Director of Public Prosecutions v Hensley (a pseudonym)
[2013] VCC 1275
•2 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD HENSLEY (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2013 to 14 August 2013 (Trial) CR-12-02358 | |
DATE OF SENTENCE: | 2 September 2013 | |
CASE MAY BE CITED AS: | DPP v Hensley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1275 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - Crimes Act 1958 (Victoria) - Indecent act in the presence of a child under 16 – Indecent act with a child under 16 – Commonwealth Criminal Code - Use carriage service in an offensive manner
Legislation Cited: Sex Offenders Registration Act 2004
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Bessell | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr I Polak | McGregor Dowling Solicitors |
HER HONOUR:
Re: Trial indictment C11530523.1 (State signed)
1 Ronald Hensley,[1] you have been found guilty of one charge of indecent act in the presence of a child under the age of sixteen years and one charge of indecent act with a child under the age of sixteen years. The maximum penalty for the relevant offence is ten years' imprisonment, which reflects the seriousness with which the Parliament regards this offence. You have pleaded guilty to nine charges of using a carriage service in an offensive manner, which has a maximum penalty of three years' imprisonment.
[1] Ronald Hensley is a pseudonym.
2 After being found guilty of the two indecent act charges, some discussions ensued and consequently, you changed your stance in respect of a number of charges of using a carriage service in an offensive manner. You have now pleaded guilty to nine charges of this offence, having been arraigned on a filed-over indictment. The Crown then announced that they would discontinue proceedings in respect of Charges 1, 7 and 21 on the original indictment. There were originally seventeen charges of using a carriage service in an offensive manner, including Charge 7, but as I understand the position, it is intended that the filed-over indictment encompass all of these charges save for Charge 7. Charges 17 and 18 which had been severed from the original indictment becoming Charges 1 and 2 at trial. Although I ordered severance such that four trials proceed, it was not necessary for further trial indictments to be filed in circumstances where you have now pleaded guilty to the filed-over indictment.
3 Under the Sex Offenders Registration Act 2004, by reason of your convictions on the State offences, you are to be recorded as a registrable offender for 8 years. You must report your personal details to the Chief Commissioner of Police annually for a period of 8 years. You must first do so, that is, report, within 7 days after your release from custody. Details in writing of these reporting conditions will be served shortly upon you by my Associate and I will ask your counsel to attend to an acknowledgement of that notice and have you sign it. In fact, I will ask that you attend to that at this stage.
4 In relation to the indecent act offences, I sentence you on the following basis, in keeping with the jury’s verdicts. On 17 May 2012, in the course of an internet Skype conversation with a Lena Gephart[2] who lived in Germany, you masturbated in the presence of your two year old child, Eva,[3] who was in the living room at the relevant time. The jury was invited to infer this from the evidence and they have been satisfied that this is what you did, that your child was in your presence when you did this and you were aware that she was present. Subsequently, in that same chat conversation with Lena Gephart, she noticed that your daughter was in the room with you. Having asked Ms Gephart if she wanted to see your child touch your penis, you took both hands of your child and despite some resistance on your child’s part, you forced her to stroke your penis two or three times.
[2] Lena Gephart is a pseudonym.
[3] Evan is a pseudonym.
5 In relation to the charges to which you have pleaded guilty, these comprise a number of text-based private chat conversations with other users over the internet from 4 August 2011 until 24 May 2012. The subject matter of these conversations are in respect of sexually abusing children or reflect assertions of a paedophilic nature. For the purposes of sentencing, I refer to and annex to my sentencing remarks Exhibits B to J and I sentence you on the basis of the entire conversations contained in those exhibits. However, I shall give a brief summary in relation to each of the conversations which are the basis for the charges.
Re: Charge 1- Plea indictment C11530523.2 (Commonwealth signed)
6 In relation to Charge 1 on the plea indictment, this Charge captures a series of conversations between you and another chat user referred to as “Bec Wills” who describes herself as a 55 year old female and says that she has two boys, one aged six and one aged three. In the course of the conversation on Thursday, 4 August 2011, you asked Bec Wills if she had seen her six year old son’s “cock lately” and then asked her a series of questions about whether she ever thinks about having sexual relations with her child, saying that thoughts about this type of conduct are “very hot”. You then suggest that you have sex with Bec Wills in front of her child to teach him how to have sex. You continue with questions of a most offensive nature in respect of the six year old and then convey that if she allowed you, you would touch her child’s penis with your hand, then masturbate his penis and insert his penis in your mouth. You go on to say that you have sucked on a 13 year olds' penis, then the conversation returns to sexual acts performed in front of and with Bec Wills’ three year old and six year old children. The conversation extracted for the purposes of the Crown opening finishes with you saying that you want the six year old’s “cock” in your “ass”.
7 The next conversation relied on by the Crown as part of Charge 1 takes place with Bec Wills on 18 October 2011. In that conversation you say that Bec Wills’ three year old and six year old sons can watch you whilst you expose your penis on camera. You then say “all kids should taste cock” and having apparently turned on the webcam, you ask if Bec Wills likes your “cock” and if her sons are watching. She says that they are. You tell Bec Wills to play with the six year old’s penis and ask her if she would let you suck on the six year old’s penis. You ask if she will suck on his penis with you and if she will sit on his penis. The chat continues with a detailed discussion about Bec Wills and her six year old son having sexual relations. You say, “Cos I’d love to see him fuck his mummy”.
8 The third conversation encompassed by Charge 1 takes place on Sunday, 6 November 2011 and in the course of that conversation, you ask Bec Wills to teach your daughter everything about sex when she is four years old and you suggest that maybe her oldest son could help teach her as well. You go on to engage in sexually explicit talk about Bec Wills’ six year old son, saying you would prefer to suck the penis of her older son as his penis would be bigger. You say that you would suck the penis of a child of any age. Bec Wills says that she would suck the penis of a child of two years and older. Then you continued to enthuse about the prospect of having her six year old son place his penis in your mouth and then you ask Bec Wills if she would ever consider allowing her children to touch or lick her vagina. The conversation continues in the same vein with discussion of paedophilia and engaging in sexual activity with children.
Re: Charge 2
9 In relation to Charge 2, the basis for this charge is that on Thursday, 13 October 2011 you had a text-based private chat conversation with a user known as “Dirty Dunc”. You start the conversation by saying “pedo here” and when the other party says “me too”, you say “six plus, yum.” You go on to say that you love the fact that DD is “a raging pedo” and say “all kids should taste cock”. When asked if you have ever played with “a little one” you say that you have and when DD tells you that when he was fifteen he played with his eight year old step-sister, you express your delectation for that. On Thursday, 19 April 2012 DD asks you – that is Dirty Dunc – DD asks you what you are “wanking over” and you tell him that you are a “dirty pedo” and that you are masturbating over porn. You then say, “An eight year old being fucked up arse.” You tell DD that you have “fucked a 12 year old girl and sucked a 13 year old cousin.”
Re: Charge 3
10 In relation to Charge 3, on Saturday, 12 November 2011 you have a private chat conversation with a person who is identified as “Brocky Smith”. He identifies himself as a 15 year old male from a region in Victoria. You ask him if he wants his “cock sucked” and ask if he wants to meet with you. There is discussion about meeting the following Friday at Southern Cross Station and when he asks what you want to do, you say that you will do whatever he wants. You say that you can “play with each other’s cocks” if he wants to and “if that is okay” you say you might kiss his penis for him and that you would rape him. You then discuss having a phone chat, and then reassure Brock Smithy that you will not rape him or hurt him. You say that he is “too pretty to hurt” and that you would be “fucking” him.
11 The Crown opening indicates that there are other occasions when you have internet chats with this same party, including attempts to arrange to meet up. However, I sentence you on the basis of the charges before me and I note and do not sentence you on the basis that there is any charge for procuring or grooming.
Re: Charge 4
12 In relation to Charge 4, on Thursday, 26 January 2012 you commenced a private text-based chat session with another party known as “Joe-Kool 42”. In the course of that conversation the other party says that he would love to have a nine year old “riding his cock” and that this could be a girl or a boy. You answer, “Same.” You go on to say that you love young kids and when asked by the other party if you have ever had one, you said you had your cousin who was aged 12 – 16. You agreed with the other party in respect of sexually explicit assertions concerning young females and young males being sexually penetrated, with you saying, “I love young cock.” On Thursday, 3 May 2012 you say to Joe‑Kool that you would rather look at “kiddie porn” and when asked if you have “trades”, you answer that you do not have much. You go on to say, “Ten year old getting lubed for anal, hot as, I don’t know how to send it.”
Re: Charge 5
13 In relation to Charge 5, on Tuesday, 7 February 2012 you have a private chat-based conversation with a user, Peter Havel, where you say, “I love to lick little girls’ cunts, five plus, and suck on young boys’ little cocks.” You say to the other party, “You want to fuck them all, don’t you, and feed them your pedo cock.”
Re: Charge 6
14 In relation to Charge 6, on 19 April 2012, you have a private chat conversation with another Yahoo user known as “Ifaced”. That conversation included you saying, “Make sure you abuse the little slut again.” Then you say, “With you cock or tongue next time,” and that you are “stroking over her pic.” You then say, “Get her to suck your big cock”. When Ifaced says it is considered a gross crime by society to sexually abuse a child and that getting an opportunity would not put luck on his side you answer, “All kids need cock.” The other party says that while he enjoys children and considers himself a paedophile, he would not risk his life for a quick thrill. He goes on to say, “However, if the opportunity presents itself, I will go for it.” You say, “I’m the same, my friend. I’m a paedophile too.” The other party says that he admits that he is sick and cannot stop himself but he is also aware of the consequences. You say, “I don’t want to stop,” and that you love it. You go on to say that you “love the idea of a six year old girl sucking your cock or sucking a 10 year old boy.” The other party says that he has seen “some very hard baby boy abuse” and you reply, “Mm.” However, when he describes what he says he has seen, you say that you are not into “scat and piss”.
15 I do not sentence you on the basis of you being party to the remark made by Ifaced in this regard.
16 On Wednesday, 25 April 2012, you ask Ifaced how his mate’s four year old is and say he has to make excuses to see him so he can see her, try to molest her again. You then say that you “bet you think of her, jack off over her puffy pussy” and the conversation continues in this vein. You ask him how young he would go, then say you have a daughter who is two and a half. It is apparent that at this stage you send a picture of your child to the other party, then say, “I was jacking off on cam once with her between my legs.” It is this remark which formed part of the tendency evidence sought to be relied upon by the Crown, in particular, in proof of Charge 1. It is this remark which the Crown relies upon as having actually occurred. I shall return to this aspect a little later on.
17 You go on to say that, “She touched my cock, but she only did this once.” In the police record of interview and in your evidence you said that your child did touch your penis on one occasion, but that this was accidental as you had no idea she was about to do this. In that conversation you also say, “I have licked her cunt a couple of times changing her nappy. I don’t finger her, just lick her and let her touch my cock.”
18 On 30 April 2012, you tell the other party, Ifaced, that you “jacked off today over a 10 year old getting ass fucked, very nice.” Then you say that you “love that stuff” and wish Ifaced “good luck with the little one” and say that you hope that he gets to molest her again.
Re: Charge 7
19 In relation to Charge 7, on this same day you also had a private chat with a Yahoo user known as “Alison McPhaill”. The conversation included you telling the other party that you had “not been fucking guys or any young girls for a while”. You then say that, “The only young girl to see my cock is my daughter when I'm jackin’ off on cam lol.” Then you say, “She has touched it.”
20 On 26 May 2012, you say to Alison McPhaill that you are “still looking for young cunt” and say that you had not been getting any but that your “cock” was “aching for some.” You go on to say that you cannot wait until you daughter goes to school so you can perve on the other little girls and say you want to see if you could “get one that will suck your cock”.
Re: Charge 8
21 In relation to Charge 8, on 3 May 2012 you had a private conversation with a user known as “Daisyaduck”. In that conversation you say that you are “stroking” over the other party’s display pic which is apparently a picture of the other party and her 11 year old son. You say, “Love to fuck you while sucking your boy.”
Re: Charge 9
22 In relation to Charge 9, on 24 May 2012 you had a private chat with a user known as “Jonie 2239”. When asked what you liked, you replied, “Young,” then went on to say, “For sucking, 5 plus and for fucking, 9 plus”. You go on to say that you would “let them all suck my cock” and that you would “love to suck a 10 year old boy”.
23 Mr Hensley, your offending against your daughter was a gross breach of trust. She was entitled to look to you as a protective father figure. Instead, you defiled her trust in a despicable fashion by masturbating in her presence and forcing her hands upon your exposed penis on 17 May 2012. Not only were you prepared to offend in this shameful way against your two-and-a-half year old child, but in the case of Charge 2 you were prepared to perform this dreadful act for the observation of Ms Gephard, who you seemed to think might be impressed by this. The only fortunate aspect of behaving in such a way is that Ms Gephard had the decency to report you to the Australian Federal Police which then revealed that you had engaged in private chat conversations of an abhorrent nature with disturbingly like-minded individuals, and in one case with someone who purported to be an adolescent male.
24 In relation to the indecent act offences, I sentence you in the context of having previously masturbated in your child’s presence on at least one previous occasion. Having considered the relevant chat conversations, your record of interview and your sworn evidence about this, I am satisfied beyond reasonable doubt that you had deliberately masturbated in your child’s presence on at least one previous occasion. As the Crown does not press that you performed the other acts upon your child of which you spoke or deliberately allowed her to touch your penis on previous occasions, I do not sentence you in the context of this. However, I am satisfied beyond reasonable doubt that you genuinely held a sexual interest for your child upon which you were prepared to act. Accordingly, that is the context in which I sentence you for the indecent act offences, but I make it clear that I do not sentence you in respect of any previous episodes of masturbation in your child’s presence. However, I do sentence you in relation to the indecent act offences in the context of you having a genuine sexual interest in your child.
25 Mr Polak submitted that Eva was almost three years old when the offending occurred and it is to be hoped that she will have no recollection of the offending against her. He submitted that child psychologists are in a position to deal with this if needs be. However, due to Eva’s age, it would be unlikely that she will have any recollection as to your offending. Whether this is so or not remains to be seen and I do not speculate in this regard.
26 As to the charges on the plea indictment, I sentence you for nine charges of using a carriage service in an offensive manner and I do not sentence you in relation to any of the assertions made by you which involves you having sexually abused children or your own child in the past. Whether you have committed these acts or not, is not the gravamen of the offending for the purposes of the Commonwealth charges. As I have previously said, I am satisfied beyond reasonable doubt for the purposes of context regarding the indecent act charges that your assertions concerning masturbation in your child’s presence on at least one other occasion are true. However, in assessing the seriousness of the use of carriage service charges, the content of the conversations is relevant. In those chats, albeit that they are private, you constantly marvel over the sexual abuse of children, which is utterly repugnant. All of your offending is deserving of strong punishment and denunciation. Further, substantial weight must be given to general deterrence in a bid to deter others from offending in the ways that you have.
27 In relation to the indecent act offences, you maintain your innocence and therefore there is no remorse. You are entitled to run contested proceedings but you are not entitled to a discount in the sentence that you would otherwise receive had you pleaded guilty to the indecent act charges. I am not persuaded that anything in the nature of mitigation of sentence should arise from the fairly contained nature of the cross-examination of Ms Gephard. The fact is she was required to give evidence of a most embarrassing and personal nature. As I have said, you are not to be punished for contesting matters, however nor are you to be rewarded for it.
28 Insofar as the use of carriage service charges are concerned, I do not accept that these are conversations to shock without any genuine sexual interest in the subject matter being expressed. These conversations reveal that you relish the idea of sexually abusing children of all ages and what is more, you have been able to find like-minded individuals out there in cyberspace. This is indeed disturbing and presumably, one of the reasons for the creation of such an offence, that is to ensure that carriage services are not used for people to encourage each other in the pursuit of such evil interests as paedophilia.
29 In relation to the plea indictment, I take into account that you have pleaded guilty to these matters, albeit at a late stage, being after you had indicated an intention to plead not guilty to all charges and I had made a ruling for severance with the first of four trials having been completed. However, I make an appropriate allowance in your favour in relation to pleading to these charges which has saved the witnesses the time and trouble of giving evidence at trial and has saved the community the time and expense of running trials. In making appropriate allowance, I take into account that some of the charges which were to be contested at trial have been discontinued by the Crown.
30 In your favour, I take into account that you have been in custody now for 437 days, having breached your bail by apparently making contact with Ms Gephard which was in breach of a bail condition not to contact witnesses. Mr Polak alluded to other possible bases for your bail being breached but it was unclear as to whether these were the reason as well for your bail being breached.
31 In sentencing you in relation to the use of carriage service charges, I factor in that the chat conversations were of a private nature and with like-minded individuals, it would seem, on all occasions. Whilst on the one hand, it is disturbing that others think as you do in relation to sexually abusing children and are prepared to urge each other on in this regard, and that is to be deterred, at least you did not subject your thoughts to others in the community who did not share your abject interests.
32 You counsel submitted as a mitigating factor that it was embarrassing for you to subject yourself to cross-examination in light of some of the evidence against you in the trial. I do not regard this as a mitigating feature. It is something that you chose to do and did not have to do. Obviously, the jury rejected your evidence, which amounts to you brazening it out in the witness box in a bid to be found not guilty.
33 Mr Polak said that in relation to the carriage service charges, you would obviously not commit these again. In light of the enthusiasm that you exhibit in these chat conversations and ostensible lack of insight as to their repugnant nature, I am not sure that it is obvious that you will cease such activity in the future. However, I do accept that you have spent a significant time in prison and that you have no relevant prior convictions, which I take into account in assessing you prospects of rehabilitation. Mr Polak submitted that all of the matters for which I sentence you are of such a nature that they could have been dealt with in the Magistrates’ Court. I was told that the reason that the matters were dealt with in this Court was that you elected for this to occur. I must say that I am unsure as to whether the matters ought to have been dealt with in the Magistrates’ Court in view of their seriousness, even if the Magistrates’ Court has power to impose a sentence of up to five years' imprisonment.
34 While it is true that you were more than willing to answer questions in the lengthy record of interview with police, the fact of the matter is that you only pleaded guilty in relation to the use carriage service charges after you were found guilty of the indecent act charges. Mr Polak told me that you accept that the chat conversations were horrible and shameful, even though you did not know that these were illegal. He submitted that you would never do this again, having now learned of the illegality of the conversations and having now spent a significant period in jail for the first time. In view of the course you took in relation to the use of carriage service charges and apparent lack of insight as seen in the record of interview and evidence at trial insofar as you gave evidence in respect of some of these conversations, I am unable to find that you have genuine contrition for committing these Commonwealth offences. However, I do accept that you are very sorry for the situation you have brought upon yourself which will have some deterrent effect. Obviously, as you have pleaded not guilty and maintained your innocence in relation to the indecent act charges, you have no remorse for these.
35 I take into account your background: You are 47 years old and your parents separated when you were three. Your father is now 70 and lives alone on the New South Wales north coast. Your mother remarried when you were quite young and your stepfather died about two years ago. You left school and you left home when you were in Year 11. You obtained various unskilled jobs until obtaining a job with Perpetual Trustees in 2002 where you had been employed for about 10 years. In recent times you performed general clerical work for that company and you were happy working there. Your perception was that the company was happy with you also. You had been paid about $42,000 and from this, you supported your partner Stacey,[4] and child Eva. Whilst in custody, you have used up savings and other entitlements in order to keep the family afloat. Stacey is now receiving a supporting parent’s pension. In respect of the Commonwealth charges I am bound to take into account the probable effect of any sentence or order upon your family and I do so.
[4] Stacey is a pseudonym.
36 You are not someone who drinks a great deal of alcohol. However, in the past gambling has been a problem for you. In more recent times, you have been able to deal with gambling and the on-line game which you played with various on-line friends apparently helped you deal with this problem which had been impacting on the family financially.
37 I was told that your relationship with your mother is quite difficult. She has suffered from glaucoma over the last 14 years and before you went into custody she was living in the family home with you, your partner, Stacey and your child, Eva. She originally lived with your brother but alleged that he assaulted her two or three years ago, at which time she commenced living with you and Stacey. I was told that your mother has made similar allegations against you and you were to face these in late August. Insofar as these allegations are concerned, I do not factor them in against you as I have not been appraised of the outcome and it has not been submitted that it has pertinence to my sentencing task.
38 You have little in the way of family support. Your brother, Eric,[5] has been involved in the juvenile justice system in the past and you have a strange relationship with him. You have a brother in Brisbane and have limited contact with him. The only family support that you do have is Stacey and her family. In spite of the fact that you have been found guilty of indecent acts in respect of her child, she maintains her support of you and has been present during the trial and was also present at the plea hearing. I understand that the Department of Human Services are involved in relation to you seeing Eva and there are ongoing proceedings in relation to your contact with your child as well as Stacey’s contact with her. You and Stacey have a second child who was born this year. As your bail had been revoked at the time of the child’s birth, you were not able to support Stacey at that time.
[5] Eric is a pseudonym.
39 I was told that you are a bit of a loner at work and really did not have friends there. The only friends that you did have, apart from Stacey, were the 200 or 300 Facebook friends. Mr Polak surmised that the anonymity of the situation with cyberspace friends may have had something to do with you offending insofar as the use of carriage service charges were concerned. This may well be the case, however, if this is your situation in the future, then it would appear to be a risk factor in terms of you re-offending.
40 On the day of your arrest the Department of Human Services became involved, taking Eva, from you and Stacey. I was told that on that day Stacey stayed with you, which meant that your child had to be placed in the care of her maternal grandmother. Eva’s grandmother remains involved in her care and protection to this day. There are stringent conditions attached to Stacey dealing with Eva and before your bail was revoked you were also subject to stringent conditions concerning access to your child. Following your breach of bail, Stacey originally lived with her mother in Langwarrin.
41 Whilst in custody you have been entitled to access for two hours a fortnight or once a month if in a country prison. Now you have been found guilty of offending against Eva, it is unclear as to what the future will hold. This will be the subject of Court proceedings in the future. However, when able to see your child, now children, the two hours allowance was often not observed by the prison authorities for various reasons I was told. Any access to your child has been subject to a requirement for supervision which has been carried out by Stacey’s mother.
42 Mr Polak was not clear as to the nature of an application concerning the custody of Eva which was being made by the Department of Human Services and booked to run for four days in the near future as at the time of the plea hearing. I was told that during the course of the trial, Children’s Court solicitors were in Court to monitor the progress of proceedings here. I understand that you have been most cooperative with the Department of Human Services in respect of protection issues concerning your child.
43 I have considered a report provided by Dr Cunningham and have taken its contents into account. That report dated 20 July 2012 was prepared in support of a bail application on that day. Dr Cunningham formed a view that you have high functioning Autism Spectrum Disorder and that because of this, your time in jail would be harder than for someone without the disorder. I must say that I was a little concerned as to the fairly economic way in which Dr Cunningham came to this conclusion. However, on balance, I am prepared to accept that you do have the condition and that because of aspects of this, your time in custody will be harder than for someone without it. For this reason, as well as the fact that you have been and may continue to be in protective custody, as well as the fact that you will be fairly isolated from any family or friendship support, time in custody will be more difficult for you. Insofar as your time in protection is concerned, I have taken into account the differences between this and mainstream prison in determining that time in jail will be harder for you than someone not in this position, although in terms of the future, it is uncertain as to whether you would continue to be in protection or at a facility which is dedicated to sex offenders.
44 It is unclear whether Perpetual Trustees would be prepared to have you back now that you have been found guilty or have pleaded guilty to the charges. However, you have a solid work ethic which ought stand you in good stead when you are ultimately released from jail.
45 I take into account the fact that you have some prior criminal matters. However, they are not all that recent or relevant to the offences for which I sentence you. I was told that in relation to your criminal history you had developed a gambling problem when you were 13 years old which continued for a significant period and that that problem gave rise to the prior matters.
46 I was told that you managed to deal with your gambling problem by playing the internet game “Horses of Fire”, which is how you came to meet Ms Gephard as well as others with whom you had internet conversations. Those people were your friendship base as I have previously said. I was told that you would spend nine or 10 hours a day on the computer playing this game. Mr Polak submitted that the lengthy periods which you spent on the computer on games such as this may have led to a confusion in your mind as to fact and fantasy.
47 In relation to the Asperger’s condition from which you suffer, I was told that you rely heavily on structural support from your partner, Stacey and that you were also going to obtain assistance from an autism support group if you had been granted bail in July last year. Upon your release from gaol it would be beneficial for you to engage with such a group.
48 I also take into account that whilst in gaol you have missed being present for the birth of your second child. It is unclear as to what the future holds in terms of you being able to have future contact with your children in view of the matters for which I now sentence you.
49 Whilst in prison you witnessed a suicide as it occurred which is one of the matters which has made your time in jail especially onerous. This is especially so because of your difficulties in making friendships and therefore seeking out support in times such as that.
50 I am told that during any period of parole you would be open to foregoing any use of the internet and would co-operate with the Parole authorities. This would include any sex offenders program which you are required to undertake.
51 I take into account that you have undertaken a number of courses whilst on remand, having done all that you can do in this regard.
52 In all of the circumstances, notwithstanding that this is your first episode of offending of this kind, I must place some weight on specific deterrence, although I accept that you are unlikely to reoffend because of your knowledge of the consequences if you do so. However, in view of the enthusiastic sentiments which you expressed in the use of carriage service conversations, your lack of genuine insight and contrition, your past dependency on friendship on the internet, together with the two indecent act offences of which you have been found guilty, I place some weight on specific deterrence in a bid to deter you from further offending. I must also place some weight on the need to protect the community from you and I must place substantial weight on general deterrence in a bid to deter others from behaving as you have. I have concerns as to your level of insight as to the wrongfulness of what you have done and this does give me cause for concern in terms of your prospects of rehabilitation. However, in all of the circumstances I find that your prospects of rehabilitation are fairly good. I make this finding for the reasons just referred to and also in light of the fact that your criminal history is a limited and fairly irrelevant one.
53 Mr Polak submitted that I ought sentence you to a term of imprisonment but that the effect of such sentence would be that you fell to be released immediately. This would mean that you would have served about 14 and a half months, such that Mr Polak’s submission is that that would suffice to address all relevant sentencing considerations. However, from what Mr Polak submitted previously, I understand that he was saying that such a sentence would serve as a minimum term with a head sentence such that you would be supervised on parole. He submitted that you would also have to comply with any requirements of the Children’s Court or Department of Human Services such that any risk that you might pose would be adequately addressed by these bodies. He submitted that you would also be required to comply with the Sex Offenders Register for a period of eight years, which was a further safety guard which would help to ensure that you did not reoffend.
54 The Crown submitted that in light of the use of carriage service charges extending over a period of nine months and the fact that each charge involved a different chat user at the other end of the computer, and in view of the abhorrent nature of the conversations, that general deterrence was a significant factor in relation to those offences and that further, there ought be some cumulation as between those charges where more than one conversation was involved. Mr Bessell for the Crown nominated these as being Charges 1, 2, 4, 6 and 7. He submitted that a head sentence of between 12 and 18 months' imprisonment with a minimum term of 6 to 9 months would be appropriate in relation to those charges. In respect of the indecent act charges, he submitted that in view of all relevant sentencing matters, a head sentence of between 3 to 4 years ought be imposed. He did not nominate a non-parole period in respect of these. I was told that the Crown prosecutor concerned was not willing to nominate a minimum term at the stage at which instructions were sought. However, on the hearing of a further plea in relation to this matter where I was assisted by Mr Kirne from the Commonwealth Office of Public Prosecutions in relation to structuring your sentence and sentencing practice for the Commonwealth offences, Ms Rogers of Senior Counsel for the State OPP submitted that the sentencing range for the indecent act offences would be between 3 and 4 years head sentence with a non-parole period of between 2 and 3 years. It was confirmed that the Commonwealth matters attracted a range of between 12 and 18 months’ imprisonment and that between 6 and 9 months ought actually be served.
55 On the original plea, Mr Polak submitted that the sentencing range was too high. Neither counsel was able to assist me with current sentencing practice in relation to the relevant offences. At the third plea hearing Mr Kirne submitted that the Commonwealth range was given having had regard to current sentencing practice for such matters.
56 Having considered all of the relevant matters in your case and the need to properly address all sentencing considerations, I have come to the view that 14 and a half months is not adequate as a minimum term. Although it is true that in some respects there are more serious examples of the indecent acts which you have committed, these are serious enough and have some concerning features. In my view a further period in gaol is warranted, taking into account all relevant matters in your case.
57 Please stand up, Mr Hensley.
58 Firstly, I make a disposal order for the computer was seized by police which is not opposed by you. Secondly, I make an order pursuant to s.464ZF of the Crimes Act that you should undergo a forensic procedure so as to provide a forensic sample. That application was not opposed by you. I am satisfied that in all of the circumstances the making of the order is justified for the following reasons, namely the seriousness of the offences, the order is not opposed and the granting of the order is in the public interest. Therefore I order that you provide a scraping from your mouth in accordance with the relevant provisions of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. Notwithstanding your present lack of opposition, I should tell you that the police may use reasonable force if necessary to enable the forensic procedure to be conducted. I will sign the form which has been provided to me by the prosecution. In fact, I can indicate that I have done that.
59 In relation to Indictment C11530523.1 being the trial indictment in respect of the two State matters, you are convicted and sentenced as follows.
60 Charge 1: 18 months' imprisonment.
61 Charge 2: 3 years' imprisonment.
62 I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2, giving a total effective sentence for that indictment of 3 years 6 months and I impose a non-parole period of 2 years 5 months.
63 In relation to charges 1 to 9 inclusive on the plea Indictment C11530523.2, which are all Commonwealth matters, I impose an aggregate sentence of 15 months’ imprisonment but I direct that you are to be released after serving 6 months’ imprisonment upon you giving security by recognisance of $1000 to comply with the following condition, that is that that you are to be of good behaviour for 3 years.
64 This sentence is to commence nine months from today’s date and will mean that your overall minimum term in gaol will be approximately 2 years 6 months, perhaps a little less than that. I have sentenced you in this way so as to give appropriate weight to all relevant sentencing considerations, taking into account matters in mitigation, including your facilitation of justice by pleading guilty to these matters notwithstanding that this was at a late stage.
65 The sentencing imposed in respect of these matters is sufficient in my view to address all relevant matters in circumstances where I consider your conduct of sufficient seriousness to warrant a gaol term. However, having regard to all relevant considerations including the principle of totality, I have imposed a sentence which has the effect of adding approximately one month to the non-parole period on the State sentence I have imposed and does not add any further period to the head sentence. If you breach the condition in relation to good behaviour during the three year period by committing any further criminal offence, then you are at serious risk of being required to pay $1000 and serving a further period in gaol.
66 I had considered imposing a condition that you be assessed for a sex offenders program, but I understand that this should follow as a matter of course in any event, given the nature of your offending.
67 I declare that in relation to these sentences you have already served 437 days by way of pre-sentence detention.
68 In relation to the plea indictment charges, if not for your pleas of guilty, I would have sentenced you to 22 months’ imprisonment with a direction for release after 10 months to commence nine months from today’s date and I would have imposed a recognisance order which required a security in the sum of $2000 and a condition that you be of good behaviour for 4 years.
69 Take a seat for a minute please, Mr Hensley. Madam Prosecutor, is there anything arising?
70 MS ROGERS: Yes, Your Honour. I have to apologise, I have a general understanding of how the Commonwealth indictment was resolved and I understand some of the charges were representative. Is that correct?
71 HER HONOUR: They were rolled up.
72 MS ROGERS: Rolled up. My recollection, Your Honour, is there a Full Court decision in relation to aggregate decision and representative rolled up counts.
73 HER HONOUR: Mr Kirne appeared here last week, Madam Prosecutor, and clarified that whilst an aggregate sentence was not available, it is now available notwithstanding that charges are rolled up.
74 MS ROGERS: I will sit down, Your Honour. My apologies.
75 HER HONOUR: All right. No, but thank you for raising that. I was of that view as well, but he assured me that that is now the position.
76 MS ROGERS: Thank you, Your Honour. No other matters, Your Honour.
77 HER HONOUR: Yes, thank you. Anything further?
78 MR McGREGOR: No, thank you, Your Honour.
79 HER HONOUR: Yes, thank you. What has to happen is that the recognisance has to be signed by your client, Mr McGregor, so I will sign the document and if you could then approach the dock and have your client sign that as well.
80 MR McGREGOR: Thank you.
81 HER HONOUR: Thank you. My Associate will also assist. Yes, thank you, I see that the recognisance has been signed and the terms of that have been explained to the prisoner. Is there anything further now?
82 MS ROGERS: Not that I am aware of, Your Honour.
83 MR McGREGOR: No, thank you, Your Honour.
84 HER HONOUR: Yes, thank you. If you could remove Mr Hensley, thank you.
85 PRISONER REMOVED
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