Director of Public Prosecutions v Hickey
[2024] VCC 799
•21 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publishing |
AT BENDIGO
CRIMINAL DIVISION
CR-23-01189
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW HICKEY |
---
JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 17 May 2024 | |
DATE OF SENTENCE: | 21 May 2024 | |
CASE MAY BE CITED AS: | DPP v Hickey | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 799 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence - Plea of guilty – charges grooming for sexual conduct of a
child under 16 (2 charges); possession of child abuse material (1 charge); and sexual activity in the presence of a child (1 charge). Offending occurred via use of Instagram.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:Adamson v The Queen [2015] VSCA 194; Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168; Waldon v The Queen
Sentence:Total effective sentence: Two years and three months’ imprisonment. Non-parole period of one year and three months. S.6AAA Sentencing Act declaration: But for the plea of guilty, the sentence that would have been imposed - four years’ imprisonment with a non-parole period of two and a half years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Kennedy (sentence) Mr S Devlin (plea) | Office of Public Prosecutions |
| For the Accused | Mr L. Winter | Stary Lawyers |
HER HONOUR:
1 Matthew Hickey, you have pleaded guilty to two charges of grooming for sexual conduct a child under 16, for which the maximum penalty is 10 years' imprisonment, one charge of possession of child abuse material, for which the maximum penalty is also 10 years' imprisonment, and one charge of sexual activity in the presence of a child. Again, the maximum penalty is 10 years' imprisonment. Charge 4, which is sexual activity in the presence of a child, is a standard sentence offence and the standard sentence is four years' imprisonment.
2 A summary of prosecution opening was tendered at your plea. The circumstances of your offending are as follows. You were born in February 1973. At the time of your offending, you were aged between 48 and 49 years old. You lived in Malvern East with your wife and children, but at the time of your offending you were working away from home in Kerang.
3 On 15 September 2021 the first victim, Isla Thwaites[1], who was born in September 2006, posted on Instagram that it was her 15th birthday. The post could be viewed by any member of the public. You sent Ms Thwaites a direct private message via your Instagram account offering her alcohol if she would visit you in Kerang. On 18 September 2021 you asked Ms Thwaites to set up a PayPal account so you could send her money. She did not respond.
[1]A pseudonym.
4 Throughout October and November 2021 you intermittently contacted Ms Thwaites and asked for photos and asked if she would go on a date with you. She told you she was only 15. Ms Thwaites gave you her bank details and in seven transfers between November and February 2022 you sent her a total of $410. You also continued to message and ask for photos. In one message you said you enjoyed speaking to a 15 year old and in another message you said, 'What I am doing is a bit risky so please don't tell anybody. I could go to gaol, but you're worth it' - Charge 1.
5 Ms Thwaites’ mother discovered the money coming into her daughter's account. You were arrested on 30 September 2022. During your interview you admitted you knew Ms Thwaites’ age and that you were looking for sexual contact.
6
You also admitted that you were in contact with another underage female, Molly Spinner[2] (and Ms Spinner was born in April 2008), and that you had exchanged photographs with her. You provided investigators the PIN for your mobile phone. Investigations revealed that you had contacted Ms Spinner on 15 May 2022 when she was aged 14. Between 15 May and
22 September 2022 you sent sexualised messages to Ms Spinner and received nude and semi-nude photographs from her, including photographs of her bare stomach, breasts and sexualised photos. You also dropped money in her letterbox.
[2]A pseudonym.
7 During your exchanges you offered her money in exchange for photographs. You also requested to meet with her and you sent her sexually explicit messages. On 31 May 2022 during one of your exchanges you sent Ms Spinner a photograph of your erect penis and a video of you masturbating your penis in the shower. (Charge 4) During your exchanges Ms Spinner made multiple references to being only 14. You persisted and told her that you 'wanted to fuck her'. Throughout June and July 2022 you continued to send her sexually explicit messages.
8 On 16 August 2022 you offered her $200 'right now' and asked her to talk dirty to you. You told her, 'I will fuck you slowly'. You put $200 in her letterbox. You followed up with further sexualised messages, asking if she was ready for sex. Ms Spinner sent you further sexualised images of herself. On 6 September you sent her a message saying, 'I want to fuck you', and in your final message of 26 September 2022, prior to your arrest, you stated, 'I want to fuck you'. (Charges 2 and 3).
9 No victim impact statements have been filed in this matter. However, the law imposes an absolute prohibition on sexual activity with children under 16 in order to protect them from the harm that is presumed to be occasioned by premature sexual experience. This includes future harm. The presumption is equally applicable to cyber offending.[3] The law must endeavour to protect children and young people from sexual exploitation by adults. This often involves protecting children against themselves and against the consequences of their own immaturity and poor decisions.
[3]Adamson v The Queen [2015] VSCA 194
10 You have entered a plea of guilty. You have always been prepared to resolve this matter and you entered a plea of guilty on 12 July 2023 at a committal mention. Yours is a plea at the earliest opportunity. It predates the announcement of the backdate of trials occasioned by the COVID‑19 pandemic that have been cleared in this court. Given your plea predated this development I sentence you in accordance with the principles set out in the case of Worboyes[4]. However, while I accept that you are entitled to a Worboyes discount for your plea of guilty, when applying the Worboyes discount it is necessary to consider the degree of pandemic related delay at the time the plea was entered.[5]
[4]Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
[5]Biba v The Queen [2022] VSCA 168
11 In July 2023 the situation in the court was not what it was in 2020 when trials were suspended indefinitely at the height of the COVID uncertainty. Accordingly, you will get a Worboyes discount, but it will be reflective of the present circumstances and will not be of the magnitude that pleas were attracting at the height of the pandemic.
12 By virtue of your plea you acknowledge your criminal responsibility and I also accept your plea of guilty is indicative of remorse on your part. I make this finding in conjunction with your admissions and operations with police and your ongoing expressions of remorse.
13 You are entitled to what is called a Doran[6] discount. The case against you in respect of the second victim is made out by what you yourself told police in your record of interview and I take this into account in sentencing you as a matter in mitigation, the effect of which will be a reduction in sentence.
[6]R v Doran [2005] VSCA 271
14 Turning now to your personal circumstances. You are presently 51 years old. You were born in Melbourne, but moved to New South Wales at a young age, before returning to Melbourne to attend a boarding school in Sunbury. You are the youngest of four children. You report your mother abused alcohol and prescribed medication during your childhood. Your mother now resides in residential care. Your father died six years ago.
15 You fell out with your two older siblings after you father's death over disagreements about the resolution of your father's estate. Your relationship with your older siblings has recently improved. You report you are now experiencing tension in your relationship with your younger sister because of the charges you face and your drinking.
16 After school you attended RMIT, where you obtained a Bachelor of Business in Transport, and you went to work for BlueScope Steel in 2007. You have had consistent employment at a number of organisations. You worked for a transportation company until you were made redundant in February 2020. After your redundancy you got a job with Kerfab Industries in July 2020. This position was in Kerang and you travelled from home to Kerang on a Sunday night and returned home on a Friday.
17 You married your wife Terri in 2003 and you have two teenage sons. Your wife Terri remains supportive of you and wrote a reference on your behalf. In her reference she says you have had for the most part a happy and loving marriage, and that you were a supportive and hands-on father to your two sons. She says you are acutely aware of the damage and distress your offending has caused your sons and she says you have expressed your remorse.
18 Your brother John also wrote a reference for you. He says you have done everything in life to support your family. Both your wife and your brother refer in their references to your engagement with mental health services and your weekly attendance at AA. Your sister Kate also wrote a reference on your behalf. She says she only learnt about your offending recently and she is shocked. She describes you as a sensitive and caring person who endeavoured to support your alcoholic mother. She says you have struggled with your own alcoholism for four to five years. She says you are a devoted father to your two sons and you are active in the community. She says your family are devastated by your offending, but you have their continued support.
19 You were referred to Dr W. James Leahey, consultant psychiatrist, by your general practitioner on 21 March 2023. Dr Leahey has prepared a report for your plea. He says you reported to him becoming increasingly bored, lonely and unhappy in Kerang. He said in this situation you began contacting underage girls on Instagram. You reported to Dr Leahey a longstanding history of alcohol misuse going back to your adolescence. You told Dr Leahey there has been a decline in your mental health since around the age of 45, but until you were charged with the current offences you had not sought help for either your alcohol misuse or your mental health difficulties.
20 Shortly before your first appointment with Dr Leahey you commenced an antidepressant. You are still experiencing considerable turmoil in your mental health. You were admitted to The Alfred Hospital on 13 May after a suicide attempt after, it seems, sleeping rough for a couple of days. Dr Leahey gives the opinion that you offended in the context of isolation, declining mental health and increased alcohol consumption. Dr Leahey gives the opinion you would not cope well with imprisonment. He says a term of actual custody would place you at significant risk of mental deterioration.
21 He gives the opinion that your offending occurred under specific circumstances and that you do not present a risk of reoffending. I note that you have no prior criminal history.
22 I turn now to the submissions and on your behalf Mr Winter relied on the following matters in mitigation. First, your early plea of guilty which in the case of the second victim attracts a Doran discount. Secondly, your hitherto good character. Mr Winter submitted that you have now lost your employment and your reputation and I should take this into consideration as extra-curial punishment. Thirdly, he submitted your offending was situational and, in reliance on the opinion of Dr Leahey, I should assess your risk of reoffending as low and your prospects of rehabilitation as good.
23 Fourthly, he submitted Verdins limbs 5 and 6 were engaged in sentencing you on the basis of Dr Leahey's report. Mr Winter acknowledged the seriousness of your offending, but submitted all the various objectives of sentencing could be met by a term of imprisonment in connection with a community corrections order.
24 Mr Devlin on behalf of the Director did not dispute the matters in mitigation, but submitted that there are two victims - given the gravity of the offending against each victim the only appropriate sentence is a term of imprisonment consisting of a head sentence and a non‑parole period.
25 Turning now to my own conclusions about the objective gravity of your offending and your moral culpability. This is serious offending where you initiated contact with, and actively pursued, two underage girls with a clear objective of sexual contact. I accept your offending was situational. However, I note there is no real explanation in any of the material why you specifically pursued underage girls rather than adult women. You groomed both girls with the offer of money and in both cases you made payments to your victim. This is highly corrupting and morally reprehensible behaviour. In Ms Spinner’s case you also exchanged sexually explicit material. Your moral culpability was high.
26 The sentencing principles of general deterrence and denunciation are at the forefront of the sentencing exercise when it comes to sentencing for offending against children. Children and young people must feel safe to go about their lives and enjoy their lives free of the unwanted and harmful sexual advances of adults. It is the obligation of the law to make it clear to anyone who would behave as you did that this kind of behaviour will result in stern punishment and to unequivocally denounce such conduct. The message must be sent loud and clear that children and young people under the age of 16 are not sexually available to adults.
27 I am prepared to assess your risk of reoffending as low and your prospects of rehabilitation as good. I make this on the basis of your hitherto good character and your ongoing family support, and your own attempts to address your alcoholism and mental health difficulties. I accept that you are remorseful. I accept that you have lost your employment and your reputation, and that this constitutes extra-curial punishment, and I take this into account in what constitutes just punishment in your case, and I give it some modest weight in the exercise of my discretion.
28 On the basis of Dr Leahey's conclusions I am prepared to find there is some engagement of Verdins limbs 5 and 6 in your case. You reported to Dr Leahey that you did have some depression which predated your offending. However, it seems that the decline in your mental health has been triggered by the detection of your offending and your involvement in the criminal justice system. However, notwithstanding that your mental health difficulties are, in my view, largely reactive, the decline in your mental health has been precipitous and I accept that prison will be a very difficult place for you and you are at risk that your mental health may decline.
29 Mr Winter referred me to the comparator case of Waldon v The Queen[7]. In that case the Court of Appeal upheld a sentence of eight months' imprisonment, in combination with a two-year correction order. On the charge of grooming a child for sexual conduct the appellant received an individual sentence of eight months. In that case the victim was particularly vulnerable with an intellectual disability and the offender was a youth worker and, therefore, the offending involved a breach of trust, but the grooming conduct in that case itself was more confined than in your case and it did not involve the payment of any money.
[7][2023] NSWCCA 128
30 This case has been of some assistance in sentencing you, but ultimately I must sentence you on the facts and circumstances particular to you. If you are sentenced to a term of imprisonment on Charges 1 and 2 you fall to be sentenced as a serious sexual offender on Charges 3 and 4, and the court is therefore required to consider protection of the community as the principle purpose for which sentence is imposed, although the prosecution did not seek a disproportionate sentence. The court is also required to impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.
31 I take into account the maximum penalty for the offences. I also take into account the standard sentence on Charge 4. A standard sentence is not the same thing as a mandatory sentence, nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter I must take into consideration and I do so. I must explain how the sentence I impose relates to the standard sentence and I have in these reasons endeavoured to set out fully all the facts, matters and circumstances I have taken into consideration in sentencing you.
32 Given my assessment of the gravity of your offending, your moral culpability and the mitigatory matters upon which you rely, I intend to sentence you to a sentence that is less than the standard sentence on Charge 4. Taking into account all matters that I am required to under the Sentencing Act, and matters personal to you, I intend to sentence you as follows. Stand now, please,
Mr Hickey.
33 On Charge 1 you are convicted and sentenced to 12 months' imprisonment; on Charge 2 you are convicted and sentenced to 15 months' imprisonment; on Charge 3 you are convicted and sentenced to 12 months' imprisonment; and on Charge 4 you are convicted and sentenced to 12 months' imprisonment. Charge 2 is the base charge. I direct that six months of the sentence on Charge 1 and three months of the sentences on Charge 3 and 4 be served cumulatively upon the base charge and upon each other.
34 That makes a total effective sentence of two years and three months' imprisonment. I direct you serve a non‑parole period of one year and three months.
35 You can sit down, Mr Hickey.
36 Pursuant to s18(4) of the Sentencing Act I declare that you have served four days of pre‑sentence detention.
37 You are sentenced as a serious sexual offender on Charges 3 and 4 and I direct that be entered into the records of the court.
38 All charges are Class 2 offences under the Sex Offenders Registration Act and, having been found guilty of three or more Class 2 offences pursuant to the Act, you are a registered sex offender for life.
39 Pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to four years' imprisonment with a non‑parole period of two and a half years.
40 I make the forfeiture order sought by the prosecution.
- - -
0
5
0