Director of Public Prosecutions v Hauser

[2023] VCC 2160

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR 23-00816

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER HAUSER

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2023
DATE OF SENTENCE:	21 November 2023
CASE MAY BE CITED AS:	DPP v Hauser
MEDIUM NEUTRAL CITATION:	[2023] VCC 2160

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Using a carriage service to transmit and make available child abuse material – exceptional circumstances made out – early plea of guilty – extra-curial punishment by loss of career – efforts and progress towards rehabilitation – remorse and insight – no prior or subsequent offending – negative effect of prison on physical and mental health – no involvement of real children in offending

Legislation Cited:                  Sex Offenders Registration Act 2004

Sentence:Two years imprisonment and immediate release on a recognisance release order 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Pham-Nguyen	Office of Public Prosecutions
For the Accused	Mr M. Kowalski	Balot Reilly Lawyers

HER HONOUR: 

1Peter Hauser, you have pleaded guilty of one charge of using a carriage service to transmit and make available child abuse material.  The offending occurred between 9 November 2020 and 9 June 2022.  You came to the attention of the Australian Federal Police as a result of investigations into the improper use of a telephone chat service called 'Fast Meet.'  A total of 19 pre-recorded messages and three live chat phone calls form the subject of the charge which is before the court.

2The prosecution opening sets out details of these recorded messages and chats which are the basis of my understanding and assessment of your offending.  Rather than setting out that material in full, for the purposes of these sentencing remarks, I will summarise very briefly some of the things that you said in those chats and messages.

i.On 9 November 2020, you made a pre-recorded message which described sexual acts with a four year old boy. 

ii.10 November 2020.  This was a pre-recorded message which was an invitation to other men to discuss sexual activity with teenage boys, little boys and incestuous activity between boys. 

iii.On 11 November 2020, you made three pre-recorded messages.  The first was a description of sexual activity with numerous little boys, the second and third were descriptions of sexual activity involving yourself and a listener, with little boys on an overseas trip. 

iv.On 30 December 2020.  This was a pre-recorded invitation to another person to chat about sexual activity with little boys, very young boys, and about incestuous activity between boys. 

v.4 January 2021.  This is a pre-recorded description of group sexual activity with little boys glorifying paedophilic activity and filming it. 

vi.8 January 2021, was two pre-recorded messages, the first being a description of sexual activity with a roomful of little boys and their fathers, their teacher and the second, a description of sexual activity with five or six year old boys. 

vii.9 June 2021.  You made a recorded message in which you described watching a paedophilic video and the activity in it of sexual penetration of a little boy. 

viii.12 June 2021.  This was a pre-recorded message with a description of sexual activity with a 14 year old boy and his little brother. 

ix.16 June 2021.  You made a recorded message with a description of group sexual activity with a little boy including rape of the child and an invitation to someone to talk with you. 

x.On 10 December 2021, there was a pre-recorded message with a description of your preferences, a statement that you had a teenage son which was not true, and a statement that you would like the listener to bring his son to visit so that you and that man could have sex with the teenage boys. 

xi.29 December 2021 was a chat between you and another man in which you described indecent exposure to children and sexual activity in the presence of children.

xii.2 January 2022 was a recorded message in which you described two men having sexual activity with two boys.

xiii.January 2022 was a live chat in which you described boys in a sexualised way. 

xiv.January 2022.  On this day, you recorded two messages, the first involving a description of yourself as a doctor engaged in sexual activity with children who are brought in for treatment and the second being a description of sexual activity between adolescent and pre-pubescent brothers.

xv.2 June 2022 was a live chat lasting for nearly 13 minutes in which you described a scenario where you and the other man were 15-year-old boys raping the listener's younger brother. 

xvi.On 8 June 2022 was a pre-recorded message in which you described sexual penetration of an infant or toddler's mouth.

xvii.On 9 June 2022 there were two recorded messages on that day, the first also describes sexual activity with an infant in a cot, the second describes sexual activity between two men and two boys glorifying paedophilia. 

3Your home was searched on 3 November 2022.  You were interviewed and then bailed.  You provided passcodes to your electronic devices.  No other child abuse material was found in your possession.

Gravity of offending

4The offending which I have described has been rolled into a single charge.  This means that in assessing the gravity of that offence I have regard to the fact that your offending took place over around a year and a half and involved numerous instances of similar conduct.  Whilst the summary that I have given above of the content of these messages is as anodyne as possible, the content of almost all these messages was graphic and vile.  The later messages were particularly bad examples of material which is inherently abhorrent. 

5I was told, and accept, that the recordings made were only able to be heard by one person each and, once heard they would not be available to be picked up by other callers to Fast Meet.  They were retained by Fast Meet as part of their usual data management protocols.

6I note that the content of the recordings and chats was fiction and that no actual child was harmed.  One potential danger of this type of conduct as you accept, is that others hearing this type of content may feel validated and thus may be encouraged to pursue their own perverted sexual interest in children and which has the capacity to lead to other more serious offending.

7I will deal now with your personal circumstances.

8You were born in Brisbane in 1969 and are now 54 years old.  You were adopted when you were an infant.   You do not know the identities of your biological parents, save that you believe that they were aged 17 and 19 when you were born.  You have a younger sister and a younger brother, both of whom were also adopted.

9Your adoptive mother was a registered nurse and your father had various occupations.  You reported that for the first seven years of your life, your father frequently changed jobs and by the time you were 13, your relationship with your father had deteriorated.  You report that he was physically and psychologically abusive to the family and your mother was either unable or unwilling to help in this respect.  You do not have a close relationship with your family.  Your father passed in 2017.  You are virtually estranged from your mother and your younger sister.  You have a better relationship with your brother however, you say that you still would not describe that relationship as close.

10You started high school in 1982 and successfully completed Year 12.  Throughout your high school years you were incessantly bullied for your sexuality which affected your academic performance.  Despite that, you achieved good marks and finished in the top 10.5 per cent of students in the State. 

11Between the years of 1987 and 1989, you had finished high school and you started a chemistry degree and then a nursing course, but you did not complete either, due to your troubles with self-esteem. 

12During this period you were drinking, smoking cannabis and working odd jobs whilst living with your parents.  In January 1990, you made the decision to 'get your act together' as you describe it and started another nursing course.  This time you did graduate.  You finished your training in 1993 and that marked the start of your successful 29-year career in nursing and midwifery.  You started working as a registered nurse in Queensland and have continued to progress in that field up until 2022. 

13You received nursing awards for excellence and have also been a member of several nursing and midwifery committees and councils.  Your professional success was achieved despite underlying issues that you have had with your self-esteem and associated alcohol abuse.

14In 1995, you met your partner, Daniel.  You and Daniel lived in Sydney together for 24 years before moving to Melbourne in 2018 for Daniel's job.  You and Daniel have been in a de facto relationship for 27 years and he continues to support you throughout these proceedings.

15In Melbourne, you found work in your area of expertise and at the time of your arrest, you were the peri-operative coordinator at The Alfred Hospital in Melbourne.  You have found yourself socially isolated after moving to Melbourne, particularly when the pandemic led to lockdowns and reduced opportunities to engage with the wider world.  Once your employers learnt of these charges, you lost your job and your nursing and midwifery registration has been suspended. 

16Your physical health has been impacted by a number of conditions including a variant of the Guillain-Barre Syndrome.  To treat this you were prescribed medication which caused you to gain a lot weight.  This weight gain further impacted your self-esteem and you described to Dr Grech that you began to compulsively call into Fast Meet and masturbate, seeking the transient pleasure of that activity.  Not all calls you made to that platform involved child abuse material.

17You told Dr Grech that paedophilic urges had not previously arisen in you, but then when exposed to this on the chat line, you gladly began to discuss sexual activity with younger and younger boys.  You said that you would then be filled with self-loathing but despite railing at yourself, you would fall into the same behaviour.

18You are fortunate that your partner has stood by you in the face of your conduct and the prosecution.  Unsurprisingly, the discovery of your offending was a serious challenge to the continuance of your relationship, but you have assured Daniel that you will not offend again, and he is giving you the chance to prove this.  It was apparent to me during the plea hearing that Daniel was deeply shocked and upset by the very brief summaries of the chats and messages which were read out.  

19A factor in your favour is that you have no prior or subsequent convictions.

Physical and Mental Health

20You suffer from a range of physical illnesses including thyroid issues, hypertension, a lung condition and a gastric reflux condition.  You manage the various medications and anticipate stress and concern if the management of your respiratory medications in particular were to be taken from your control due to incarceration. 

21You were referred for treatment to Dr Paul Grech in January 2023.  The initial referral was for stress, anxiety and depression in the context of this prosecution.  His report sets out your own statements about your life, state of mind and motivations for this offending, some of which I have referred to elsewhere in these reasons.

22You have been prescribed medication by your general practitioner for your mental health.  Dr Grech diagnosed you as suffering from anxiety and depression, at least some of which was reactive to these charges and the prospect of incarceration.  He also considered that you have a history of alcohol use disorder.  He considered there was a risk of significant deterioration in your mental state if you were incarcerated. 

23I will deal now with a number of the matters which were raised on the plea. 

Plea of guilty

24The first is the plea of guilty.  You indicated that you would plead guilty at the earliest opportunity on 15 May 2023.  This entitles you to a significant reduction in your sentence due to the practical benefits to the court and the prosecution.  The utilitarian benefits of your plea have been greater, given that it was indicated at the time when the operations of the court were still being affected by the pandemic, although to a lesser degree than had previously been the case.

Remorse, Risk of Reoffending, Prospects of Rehabilitation

25I accept that your plea is a reflection of your remorse and also have regard to the report of Dr Grech and your letter to the court.  Dr Grech writes that you told him:

'I understand that the offending that led to my arrest is abhorrent and unreservedly condemned by society.  I deeply regret my offending, not only because my arrest and prosecution has had a profound effect on me personally, but also because of the devastating effect it has had on my partner of 27 years, on my former workplace and on society at large.' 

26You provided a lengthy letter to the court which was consistent with the material in Dr Grech's report and, which provided further detail.  Your letter sets out your reasons for the offending and your developing insight into what was going wrong in your life, why the behaviour was wrong and where things are at for you now.

27To your credit, once you had been charged, you commenced the treatment with Dr Grech who has provided the report for the plea hearing.  Dr Grech's assessment of your risk of further offending of this type is as follows: 

'Mr Hauser may be considered to be situated at the lower end of the risk continuum and compared with other sex offenders, in both the medium to longer term, provided that he is in receipt of specialised, individual or group sexual offending therapy, in combination with ongoing management of his mood and assuming limited use of alcohol, ideally abstinence.' 

28Dr Grech also said that you have increased insight into your psychological functioning and the gravity of child abuse.  He thought that you are not a risk of reoffending or escalating in offending.  You are committed to therapy.

29Dr Grech is an experienced practitioner in this area and, in the context of forensic reports.  Although a treater report can sometimes be biased for or against the client, I found Dr Grech's report to be balanced, helpful and persuasive.

30Also relevant in considering your prospects is that you did not have any other child abuse material in your possession when your home was searched on
3 November 2022.  Unlike some of the cases to which I was referred, your offending was not in the context of possession of such material.  I accept that not having escalated to possession of material involving real children, and the efforts that you have made in addressing your offending with Dr Grech, mean that your prospects for rehabilitation are very good.  Nevertheless, based on Dr Grech's report, I consider that it would be beneficial for your prospects if you were to engage in a rehabilitative program to address your offending and psychological therapy for your mental health.  If necessary, you will be required to undergo the Sex Offender's program.  Whilst your prospects are very good, they will be better with targeted intensive treatment. 

Extra-curial punishment

31As I have noted, you have more than likely lost your career by reason of these offences.  You now understand why that is so and you accept that your employer and the Board have acted appropriately. 

32I would think it highly unlikely that you would be re-registered in the future.  I take into account in mitigation that you have lost your career in which you have excelled and that your prospects of any future employment are not commensurate with the employment that you have had. 

33I was referred to a number of cases by the prosecution and defence counsel to assist me with current sentencing practice.  A significant point of difference between the gravity of your offending and the offending in most of those cases is that the number of recordings and calls you have made over the approximately 18 months covered by the charge, in contrast to a limited number of calls in some of those cases.  Yours was not isolated offending.  On the other hand, you were not charged with any other child abuse material possession, unlike some of the offenders in those comparable cases.

Disposition

34Both the prosecution and your counsel submitted that a term of imprisonment was appropriate in view of the gravity of the offending.  The prosecution accepted that a head sentence under three years would be within range, so that a recognisance release order would need to be made. 

35A recognisance release order may allow a person's release immediately or after serving some of the term of imprisonment.  Because of the nature of the charge I can only release you forthwith if I am satisfied that exceptional circumstances exist. 

36Your counsel submitted that in combination, exceptional circumstances were made out and that I should order immediate release on a recognisance release order.  The factors that he pointed to included your plea of guilty, the early stage at which the matter resolved, and the additional weight in mitigation in this respect by reason of the pandemic.  Next was extra-curial punishment by reason of the loss of your career.  Third, your efforts and progress towards rehabilitation whilst on bail. Fourth, your remorse and insight.  Fifth, your lack of prior or subsequent matters noting your age.  Sixth, the added difficulty of prison whilst managing your physical and mental health and the possible negative effect of prison on those conditions and seventh, that the offending did not involve real children, no payment was made by you or by any person for this material. 

37In deciding whether there are exceptional circumstances I also have regard to the nature and gravity of your offending, general deterrence, denunciation and just punishment are relevant factors.  As I have said, the content of your calls and recorded messages was abhorrent.  You engaged in such behaviour in s  within the charge dates late 2020 to early 2021, mid-2021, late 2021 to early 2022, and then again in mid-2022.  Your offending had the capacity to encourage other men to like behaviour, and potential offending of increased gravity. 

38On the other hand, the offending was limited to fictional descriptions and did not occur in the context of possession of other child abuse material or child sexual assaults.  The offending lacked a number of features which are sometimes present and which would have made the offending more serious.  Furthermore, you can pray in aid a number of powerful mitigating factors. 

39Having regard to all of the matters raised in the plea hearing, I have concluded that exceptional circumstances do exist so that I will impose a sentence of imprisonment, but I will order that you be released immediately on a recognisance release order. 

40The conditions of the recognisance release order are that you will need to undertake to pay a certain amount of money if you were to breach the order.  You do not have to pay that money immediately, and that you will be subject to the supervision of a probation officer, a Deputy Commissioner of Community Services and the Sex Offender Management or his or her nominee for a period of two years.  You will be required to obey all reasonable directions of that person for that time period.  You will also be required to be assessed for suitability for a Sex Offenders program if you are found suitable to take part in that program.  Standard conditions of course also are that you do not commit any other offence whilst subject to the order. 

41I have not included a specific order regarding general psychological treatment as it appears to me that you do understand the need for such treatment and will seek out an appropriate treater. 

42If you fail to comply with the recognisance release order conditions, you will be brought back before me and one of the potential consequences is that you could be required to serve the entirety of the two year sentence which I am going to impose. 

43So, the orders of the court will be, subject to you agreeing to them, that I sentence you to two years imprisonment and that I release you on a recognisance release order forthwith on those conditions. 

44I am now going to have a copy of the Recognisance Release Order handed out to everybody so that you can over it and make sure it is correct. 

45Mr Hauser, if you could come out and take a seat behind your counsel.  Ms Pham-Nguyen, if you could check over it to make sure it is compliant and Mr Kowalski will also look at it and take his client through it and if everyone agrees it is all right, then it can be signed by Mr Hauser. 

46MR KOWALSKI:  Thank you. 

47Mr Hauser has had it explained to him and signed the orders.  Copies are being made.

48HER HONOUR:  All right, thank you.  All right.  Once I stand down, copies will be made and I will also put one on the court file.  There is some other orders I need to make.  So, as I understand it, there is automatic Sex Offenders Registration Act 2004 for eight years.

49MS PHAM-NGUYEN:  That's correct.

50MR KOZLOWSKI:  That's correct, Your Honour.

51HER HONOUR:  The orders that will be produced by the court will have the relevant information sheets about Sex Offenders Registration Act and I expect that you will take your client through those Mr Kowalski or your instructor will. 

52There is no pre-sentence detention and pursuant to s6AAA I state that if Mr Hauser had not pleaded guilty, I would have sentenced him to three years' imprisonment with a non-parole period of 18 months. 

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