Director of Public Prosecutions v Jarvis

[2018] VCC 360

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00696
CR-17-02396
CR-17-02101
CR-17-01880
CR-17-01879

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY JARVIS

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2018
DATE OF SENTENCE:	21 March 2018
CASE MAY BE CITED AS:	DPP v Jarvis
MEDIUM NEUTRAL CITATION:	[2018] VCC 360

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Procure minor for child pornography – Use carriage service to access child pornography – attempt to pervert the course of justice – knowingly possess child pornography – possess identification information to commit indictable offence – obtain financial advantage by deception (4 charges) -  sexual penetration of a child under 16 years (4 charges) – sexual assault
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Criminal Procedures Act 2009 (Vic), Criminal Code Act 1995 (Cth), Open Courts Act 2013 (Vic)
Cases Cited: DPP & DPP (Cth) vSwingler [2017] VSCA 305; Gordon v The Queen [2013] VSCA 343; DPP v Dalgliesh (a pseudonym) (2017) ALJR 91, 1063; DPP (Cth) & DPP v Garside [2016] VSCA 74, R v Mills [1998] 4 VR 235
Sentence: Convicted and sentenced to four years’ and 4 months’ imprisonment for the State offences, with a minimum term to be served before being eligible for parole of two years’ and six months’ imprisonment. Convicted and sentenced to six months’ imprisonment for the Commonwealth charge. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Solicitor of the Office of Public Prosecutions
For the Accused	Ms O. Trumble	Papa Hughes Lawyers

HIS HONOUR:

1In these matters, which are four indictments concerning Mr Jarvis, in fact originally five, Ms Pillai has appeared on behalf of the Director and Ms Trumble appeared on behalf of Mr Jarvis.

2The first thing, Mr Jarvis, to do is, given your plea and convictions for various sexual crimes, you become, pursuant to the determination of Parliament; nothing to do with this Court, subject to the reporting provisions decreed by Parliament, and under those reporting provisions will apply to you for life.  It is necessary, therefore, for my associate to hand you the document, which in conjunction with your counsel, you can sign, acknowledged and a receipt of the same.

3Mr Jarvis is 23, having been born on 17 February 1995.  Last year he faced a series of charges, set out in the indictments.  Following an order of severance that I made, he stood trial in regard to allegations involving an alleged victim, Williams.  That trial took place over six days, from 13 November 2017.  The jury found Mr Jarvis not guilty on all charges.

4On 19 December Mr Jarvis pleaded guilty to the criminal charges set out in the four indictments, which I will detail, and 11 summary charges, which this Court has been asked to take into account, pursuant to s.142(5) of the Criminal Procedures Act.

5It is important to point out that Mr Jarvis comes before this Court without any prior offences.

6The plea was conducted on 25 January 2018.  On that day the prosecution filed four summaries as to the charges.  Those summaries, being Exhibit T1, in regard to, if I call it, the Campion[1] matters; Exhibit B1, in regard to the Brookman[2] matters or matter; Exhibit F1, being the financial matters and Exhibit BA1, being the Lester[3] matters and the pornography matters, which were all accepted by Ms Trumble as the facts upon which I am to sentence her client.

[1] Samuel Campion is a pseudonym

[2] Brock Brookman is a pseudonym

[3] Charlie Lester is a pseudonym

7The summary charges, I do not think we ever gave that an exhibit, did we?  We just accepted you filed, madam prosecutor, an amended prosecution summary, in regard to the summary charges.  So, I do not know, do they need an actual exhibit?

8MS PILLAI:  They probably do, Your Honour, because ‑ ‑ ‑

9HIS HONOUR:  Probably would not hurt, would it?

10MS PILLAI:  Yes, I thought they were, but ‑ ‑ ‑

11HIS HONOUR:  No.

12MS PILLAI:  ‑ ‑ ‑ I can't recall.  I don't have a note in front of me.

13HIS HONOUR:  Well, I think what we should do then is make T5, and respectively, whatever the new number in each of the indictments, the amended prosecution summary, in regard to the summary matters.  Again, such summary was accepted by Ms Trumble as appropriately dealing with the facts upon which I am to sentence her client.

14It is necessary to go into, by way of summary, each of the indictments, and there is just no other way to do it properly.  I will therefore go to them in the order in which we handled them.  That is, the Campion indictments first.

15The Campion indictment is indictment No.G12495745A6.  As I say, the victim in that matter was Campion.  It involved the sexual penetration of a child under 16.  The first count occurred on 3 September 2015 and was a composite count involving penetration, pursuant to the Act, of the finger and tongue into the vagina, and of the penis into the mouth.  Charge 2 was a count of sexual penetration on the same day, involving penial/vaginal penetration.  Charge 3, also on the same day, involved a finger in the vagina and Charge 4 was the next day, Mr Campion having slept over, if I use that phrase, a finger in the vagina. The maximum penalty for each of these charges is 10 years imprisonment.

16The summary details the relationship and the circumstances of these offences, are summarised by way of the text messages, set out in pp.2, 3 and 4.

17Of particular concern, and perhaps an indication of the immaturity of Mr Jarvis at the time is a text recorded on 2 September 2006.  Knowing that Mr Campion was 15, Mr Jarvis replies in the text, "I'm not interested".  That is, of course, a concerning matter to this Court, when dealing with protective legislation.

18The offences, as I said, took place when Mr Campion was 15 years of age.  Through various internet connections Mr Campion became aware of Mr Jarvis.  They communicated, Mr Campion was transgender, being a female identifying as a male.  As a result of their internet contact, Mr Campion came voluntarily to Mr Jarvis' home and stayed overnight.

19The circumstances clearly are, albeit that a child under the age of 16 cannot formerly consent, as he sets out at the bottom of seven, "I let him do these things".  Mr Campion was asked by his friend, "Why?"  and he answered "Because I'm too pussy not to, okay".

20The aggravating factor, insofar as the second count of sexual penetration, and the subsequent concern of the victim involved, is what was accepted on the plea, despite the initial statements of Mr Jarvis, was that a condom was not used.

21As a result of discussions with his mother, Mr Campion attended the Carlton police station the next day at about 9.20 pm.  As I said, earlier that afternoon he had been communicating with Mr Jarvis by text and those matters are recorded in the opening.  However, there is no suggestion that any pretext was involved.

22Subsequently investigations took place, ultimately leading to a search warrant being executed at Mr Jarvis' premises.  As set out in the summary, when questioned Mr Jarvis made full admissions. Albeit the victim may have had a view that Mr Jarvis persisted, as set out in answer 28, he agreed that they met once, engaged in sex, orally, digitally, penial/vaginal sex.  He said that when Campion asked him to stop, he stopped.  Further, into making those admissions he apologised for his behaviour.

23Insofar as the circumstances are concerned, he said, "I'm sorry this has happened, I didn't mean for this to happen".  Of course that has to be reconciled with the earlier statement as to his total disregard of the age of Campion.

24There was two victim impact statements.  First being of
Mr Campion himself, Exhibit T2.  It appears his reaction to these crimes are, as expressed in that victim impact statement, reasonable.  He has had concerns, nightmares, dreams, issues, in regard to it.  He has suffered an exacerbation of what appears to be prior issues with depression.

25Exhibit T3 is the mother's victim impact statement and she equally seems to have suffered some form of exacerbation of a pre-existing depression.  It seems to me, and there was no suggestion from Ms Trumble otherwise, that all of those reactions, as expressed, seem to be reasonable in the circumstances.

26We then come to the second indictment, the matter of Brookman.  This was, in my view, which I maintain, a very valuable plea made by Mr Jarvis.

27Indictment G12495745A7, comprises one charge pursuant to s.41(1)(a)(1) of the Crimes Act 1958 of sexual assault by compelling sexual touching. It occurred on 19 January 2016 when Brookman was aged 16. The maximum sentence prescribed by Parliament for this crime is ten years, indicative of its seriousness.

28The circumstances which make up the sexual touching: were the placing of Mr Jarvis' penis into Mr Brookman's hand and the pushing of his penis against the crutch of Mr Brookman.

29Mr Jarvis was 20 at the time.  Mr Brookman was a person with female genitalia, identifying as a male.  He went voluntarily, as a response to communications over the internet, by various apps, with Mr Jarvis, to Mr Jarvis' home.  Prior to the offending, they indulged in 30 minutes of foreplay, by way of kissing and hugging.  They met specifically, I think, on an app called, "Snapchat".

30In regard to Brookman, the summary of the prosecution opening is set out in Exhibit BA1. On the 19th of January Brookman attended the prisoner's home. There are a number of what is described in the prosecution summary as uncharged acts, kissing, cuddling, attempts by Jarvis to put his hands down Brookman's pants.  The actual composite charge is set out, that is the sexual activity involving the matters that I have referred to, from paragraph 7 through to 10.

31Interestingly enough, again, there were post texts between the parties, Brookman had left after they had gone to a McDonald's, and the following day they communicated. Brookman sent this text to Mr Jarvis, "Yesterday I felt uncomfortable, but I found you to be too intimidating to ask you to stop and when I did you just kind of mucked around, I didn't appreciate that".  The accused responded, "Yeah, I know, I'm sorry, I feel bad.  I know, I'm sorry".

32Subsequently, Brookman attended the Greensborough police station and reported he had been sexually assaulted and ultimately made a VARE.

33There is no victim impact statement.  Mr Brookman was in attendance at the plea with his girlfriend and mother.

34I stress again, my view, that that was a very valuable plea.

35The third indictment, G12495745C, concerns, in regard to the first two counts, a victim who was a United States resident; Mr Lester. The charges include two of the most serious charges in the indictments, because of maximum penalties prescribed by Parliament.

36They, again, had met by way of the internet.  The first charge involving Mr Lester, is the procurement charge, in regard to a minor, laid under the State charge, 69(1)(b) of the Crimes Act.  Such period of procurement is said to be from November 2015 to December 2015, the maximum penalty prescribed by Parliament for the crime is 10 years; indicating, again, not only the protective legislation, but the serious concern in which Parliament has as to the commission of these crimes.

37At the time Mr Lester was aged 16.  Mr Jarvis was aged 20.  Equally, insofar as the communications are concerned, the second charge, in the period of November 2015 to December 2015, involved the one Commonwealth charge, of use a carriage service to access child pornography.  That charge is laid pursuant to s.474(1)(a)(ii) of the Commonwealth Code,  and the maximum penalty prescribed is one of 20 years.

38The fourth charge, which I will come to firstly, came about from the execution of the warrant at Mr Jarvis' premises on 9 September 2016, and is a charge under the State, Crimes Act, s.71, for the possession of child pornography. That crime brings with it a maximum penalty prescribed by the State Parliament of 20 years, again, indicative of the protective nature of such legislation and of the serious manner in which the Parliament views transgression of such laws.

39The images themselves, in regard to Count 2, were three naked photos of
Mr Lester, the last of which involved him holding his erect penis in his hand.  The possession of child pornography, Charge 4, involves some 19 images, and I will come to that further.

40The final charge, which in fact is Charge 3 on the indictment, is an attempt to pervert the course of Justice, between 13 September 2016 and 30 November 2016.  That is an offence, pursuant to the Common Law, for which the maximum penalty prescribed is one of 25 years.  Such involved contact made, subsequent to being charged, by Mr Jarvis with Mr Lester over the internet, and I will come to the details of that, insofar as the forwarding of the statements are concerned, by this time Mr Lester had turned 17.

41In the summary Exhibit BA1, it was suggested by Mr Lester that Mr Jarvis was, persistent, and was texting him on many times during the day.  Mr Lester was insistent he was not gay, not interested in Mr Jarvis and did not want to send him photos.  However, he relented because Mr Jarvis was persistent, and in order to stop further contact, he sent the accused three images.  Those images were sent on 15 December 2015 and are described in paragraph 9 as follows:

"The first image with Lester standing in front of a mirror with his phone in one hand and his pants lowered.  His other hand is on his clearly visible erect penis.  Two is simply a close-up of his erect penis in his hand.  Three is Lester standing in front of the mirror completely naked, albeit that his penis is still erect".

42Insofar as Charge 4, that is possession of child pornography, the matter ultimately resolved during the plea, down to the fact that it was agreed that 16 images were found, pursuant to the search warrant. Four related to what is described as one blonde youth, somewhere between the ages of 14 and 16, and four others related to another youth.  Seven of those 16 images are, upon the category used for compiling pornographic images, category one, the balance category 2.

43As I understand it, all of the category 1 related to photos of young boys in various stages of undress. The category 2 crimes, relate to sexual activities carried out by those individuals, upon themselves.

44It is clear that the pornography possessed by Mr Jarvis is significantly different from the more common cases that come before the Court.  One, they are very unusual as to the precise type of pornography. Secondly, they are very limited in number.  As I said, the ages are much older than normally one sees in these types of offences.

45However, the Commonwealth Parliament enacted this legislation for the specific purposes of protecting people who are inveigled into pornography, and have their images displayed over the internet, often against their will. There is no suggestion of such behaviour by Mr Jarvis.

46Insofar as the sentencing in this matter is concerned, I take into account, in particular, the comments of the Court of Appeal in DPP v Garside [2016] VSCA 74, and the numerous decided cases referred to therein.

47Insofar as Charge 2, that is, the photos of Mr Lester voluntarily sent by him, albeit due to the persistence of Mr Jarvis, I find that they are significantly different in context, than the photos which make up Charge 4.  I see them, by way of analogy, of something more like sexting. Again, I find, given the nature of the images, his plea to Charge 2 is a very valuable plea.

48In regard to Charge 3, that is the attempt to pervert the course of Justice, it was an attempt that clearly was limited.  It involved, as set out in paragraph 18 of the summary, Mr Jarvis contacting Mr Lester.  He asked him this, "We're friends, right?"  He told Lester that the FBI would contact him and told him to “have his back.” I am not too sure what that phrase means.  But it was accepted by Ms Trumble that Lester's understanding, as set out in paragraph 18, was correct.  That is that Lester understood this to mean that Jarvis did not want him to talk to the police or to give evidence against him, that is as detailed in the handwritten statement of Mr Lester.

49In addition, Mr Jarvis sent a portion of the police summary to Mr Lester.  He also sent to Mr Lester a photo of the police paperwork and copies of the photos that have earlier been referred to, that Lester had sent himself.

50As I say, in the panoply of attempts to pervert the course of justice, I find the culpability at very much the lower end. Also I think it has to be contextualised by the attempts of a person who was immature, and experiencing difficult psychological factors at the time.

51That then brings us to the deception matters, indictment G12495745D. Again, in so far as those deception matters are concerned, the learned prosecutor assisted the Court by her summary, Exhibit F1. Such involves five charges, involving some 16 victims.  I must say that these crimes are particularly concerning and, it seems to me, morally corrupt.

52Mr Jarvis was required to prostitute himself, for any number of reasons, and I do not know the full reasons why people prostitute themselves, but it is of regret, no doubt, in the community that a young man of that age would be prostituting himself.  What concerns me, however, is that while involved in such activity he breaches, dramatically, the trust of his clients by photographing the credit cards of such clients.  It places people in particular difficulty in such circumstances, and that was clearly demonstrated in the facts of this case.

53Those are encompassed in the first charge in this indictment, being a charge laid under 192(c) of the Crimes Act.  That is the possession of financial information in order to obtain financial advantage, the maximum penalty prescribed by Parliament for such offence is three years imprisonment.

54Charges 2, 3, 4 and 5, are charges laid under s.82, of the Crimes Act, obtain financial advantage by deception. In each case the financial advantage obtained is where Mr Jarvis, as a result of the abuse of trust from that client relationship, has utilised the photographs of the credit card to pay for and obtain various services.  Those services are set out in particular in each of Charges 2, 3, 4 and 5, and the total financial gain obtained by Mr Jarvis; was $4,751.42.  Those offences took place from 26 August 2015 to December 2015.  As I say, the learned prosecutor summarised those charges, detailing the persons involved.

55I have made no formal order in this matter, madam prosecutor, but I should make an order that there should be no publicity in regard to the names of those persons.

56MS PILLAI:  There's no opposition to that course, Your Honour.

57HIS HONOUR: Yes. Insofar as the totality of these charges I have made a forfeiture order, which was consented to by Mr Jarvis. The particular details of these charges are set out in the schedule to Charge 1, as are the names, and further the schedule to Charge 2, and a schedule to each of the Charges 2 through to 5. In that regard I order, pursuant to s.17 of the Open Courts Act, that there be no publication of those names.

58As I said, the learned prosecutor assisted the Court in detailing the charges.  Insofar as Charge 1 is concerned, as I have already said, it involved photographing of 16 individual credit cards.  As I say, it is concerning to me, the moral corruption and breach of trust that occurred in that regard.

59Insofar as the financial advantage, the use that was made in those circumstances is set out as detailed in the opening.

60In addition to the charges set out in the four indictments I was asked to deal with a number of summary charges, pursuant to s.142(5) of the
Criminal Procedure Act.  Those charges are set out in detail by way of the summary tendered today as Exhibit T6.

61I should detail those.  The first is Charge 30, commit an indictable offence while on bail; that offence was the attempt to pervert the course of justice.  Thirty-one, to contravene a condition of bail; that condition being not to use social media, Charge 32 also a contravention of bail.  Between 7 December 2016 and 27 December 2016 we have Counts 33 to 37, and they involve seven occasions when, against the conditions of bail, Mr Jarvis accessed Facebook.  Charge 44 was the possession of the imitation firearm.

62I should say for all of those breaches of bail - you might check this, madam prosecutor, my note is a three month penalty maximum, and or 30 penalty units, is the penalty involved.

63MS PILLAI:  That's right.

64HIS HONOUR:  You might check that for me.

65MS PILLAI:  Yes.

66HIS HONOUR:  And insofar as the possession of the imitation firearm,
Charge 44, maximum penalty prescribed is one or two year, and/or 240 penalty units.  Tendered as part of the plea was a copy of the - sorry, a photo of the imitation firearm.

67Charge 63 was use social media, again.  In breach of the conditions of bail in the period 6 October 2017 to 4 January 2017 - no, 6 October 2016 to
4 January 17.

68And the final matter was the communication with Mr Campion, Count 64.  As I said, when you read the texts it seems somewhat ridiculous that Mr Jarvis was charged in regard to those matters.

69MS PILLAI: The maximum penalty, just to confirm, Your Honour, is s.30(A) of the Bail Act, which ‑ ‑ ‑

70HIS HONOUR:  Yes.

71MS PILLAI:  ‑ ‑ ‑ is contravening a condition ‑ ‑ ‑

72HIS HONOUR:  Yes.

73MS PILLAI:  ‑ ‑ ‑ of bail or a conduct condition is ‑ ‑ ‑

74HIS HONOUR:  Yes.

75MS PILLAI:  ‑ ‑ ‑ three months' imprisonment or ‑ ‑ ‑

76HIS HONOUR:  Thank you.

77MS PILLAI:  ‑ ‑ ‑ 30 penalty units.

78HIS HONOUR: The learned prosecutor submitted to the Court 12 pages of sentencing submissions dated 28 February 2018.  I appreciate reference to the factors set out, and I have taken all of those into account.

79In particular, the learned prosecutor has confirmed the necessity to apply the serious sex offender provisions, and the aggravating factor of the commission of an offence while on bail, and the requirement, as to cumulation, set out in s.16(3)(c) of the Crimes Act 1958. There were sought orders, which I have signed, a restitution order, a forfeiture order, a 464ZF order, and the learned prosecutor, as I said, made various submissions under the headings that are set out in that exhibit.

80Essentially, taking all those matters into account, in particular, the matters that were put which were positive insofar as Mr Jarvis is concerned, the learned prosecutor submitted that it would not be appropriate, given the totality of the offending, for an order to be made under s.44 of the Sentencing Act; being a combined community correction order and sentence, which was sought by way of submission by Ms Trumble.

81Coming then to the submission of Ms Trumble.  Such submission was tendered in each instance by way of in each indictment as Exhibit 2, with the relevant letter of the alphabet as an introduction. That actual submission is undated, but it relates to each of the indictable matters as I have detailed.

82Ms Trumble relied upon and took me to Exhibit 1, which was the report of the clinical psychologist, Ms Mynard; and supplemental report dated the - well, the first one was dated 22 January 2018, the supplementary report, 13 February 2018.

83Ms Trumble took me to the actual indictments themselves and I think I have detailed the charges.  It seems to me that the pleas have been entered at the earliest time possible.  Mr Jarvis was entitled to await the determination of the trial in this matter.  He was faced, at one stage, with a prosecution which sought to have heard all these charges together. Indeed, at committal, but for the matters in dispute, it was indicated there would be pleas.

84It was pointed out in the submission that not only do the pleas assist the course of justice, but they spared the victims, in particular, Brookman and Campion, the trauma of having to give evidence, and are utilitarian.

85It was submitted that such pleas should be seen as an expression of remorse and regret, and I find that the letter tendered this morning of apology is further confirmation of that.  I accept that letter.  I note, and we are now dealing with a person who only just turned 23. In particular, I refer to the third last paragraph of Exhibit 3 which says:-

"These 460 days of self-reflection and deep thought have brought me to a new realisation of total remorse.  I now fully understand that my future life must be and will be totally different from the childish indulgence", indulgences to which he refers above, "I have allowed myself in the past.  I apologise unreservedly to my victims, and also to the court, and to the police officers who were called to deal with these matters.  I will endeavour to keep a bright eye and stay optimistic as I look forward to my future.  I undertake not to appear before you ever again".

86I should say I accept that as genuine.  I have had the opportunity to observe
Mr Jarvis in Court, in very difficult emotional circumstances, undergoing trial, and I can only say that I have been impressed with him, and his letter of apology.

87I have already mentioned the matter referred to by Ms Trumble as to Mr Jarvis’ cooperation with the police.  She also stressed his youth and his background; the difficulties he has had, by way of his relationships; the problem of the suicide of one of his close relationships, a person called Zac; the issues in his own sexual orientation.  Albeit that he has described in the first paragraph of each of the prosecutions summaries of the indictments as a pansexual, which was a new phrase to me when we started these matters, it is, I am told, his ultimate aim to be a woman.  Those matters, dysphoria and difficulties imposed by such, are understood by the Court.

88Mr Jarvis has, as a result of his social persuasions in life, had particular difficulties as a young man at school, difficulties in 'coming out' within his own family. He was subject to anal rape when he was 16. He had a severe period of anxiety and depression when he separated from a partner, Damian. He returned to live in Melbourne from the age of 18 when, as I said, he started to prostitute himself.  His clients were male.

89The deceptions upon, which I have remarked, and were very concerning to me, started, I am told in the plea, at about the age of 20.

90I accept that Exhibit 1B, being the supplementary report of Allison Mynard, now assesses his risk of future criminality at moderately high.  I must say I do not have that view.  I take the view, given the manner in which he has had to serve his remand, the isolation, the particular difficulties given his orientation, of being in prison, his lack of family support, the need for protection, the fact that all of this offending took place when he was, as was earlier described - or as is set out in the Act, a defined young offender, that such risk is not that high.

91This Court is always keen to seek to pass a sentence which effects rehabilitation of the young. I do not have to recite the principles that were relied on in Mills [1998] 4 VR 235, by Ms Trumble.

92The other factors relied upon were the mental health issues, which I have referred to.  The circumstances of this offending, are serious and, I do not in any way resile from my comments about such offending, or the fact that the offending against under age persons is of itself serious, because of the intended protective nature of the legislation.  But I am satisfied that such crimes have been committed by a person who at such time was immature, inexperienced and undergoing difficult psychological factors in his life.

93Now, a most important factor, as I indicated, when I opened these sentencing remarks, is that Mr Jarvis has no prior offences whatsoever.  I am totally satisfied that, after he serves this sentence that I am about to pronounce, we will not see back in Court, which is in the terms of the letter given to this Court today.

94The concessions made are rightly made in the submissions of Ms Trumble, that sexual offending against children is serious.  The aggravating factor in the particular Campion charge of the failure to use the condom, despite his initial comments, and I think maintenance of the fact that he did use a condom, for the purposes of this plea, it was accepted by Ms Trumble, on instructions, that I was to take that into account.

95The aggravation that related to the perverting the course of justice is also accepted on the basis that it was committed while on bail.  However, as I have already remarked, it was submitted that such crime still falls at the lower end of culpability, and I accept that.

96Insofar as the sentencing considerations, there is no issue from either party that rehabilitation, given his age, must be taken into account and is a significant consideration. The fact of no prior criminal offending is also a matter to be taken into account.  General deterrence and denunciation, of course, are important considerations in regard to the sexual crimes, and in particular in the pornography crimes, as I have indicated as set out in Garside, and the intent of the general protective legislation passed by Parliament.

97As to his insight and remorse, I accept that the experience has been illuminating, and despite what might be seen initially as some limited acceptance of his behaviour in the first reports, the subsequent report and indeed, the letter today indicates to me that Mr Jarvis now has full insight, and is totally and genuinely remorseful for his crimes.

98It was rightly conceded by Ms Trumble that imprisonment was appropriate, in light of the nature and number of offences. Ms Trumble submitted that Mr Jarvis ought to be assessed for a community correction order, insofar as I am able to make a combined order under s.44 of the Sentencing Act.

99Mr Jarvis, as I said when I began this sentence, despite a consideration of all the matters in your favour, I have determined that the submission put by the prosecution must apply. It is not possible for me to sentence you to a combined community correction and imprisonment order. The restrictions now imposed by Parliament, as to the passing of such an order under s.44, simply do not allow appropriate totality to be effected for your offending.

100I also take into account in Mr Jarvis' favour the additional matters tendered today, which we have identified in each case, that is the educational reports; and, the letter of apology.

101As I say, I have taken into account all of the factors put to me by both counsel and given your age, and the need for this Court to consider the issue of rehabilitation, tried to be as merciful as I can, despite the serious nature of these crimes, and the need, because of the protective nature of the crimes which relate to sexual offences and pornography offences, to pass a sentence which also effects denunciation and general deterrence.

102However, doing as best I can, as set out by the High Court in Dalgiesh (2017) ALJR 91, 1063, [49], most importantly, a Judge, must, deliver individualised justice to you, Mr Jarvis, in regard to the circumstances of this case. I have balanced the matters that have been put to me by your counsel and Ms Pillai, on behalf of the DPP, in determining your sentence.

103Would you stand please.

104I will take the indictments as we dealt with them, in the plea.  The first is indictment No.G1249574A6.  Each of these charges involved sexual penetration of a child under the age of 16.  The first charge, as I have indicated was a composite charge, and has to be dealt with, as indicated, by the learned prosecutor this morning.

105However, I should say that in general, in sentencing in this matter, I am conscious that the Court is actually concerned with one meeting only.  It is, after all, a meeting of Mr Campion and Mr Jarvis that occurred on one occasion, albeit extending over, as I said, the overnight stay, into the next morning.

106There is always, a sense of unreality to charge Mr Jarvis with separate charges in the circumstances.  I note, going back as far as The Queen v Buyuksu and Kutbay, an unreported decision of the then Criminal Court of Appeal, of 2 March 1989, Murphy J’s comments as to this issue of the unreality of a number of charges being laid concerning, essentially, one incident.

107However, the prosecution is at liberty to present an indictment as they have. I will obviously sentence accordingly.  However, I do take into account those remarks.

108Insofar as the first charge, that is the composite charge, you will be sentenced to a period of imprisonment of 18 months.  In regard to the second charge, that is the penial/vaginal sexual penetration, you will be sentenced to a period of imprisonment of three years.

109Mr Jarvis, after sentencing you to periods of imprisonment, in regard to these first two charges, the serious sexual offender provisions apply, as set out in s.6C of the Sentencing Act.  I am required to consider, as the primary purpose of sentencing, community protection. The prosecutor submitted there is no need for me to pass a sentence which is disproportionate, and I accept that.

110In regard to Charge 3, which is the third charge of sexual penetration, by way of digit into the vagina on 3 September, I sentence you to a period of imprisonment of 18 months.  And in regard to the fourth charge of penetration by way of digit on the following morning, that is 4 September 2015, I sentence you to a period of imprisonment of 18 months.

111Of course, the difficulty Courts have is to then to effect the will of Parliament, as set out in s.6C of the Sentencing Act, which indicates the requirement for cumulation when sentencing a person as a serious sexual offender.  This particular section creates a tension in sentencing, with the principle of totality, as was detailed by Redlich AJ in Gordon v The Queen [2013] VSCA 343, [74].

112While fully cognisant of the need for this Court to effect the will of Parliament, I deal with that tension and difficulty as best I can.  I resolve the tension as follows, I do not find that complete cumulation is appropriate.  Given that the principle, in this case, of totality works against that.

113In this particular indictment using Charge 2, that is the sentence of three years, as the base sentence, I order that two months of the sentence in regard to Charge 3, and two months of the sentence in regard to Charge 4 be cumulated upon each other, and the base sentence; making a total effective sentence in this indictment of three years and four months.

114I declare, pursuant to s.6F, that in regard to Charges 3 and 4 you have been sentenced as a serious sexual offender.

115That then takes me to the second indictment, of which we dealt with in order and that was indictment G12495745A-7.

116Pursuant to the serious offender legislation, you are also to be sentenced, in regard to this charge, as a serious sexual offender.  The sentence I propose, therefore, I will make the same comments, insofar as the issue of cumulation and totality that I made, in regard to the earlier indictment. I will also declare that this sentence, under 6F of the Sentencing Act, is a sentence passed upon you as a serious sexual offender and such is to be recorded in the records of this Court.  The sentence that I impose for this single charge in the indictment is six months imprisonment.

117That brings me then to the third indictment, G12495745C.  In regard to Charges 1, 2 and 4, you are to be sentenced, in regard to each of those charges, as a serious sexual offender.  Again, I refer to my earlier comments, insofar as totality and cumulation, and this sentence is to be recorded in the records of this Court that you have been sentenced, pursuant to s.F of the Sentencing Act, as a serious offender for Charges 1, 2 and 4.

118Insofar as the sentence for those charges, Mr Jarvis, for the first charge, being the state charge of procurement of a minor, you will be sentenced to a period of imprisonment of 12 months.  On the second charge, being the Commonwealth charge of use carriage service to access child pornography, I refer to my earlier comments as to the substantial difference between such offending and that of Charge 4, and in the circumstances of the case sentence you to a period of imprisonment of six months.  That is on the Commonwealth charge.  In regard to Charge 4, the State charge of possession of child pornography, I sentence you to a period of imprisonment of two years.  In regard to the attempt to pervert justice, Charge 3, I sentence you to a period of imprisonment of six months.

119On this Indictment on the State charges, using Charge 4 as the base sentence, that is the sentence of two years, I order that three months on each of Charges 1 and 3 be served cumulatively upon each other and the base sentence, making a total effective State sentence under this indictment of two and a half years, and a total effective sentence on the Commonwealth charge of six months.

120Coming then to the final Indictment, which is the financial indictment G12495745. Insofar as the first charge in that indictment is concerned I sentence you, that is for the breach of s.192C of the Crimes Act, to a period of imprisonment of one year.  In regard to the deception matters, Charge 2, I sentence you to imprisonment for nine months, and in regard to Charge 3, imprisonment for six months, in regard to Charge 4, imprisonment for nine months; and in regard to Charge 5, imprisonment for six months.

121Using the sentence of one year, passed, in this Indictment, in regard to Charge 1 as the base sentence, I order that two months of each of the sentences imposed in Charges 3 and 5, and three months of each of the sentences imposed in Charges 2 and 4 be served cumulatively upon each other and the base sentence, making in all a total effective sentence in that indictment of 1 year and ten months.

122So just to repeat those matters, perhaps for counsel, if it assists before I go to the completion of matters.

123On the first series of charges involving Campion, the total effective sentence is three years and four months.  On the second matter of Brookman, the total effective sentence is six months.  On the third indictment of Lester and the pornography charges, the total effective sentence for the state sentence is two and a half years, for the Commonwealth sentence is six months.  And for the final indictment the total effective sentence, in regard to the financial matters, is one year and ten months.

124In regard to the summary matters I sentence you as follows.  Charge 30, one month; Charge 31, one month; Charge 32 one month.  Charges 33 through to 37, one month on each; Charge 44, one month; Charge 63, one month; and Charge 64 you will be convicted and discharged.

125As to the process of sentencing, when you have a joint Commonwealth charge and state offences - it may have been much easier for everyone in this case if the one Commonwealth charge had not been included.  But it was.  Anyway, we have to deal with it.

126The Court of Appeal have said on a number of occasions how difficult these matters are. The most recent case concerning my own sentencing is Swingler [2017] VSCA 305, and I adopt the alternative set out in [78] of that sentence. That is the alternative to sentence in total on the state offences, set a minimum period before being eligible for parole as to such State offences and to add, thereafter, the Commonwealth sentence, and that is what I propose to do.

127As to the sentence for all the State offences in the four indictments I order that as to the total effective sentence involved in the Campion matter, that is the indictment 745A6, of three years and four months, that six months of the total effective sentence imposed in the State offences of the Lester indictment, that is 45C, and six months imposed in the financial matters, that is 45D, be served cumulatively with each other and the Campion sentence, making a total effective sentence for all State offences on the four indictments of four years and four months.

128I order that the period that must be served by Mr Jarvis before being eligible for parole, in regard to the State offences, is two and a half years.

129I order that the six months imposed in the Lester indictment for the second charge, being the Commonwealth offence, is to start at the end of the State non-parole period. If I can explain that in laymen's terms, Mr Jarvis.  For the State offences you will be required to serve a minimum period of two and a half years, from which will be deducted the remand period that you have already served.  And after that minimum period you will be required to serve another six months for the Commonwealth offence, making a total minimum service of imprisonment by you of three years.

130Pursuant to s.18 I order that the period you have spent on remand be declared as service of this sentence, being 469 days.

131Mr Jarvis, essentially what all that means is at the bottom line for you, you have got to do two and a half years, of which you have done about one year and four months, I think.  Plus six months.  So you have three years, in essence, at the bottom.

132Can I just tell you that it is a requirement of Parliament, which is very difficult in your case, because there are so many factors that I have had to refer today, that have to be taken into account, but had you not pleaded guilty, the total effective sentence that I would have sentenced you to in the State offences would be six years and nine months, with a minimum of three years and four months, and with the Commonwealth sentence I would have sentenced you to a period of imprisonment of ten months.  That is as best I can do to comply with Parliaments requirements.

133I note that I have ordered and signed that there be a forensic order, under 464ZF.  I have signed the forfeiture order and I have signed the compensation order.

134It remains, Mr Jarvis, for me simply to say to you I have no hesitation accepting what you have told me as to what you intend to do.  It gives me no pleasure to sentence you as I have.  However, the offences that you have committed are serious, and the principles that I have exposed mean that it was not possible for me to give you the order sought by your counsel, and in the circumstances I have been required, taking into account all the factors, to sentence you in the manner I have.

135I do, however, do so, not only with some sadness, but with optimism that you will never come back before a Court again.

136Now, just before I do this, because of the complications involved, I think I should check with counsel are there any matters of concern?

137MS TRUMBLE:  Yes, Your Honour, and it might have been just the way I wrote it down, Your Honour.  But I have the total effective sentence of Campion as being three years, four months.

138HIS HONOUR:  Sorry, total effective sentence.

139MS TRUMBLE:  Total effective sentence of the Campion matters was three years and four months.

140HIS HONOUR:  Four years and four months.

141MS TRUMBLE:  No, just for the Campion matters.

142HIS HONOUR:  Sorry.

143MS TRUMBLE:  Yes.  So three years ‑ ‑ ‑

144HIS HONOUR:  Didn't I go over those, I thought I just went over them?

145MS TRUMBLE:  Yes, but then ‑ ‑ ‑

146HIS HONOUR:  Wait on, let's go back ‑ ‑ ‑

147MS TRUMBLE:  Yes.

148HIS HONOUR:  ‑ ‑ ‑ and let's be patient with these things and not get worried about it, it's complicated enough.  Campion matters are three years and four months.

149MS TRUMBLE:  Yes.

150HIS HONOUR:  Yes.

151MS TRUMBLE:  And then Your Honour made six months of the Lester indictment and ‑ ‑ ‑

152HIS HONOUR:  Just hold on.  You're now talking about the cumulation of the indictments?

153MS TRUMBLE:  Yes, just to get to the state ‑ ‑ ‑

154HIS HONOUR:  All right, I used the sentence of three years and four months of the Campion, if you want, as the base.

155MS TRUMBLE:  The base of the state matters, yes.

156HIS HONOUR:  Right.  I made six months of the total effective sentence imposed in the state offences of Lester.

157MS TRUMBLE:  Yes.

158HIS HONOUR:  And six months imposed in the financial indictments ‑ ‑ ‑

159MS TRUMBLE:  Yes.

160HIS HONOUR:  ‑ ‑ ‑ cumulative upon that three years, four months, making a total of four years and four months.

161MS TRUMBLE:  Yes and then can I take it from that then all of the summary matters and the Brookman sentence were concurrent?

162HIS HONOUR:  Yes.

163MS TRUMBLE:  All right, just wanted to double check that.

164HIS HONOUR:  Yes.  In other words, I make it clear, I have not cumulated any period ‑ ‑ ‑

165MS TRUMBLE:  Any of those.

166HIS HONOUR:  ‑ ‑ ‑ on the principles of totality for the Brookman sentence.

167MS TRUMBLE:  Yes.

168HIS HONOUR:  Or for any of the summary offences.

169MS TRUMBLE:  Summary matters.  Yes, I understand.  I just wanted to clarify, thank you, Your Honour.

170HIS HONOUR:  Madam prosecutor?

171MS MOLETA:  Yes, Your Honour.  No, that resolves the issue, Your Honour.

172HIS HONOUR:  All right, the issue you had.  Yes, all right, Mr Jarvis.  I thank you for the manner in which you have behaved at all times in this Court and I wish you well.

173ACCUSED:  You too, Your Honour.

174HIS HONOUR:  Yes, Mr Jarvis can be taken.  How long did we take?  We did take an hour and half, did we?

175TIPSTAFF:  Almost.

176HIS HONOUR:  Bit less, when did we start?  It's ten past ‑ ‑ ‑

177I thought it might.  Yes, well, thank you all for your assistance.  I thank both instructors and counsel for their assistance right throughout this matter.  It has, to say the least, had its complications.

178MS TRUMBLE:  Yes, Your Honour.

179HIS HONOUR:  But there we are.  So I thank you again.

180MS TRUMBLE:  Thank you, Your Honour.

181HIS HONOUR:  Yes, Mr Tipstaff, that's the additional material tendered today.  Now, I have only got to explain it to my associate.  Yes.

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