Director of Public Prosecutions v Jagroop
[2024] VCC 897
•17 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02280
CR-23-00216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHIVNESH JAGROOP |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April, 2 May and 17 June 2024 |
DATE OF SENTENCE: | 17 June 2024 |
CASE MAY BE CITED AS: | DPP v Jagroop |
MEDIUM NEUTRAL CITATION: | [2024] VCC 897 |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – guilty plea
Catchwords: Sentencing – using a carriage service for sexual activity with a person under 16 – encouraging a child to engage in or being involved in sexual activity – using a carriage service to procure a person under 16 – sexual penetration of a child under 16 – sexual assault of a child under 16 –offender 31-32 years old at the time
Charges 1, 2, 3, 4 and 8: deliberate and persistent contact – escalation – highly sexualised content – significant age difference – community protection – relatively rudimentary planning – few precautions to conceal activity – full admissions on charges 1 and 2
Charges 5, 6 and 7: sentenced as a serious offender – unsophisticated conduct – not accompanied by threats – no significant violence beyond touching
No diagnosed mental illness or personality disorder – dysfunctional introversion – social anxiety – no criminal history – solid work history – family support – moderate risk for further sexual offending – need for offence specific treatment and counselling – reasonable prospects of rehabilitation – utilitarian value of early plea – value of plea entered during COVID
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Chenhall v the Queen [2021] VSCA 175; Worboyes v The Queen [2021] VSCA 169
Sentence:Total effective sentence 9 years 2 months imprisonment with a State non-parole period of 3 years 2 months and a Commonwealth non-parole period of 3 years 11 months; The Commonwealth non-parole period commences six months prior to the expiration of the State non-parole period; 920 days reckoned as already served; 6AAA indication 11 years with non-parole period 8 years.
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth | N. Deltondo | Office of Public Prosecutions |
For the Accused | A. Beech | Balmer & Associates |
HIS HONOUR:
1Shivnesh Jagroop, you have pleaded guilty to sexual offending in relation to three children.
(a) First, relating to somebody I will refer to as Rebecca Hand,[1] a charge of using a carriage service for sexual activity with a person under 16 (Charge 1), a rolled-up charge, and another rolled-up charge of encouraging a child to engage in or being involved in sexual activity (Charge 2).
(b) Second, relating to a girl I will call Colleen Dutton,[2] a rolled-up charge of using a carriage service to procure a person under 16 (Charge 3).
(c) Third, relating to Clementina Beam,[3] two charges of using a carriage service to procure a person under 16 (Charges 4 and 8), a charge of sexual penetration of a child under 16 (Charge 5), and two charges of sexual assault of a child under 16 (Charges 6 and 7).
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
Summary of offending
2The detailed basis of your guilty plea is set out in the prosecution opening dated 22 April 2024.
3In summary, between August 2020 and December 2021, you engaged in sexually explicit conversations with three girls whom you paid. You then met one of them in person and sexually assaulted and penetrated her.
First complainant
4The first complainant, Ms Hand, was 15 years old. A friend of hers gave her your Snapchat username.
5On 30 August 2020 she contacted you asking you if you would pay her to talk sexually on Skype, that is talk without engaging in any sexual activity with you in person. You agreed.
6On the Skype video call, you kept your camera off but you could see her. She told you she was 16, but you said she looked a lot younger. You asked her to produce ID to confirm she was 16, but she said she did not have one.
7Over the following 11 days until 9 September, you communicated with Ms Hand almost every day in numerous sessions and calls on Skype and Snapchat. You kept your camera off during video calls, but for one fleeting moment. During the calls you used the carriage service for sexual activity with Ms Hand in a number of ways (Charge 1).
(a)You directed her to wear certain clothing; to reveal parts of her body including her genitals; to engage in sexual activity with a sex toy; to refer to you using an intimate name; to watch you masturbate; to penetrate herself including with the sex toy; all of which she did.
(b)You asked her for other personal information, including where she lived. You asked her about being molested and said you wanted to do that to her. You expressed anger when she did not disclose information you wanted.
(c)Ms Hand created a price list for what she would say or do for money and you tried to bargain with her about the cost.
(d)You paid her a number of times for doing what you asked, totalling $330. You bargained with her about doing more for less, including expressing anger when she refused. When paying, you used your own bank account to transfer money to her account.
(e)You asked her to delete the chat record and calls and to promise not to tell anyone about them. When you heard that Ms Hand had spoken to others about your communications, you said you were sorry and that you would stop.
(f)Throughout your contact, you used psychological pressure to get what you wanted by expressing your emotional need of her, your trust in her and by offering her more money. On one occasion, you pressured her to lie to her parents in order to meet with you.
(g)You disclosed information about yourself, saying that you would do so if it helps in arranging to meet in person. You refused to send a picture because it was too risky for you. At another stage you said if word gets out you would go to gaol.
8On 5 September 2020, Ms Hand told you she was only 15, not 16. You acknowledged this and proceeded with the kind of conduct I have just described, calling her your toy. You said her age did not bother you and that you were interested in girls as young as 13.
9Following this, you also encouraged Ms Hand to engage in future sexual activity. On 7 September 2020, you offered to pay her for a sex tape of her and someone else having sex. During another call on 9 September 2020, you asked her if she would engage sexually with you and another 14-year-old child, (Charge 2).
10Ms Hand spoke to her mother about your communications soon after what I have just described. Her parents contacted police and she provided a statement on 30 September 2020.
11Police interviewed you on 28 October 2020 about her complaint. You admitted most of what happened, including that she told you she was only 15, a few days after your contact commenced. While your admissions were extensive, you also downplayed your own role and motivation. You did however, provide your usernames and passwords for your online accounts to investigators.
Second complainant
12Tragically for all concerned, 13 months later you recommenced offending in a similar way against another girl. The second complainant, who I will call
Colleen Dutton, was 13 years old.13A friend of Ms Dutton's introduced her to you on Snapchat. You communicated with her online and procured her to engage in sexual activity between 23 to 26 November 2021 (Charge 3).
(a) Ms Dutton told you she was only 13 and you said you were 35.
(b) You asked her to wear certain clothes; to meet in person; you suggested you would touch her sexually; you asked to view her on a video call; you asked her to position her camera so you could see her legs; you asked her for nude videos and photos including ones in which she was engaging in sexual activity.
(c) You asked her to use a social media app you had chosen, called Discord.
(d) You deployed a number of means to influence Ms Dutton. You complimented her appearance and called her intimate names. You invited her to do the same in return. You offered to provide alcohol if she agreed to meet you and bring friends.
(e) You offered to pay her for doing these things. You asked her to meet in person to pay her, but she refused. Instead, she nominated a park where you were to leave them money, which you did.
14Having collected the money, she made a statement to police about this offending on 16 December 2021.
Third complainant
15The third complainant, who I will call Clementina Beam, was also 13 years old. She was introduced to you on Snapchat by the second complainant.
16You communicated with Ms Beam from 3 December until 5 December 2021 when you met her in person. During your online contact she told you she was 14 years old and you then procured her to engage in sexual activity (Charge 4).
(a)You asked her to send you a photo of what she was wearing; to wear certain clothes; to adopt different poses; to remove her clothes and to touch herself in sexual ways.
(b)You asked her to use Discord for video calls, but your camera was turned off while you typed instructions to her.
(c)You offered to pay her for doing what you asked of her. She suggested a similar method of payment to what you had done for the second complainant. You agreed to meet her in the park she nominated, but not during the day because it would be too risky to you.
17Late at night on 4 December 2021, you withdrew money from an ATM and went to the park keeping Ms Beam updated about where you were. Soon after midnight she arrived. You grabbed her by the arm and led her into the public toilets nearby and locked the door.
18You gave her $150 cash and started to touch her. You touched her breasts under her clothes (Charge 6) then you put your hand into her pants and put your fingers into her vagina aggressively for a few minutes, as she described, (Charge 5). You then got her to masturbate you (Charge 7).
19At the end of this you gave her another $100 and unlocked the door. She ran out and you left soon afterwards. Later that day, Ms Beam told her friends and then her parents about what happened, who told police.
20The day after, police took her to a hospital for a forensic examination which led to you being identified by way of DNA analysis. She made a statement the next day, on 7 December 2021.
21Over two days, 8-9 December 2021, a police detective used Ms Beam's Snapchat account to contact you. You thought it was Ms Beam and you offered money to meet her again in person. You offered $500 to meet her at her home or $350 for a video meeting to engage sexually. You ultimately became suspicious however, and then deleted her contact from your account.
22The complainants and their family have provided victim impact statements. Those statements speak eloquently both about the harm you've caused to the girls, particularly the psychological harm, how they suspect people online, how they are concerned about how others will treat them, about how hurt they feel and other psychological consequences of what you did. Their parents speak most eloquently about the horror of not knowing what their children are being subjected to online – and, not being able to protect them. The harm that that dynamic caused both to these families and to our community as a whole, is tragically significant.
23I must comment at this point on one feature of this case, and I must underscore that what I am about to say does not make your offending any less grave whatsoever. But it is a matter of great concern to the community that the online conduct of these girls contributed to their own exposure to harm and may have contributed to the market for online sexual exploitation of children. They are of course children, they are not criminally responsible for those effects, but I acknowledge publicly the court's concern. If I might say on behalf of the community, this conduct by the girls seemed to have been cooperative, either between them or with others, and seems to have arisen in a certain
sub-culture, featuring a willingness by the girls to engage in harmful activity online with someone such as yourself.24These are serious matters that must be investigated, and I accept they already are, by authorities and those in charge of or in supervisory roles with children online.
25I also comment that these matters must be taken seriously by those with power to regulate those online services which are used by people such as you to take advantage of the vulnerability of children as they engage in online communication. I have named the apps and services in this summary of the offending specifically. They bear responsibility for their users' safety alongside the rest of the community. As I said, my criticism or implied criticism of those who make this offending possible and those children who engage in it does not make your offending any less serious.
Procedural history
26You were arrested for a second time on 10 December 2021, the day after you finished engaging with the online detective. You confirmed your Snapchat username, your Discord and other usernames and passwords to them. However, you made no further comments about questions they asked.
27You agreed to plead guilty, to all but Charge 5 the charge of sexual penetration, at the very earliest opportunity, at a committal mention in the Magistrates' Court in mid-2022. The final charge resolved in this court on 19 May 2023 at the directions hearing stage of the proceeding and before a trial date was set.
28Your plea shows that you accept responsibility for what you did and that you have helped to facilitate the course of justice. Your settling of the case has a real benefit, both to the child witnesses involved in the case and their families, but also the wider community, all of whom have been spared the burden and cost, personal and otherwise, of a trial.
29The benefit is all the more important because, at the time of your plea, this court, amongst others, was thereby able to reallocate resources to the backlog of trials, and it was a serious backlog of cases in relation to the COVID pandemic. According to authority I will reduce your sentence because of that.[4]
[4]Chenhall v the Queen [2021] VSCA 175
30I accept also that you have expressed remorse for your actions. You commented to that effect to a degree in your communication with the first complainant, albeit if that were alone I would not accept it as an indication of remorse. Your attitude to your offending is reflected by your guilty plea and that it was an early one. And you made comments to the psychologist in detailed terms that in my view demonstrates a degree of insight that is significant and an important degree of victim empathy.
Personal circumstances
31You were aged between 31 and 32 years at the time of the offending. You are now 34. You grew up with your parents and two brothers. Your family enjoyed a strong social network and extensive support through the Fijian-Indian community in Suva, Fiji. Your parents had a good relationship, free of serious conflict. You denied any significant childhood trauma or mistreatment. You denied any family history of alcohol or drug abuse, mental illness, family violence or other criminality. You remain on good terms with your parents and have phone contact with them whilst in custody.
32You came to Australia when you were 13 with your family. You struggled to adjust to high school. You felt your capacity to interact with Australian students was limited, which is understandable. You were socially isolated, and you were harassed by others. You lost confidence and self-esteem and did not have many friends and had difficulty fitting in. Your attendance at school began to drop, and it dropped to below 50 per cent, and you had to repeat Year 11. You left Year 12 after only two weeks.
33Having left school, you engaged in manual labour and some sales work. In 2016 you started working in sales for a large retail company. You have completed a range of training courses while in custody including cooking, traffic management, business management and construction and have provided certificates to the court (Exhibit 2).
34From when you were 25 you had several brief and superficial relationships with none lasting longer than four or five months. You have never had what you term a serious relationship. Your involvement with subscription services, such as those that can be found online, drove you to seek out personal sexual contact. You moved to other social media platforms to seek out people for just such a purpose, which is how you encountered the victims in this case.
35During your plea, Ms Beech on your behalf, relied on a Psychological Report by Patrick Newton, dated 13 December 2023 (Exhibit 1). Mr Newton stated that your symptoms are not sufficient to meet criteria for any mental disorder, whether it be a mood disorder, anxiety related or an adjustment disorder at this stage of your life.
36While you experienced some depression during the COVID lockdowns in 2020 and 2021, Mr Newton's view is that this never crossed the threshold of a mental disorder. He stated that any depression you suffered was probable, but mild. He highlighted that your dysfunctional introversion and isolation were not yet, nor at the time, severe enough to warrant a diagnosis of a personality disorder. But there is a significant risk that you will develop one in the future in the absence of appropriate support and treatment.
37During your interview with Mr Newton, you had trouble discussing matters relating to consent. While you agreed that your conduct was wrong, you also held the problematic belief that the underaged girls were able to consent appropriately to engage in online and in person sexual interactions. Mr Newton assessed your insight and gave the opinion that it was developing. Your dysfunctional introversion and social anxiety he said, mean that you find it easier to engage in sexual intimacy online and with underaged people, rather than mature adults. The power imbalance between you and the younger victims, as well as using social media as the medium to communicate, avoids the complexity of a real-life encounter for you, allowing you to overcome your personality issues and to approach others, he said.
38He highlighted the need for you to engage in offence specific treatment and counselling, to build up your social skills and to help you understand the normal sexual development of young people. I accept this. During your interview with Mr Newton, you expressed your shame and remorse for persisting with feelings towards the girls. Your feelings of shame have persisted with you. Through what you said to Mr Newton, you apologise to the victims for what you did, which you described to the psychologist as disgusting and gross.
39In comments to him and in your actions in court, you have sought to ask for forgiveness from the girls and their families. You stated to Mr Newton that you have a desire to prove to them that you are not a monster who does not care. You expressed to him an understanding that your behaviour could have been avoided if you had sought help at the time. You expressed that going forward, you wish to seek help and counselling to assist in your rehabilitation. I accept this much to be genuine, albeit too late.
40Mr Newton used risk assessment tools that are well recognised in psychology and in this court and found that you are a moderate risk for further sexual offending. You have expressed a positive attitude towards treatment, you are still a relatively young man. You have no prior criminal history. You have a solid work history and family support in the community. Assuming that you can participate in the required offence specific treatment delivered through a standard sex offender program in custody, Mr Newton expects, and I accept, that your level of risk would reduce from medium. I accept that medium risk in those terms means that there is no feature of your personality or conduct that raises you above the average offender, and I note that sexual offenders reoffend at a lower rate than other types of offenders.
Sentencing issues
41The maximum penalty for Charge 1, is 20 years' imprisonment. For Charges 3, 4, 5 and 8, it is 15 years. For Charges 2, 6 and 7 it is 10 years' each.
42Charge 1 attracts a Commonwealth mandatory minimum sentence of five years. Charge 5 attracts a State standard sentence of six years. Charges 6 and 7 attract a State standard sentence of four years each.
43If, as I propose to do, you are imprisoned on Charges 2 and 3, I must sentence you on Charges 5, 6 and 7 as a serious offender under Part 2A of the Sentencing Act.
44On the State sentences I must fix a non-parole period of at least 60 per cent unless it is in the interests of justice not to do so.
45The nature of your offending in this case is very serious, as is apparent from the comments I have already made. Not only because it relates to the sexual abuse of children, but also because it involved three actual children. Your conduct involved deliberate and persistent contact with them over a number of days, including with highly sexualised content.
46You offered them inducements for engaging sexually with you, even when you were aware of their ages. Your conduct escalated over time and it seems only the intervention of police stopped what you were doing. The difference between your ages was significant, even if you were open about it to them.
47I note the ages of the complainants were not very young, thankfully, but they were each in their formative years. Despite their conduct towards you I am satisfied they will and have suffered harm because of what occurred as indicated in their victim impact statements, alongside those of their loved ones.
48I accept that the extent of your communication with each of the girls was measured in days and not months and the degree of your planning it seems was relatively rudimentary. You took a few precautions to prevent anyone tracing your face, but it would seem you took no precautions in preventing investigators tracing the payments you made, for example. Whilst you minimised your role and intentions when you spoke to police, I accept that in relation to the first complainant you made very significant admissions to police and admitted your offending.
49I find that your cooperation with investigators in relation to Charges 1 and 2 to be extensive. You answered their questions, you made full admissions, you provided usernames and passwords as required, you did not lie or blame others. Unfortunately, for some in this court this cannot be said. Your cooperation in that regard speaks volumes about your prospects and attracts substantial weight.
50Nevertheless, deterring others from doing what you did or anything like it is to be regarded as a primary sentencing purpose for this kind of offending.
51You pleaded guilty at a very early stage in this case, well before a trial was listed. This early plea benefits all concerned by avoiding the burden on witnesses of giving evidence and the community by avoiding the cost and inconvenience of a trial.
52I find your prospects for rehabilitation in all the circumstances to be reasonable. Not high, but neither do I find them to be poor. The expert assessment of your risk of further offending of this kind, is that you are a moderate risk only. While you have no criminal history, I have not lost sight of the fact that you returned to offending after having been arrested and interviewed on Charges 1 and 2 the year before. Nevertheless, I expect your time in custody will serve as a salutary lesson to you and it will be a lengthy sentence. Particularly for somebody of your age and lack of criminal history.
53The weight to be given to community protection is somewhat increased given that repeat offending. Albeit it happened before you were sentenced.
54The prosecutor submitted, rightly in my view, that only a term of imprisonment would be appropriate in relation to each of the charges and your counsel did not suggest otherwise. I agree.
55With regard to Charge 1, which attracts the mandatory minimum sentence of five years, I accept that your guilty plea and degree of cooperation with police were very substantial if not, in the circumstances, complete. This is significant when considering whether a sentence below the mandatory minimum or a sentence lowered by virtue of your plea and cooperation may be imposed.
56Nevertheless, I will make orders for partial cumulation, or partial concurrency on your Commonwealth sentences, because of the related nature of the offending, the overlapping periods of the offending in relation to the first and third complainant and the other features of your conduct that I have described previously, your guilty plea and cooperation at least in relation to Charge 1. I have also had regard to the principles stated in the case of Chenhall relating to guilty pleas entered during COVID that results in a significant reduction in sentence because of that. Also, the principles of totality and proportionality when arriving at a combined effective sentence.
57Objectively, in relation to the State offending as well, I regard the gravity of your conduct on Charges 5, 6 and 7 to be lower on the scale of those offences than many offences occurring and heard in this court. The incident giving rise to those three offences, was very short. Your conduct was relatively unsophisticated, unaccompanied by other criminality such as threats or significant violence beyond the touching themselves. Although I have not lost sight of the fact it was at night and in an isolated location where the complainant had come to meet you.
58Your personal circumstances and your conduct of the case also contribute, including with respect to the principle in Worboyes or Chenhall relating to the plea entered during COVID. I find in all the circumstances, that there is significant importance in progressing your rehabilitation given the attitude you have taken to the matter.
59I also note the prosecutor's concession that a disproportionate sentence is not called for, notwithstanding that in relation to Charges 5, 6 and 7 you are to be sentenced as a serious sexual offender under the State Act.
60The sentence here as follows on the State offences:
On Charge 2, two years' imprisonment.
On Charge 5, four years' imprisonment.
On Charge 6, two years' imprisonment.
On Charge 7, two years' imprisonment.
61The four years on Charge 5 is the base sentence and you are to serve four months of the sentence on Charge 2 cumulatively upon the base sentence. I direct that 19 month of the sentence imposed on charge 6 and 19 month of the sentence imposed on charge 7 be served concurrently upon each other and upon the base sentence.
62That makes at total sentence on the State charges of 5 years 2 months. In respect of that sentence.
63I fix a State non-parole period of 3 years 2 months.
64On the Commonwealth offences:
On Charge 1, five years' imprisonment;
On Charge 3, two years;
On Charge 4, two years;
On Charge 8, two years.
65I make orders as to the commencement of those sentences such that six months each of the sentences on Charges 3, 4 and 8 will be served cumulatively. So, the total Commonwealth sentence is 6 years 6 months.
66I make orders that the sentences on each of Charges 3, 4 and 8 commence at an appropriate time after the commencement of the sentence on Charge 1, to give effect to that total.
67I fix a Commonwealth non-parole period of 3 years 11 months.
68I direct that the Commonwealth total sentence commence six months prior to the expiration of the State non-parole period. By my calculation, that leads to a total combined sentence of 9 years 2 months.
69You have served 920 days, not counting today. I direct that this be deducted from your sentence administratively, as I see it, that will come off your State non-parole period.
70You are sentenced on Charges 5, 6 and 7 as a serious sexual offender.
71If you had not pleaded guilty to these charges but were found guilty after trial, I would have imposed a sentence of 11 years with a non-parole period of 8 years.
Ancillary orders
72Under the State Sex Offenders Registration Act, Charge 5 is a class one offence and charges 2, 3, 4 and 8 are all class two offences. According to s 34 of that Act you are a registrable offender and you must comply with reporting obligations for the remainder of your life.
73I note the Act provides that you may apply under the Act after 15 years for relaxation of those reporting obligations at the discretion of the
Chief Commissioner or the Supreme Court.
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