Director of Public Prosecutions v Hickey
[2013] VCC 1319
•10 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00494
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DOMINIC HICKEY |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 11 July 2013, 2 September 2013 | |
DATE OF SENTENCE: | 10 September 2013 | |
CASE MAY BE CITED AS: | DPP v Hickey | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1319 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – Guilty plea – Using a carriage service to procure children under 16 to engage in sexual activity outside Australia – Rolled up charge – 4 separate acts of procuring – Aggravating features – Children actually procured on 2 occasions – Deterrence and denunciation – Assessment of risk of reoffending – treatment by and report from psychologist lacking expertise in sex offending or risk assessment – Forensicare report – Appropriate risk assessment.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Tchakarian | CDPP |
| For the Accused | Mr S. Gardner | Chris McLennan & Co |
HER HONOUR:
1 Dominic Hickey, you have pleaded guilty to one charge of engaging in conduct to procure children you believed to be under 16 years of age to engage in sexual activity outside Australia.
2 The charge is a rolled up charge and covers four occasions between 17 March and 16 June 2012, where you engaged in procuring what the prosecution summary described as online sex shows from the Philippines, involving children under the age of 16. What that meant was paying people in the Philippines to procure a child who would then be sexually abused, having sexual acts specifically directed or requested by you performed on her, whilst you watched it live on WebCam.
3 The evidence reveals numerous chat sessions between you and persons in the Philippines who facilitated these live showings of sexual abuse of children. They provide graphic detail about the nature of the shows that you commissioned. You gave detailed descriptions of the sexual acts, or acts of sexual abuse, that you wished to have performed on the children. At times you used debasing and degrading language to describe what had to be done. On the first occasion, you described, amongst other things, that what you wanted to see or have done was a nasty and brutal rape. On the last occasion, you specified you wanted a 7-year-old child to be sexually abused by an older man in particular ways that you specified, and which you described as “like a porno film”. On each occasion you offered to pay 600 pesos, or approximately $14 Australian. On each occasion, after the nature of the conduct had been agreed and the age and the appearance of the child had been confirmed by a WebCam viewing, you transferred the money by electronic transfer.
4 On two of the four occasions, the sexual abuse that you had requested or procured actually occurred, and you watched it on WebCam whilst continuing to send directions as to what was to be done to the children. On the other two occasions it would appear that the transaction did not go any further, either because the line failed or the people you were dealing with took your money but did not provide the agreed service.
5 You gave specific instructions about the age of the children. On the first occasion you asked for a “young babe”. You were offered an 8-year-old girl. You asked to see the child before you agreed to pay your money. On the second occasion you negotiated for a 7-year-old child, and again asked to see her before you would pay your money. On the third occasion you again negotiated for a 7-year-old child, and on the last occasion you asked for a child between 4 and 7, and accepted a 7-year-old. There was also some discussion about the age of the males who would perform the sexual acts on the children. At times there were discussions about boys. Once, you agreed to accept a 20-year-old boy performing acts, while at other times it appeared adult males were in contemplation or actually performed the acts.
6 The gravamen of the offence to which you have pleaded guilty is the procuring of the child to engage in sexual activity. As the Court of Appeal noted in the case of Rivo,[1] the offence is not directed towards actual sexual conduct. However, the character of the sexual activity commissioned by you is a relevant consideration in sentencing. So too is the directness of your involvement in procuring the sexual activity. The fact that sexual activity actually occurred on two of the four occasions, at or shortly after the time that the procuring took place; that you directed the nature of the sexual activity; and that you paid funds to have that sexual activity performed on the children, all add to the seriousness of the offence.
[1] [2012] VSCA 117.
7 This is a relatively new offence. It was introduced into the Criminal Code by the Crimes (Legislation Amendment Sexual offences Against Children Act) 2010. The then Minister for Home Affairs, in introducing the legislation, said:
"We have a duty to ensure that….. Commonwealth laws provide a significant deterrent to abuse and a sound basis for prosecuting offenders…. Rapidly changing technologies and the anonymity that the Internet provides have resulted in unprecedented opportunities for child sex offenders. Our laws need to keep pace with the speed of technological change.”
8 The offence is punishable by a maximum term of imprisonment of 15 years. That is some mark obviously of its objective seriousness.
9 It is clear that, subject to matters personal to you, this offending, as with all cases of procuring, requires that paramount consideration must be given to the principles of general deterrence and denunciation (See Gajjar (2008) 192 A Crim R 76, Hizhnikov (2008) 192 A Crim R 69).
10 The procuring of powerless, vulnerable, exploitable children from poor countries for filming and live transmission of sexual abuse perpetrated on them at the direction of the procurer is likely to result in lasting psychological difficulties for those children. Your conduct showed no regard for the children. You actively encouraged their abuse. Conduct such as this encourages adults who get these children in their power to exploit them. The economic imbalance between the procurer from a wealthy western first world country like Australia and those who recruit and exploit the children in the Philippines is also something, in my view, which must be recognised, denounced and punished in a way which will deter people in your position from exploiting the children and their local exploiters. The money charged for each procurement might have been large amounts in Philippine terms, but it is miserably low in Australian terms. This too bears directly on the need to denounce your conduct and to discourage like conduct by others by imposing an appropriate penalty.
11 This is not your first time before a court and not your first conviction for sexual offences. In 1997 you were convicted of allowing a child to take part in prostitution and conducting an unlicensed prostitution service. You were dealt with in the Magistrates Court and fined. In 2000 you were convicted in this court of seven charges of entering into an agreement under which a child was to provide sexual services for payment; one of being an unlicensed prostitution service provider; six of supplying or offering to supply a drug of dependence or making a false representation with intent to induce a person to engage or continue to engage in prostitution; and three charges of taking part in an act of sexual penetration with a child between 10 and 16. You were initially sentenced to be imprisoned for a period of 7 years with a non-parole period of 4 and a half years. That sentence was reduced on appeal to a head sentence of 6 years with a non-parole period of 4. You served that sentence and served out your parole without further offending.
12 You are now 49 years of age. You are a man who grew up with educational opportunities, family stability and financial security which would be the envy of many. You are a highly intelligent man who achieved well in your private schooling and at university. You completed a law degree and embarked upon what should have promised to be to be a successful career as a barrister before your life started to unravel. It would appear that your income from Bar work was insufficient to support you. You sought leave of absence from the Bar in order to obtain alternative employment but falsely claimed you were going overseas. This set off a chain of events which ultimately led to you losing your right to practice as a lawyer. For a time you obtained alternative employment as a telemarketer, which you obviously found satisfying and which was lucrative enough to support you adequately. At the same time, your social circle seemed to revolve largely around sex workers, some of them under age, and brothel owners. It was moving in that milieu that that led to the convictions, the later convictions in this court, to which I have referred. Following your release from your term of imprisonment, you returned to telemarketing. Testimonials have been provided which attest to your abilities and to your hard work in that field.
13 Your personal circumstances are more complicated than the bare narrative I gave earlier would suggest. You never knew your father. Until you were 16 you were brought up believing that your mother was your sister, and your grandmother your mother. You described your grandmother as stern, unloving and domineering, and your childhood as unhappy. You have remained close to your mother. Since your release from imprisonment until you were remanded in custody after pleading guilty to this charge you have lived with your mother. She is now 70. She has written a testimonial attesting to your guilt and remorse for these offences and her continuing support for you. In recent times you have formed a relationship with a woman from the Philippines. She has visited you in Australia and lived with you and your mother when she was here. You are now married and it is clear from your mother's letter that she regards her as an integral part not only of your life but also of hers. Your wife is currently in the Philippines and it is not clear to me whether she has resident rights in Australia. In any event the support of your mother and the relationship with your wife clearly will give you support during your time in custody and something to look forward to upon your release. In that sense you are in a better position than many people serving terms of imprisonment, and in particular many people serving terms of imprisonment for child sex offences. Many people in prison do not have that family support and something to look forward to.
14 You have shown in your telemarketing work ability and commitment, and I would imagine that such employment would be available to you again upon your release. You do not have any problems with substance abuse, you do not suffer from any mental illness or personality disorder. All these things indicate that your general prospects for rehabilitation are good. I will deal specifically with your risk of sexual re-offending shortly, and its bearing on the weight to be given to your prospects for rehabilitation.
15 Although you made a largely "no comment" interview, you assisted the police when they first came to your house with a search warrant, amongst things, by providing them with a password to your computer so they could access what was there and by admitting that although you shared the house with your mother, you were solely responsible for the computer and its contents. You pleaded guilty at an early stage and you are entitled to full benefit for that and benefit for the cooperation to the level to which I have indicated.
16 When the plea was first presented before me your counsel relied on a psychological report from a psychologist, Mr David Hoffman. You had contacted Mr Hoffman after being charged with these offences and had undertaken 15 counselling sessions with him, under a GP 'Better Mental Health' program referral. You had first met Mr Hoffman during your time in prison serving your last sentence when he conducted and you participated in a substance abuse avoidance program although according to. Mr Hoffman and to the other materials before me, there was no evidence to indicate that substance abuse has played any part in your offending or has affected your personal circumstances at all.
17 When I read Mr Hoffman's report and heard the initial submissions of Mr Gardner based upon it, I indicated that I had grave reservations about much of the content of it. Ultimately the plea was adjourned in order for Mr Gardner to call Mr Hoffman to give oral evidence to explain the information that he had relied upon and the basis for the opinions that he had expressed. On the return of the matter Mr Gardner frankly acknowledged that having conferred with Mr Hoffman he was unable to present him as an expert witness or to rely on his report. It would appear from what I was told that Mr Hoffman has no experience or qualifications in the assessment or treatment of sexual offenders and the opinions expressed by him were unable to be supported by reference to any body of learning, knowledge or experience in the field. Your counsel expressly disavowed any reliance on the report, save for the fact that it confirmed that you had sought treatment and he had purported to provide it.
18 It is of great concern that a registered psychologist would accept a referral from a client in respect of matters on which he has no expertise, to profess to counsel that client and to provide a report for sentencing purposes which, on the most cursory of examinations, could not be supported by any professional expertise.
19 Whilst not relying on anything in Mr Hoffman’s report I take into account in your favour the fact that you referred yourself for treatment and that you submitted to the 15 counselling sessions, as and when directed by Mr Hoffman.
20 As a result of the withdrawal of reliance on Mr Hoffman’s report, and my concerns about the assessment of your level of risk of further sexual offending, and its relevance to specific deterrence and your prospects for rehabilitation, I requested that you be assessed and a report provided by Forensicare. I have been greatly assisted by the comprehensive and carefully considered report from Prof Ogloff dated 26 August 2013.
21 Prof Ogloff reported that in discussing your past aberrant behaviour it was clearly evident that you had developed strong paraphilic tendencies, specifically becoming sexually aroused by and obtaining sexual gratification from children. In his view you clearly meet the criteria for a diagnosis of paedophilia. He noted that not all individuals fitting that diagnosis are exclusively attracted to children and notes that in this case you recount a history also of sexual attraction to adult females. So his opinion is based on your history and current circumstances and your prior sexual offences, which involved pubescent females.
22 Before you were released on parole during your last sentence, you were required to undergo a sex offender treatment programme. You told Prof Ogloff when he asked about your participation in that program that it was difficult to admit that you had deliberately and secretly manipulated. He said that you spoke of dealing with the offending and dealing with the consequences of offending, although Prof Ogloff was of the opinion that this appeared to relate to dealing with the consequences to your own circumstances rather than reflecting an appreciation of victim impact.
23 Prof Ogloff conducted an assessment of your risk of sexual violence. As he noted in his report:
"research on the prediction of risk for future sexual offending indicates that actuarial and structured risk assessment instruments are useful for identifying the factors that have been found to empirically predict violence and sexual offending. These instruments can also provide an indication of the category of risk for sexual re-offending into which an individual is likely to fall. Despite the limitations of the validated risk assessment measures, there is now clear evidence that structured and actuarial risk assessment measures are far more valid and reliable than reliance on clinical judgement alone…the best practice approach to sex offender risk assessment is to employ the validated risk measures and then consider the applicability of the results for the individual case in light of the general sex offender literature.”
24 Having set out the basis for the assessments and the support for them, he then applied them to you. He first applied the static 99, which is the purely actuarial risk factor tool. Your total score on that was 6 which is the cut-off score for high risk. On that score according to Prof Ogloff you fall into the category of sexual offenders who re-offend at roughly twice the rate of other convicted sexual offenders. He notes that this assessment is limited in scope to past risk factors and does not take into account changes to risk that may occur over time, for example with treatment.
25 He then applied the risk for sexual violence protocol or RSVP. That comprises 22 factors organised around 5 domains namely sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. These five domains are considered in terms of past present and future. Professor Ogloff concluded that you present with a number of the risk factors across all of the domains associated with sexual offending in the past. However, when considering the presence of those risk factors within the present and recent context, your risk profile is seen to reduce somewhat. He concluded:
"When the future relevance of these risk factors are taken into account it would appear that Mr Hickey currently presents with a moderate high risk of future sexual violence in the community. The greatest risk factor for Mr Hickey is his strong sexual deviance, reinforced over a lifetime. Given that he is generally prosocial and has not engaged in an array of antisocial behaviour however, he might be able to control his sexual deviance into the future. This will be a great challenge for him since has over time engaged in a range of offending behaviours most recently delving into the online world. I am concerned, as well by his attachment to the Philippines, where sex holidays and inappropriate sexually exploitative behaviour with children is sadly all too common.
…Regarding the nature of Mr Hickey’s ongoing risks it is more likely that future offending would be similar in nature (that is, online offences involving children). However in light of the foregoing and coupled with Mr Hickey’s claims that he had not been aware that his online offending was able to be tracked as well is the fact that Mr Hickey has previously engaged in contact sex offences and escalation to contact offending cannot be ruled out especially if Mr Hickey ultimately views this offending is safer than procuring children online. He seems to have benefited very little from previous sex offender treatment"
26 Professor Ogloff thinks that you have a limited awareness of your risk profile and minimal understanding of the link between sexual deviance and your past aberrant behaviour. He noted that your insights relating to current offences appeared closely aligned and limited to those applied by Mr Hoffman in the report to which I previously referred. Professor Ogloff said that he found the characterisation of the offending as described by Mr Hoffman and which now apparently has been accepted by you as simplistic and problematic. As far as I understand what he is saying and in my view too, that is more attributable to Mr Hoffman than to you.
27 Professor Ogloff noted that you do not present with symptoms consistent with a major mental illness. Your risk level and your sexually aberrant behaviour appear to be driven by sexual deviance rather than psychological difficulties or maladjustment. He recommends that you participate in an intensive group-based sexual offender intervention program like that run by corrections Victoria. Although you have previously participated in a sex offender program, in Prof Ogloff’s view you require further consolidation of work undertaken in that first program. He also recommends, given the nature of your offending arm that upon release into the community you not be permitted to be in unsupervised contact with children and that upon your release into the community you be referred to the problem behaviour program with the Community Forensic Mental Health Service to receive individual and specialised intervention relating again to your sexual interest. And finally he says that it might prove beneficial for the information contained in this report to be made available to those professionals responsible for your future intervention as well is to the Adult Parole Board. I accept without reservation the opinions of Prof Ogloff and his recommendations and I recommend that you be assessed for suitability for participation in and participate in a sex offender treatment programme offered by Corrections Victoria whilst in custody and whilst on parole and also that whilst parole that you participate in the problem behaviour program offered through the Community Forensic Mental Health Service. I say whilst on parole because I am clearly going to impose a sentence that fixes a non-parole period. Whilst of course it is up to the parole authorities and the adult parole board to decide when to release you, my view is that your interests and the community interests will best be served by assisting your re-integration into the community by having you released upon parole under strict supervision conditions, including participation in those programs.
28 Professor Ogloff noted that you acknowledge that you have problems that are important and you acknowledge the significance of those problems. You have acknowledged a need for help in dealing with the problems. You reported to him a positive attitude toward the possibility of personal change, the value of therapy and the importance of taking personal responsibility for your actions. Having regard to your self-referral to Mr Hoffman and engagement with him, and this opinion of Prof Ogloff’s, as well as your early plea of guilty, I accept that this all indicates evidence of remorse. That is an acceptance of responsibility and a desire to try and change your ways. So far as the steps you took after being charged to address your problems by engaging Mr Hoffman, I consider that it is not your fault that Mr Hoffman was so woefully unqualified to assist you. And you have, despite the exposure of the inadequacy of Mr Hoffman’s report and treatment, engaged well with Prof Ogloff and indicated your preparedness to continue.
29 I consider all of this counts in your favour and should be reflected both in the head sentence and the non-parole period.
30 There are few sentences to provide guidance and they are insufficient to establish a sentencing practice. In those circumstances I invited a submission from the prosecution and defence on the range. The prosecution submitted a head sentence of between 7 - 9 years with a non-parole period of 5 - 7 years was appropriate. On enquiry that range had been fixed by reference to sentences imposed for the like Commonwealth offences of procuring and grooming by the use of a carriage service. Those offences are punishable by 15 years and 12 years imprisonment respectively. Mr Gardner submitted a range lower than that, of 4 - 5 ½ years with a non-parole period of 3 - 4 years as appropriate. He did not have the benefit of course of the vast resources of the Commonwealth in being able to access national sentences for these Commonwealth offences and, as the prosecution pointed out, it was necessary to bear in mind both your prior convictions and that this was a rolled up charge involving 4 separate acts of procuring.
31 Balancing these matters as best I can, I have decided to impose a significant gap between the head sentence and the non-parole period, to acknowledge your openness to counselling and treatment, the significance of its role in managing and containing your risk of sexual re-offending, and to reflect the otherwise good prospects for rehabilitation.
32 Dominic Hickey, on the charge to which you have pleaded guilty you are convicted. You are sentenced to be imprisoned for a period of 7 ½ years and I fix a period of 5 years as the time you must serve before being eligible for parole. You have spent 61 days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served.
33 I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of 10 years and fixed a period of 8 years as the non-parole period.
34 Pursuant to the Sex Offender Registration Act as you have a previous conviction for a Class 1 offence the mandatory period for registration and reporting under that Act is life. I must provide you with a list of the reporting conditions. It has a receipt attached to it and I am going to ask if you will sign that receipt. You are not required to, the record will note in any event that you have been provided with those reporting conditions. So I ask my associate to give that to Mr Gardner and Mr Gardner to take the reporting conditions to you.
35 Thank you, I note that you have signed that receipt.
36 Any further orders that are required to be made?
37 COUNSEL: No, Your Honour.
38 HER HONOUR: And does the pronouncement of the order and the reasons for the sentence comply sufficiently with explanation of the sentence, Mr Tchakarian, for Commonwealth purposes?
39 MR TCHAKARIAN: Yes, Your Honour.
40 HER HONOUR: Yes, thank you. Very well, could you remove Mr Hickey, please?
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