matter. It is not a stale case like we see sometimes in these COVID times, but probably if it had have been dealt with properly and gone straight in the proper stream, it may well have been dealt with in this court earlier than it is now, but it is a relatively short time since the offending came to light and you admitted the offending and pleaded guilty at the first opportunity in the Magistrates' Court and then it was lifted to this Court. And I incorporate by reference the chronology that has been put in the prosecution opening.[2]
[2] Exhibit A on the Plea.
13So, you get credit for the plea of guilty, credit for your cooperation with the police, you get credit for making a plea of guilty in the COVID times and the Court of Appeal has said in a recent case which was footnoted by the learned prosecutor, that there has got to be a ‘palpable’ credit or discount or allowance for facilitating the course of justice when the whole criminal justice system is described as being in a crisis by the Court of Appeal in one paragraph of one of those decisions and so if offenders come forward and plead guilty in those circumstances, keep the system moving, they have got to be given a proper credit for that conduct.[3]
[3]DPP v Worboyes [2021] VSCA 169 at [35].
14I turn now to your personal circumstances which are incorporating. In sentencing you, I have got to apply the principle of parsimony which means that imprisonment, is the most parsimonious or least possible sanction, that would accord with all the interests of sentencing, so I take that into account. Also, I have got to take into account the burden of imprisonment and that raises your personal circumstances which are set out in the defence counsel's submissions.
15You are aged 56, you come originally from central New South Wales, you were brought up in Canberra and then you came to Warragul in the Gippsland area around 2007 when you established a business with another person in the building industry. The business failed and from 2013 or so you have been a full-time carer for Ms Argento. So, you are educated to year 10. You have got one child from a relationship where you lost contact with that child through no fault of yours. She is now aged 33 and you have re-engaged with her after the mother took her away from you for something like 20 years. So, you have got a close connection with her but unfortunately she is up in Brisbane.
16The main matter put in relation to your personal circumstances is that you have been the full-time carer of Ms Argento who you have been in a relationship with for something like 30 years, a sort of personal relationship and a social friends type relationship. She was with you in Canberra and then you came to to Warragul when you have been her carer, you were living together there in a unit in Warragul up until around sometime in 2020.
17But because she has a son who has had all sorts of problems with the law, and he was paroled to her unit, and there really was not room for the three of you and so you had to move next door, there were fights through no fault of yours. Ultimately - at the time of this offending, your relationship with her had effectively broken down for a short time and you were living next door with another friend and you were down, depressed, I am not sure whether we were in lockdown at that point in February, March 2020 probably had not happened in last year at that point fully but it was that, when you were looking at the internet, that you had no friends in Warragul and so that is when you got onto chat sites, and then a chat site that involved a 10-year-old girl which led to this offending.
18Now, Ms Argento has filed given a very moving five-page letter which I have taken into account, indicating the service in a sense that you have rendered her, both following her own physical problems over a very considerable period, and she is a person who needs mobility help.[4] She has got multiple medical problems but you have been her carer now for something like seven years and really from reading her letter it is a moving analysis of your character, the love and service that you have given to her, which I give you full credit for.
[4] Exhibit 3 on the Plea.
19Your counsel has indicated that the impact of any sentence of imprisonment is not such that it leads to exceptional circumstances because there will be other ways for her needs to be addressed by the NDIS or some other help in the community. But you get credit for the service you have already rendered to her on behalf of the community when you are being sentenced for the first time for a serious criminal offence. I also give you credit that a term of imprisonment will be more burdensome because you will be worried about whether or not she is able to look after herself when you are separated from her.
20In addition to that, you have had the burden, in recent times, of your mother dying in May this year, you have not been able to go to her funeral in Canberra due to COVID. You have also got your father who is in Canberra, who you are worried about him being able to cope without your mother, although it does appear that you were somewhat estranged from your family in Canberra in recent times. But they are again factors I do take into account.
21I must also take into account in sentencing you, are your prospects of rehabilitation. And you have relied on a report, a psychologist's report,
Ms Rogers.[5] The report was made in October last year and your counsel has given an explanation to why there is no up to date report and I accept that explanation. This examiner is perhaps not quite as experienced as some of the examiners that we deal with in this Court but she is of the view that you are a relatively low risk of reoffending, that you do have some mild depression but also she says that you do not have full insight into your offending.[5] Exhibit 2 on the Plea.
22That would indicate that you probably do need some support in order to fully grasp the implications of your offending in order to minimise the risk of reoffending. The mere fact that you have been brought before the courts at age 56 for the first time would indicate, even if it is for this type of sexual offending or internet sexual offending, with no prior convictions for sexual offending or any offending, it would indicate that it could be seen as relatively one off and I would say that I find that you have very good prospects of rehabilitation.
23But the prosecutor is saying that it would be in the community interests, and she referred me to amendments to the Crimes Act (Cth) in sentencing, that I take into account the need for rehabilitation, and whether the sentencing disposition will fully look at the interests of the community, and rehabilitation in sentencing - and that is always a factor and she is offered a submission to me in relation to what I should do in relation to a disposition that will advance your rehabilitation.
24As the learned prosecutor said in her closing responding submissions, that there was not a lot of difference between the submissions being made by your counsel in her comprehensive submission, and the prosecution response. The main area of difference is the prospects of rehabilitation, and the appropriate disposition in relation to the matter.
25Your counsel strongly submitted that I should deal with this matter by way of sentence of imprisonment that involves immediate release upon a recognisance, and she has referred me to a couple of cases that would support that proposition, including the one of Nahlous[6] in New South Wales and decision from one of my sisters, Judge Leighfield[7], I have taken those cases into account.
[6]R v Nahlous [2013] NSWCCA 90.
[7]CDPP v Prowse [2020] VCC 1761.
26The learned prosecutor in sentencing submissions referred me to a number of cases including the case of Meadows,[8] but also the principles that have been articulated in numerous cases dealing with these types of offending. And what the cases say in the intermediate appellate courts, which I am required to take into account because we are dealing with a federal offence, is that general deterrence is the paramount sentencing consideration.
[8]Meadows v The Queen [2017] VSCA 290.
27And so in sentencing you, I have got to send a signal to everyone out there in the community, that premature sexual activity by children is inherently harmful to children, and that while the internet has made the ability to connect with children under the age of 18, it has made it very easy, those who are apprehended for doing exactly that, doing what you are doing, trawling the internet and then getting a response from a person so that you could engage in cyber grooming, that when people are apprehended for doing exactly what you were doing, then heavy sentences will be imposed in order to deter them.
28While I accept that considerations of specific deterrence have relatively little salience, considerations of general deterrence have got to be paramount according to cases like Meadows and Nahlous. And so on that basis, I am unable to accept the submission of your counsel that any sentence of imprisonment should be immediately respited by way of a release upon a recognisance release order. The learned prosecutor put to me that the cases, and each case, they are not a precedents, but it is very important in these type of cases that comparable cases are given weight in sentencing as a matter of equal justice effectively.
29She pointed out that the case of Meadows is the closest of the three cases that she referred to as being comparable, although she put that this case involved offending more serious than Meadows. One of the differences between the two of them is the number of communications and the fact that the putative complainant in that case was in fact a 12-year-old, whereas in this case the victim or the person on the other end of the line said she was 10 and you knew she was 10, you were told she was 10, so that makes this offending more serious. The number of texts and everything exchanged was about the same although probably more, than in the case of Meadows.
30So, I have had regard to Meadows. I have had regard to the decision of Prowse, but I see your case as being more serious than those two matters. Your counsel has indicated that you were prepared to engage in appropriate sex offender treatment if ordered, and so it obviously is necessary for you to consent to any proposed order that I would make. I just reiterate that in sentencing you I have taken into account all the matters in counsel's submission, and also I have taken into account the matters put by the prosecutor in her sentencing submissions, and I have taken into account in particular and sought to give as much leniency as possible in the light of the letter from Ms Argento.
31But weighing all those matters and synthesising them, and considerations of general deterrence, the maximum penalty is 12 years' imprisonment but it has been lifted to 15 years, but that shows that Parliament regards this offending, this type of offending as very serious and, as I said, general deterrence is a paramount consideration. But then I have got to take into account the matters in mitigation, in particular, that we are in this COVID environment, a palpable discount for pleading guilty, and facilitating the course of justice in these circumstances.
32So, weighing all those matters, I am proposing to sentence you as follows: to impose a sentence of 15 months' imprisonment and order that you be released upon serving four months, and upon entering into a two-year recognisance release order in the same terms as that proposed in Judge Leighfield's sentence which would involve you probably going to Morwell Community Corrections.
33MS SIMPSON: Your Honour is also required, as part of the recognisance release, to set a recognisance amount.
34HIS HONOUR: Yes, $500. And I declare that had you not pleaded guilty, I would have imposed a sentence of 20 months' imprisonment with release after serving eight months. Are there any matters that I have not covered and were there any other orders? Is there a forfeiture order?
35MS SIMPSON: The forfeiture has been dealt with by consent, Your Honour.
36MS SIMPSON: No other matters from my perspective.
37HIS HONOUR: Any matters from your perspective?
38MS ANDREWS: No, Your Honour.
39HIS HONOUR: I have taken into account also in sentencing is that
Mr Hartshorn will have to go into two weeks of quarantine in the prison system but it is the signal that has got to be sent involving this type of offending, that people who are apprehended - general deterrence is the main consideration and it - I am not saying that I am bound to impose a sentence but in this case given my characterisation of the seriousness of it, I find that I have got to send that message that requires some period of the sentence to be served.40MS SIMPSON: I have sent the draft RRO through to your associate now, Your Honour, and that order will need to be explained to Mr Hartshorn ‑ ‑ ‑
41HIS HONOUR: Yes. All right, I will just stand down for a moment and scan the document, hand it to counsel then invite Ms Andrews to explain it to her client and then we will resume.
42(Short adjournment.)
43HIS HONOUR: Mr Hartshorn, I am required to explain the sentence to you. I have sentenced you to a term of imprisonment of 15 months but I have also ordered that after you have served four months, you be released upon entering a recognisance to be of good behaviour for two years. So, for two years after you get released you have got to be of good behaviour. If you are not of good behaviour and breach the recognisance then you will forfeit $500. You do not have to put the money up now, and then you come back before me and be re-sentenced, that is the recognisance.
44A term of the recognisance or a series of terms that you have been explained to you, is that you have got to be under the supervision of the Community Corrections Office for two years upon your release and then upon your release you have got to report to them and then engage in any sex offender program that they might or will direct and receive visits. And you have got to report to the Morwell Community Corrections Office on 3 November 2021, notify them of a change of address, not leave Victoria without their permission and obey all lawful instructions.
45And as a consequence of the conviction, you will also go on the Sex Offender Register for eight years which means you have got to be on the register, which means you have got to notify the registrar, I think it is the local police officer of changes of address, your phone numbers, your car, license, personal particulars and any changes of those within seven days of them occurring and then there is an annual report to the sex offender registrar.
46That is not part of the sentence, it is a consequence of the sentence. So, you will be required, my associate will hand the documents to you now and you will have to acknowledge that you have received them. I think they have been explained to you. You can take the recognisance up as well. So that is that. And as I said before, had you not pleaded guilty, I would have imposed a sentence of 21 months' imprisonment with you to be released after serving eight months and in sentencing you, as I said before, I take into account all the submissions made by your counsel and the matters that I am required to take into account in s16 of the Commonwealth Crimes Act. Is there anything else?
47MS SIMPSON: No, Your Honour.
48HIS HONOUR: No. No. And I am also going to include on the indent, which is the document that goes to the prison authorities that you are on, it is the first you have gone to prison and you are on medication and make a reference to the report from the psychologist so you will be looked after when you go into prison.
49MS ANDREWS: Thank you, Your Honour.
50HIS HONOUR: All right, so get the prisoner to sign those documents now. All right, I want to thank both counsel for their submissions in this matter and adjourn the court sine die.
51MS SIMPSON: Thank you, Your Honour.
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