Director of Public Prosecutions v Jones
[2013] VCC 1033
•21 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00283
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALVIN JONES |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 June 2013 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1033 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Rezsneki | |
| For the Accused | Mr S. Payne |
HIS HONOUR:
1 Calvin Jones, you have pleaded guilty to three charges on indictment C12278491.1.
2 Charge 1 is Federal offence contrary to section 474.27(1) of the Criminal Code of the Commonwealth, namely, using a carriage service to groom a child under the age of 16 to engage in or submit to sexual activity. The maximum penalty for this offence is 12 years imprisonment.
3 Charge 2 is a State offence, namely you failed as a registered offender within the provisions of the Sex Offenders Registration Act 2004 (“the SORA”) to comply with reporting obligations under that Act without reasonable excuse. The maximum penalty for this offence is 5 years imprisonment.
4 Charge 3 is another State offence, namely that you possessed child pornography. The maximum penalty for this offence is also 5 years imprisonment.
5 When you were arraigned and pleaded guilty to the charges you also admitted a criminal record. You were born on 26 October 1974. In December 1996 aged 22 you were convicted in this court of indecent act with or in the presence of a child under 16 and of sexual penetration of a child aged between 10 and 16. You were then placed on a Community Based Order with conviction for a period of two years and ordered to undergo psychological and psychiatric assessment and treatment. Also of relevance in sentencing here is that on 30 July 2008 at the Melbourne Magistrates’ Court you were convicted of indecent act with a child under 16 years of age. Again you were convicted and sentenced to a Community Based Order for 24 months. There were conditions of that sentence that you undergo psychological and psychiatric assessment and treatment. The offending for which I now must sentence you occurred within two years of completion of that sentence.
6 Between the two prior convictions that I have set out above there were other convictions which you have also admitted which were not in the nature of sexual offences. These include various offences of breach of community based orders, dishonesty and assault offences. Judging by the dispositions imposed in these cases in the Magistrates’ Court I infer they were of a low level. Until you were remanded in custody for these offences that I sentence you for, you have never before been jailed.
7 When you were sentenced on 30 July 2008 in the Magistrates’ Court at Melbourne you were then a registrable offender under the provisions of the Sex Offenders Registration Act 2004. It was the making of that order that lays the foundation for the offence that is Charge 3 on the indictment. At that time there was also an order made under section 464ZF of the Crimes Act 1958 requiring that you provide a forensic sample.
8 I take into account the fact you have pleaded guilty to the charges and the time at which you did so. You were arrested and charged on 14 August 2012 and the charges resolved into a plea of guilty at committal case conference on 15 February 2013. I treat you as having indicated you would plead guilty at the earliest possible opportunity. I also treat your early indication to plead guilty as evidencing genuine remorse. For your pleas of guilty you are entitled to a reduction in sentence and to receive a sentence lesser than what you could expect had you pleaded not guilty. Your pleas have saved the community the time and costs of a trial and have saved the victim the embarrassment of having to give evidence and of having to re-live these events.
9 The circumstances of your offending are contained in a prosecution summary which I admitted into evidence as exhibit A. It was read in open court by the learned prosecutor Ms DiPietrantonio and accepted by your counsel Mr Payne as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you. It is not necessary that I repeat here what is there set out except in summary form.
10 Your offending in Charge 1 occurred between 18 June 2012 and 14 August 2012 when you communicated with a male person aged 15 via the social networking site Facebook. During a series of salacious communications you made reference to various sexual acts and requested meetings with the victim. From the context of the communications it is clear you were grooming the victim for the purposes of sexual contact. You also contacted the victim on his mobile phone asking him to visit you and stay with you. You offered alcohol and to pay for his train ticket. You sent the victim four (4) pictures of your face and others of your erect penis.
11 The circumstances of Charge 1 in my view constitute a serious example of this kind of offending. From the conversation summarised in the prosecution opening there can be little doubt you were using the internet for the clear purpose of grooming your victim for sexual purposes.
12 Charge 2 arises from the fact your are a registered sex offender for life by virtue of your convictions for indecent act in 2008. Under the provisions of the Sex Offenders Registration Act 2004 you are required to annually undergo an interview and to inform police of any change in your personal circumstances from the time you were first registered. When interviewed you were asked if you used any electronic methods of communication such as the internet, chat rooms or emails and you answered that you did not. That was false. Between 18 June 2012 and 14 August 2012 being a registered sex offender you did not advise Victoria Police of your use of the internet, your use of an email account and a Facebook account.
13 Again this is a serious example of this kind of offending. The fact you were a registered sex offender should have clearly conveyed to you that you had to alert police to your methods of communication. That you did not shows clearly an intention on your part to avert any surveillance by police of your activities on the internet.
14 Charge 3 arises from the police investigation. When police searched your property they located a computer which contained 4 category 1 images that were child pornography. The number of images and the category of images found in your possession in my view make this offence one that is at the lower end for this kind of offending.
15 In my judgment there is a degree of overlap in the offending here such that there ought be no cumulation of the sentences. I have taken the view that Charge 1 represents the most serious of the charges and it forms the base sentence and sentences imposed by me on the State charges will be served concurrently with the federal offence.
16 Your plea was helpfully outlined in writing by your counsel, Mr Payne. He conceded on your behalf that the charges are very serious and that your offending most likely had a detrimental impact upon the victim even though there was no victim impact statement relied upon by the prosecution.
17 Mr Payne also conceded that offending of the kind in Charges 1 and 3 is prevalent and that the Court’s sentence must properly apply the principle of general deterrence.
18 Mr Payne submitted that the offending in charge 1 represented a ‘de-escalation’ in your offending with regard to your prior convictions. Whilst I understand the basis upon which such a submission is made I do not accept it. Having read your internet communications with your victim you clearly wanted to meet up with him for sexual purposes. The use of the communication via the internet was but a means by which you clearly intended to re-offend as you had in the past.
19 Mr Payne submitted that by your cooperation with the police and your indication of intention to plead guilty at the earliest opportunity there was clear evidence of genuine remorse on your part. I accept that submission. I think you clearly regret what you did.
20 You have had a difficult life. You are now aged 38 years and you live with your mother. You have never known a father and were raised entirely by your mother. You have a twin sister and a younger brother and sister. Your family were in court on the plea to support you.
21 You have grown up in a domestic situation characterised by domestic violence perpetrated by male friends and partners of your mother. When aged 8 or 9 you have reported that you were sexually abused by a male neighbour in a position of trust. You kept this to yourself until you disclosed it to a psychologist Elizabeth Warren for the purposes of a forensic report for court purposes when you faced this court in 1996.
22 Your education was poor. You did not complete Grade 6 but later went to a High School where you struggled and left in Year 9. You had difficulties with numeracy and required a speech pathologist. You have never undertaken any further education of training.
23 You have never married and have no children. In recent years you have had two very short relationships with different women. You have had only brief periods of employment in unskilled work and have been on a disability support pension because of depression, anxiety and stress since 1998.
24 You have no physical health problems. Whilst in prison you have been working in the prison metals shop making brackets. You are presently prescribed Effexor 75mg daily for anxiety and depression.
25 In the past you have used illicit substances namely amphetamines and heroin but have apparently not used such drugs in recent years. I was told and accept you do have a problem with excessive drinking of alcohol, drinking two slabs of beer per fortnight at your home drinking mostly alone and in your bedroom.
26 You were arrested on 14 August 2012 and granted bail on 17 August 2012. It was a condition of your bail that you participate in the Courts Integrated Services Program (CISP). As part of that program you were assessed by Dr Sheryl Monteath on 19 September 2012. I admitted her report into evidence as Exhibit 2 on the plea. You only complied with a condition of bail in taking part in the CISP program sporadically and your bail was revoked on 11 December 2012 and you have remained in custody since that time, a period of 196 days including this day.
27 I was told and accept that you like jail. In fact your counsel told me that you loved it. Whilst in custody for the first time in your life you have made friends and you have people to talk to and you have a job in the metals shop. This may be contrasted with your previous life at home outside prison which I accept was that of a lonely and isolated existence without friends or a job. It was in that background that you committed these offences.
28 Dr Monteath, a clinical neuropsychologist, undertook a formal assessment of your neurological functioning. She could not find any evidence of an intellectual deficit or disability but assessed you as functioning in the low average range for your age and there were no signs of an acquired brain injury. Dr Monteath noted cognitive difficulties in the areas of working memory, speech information processing, inhibition and numeracy and suggested that factors contributing to these difficulties include developmental learning disability, long lasting effects of trauma on a maturing brain, substance abuse and distress.
29 I accept you have had a somewhat sad and lonely life and your neurological functioning is in the low average range. I accept the findings of Dr Monteath and I have taken all of this evidence into account in arriving at what is a relatively short sentence in the circumstances. In passing sentence I have had full regard to all relevant factors contained within section 16A(2) of the Crimes Act 1914 Cwlth.
30 In this matter it is not in contention that the only proper form of disposition is the imposition of a term of imprisonment. Unfortunately offending of this kind is becoming more and more prevalent. For this reason the sentence imposed must reflect proper application of the principle of general deterrence. The sentence must also reflect proper denunciation of your offending. You have prior convictions and I cannot say you can be rehabilitated. The sentence has to reflect specific deterrence. In other words, the sentence imposed must deter you and others from offending in this way. Despite your prior convictions this is the first time you have been to prison. I hope the sentence will deter you from re-offending but I am somewhat concerned that you actually like being in prison. If you re-offend you might find that a court will not be as lenient on the next occasion. Ms DiPietrantonio on instructions submitted that an appropriate sentencing range here was for a head sentence of one and a half to two and a half years imprisonment with a non parole period of 1 to 2 years. Mr Payne did not cavil with that sentencing range save that he submitted you should now be released on time served of 196 days. I do not accept that as a proper disposition but I have provided that you be released on a recognizance order to be of good behaviour after you have served 18 months imprisonment which is about another 11 to 12 months.
31 On Charge 1, a Federal offence of using a carriage service to groom a child under the age of 16 to engage in or submit to sexual activity you are convicted and sentenced to a term of imprisonment of two years.
32 On Charge 2 failing to comply with reporting obligations under the Sex Offenders Registration Act 2004 you are convicted and sentenced to a term of imprisonment of six (6) months.
33 On Charge 3 possession of child pornography you are convicted and sentenced to a term of imprisonment of six (6) months.
34 Pursuant to section 19(3) of the Crimes Act 1914 (C’wlth) I direct that the sentence I have imposed on Charge 1, a Federal offence, commence this day making a total effective sentence of 2 years.
35 Pursuant to section 19AC(1)(b) of the Crimes Act 1914 (C’wlth) on Charge 1 being a Federal offence I order and direct that you be released on a recognizance release order after you have served a period of 18 months of the sentence of imprisonment I have imposed for the Federal offence.
36 For the purposes of subsection 18(4) Sentencing Act 1991 I declare that there has been 196 days pre sentence detention and that 196 days be reckoned as having been already served of the sentences imposed this day and be entered into the records of the Court and deducted administratively.
37 For the purposes of section 6AAA of the Sentencing Act 1991 I state I have imposed a sentence being a term of imprisonment in respect of the charges and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges and with it the expressions of remorse for your conduct I would have imposed an effective term of imprisonment of three and a half years and I would have directed that you serve two years and four months of that sentence before being eligible for release on parole.
38 PRISONER: Thank you, Your Honour.
39 HIS HONOUR: Are there any other matters?
40 COUNSEL: No, Your Honour.
41 HIS HONOUR: Or any matters arising out of that, Mr Payne?
42 COUNSEL: No, Your Honour.
43 HIS HONOUR: Thank you, Mr Jones. Could you take Mr Jones into custody, please? Thanks very much, Mr Payne, feel free to leave. Thanks for your help. Thank you.
44 COUNSEL: Thank you.
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