Director of Public Prosecutions v Heskett

[2017] VCC 1496

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00939

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER HESKETT

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 October 2017
CASE MAY BE CITED AS:	DPP v Heskett
MEDIUM NEUTRAL CITATION:	[2017] VCC 1496

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hawker
For the Accused	Mr S. Moglia

Pages 1 - 10

 

 

HER HONOUR: 

1Christopher Ian Heskett, you have pleaded guilty before me to one charge of using a carriage service to groom a person under 16 years for sexual activity, contrary to s.474.27(1) of the Commonwealth Criminal Code, one charge of using a carriage service to transmit an indecent communication to a person under 16, contrary to s.474.27A(1) of the Commonwealth Criminal Code, and one charge of soliciting child pornography material using a carriage service contrary to s.474.19(1) of the Commonwealth Criminal Code.

2The facts underlying your offending are as follows.  This offending occurred between 24 October 2015 and 7 June 2016, at which time you were aged both 18 and 19 years and the complainant was aged 15 years.  At the time of the offending, the complainant was a student at Ringwood Secondary College in Year 9.  The two of you did not have a relationship before this offending and you in fact have never met in person.  You knew the complainant's, brother. 

3You first communicated with the complainant through Facebook on about
24 October 2015.  The two of you began interacting frequently from about
24 May 2016 via Facebook and Snapchat.  You developed an online friendship with the complainant and over time, the conversations became flirtatious in nature.  On 10 May 2016, the complainant's brother contacted you on Facebook, essentially telling you that his sister was 15 and saying that he was looking after his little sister.  You indicated an understanding of that and the tone of the conversation was that the complainant's brother was aware you were having contact with her and warned you of her age and asked you to think about the appropriateness of what you were doing, you indicating you understood that.

4Between 10 May and 7 June 2016, you continued this online relationship with the complainant, which evolved into a sexualised relationship about 24 May 2016.  You began discussing matters with the complainant in a sexual way, for example stating that it turned you on that the complainant could be so attractive so young, "like you're only going to get better but sucks so much because I would like to start seeing you properly".

5Between 25 May and 2 June 2016, you used Snapchat to communicate with the complainant and send her an image of your penis.  Some of the messages included you asking the complainant "When are you free? Hahaha a streak of me sending nudes and you not replying".  On or about 4 June 2016, you asked the complainant to send you a photograph of her naked body, which she ignored and did not send you any pornographic images. 

6Ultimately, charge 1 on the indictment related to your sexualised Facebook and Snapchat messages, including you discussing arrangements to meet with the complainant and requesting she not tell anyone at school of the conversations between the two of you.  Charge 2 related to you sending the naked photograph of yourself and Charge 3 related to your request that the complainant send naked photographs of herself to you.

7On 8 June 2016 the acting assistant principal at Ringwood Secondary College spoke with the complainant at school, when she made disclosures about the online conversations she was having with you and the naked photographs she got from you and police were contacted.  On that day the complainant attended Knox police station, where she made a VARE statement. 

8You were interviewed by police on 21 September 2016.  You admitted that you thought the complainant was in Year 10 and was either 15 or 16.  You agreed that you spoke to her in a manner suggesting sexual action, wanted to perform sexual moves and “pretty much” intercourse.  You have admitted the sexualised conversation occurred after the complainant's brother had spoken to you.  You said you spoke to the complainant about sexual acts between one and three times.  You admitted sending photographs of your genitals to her.  You asked her to send nude photographs of herself to you, that it was your intention to set up a date with her, that you were looking to have a relationship with her and that you engaged in sexual conversations with the complainant five to six times over the space of a few months.

9No victim impact statement was completed by the complainant in relation to this matter. 

10I now turn to your personal circumstances.  You are now 20 years of age and as I have said, you were aged both 18 and 19 at the time of this offending.  You are the younger of two boys born to your parents, who separated when you were about seven months old.  You remained living with your mother.  Both parents remarried and you have a number of step- and half-siblings.  You have had regular contact with both your parents throughout your life and you told psychologist Patrick Newton, whose report dated 25 July 2017 was tendered on the plea that your parents took great care to be amicable and that you got on well with both parents and had a positive upbringing, regularly living between the households of each.

11You progressed at school in a normal fashion, although reported some difficulty with concentration, which you thought might have been an undiagnosed ADHD condition.  You passed Year 12 at Ringwood Secondary College and began a Bachelor of Education, which you stopped after 12 months to take up a Bachelor in Youth Work, six months of which you had completed until these matters came to light.

12You are now undertaking a Diploma in Remedial Massage, which you enjoy and which you hope may possibly lead to your qualification as either an osteopath or a chiropractor.  You reported developing normally, with open discussions of sexual matters in the family and began your adolescence with normal relationships with the opposite sex.  You reported some problems in your late teens with self-esteem, which you bolstered by flirtatious talk on social media with a number of people including the complainant and it is understood that it was in this context the offending occurred.

13You have for the past 12 months been in an age-appropriate relationship with another young woman who is aware of your offending, upset by it but she remains supportive of you.  You have no problems with drugs or alcohol.  The offending apparently occurred at a time when your parents were overseas and you were living alone in the house, presumably with siblings, at a time when your confidence was low.

14Mr Newton described you as being extremely regretful, embarrassed and ashamed of your behaviour.  Mr Newton, on examination, found you to be somewhat immature and impulsive in your responses but found no signs of anti-social behaviour or attitudes within you.  He detected no sexual deviancy in you and found that you are now clear in your understanding of the inappropriateness of your behaviour.  He said you displayed appropriate abuse empathy for the complainant.  He said you displayed unequivocal regret and remorse to him for your offending.  He stated "I concluded that Mr Heskett's offending would be more likely to be the result of situational factors then extant in his life, including his immaturity at the time and the loneliness he was experiencing, rather than broader sexual deviancy".

15It was noted that you are supported by a pro-social and functional family and he regarded you as being a low risk of reoffending with very good prospects for rehabilitation.  A brief report from psychologist Warren Simmons dated
23 August 2017 noted that you had attended upon Mr Simmons essentially for counselling in relation to this offending on ten occasions between 25 October 2016 and 22 August 2017. 

16Importantly, in my view, Mr Simmons stated:

"There was little in his history or the information obtained to suggest this was other than a 21st century form of exhibitionism, although it occurred in the privacy of both parties' rooms.  In the case of Mr Heskett, this enabled him to expose himself in relative privacy and with the picture being seen by one person, or so it is hoped, when the offending is not in a relationship with the victim, it is more akin to flirting in someone who lacks the social or emotional skills to approach the person they are attracted to directly.  Technology facilitates this interaction and there is a degree to which it becomes common among young people.  Subsequently,
Mr Heskett formed a relationship and later sessions addressed relationship issues as well as exploring more appropriate ways to initiate contact with others."

17In relation to the risk of reoffending, Mr Simmons stated:

"Mr Heskett demonstrated no particular interest in minors, with Mr Heskett appearing to have adult heterosexual interests.  Furthermore, there was little to suggest that he has more than a low risk of further offences, having found his involvement with the criminal justice system aversive".

18I should add that Mr Newton diagnosed you as suffering now from an adjustment disorder entirely related to your anxiety over the current court proceedings.  It was submitted to me that I should deal with you by way of a sentence of imprisonment to be imposed but you being released upon you entering into a recognisance to be of good behaviour.  I should also add that the maximum penalties for this offending are 12 years in relation to Charge 1, seven years in relation to Charge 2 and 15 years in relation to Charge 3.  This matter is rendered somewhat more problematic by your admissions to police that you had intended at some level to form a relationship with the complainant.  It was the defence submission that I should deal with you essentially by way of a community corrections order.

19The prosecution directed me to a number of authorities relating to offending of this kind and generally speaking, it is said that this is serious offending which would ordinarily warrant the imposition of term of imprisonment, either to be immediately served or served by way of entry into a recognisance release order.  As I commented during the plea, most of those authorities related to fact situations where the offender was many years older or significantly older than the complainants in question.  I regard this to be a crucial distinction with your own case.  In my view, this legislation is clearly aimed at protecting young persons in the community who are unable to make appropriate decisions in relation to their own sexual activity under an age designated at law.  It is designed to protect those complainants and punish those accused who act in a predatory fashion toward such young and vulnerable people. 

20However, the age difference in this case, is in my view markedly less than those cases to which I was directed.  The lesser the age difference, the lesser the likelihood in my view that there is the predatory behaviour which this legislation is designed to discourage.  I do not say in your case that it is not entirely without a predatory aspect.  At the end of the day, you were still an adult, Mr Heskett, at law, and the complainant still a child.  It was extremely inappropriate behaviour but I am satisfied that the therapy you have undertaken has very much impacted upon you and at the end of the day I am left with an assessment by two respected psychologists, one of whom has been treating you over a period of time, that you are not attracted to children, that you do not engage in or display sexual deviancy and that you are a low risk of reoffending, supported by a law-abiding and functional family and that your offending arose rather from immaturity and the unfortunate practices common around your age group of sexual intimacy over the internet, which I hope you understand now is an extremely unwise idea.

21In all the circumstances, and I note this was a plea of guilty entered at an early stage, I accept that you are remorseful for your offending, as indicated by what you have told both psychologists, who regarded you as genuine, and your cooperation with police, that you are a low risk of reoffending, that your offending arose not from sexual deviancy leading to predatory behaviour on the young but by immaturity on your part and in all those circumstances I am satisfied that the appropriate disposition in this case is a community corrections order rather than the imposition of a term of imprisonment followed by release on a RRO.

22Now, I just call upon you, Madam Prosecutor, about the way in which I go about phrasing my disposition given the Commonwealth legislation.

23MS HAWKER:  Yes, Your Honour.  Your Honour can impose an aggregate CCO for the three charges if Your Honour is so inclined.

24HER HONOUR:  Yes.  Well, look, they all arise in the one course of offending, albeit over a period of time, essentially between May and June of 2016 so I do think it is appropriate in all the circumstances that I do deal with
Mr Heskett by way of an imposition of a community corrections order on an aggregate basis.

25MS HAWKER:  As the court pleases.

26HER HONOUR:  Thank you Madam Prosecutor. , Stand up please, Mr Heskett. 

27Before I can place you on this order, I must gain your consent and I must explain to you the conditions that will attach to this order.  This order will last for a period of 18 months.  The fundamental or basic conditions relating to the order are that you must report to the community corrections office within two working days of the making of this order, that is by Friday of this week.  Whilst you are on the order, you must not commit another offence punishable by imprisonment.  That does not mean you have to offend and be sent to gaol, it means if you commit an offence for which theoretically you could be sent to gaol, like knocking off a box of matches from Woolworths, that will breach the order and you will be brought back before me and I will resentence you on this order.

28You must report to and receive visits from the Community Corrections Office, you may not leave Victoria without the permission of the Community Corrections Office, you must report any change of address or employment to the Community Corrections Office within the 48 hours of that change, you must not attend upon the Community Corrections Office under the influence of either drugs or alcohol, you must obey all lawful instructions of the Community Corrections Office.

29You were assessed as suitable for placement on this community corrections order by the community corrections officer who also found you to be a low risk of reoffending.  It was stated, "On the basis of this risk score, that is according to the level of service risk assessment tool, minimal interventions are recommended".  I am going to order that you undertake 200 hours of unpaid community work.  It was recommended that I place you on a condition that you undertake programs designed to reduce reoffending, that being in your case a specialised offender assessment and treatment service, which was formally known as the sex offender program.  It was Mr Newton's view that you would be better served by a one-on-one service rather than the group attendance, which is usually the form of SOP's programs.

30You were seeing Mr Simmons up until - I am sorry, Mr Moglia, did the attendances on Mr Simmons end in August or did they continue.

31MR MOGLIA:  I think he might have had one session to go, but they continued until two sessions ago, when he has been with Ms Preston.

32HER HONOUR:  All right.  So, that you attended with Mr Simmons but are now attending upon a psychologist, Ms Vanessa Preston.  So in my view, given the recommendations of Mr Newtown and overall, given the extensive therapy you have undertaken, it is my view that a more appropriate condition would be that you are to attend for assessment and treatment for mental health difficulties on the understanding that you are already undertaking psychological treatment which will then continue but simply be supervised by corrections.  There was some discussion by me with counsel, it was a prosecution view that I should make a condition that you attend for programs reducing reoffending but I think, given the background, the nature of the offending, your age and the psychological material I received, it is more appropriate that you continue in the way you have been, with the psychological therapy you are currently undergoing.  Are you prepared to enter into this order?

33OFFENDER:  Yes, Your Honour.

34HER HONOUR:  Thank you, have a seat.  Yes, Madam Prosecutor, what is the period of time on the sex offender's program?

35MS HAWKER:  It will be for life, Your Honour, for three offences.

36HER HONOUR:  Three.

37MS HAWKER:  Three Schedule 2, Class 2 registerable offences.

38MR MOGLIA:  An application can be made at the end of 15 years to do away with obligations.

39HER HONOUR:  I know, it's just ridiculous.  You know, I reckon I am putting people on these sex offender registration once a week when you should not be but anyway, at the moment, I am sure it has been explained to you, you will be placed upon the sex offenders' register for life and the conditions of which will be explained to you by Mr Moglia.  The documentation will be prepared, thank you. 

40One day, I am going to go through all my sentences and pull out how many I have had to - young people I have had to place on this.

41I also meant to order that any treatment undertaken - this is a recommendation of the community corrections office - can be offset against community hours. 

42MR MOGLIA:  As Your Honour pleases.

43HER HONOUR:  It is just that the time spent in treatment sessions will be credited against community work, thank you.    I will just get you to sign that, please, sir.  Yes, thank you, I thank counsel for their assistance in this matter and we will now adjourn to 9 o'clock tomorrow morning.

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