Director of Public Prosecutions v Jeffries
[2016] VCC 1398
•21 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01111
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN ALLAN JEFFRIES |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2016 | |
DATE OF SENTENCE: | 21 September 2016 | |
CASE MAY BE CITED AS: | DPP v Jeffries | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1398 | |
REASONS FOR SENTENCE
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Subject: Criminal Law, Sexual Offence
Catchwords: Underage sex work, Causing or inducing a child to take part or continue to take part in sex work, possessing child pornography, procure a person under 16 to engage in sexual activity.
Legislation Cited:
Cases Cited: R v Clarkson (2011) 32 VR 361, Adamson v R [2015 VSCA 194,
Sentence: Imprisonment of 2 years and 6 months for State offences, Imprisonment of 18 months on Federal charge with immediate release on a 2 year Recognisance Release Order with a bond of $1000.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms D. Manova | Office of Public Prosecutions |
| For the Accused | Ms B. Franjic | Stary Norton Halphen |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the complainants in these reasons. The first complainant will be called Cathy Johnston. The second complainant will be called Heather Dart. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[1].
[1] Section 4 Judicial Proceedings Reports Act
2 Glen Jeffries, you have pleaded guilty to one charge of causing or inducing a child to take part or continue to take part in sex work, which is a Victorian offence with a maximum sentence of 10 years’ imprisonment (Charge 1) and to one charge of possessing child pornography, which is a Victorian offence with a maximum sentence of 5 years’ imprisonment at the relevant time (Charge 2). You have also pleaded guilty to one charge of using a carriage service to procure a person under 16 to engage in sexual activity, which is a Commonwealth offence with a maximum sentence of 15 years’ imprisonment (Charge 3).
3 I proceed to sentence you on the basis of the Prosecution Opening as amended and the supplementary opening dated 26 August 2016, which together form an agreed summary which was read out on your plea[2]. I will briefly outline your offending.
[2] Exhibit A
4 You met the first complainant, Cathy Johnston[3], through Facebook, where she stated her age was 18. She was in fact aged 16 and in the care of the Department of Health and Human Services. You later met in person and used drugs together. On 20 September 2014, you met again and you took her to stay at your house. You began an intimate relationship with her. At that time, she called herself something other than her real name, and told you that she was 19. About a fortnight later, your work as a concreter ran out, and there was no food in the house and no money for the rent. Ms Johnston told you she would get some money by selling herself for sexual services. You agreed with this and went along to act as her security. Ms Johnston said she did not want to do it again.
[3] A pseudonym
5 Despite this indication, between 3 November and 24 November 2014, you caused or induced Ms Johnston to take part or continue to take part in a number of sex acts as a sex worker (Charge 1). Part of the background material for this charge is that this occurred at motels in Parkdale and Doveton, after you had arranged the clients. Ms Johnston serviced many clients in the period of time alleged in the charge, engaging in a range of sexual acts, and you stood guard outside the motel room. Ms Johnston provided you with the money she was paid. Negotiations were entered into with a third party for you and Ms Johnston to travel to Warrnambool for her to perform sexual services, but the trip did not eventuate. You did however travel to Ballarat for that purpose.
6 In her statement to police, Ms Johnston said that on a few occasions, she undertook this work willingly, to obtain money for food and rent, and because she had a drug addiction to feed. However, on other occasions you told her that if she did not continue working that your ex-wife and children would ‘miss out’.
7 Charge 1 is a charge in which two specific occasions of inducing Ms Johnston to take part in sex work are alleged[4], which occurred at private premises in Ballarat, arranged through a licensed sex worker who you met there. You and the licensed sex worker arranged for advertising of sexual services to be provided by Ms Johnston. Ms Johnston gave the money she was paid to you, and to the licensed sex worker.
[4] Agreed as a ‘rolled up’ charge.
8 I find that by your words and conduct you were inducing her to undertake the sex work when she was not willing to do so. In your interview with the police, you said you had no work and [passing on messages to Ms Johnston for sex work] is the only way [you could] have any sort of income.
9 Section 5 of the Sex Work Act 1994 under which charge 1 is brought, provides that it is not necessary for proof of such an offence that you knew that Ms Johnston was aged under 18. There is a defence available, whereby an accused person may prove that, having taken all reasonable steps to find out the age of the person concerned, the accused person believed on reasonable grounds, at the time of the alleged offences, that the person concerned was aged 18 years or more.
10 Although Ms Johnston continued to not use her real name and to give her age as 19, you became aware at some stage that she was under 18, and that her name was not as given by her. The police were looking for her after a report from DHHS in late October, and you received a telephone call from a police officer at the beginning of November giving you her correct name and asking you if you knew a 16 year old of that name. You said you did not.
11 By your plea of guilty, you have admitted the offence, and have not sought to rely on the available defence. It is open to me to find, and I do find, that at the very least, you did not believe on reasonable grounds that she was aged over 18 when you were causing or inducing her to take part in sex work.
12 You were arrested on 28 November 2014 and interviewed by police. Your mobile telephone was seized and on examination was found to contain sexual images of Ms Johnston. This forms the basis of charge 2. The supplementary opening describes the material and I sentence you in accordance with that description. The parties did not request that I view the images, and I did not consider it necessary to do so.
13 There were fifteen category 1 photographic images and one category 4 video, all featuring Ms Johnston. The video of nearly 5 minutes in length shows her engaging in sexual activity with an unidentified male. It is conceded by the prosecution that the photographs seem to have been taken by Ms Johnston in what is called ‘selfie’ style, and that she either used her own phone and sent the photos to you, or used your phone to take the photos.
14 Charge 3 relates to the second complainant, Heather Dart[5]. On 25 November 2014, you contacted Ms Dart, who was aged 13, on Facebook. You contacted her again on 27 November talking about ‘escort work’, and prices, which I take to mean relating to sex work. Ms Dart’s mother became involved in the Facebook conversations and said that she (as Heather Dart) could bring a 13 year old friend to Ballarat for sex work. You provided your address in Ballarat to her, and later, in a telephone conversation with Ms Dart, which was recorded, you spoke about sex work prices and underage girls. It is clear that you were prepared to facilitate a 13 year old engaging in sexual activity with an adult.
[5] A pseudonym.
15 I received a statement from Ms Johnston as to the impact on her of your offending. I take into account the edited version which was provided to me[6]. Ms Johnston says that when she was with you and being induced to take part in or continue the sex work, she felt scared, alone, and anxious all the time because she did not know what was going to happen or who was going to walk in the door and do things to her. She felt disgusted and had no pride, dignity or privacy left; she had nothing left that was her and felt her heart, soul and mind were in someone else’s body. She described only eating when she had earned it and believes this led to her eating disorder. She did not want to be that person, and still has nightmares and wakes up screaming such that she cannot be left on her own at night. She cannot be close to males she does not know and feels panicky when a male gets too close or she hears a noise outside, thinking that it is a male coming for her and her body. She feels that her body, soul and life have been violated and that it is going to take a long time for her to trust people again.
[6] Exhibit B
16 Ms Johnston was already a vulnerable child, and the impact on her is possibly greater because of that. The material I have from Ms Johnston makes it clear that she continues to suffer considerable psychological harm and may well do so in the long term.
17 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[7], and which includes future harm[8]. Ms Johnston’s apparent willingness to undertake sex work of her own accord is irrelevant to the concept that you caused her harm by inducing her to take part or continue to take part in the sex work particularly when she did not wish to continue. She told you that she did not want it to continue beyond the occasions of immediate need of money for food and rent.
[7]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[8]Adamson v R [2015] VSCA 194, [56]
18 The presumption applies where the age of the victim is extended to children who are 16 or 17[9], and to child pornography offence provisions, so both charges relating to Ms Johnston involve a presumption of harm[10]. Ms Johnston thought that you and she were in a loving relationship, as shown by the language between you on Facebook. Even if Ms Johnston took the photographs herself in the context of that relationship and provided them to you, her motivation as a child is irrelevant, because the harm is presumed[11]. As it happens, she specifically refers to the impact on her of the possibility of the images being available on the internet. I act on the basis of the impact on her of that possibility, and specifically note that there is no evidence before me to suggest that you did upload any of the images. The presumption of harm has not been rebutted in respect of Ms Johnston for either of the offences relating to her. On your behalf, counsel did not seek to do so.
[9] Ibid [54], [57]
[10] Ibid [31]
[11] Ibid [31]
19 I do not have a statement from Heather Dart as to the impact on her, but while I have no information as to the level of harm suffered by her, neither do I have any material rebutting the presumption that she was harmed. The persuasive presumption applies no less to ‘cybersex’ than to ‘in person’ offences[12], and applies to preparatory offences such as using a carriage service to procure, which is the offence in charge 3.[13] The presumption has not been rebutted in respect of Ms Dart.
[12] Ibid [56]
[13] Ibid [57]
20 Therefore I take into account that there are two child victims of your offending who have been harmed by your actions in procuring, or attempting to procure, them to engage in sexual activity with adults, and that you did so in order to obtain money for your own benefit.
21 It was submitted on your behalf that your offending in charge 1 was opportunistic, taking advantage of Ms Johnston’s initial offer to obtain money by selling sexual services, rather than predatory. It was put that this was offending at the lower end of the scale, because of the evidence that your victim had previously engaged in prostitution and that you had not introduced her to the notion.
22 I find the offence you committed in charge 1 to be the most serious of the three charges, and to be a serious example of that type of offence. It was a protracted period of offending against a vulnerable underage female against a background of this occurring in a number of locations; offending which has manifestly caused her harm, and which was for your financial benefit. Although you thought you were in love with Ms Johnston, you were aged 40, you knew she was under 18, and you told her that if she did not continue with the sex work and bring in money, your ex-wife and children would miss out.
23 Charge 3, whilst committed in a very short period, involved conduct and words by which you sought to corrupt a 13 year old girl in a most depraved way and is a serious example of this type of offence. I do not accept that it makes a difference that you spoke at times to the mother rather than the 13 year old girl. The cases involving an offender communicating with an undercover police officer, thinking they are conversing with an underage child, are relevant to that submission. You believed you were, and you were intent on, speaking to a 13 year old girl in order to convince her to come to Ballarat and earn money for you by undertaking sex work. It is worth noting that you had at that time lost the income from Ms Johnston, because she had collapsed, and was in hospital having her diabetes brought under control.
24 As for charge 2, I find that it is at the lower end of the scale, due to the small number of images, and lack of other features that make such an offence more serious.
25 Against all this, I must weigh the factors pointed out by your counsel, which mitigate the very serious nature of the overall offending.
26 The first of these factors is your plea of guilty. It appears from the agreed chronology attached to the supplementary opening that a trial was to be held in relation to the second complainant in November 2015, but before that took place, the first complainant provided a statement to police. As a result, the trial was adjourned shortly before it was due to begin, with a new trial date of 8 February 2016. After a number of directions hearings, you were arraigned and pleaded guilty to the charges for which you are being sentenced today five days before the second trial date. The first plea date in April was adjourned because you indicated that you may wish to change your plea. There were three further mention hearings before it was confirmed in June that you would not seek to change your plea. On the second plea date of 29 August, the plea hearing took place.
27 Although this was not an early plea, and the period in which you considered whether to change your plea was almost certainly unsettling for the complainants, not knowing if they would be required to give evidence, ultimately, it did save them, especially Ms Johnston, from the ordeal of giving evidence, and saved the community the time and cost of a trial. While I find that the plea of guilty reflects now that you accept responsibility and also reflects your willingness to facilitate the course of justice by avoiding the need for a trial, I find that in the circumstances your plea shows only a low level of remorse and contrition. I do note the expressions of remorse referred to in the references to which I will refer later.
28 It was not submitted that I should take into account the delay in the matters coming to trial with the first complainant’s statement being made to police. I would not do so in any event because the delay was minimal; as a result of the first complainant being under the age of 18, the trial involving her had to be heard within three months of committal or direct indictment, and the second trial date was three months from the first.
29 The next matter I take into account is that you are now aged 42 years, and were aged 40 at the time of the offences. You have a criminal record for offences for which convictions were recorded between 1993 and 1998, when you were in you early to mid 20’s. These were theft and drug offences, almost exclusively involving cannabis, with one charge of possession of amphetamine. You received fines and a community based order which you breached, leading to a suspended sentence which you breached, leading to an intensive correction order, from which you were ultimately discharged. Sixteen years passed before you committed the offending for which I am sentencing you today, which is of a different, and more serious nature than your prior convictions. I note that you have not previously served a term of imprisonment. You were however, remanded in custody for these offences and served 216 days before being granted bail.
30 Since the date of the plea, further allegations have been made for offences alleged to have been committed while on bail following the plea. I am told that you dispute these and that they are not allegations of similar offences to those for which I am sentencing you today. Therefore they will play no part in my consideration.
31 I was told something of your personal circumstances.
32 You are one of 10 children. You have had no contact with your father since your parents separated two decades ago, but you remain very close to your mother. She lives in country Victoria and you have been living with her recently to assist her as she has Paget’s disease. I extended your bail after the plea to enable you to organise one of your nine siblings to take over that care. I understand that some arrangements have been made for your mother’s care.
33 You left school at 14 and worked for nearly 9 years as a farmhand and also began concreting with one of your brothers when you were aged about 17. You have had a number of jobs since in construction.
34 In 1996 you began a relationship which culminated in marriage and two children, now aged 7 and 5 years. You were together for 16-18 years until you separated in 2013. You moved around interstate during your 20’s apparently trying to deal with your drug addiction, and in 2002 you settled with your wife in Tasmania and worked on her family’s poultry farm for almost 10 years. In late 2011 you returned to Victoria with your family which by then included the children, and in Ballarat began your own business building poultry sheds, with support from your parents-in-law. The business apparently involved a lot of travel and thus time away from the family, and although initially the business did well, you began drinking alcohol in moderate amounts to help you sleep when away from home. In 2013, you and your wife decided to separate, your drinking escalated to a level where it was out of control, you closed the business and you moved to Frankston to work casually as a concreter. It was in Frankston that you met Ms Johnston. It was put on your behalf that you had hit rock bottom at the time of commencing the offending, drinking too much, having no employment and separated from your family although you remained in contact.
35 It was also put that after two years of alcohol abuse from 2012 that being in custody for the first time enabled you to sober up and reflect on your offending, with a salutary effect. You had no paid work while on bail, but did participate in the work for the dole scheme. It was submitted that a reduction in alcohol use and abuse, together with some relief from the emotional burden you were apparently feeling in 2014 would lead to you having good prospects of rehabilitation.
36 I received a number of references[14], from your mother, a neighbour, a niece, a friend and your ex-wife. All indicated that the offending was out of character for the man they know. Your ex-wife’s reference was particularly supportive, despite expressing shock and disbelief that you committed these offences. I note that her remark that you have “always provided financially for [the children and for her], both in and out of [your] marriage” gels only too well with the remark Ms Johnston says you made as part of your inducement, that if she did not take part in the sex work for money that your ex-wife and children would miss out.
[14] Exhibit 2
37 The support you have from family and friends is important for your rehabilitation, and dealing with your addiction, whether it be drug or alcohol consumption, is vital to prevent you from re-offending. Unfortunately, since the recent allegations were raised, there may be a question mark over your prospects of rehabilitation. Even putting those allegations to one side, the fact that a man in his 40’s who has never offended sexually before, let alone against children, should embark on acts involving the corruption of underage girls into taking part in sex work raises real questions as to your prospects for rehabilitation. It seems that at a minimum, your risk of re-offending needs to be addressed by your participation in treatment to allow you to understand why you acted as you did, and what you can do to prevent that happening again.
38 An important principle in my sentencing of you is the need to express the denunciation of society for sexual crimes committed against children, which these complainants are as they are aged under 18. Also, by my sentence, I must try to deter other men from preying on vulnerable teenagers; this is known as general deterrence. Because it is not known why you committed the offences, I am of the view that it is necessary for my sentence to also deter you from re-offending. That is known as specific deterrence.
39 For charge 3, the Commonwealth charge, I have taken into account the matters to which I must have regard under the Crimes Act (Commonwealth), many of which I have referred to in these remarks.
40 Before I turn to the sentence, there is one other matter I must deal with. Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
41 Your counsel submitted that the sentencing principles could be met with the imposition of a term of imprisonment providing for release on a recognisance release order on Charge 3, with conditions of supervision and participation in a Sex Offenders Program.
42 The prosecutor submitted that only an immediate term of imprisonment was appropriate in all the circumstances of your case.
43 Both counsel referred me to cases which may provide some guidance for current sentencing practice for charge 1. Effectively, the cases I was referred to provided a range of sentences from a Community Correction Order to 3 years’ imprisonment on such a charge. Each case of course must be decided on its own facts and circumstances.
44 I take into account that if you are imprisoned, you will have little or no contact with your mother or your children and that will make the period of imprisonment harder for you.
45 If you are imprisoned on charges 1 and 2, you are to be sentenced as a serious sexual offender for charge 3. If so, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed today. In order to achieve this purpose, I have the power to impose a sentence on charge 3 greater than is proportionate to your offence.
46 I have decided that I have no alternative to imposing a term of imprisonment on all charges. As a result, you will be sentenced as a serious sex offender on charge 3. I do not intend to impose a disproportionate sentence, because the prosecution have not sought it. I intend to make orders that allow for some concurrency in the sentences, despite your status as a serious sex offender.
47 On State charge 1, you are convicted and sentenced to 2 years 6 months’ imprisonment.
48 On State charge 2, you are convicted and sentenced to 1 month’s imprisonment. That sentence is to be served concurrently with the sentence imposed on State charge 1.
49 The effective State sentence is 2 years 6 months’ imprisonment.
50 I direct that you serve 16 months of the State sentence before becoming eligible for State parole.
51 On Commonwealth charge 3, you are convicted and sentenced to 18 months’ imprisonment. That sentence starts 16 months after the commencement of the State sentence on charge 1. I direct that you be released under section 20 Crimes Act (Commonwealth) immediately on commencement of the federal sentence on a recognisance release order on condition that you give security by recognisance of $1000 to be of good behaviour for 2 years, and that you be under supervision and participate in a Sex Offender Program as directed.
52 The Recognisance Release Order for charge 3 can be varied or discharged on application to the court if your circumstances change.
53 The effect of the orders for commencement of sentences on all charges is a total effective sentence of 2 years 6 months’ imprisonment. To make it clear, you will today begin serving your State sentence of 2 years 6 months’ imprisonment. You will be eligible for parole in 16 months. When you have served 16 months your federal sentence will start. On the federal sentence you will be released immediately on a Recognisance Release Order but will have 18 months’ imprisonment effectively suspended for the following two years on the federal sentence as well as a parole period on the State sentence. If you do not reoffend, you will not serve any more time. If you do offend, you will forfeit $1000, and be returned to gaol to complete the federal sentence and you may be dealt with for a breach of State parole.
54 I declare that the period of time the prisoner has already spent in custody is 210 days not including today. Pursuant to section 16E Crimes Act (Commonwealth) and section 18(4) Sentencing Act (Vic), these are to be deducted administratively from your sentence.
55 I direct that it be noted in the records of the court that you have been sentenced as a serious sex offender on charge 3.
56 Because of this sentence, you have become a registrable sex offender. The charges are class two offences, and so you will be required, within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting and be otherwise subject to the Sex Offenders Registration Act for the rest of your life.
57 You will now be asked by my Associate to sign two documents. The first is your agreement to abide by the conditions which allow for your release from imprisonment. The second is a form notifying you of your reporting obligations under the Sex Offenders Registration Act. Your lawyer will assist you with these forms.
58 If you had not pleaded guilty to the State charges, but had been found guilty after a trial, the sentence I would have imposed is 4 years’ imprisonment with a minimum of 2 years.
59 In respect of the Commonwealth charge, I will not state the sentence that would have been imposed if you had not pleaded guilty. Until the Commonwealth legislation specifically provides for this, or an authority which binds me states that the Victorian law applies in this instance to a Commonwealth sentence, I do not propose to do so.
60 I have signed the order for disposal of the child pornography material.
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