Director of Public Prosecutions v Keating
[2014] VCC 419
•20 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCR -13-02281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ZACHARY KEATING |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 20 March 2014 |
| DATE OF SENTENCE: | 20 March 2014 |
| CASE MAY BE CITED AS: | DPP v Keating |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 419 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Use carriage service to transmit indecent communications to a person under 16 years of age – Facebook – indecent conversations of a sexual nature – strong character references – accused not a predator – background of using internet to establish relationships – shy – difficulties in social relationships – no priors – health issues – young person – serious offence – accused knew child was under 16 – rehabilitation
Legislation Cited: Crimes Act 1914
Cases Cited: Mills [1998] 4 VR 235 – DPP v Tokava [2006] VSCA 156
Sentence: Discharged without conviction upon giving security by recognisance of $1,000 and a good behaviour bond of 3 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr. M. Challen | |
| For the Accused | Ms. C. Woodward |
HIS HONOUR:
1In this matter, Zachary Keating has pleaded guilty to an offence pursuant to s.47427A(1), that is the offence of using a carriage service to transmit indecent communications to a person under 16 years of age contrary to such section. The maximum penalty for that crime is seven years.
2A full comprehension of the reasons why Parliament passed such a law comes from a comprehension of the history of sexual abuse of young children. The Court is cognisant over many, many years of legislation passed by Parliament, both Federal and State, to protect children. Children under 16 are seen, whether they consent or not, to be in need of protection. This is a modern phenomenon which has become particularly important because of the saturated use of the internet and indeed, as I said, the fact that Facebook seems to be the way that people communicate these days, in particular the young. I do not however, disregard the very strong views expressed in Parliament as provided to me by Mr Challen and they are particularly appropriate. I note, however, that in the second reading speech reported in Hansard on 4 August, Mr Slipper, the Parliamentary Secretary to the Minister for Finance said:-
"These new offences target adult offenders who exploit the anonymity of telecommunications services (for example, a `chat room' on the Internet) to win the trust of a child as a first step towards the future sexual abuse of that child. This abhorrent practice is known as `online grooming'.”
3It spoke of the Australian Federal Police’s (AFP) proactive policy in those matters, to create new offences, to allow law enforcement to intervene before the child is actually abused, and of course, that is the justification for the AFP’s proactive actions.
4It was, of course, never thought appropriate, I think, to pass legislation simply to interfere with what we might call otherwise indecent conversations between persons of a sexual nature. However, where that occurs with a young child, then that is clearly an offence.
5In this case, Mr Keating has pleaded guilty to such an offence and the details are set out in the prosecution summary, Exhibit A. However, having considered all of the material, in particular the material tendered to the Court today, the strong character references and the report of Mr Simmons, psychologist, such only confirms that you would not classify Mr Keating as a predator. It is quite clear that, though Mr Keating is now aged 21, he was 20 at this time, his actual age is, by way of maturity, considerably less than that, according to Mr Simmons.
6There is no doubt, by way of his history, that there is a, as expressed in Mr Simmons’s report, a background of him using the internet to establish relationships. It is said that he is shy in regard to meeting women and has met women before by such means. He also apparently enjoys, as is said, talking sexy to people on the internet, and, of course, there's nothing wrong in that. As I said, one of our greatest proponents of cricket seems to regularly do that and has a huge audience on his Facebook page who seem to enjoy what he does.
7However, the purpose of this legislation is to protect people who are in the position of this victim. As to the victim, there is a clear difference between what she said on these recorded conversations and her views in the VARE tape. Although in the end, there is consistency in the sense that this communication that has lasted approximately a month, ended when she refused to send photos of her breasts and vagina as were requested by the accused. However, when you read the conversation, she was certainly compliant in the sense that she was part of "the dirty talk." She says however, in her VARE tape, that whatever she said in such conversation, she would never have participated as she indicated she would, and it seems to me there is no reason why that should be disregarded, and why I should not accept that.
8In the circumstances, in the sense that this came to light because her own privacy was invaded by her sister, and her frank comments about her being part of the conversation, such may explain why there is no victim impact statement tendered.
9The Court then has before it a person of the age of 21, who was 20 at the time of the offence. He is clearly immature, clearly has difficulties in social relationships. He has no priors whatsoever, and comes to the Court with excellent character references.
10Mr Keating has had, for some time, particular health issues, however his mother has supported him, and still supports him, and he has got the strong support of his family. It is the submission of counsel on his behalf in those circumstances, that a conviction should not be recorded.
11It is always a difficult balance trying to sentence young persons who have committed serious offences. It is an exquisite issue for the Court, and has been for many years, as perhaps best expressed in Mills. After Mills, there have been many, many cases where this conflict between an objectively serious criminal offence committed by a young person with no prior offences and no indication that he would commit crime again, against the requirement for denunciation and punishment.
12There can be no doubt that this legislation, as demonstrated in Hansard, was passed to protect young children, to ensure that they are not preyed upon. There is also no doubt that whatever his psychological make-up, Mr Keating knew this child was under the age of 16.
13A most recent analysis of this predicament for a court, was undertaken by the President of the Court of Appeal, in DPP v Tokava [2006] VSCA 156. The President was at pains to indicate that the community benefits most by action taken to rehabilitate a person, and that even when dealing with a serious offence such as this, a Court should be very mindful when dealing with a young man with no priors, in ensuring that rehabilitation is at the forefront. It seems to me that I could have no better case than this, in which to exercise such discretion.
14I do not want to let these sentencing remarks pass without my formally placing on the record, my concern about these types of prosecutions. As I expressed to the prosecutor earlier, and have expressed on the one occasion before that when I had to sentence in a matter such as this. When legislation such as this is introduced which interferes with the saturated use of persons' conversation and makes punishable matters that were previously not punishable, it seems to me that there is an obligation upon the authorities, in particular in this instance, the Attorney-General's Department, and through it, the Parliament, to ensure through appropriate publicity, that the community knows what the legislation is.
15Further, the community should be made aware that a breach of this serious legislation, in this case, can result in a maximum sentence of imprisonment being imposed of seven years. That is indicative of the seriousness of which the Parliament deems these offences. In that respect, it seems to me, implicit upon the Parliament to do its best to advise the community of what its laws are. There is no hesitation in spending funds by a Government, to tell the community what great things they are doing for the community. It seems to me equally important for Parliament to spend some funds informing the community what the laws are.
16Looking at the totality of these circumstances, I find it totally appropriate that the Court take action pursuant to s.19B of the Crimes Act 1914 and I do so upon the principles I have referred to Tokava. In doing so, I note the specific submission from the prosecution that while a good behaviour bond, would be an appropriate sentence, that such should be effected by way of s.20 conditional release of the offender, after conviction, as against the discharge of the offender under s.19B.
17Having considered the particular provisions set out in s.19B(1)(a) and (b), in particular, (b)(i), (ii) and (iii) I find, in this case, it to be inexpedient to inflict any punishment, other than a nominal punishment. However, given the options provided in sub-sections (d)(i), I will discharge the offender without conviction on the basis that he enter into a recognisance to be of good behaviour for a period of three years.
18Will your client be prepared to do that.
19MS WOODWARD: Yes, indeed, Your Honour.
20HIS HONOUR: Do you need to talk to him about that.
21MS WOODWARD: I will just formally, it might be permitted to.
22HIS HONOUR: You might tell him he would not want to commit any offences in that time, and come back to me. I will not be so generous the next time.
23MR CHALLEN: Your Honour, whilst my learned friend speaks with her client, with respect to the recognisance, you will need to set an amount of money.
24HIS HONOUR: Yes, do I have to just set a surety. He doesn't have to pay it.
25MR CHALLEN: No, he only pays it upon breach.
26HIS HONOUR: Breach, yes, and $1000 is the normal something isn't it.
27MR CHALLEN: That is the normal figure and I do not quibble with that amount being imposed in this case. The only other issue that I seek to raise is that Your Honour will need to explain those issues about the consequence of breach and the fact that the offender is entitled to have the order varied, or discharged if required.
28HIS HONOUR: What - at the end of it.
29MR CHALLEN: No, if he wishes to vary the order, he may apply to do. He may also apply to have ‑ ‑ ‑
30HIS HONOUR: How would apply to vary the order. I wouldn't be inclined to have him vary the order.
31MR CHALLEN: He would have to bring an application before Your Honour to do so, but he's entitled to a - according to the legislation, he's entitled to do so.
32HIS HONOUR: I wasn't aware of that.
33MR CHALLEN: Given what Your Honour had indicated, I doubt that he would be.
34HIS HONOUR: No, I wouldn't think so, but I will tell him he's got a right to vary it. Thank you, Mr Prosecutor.
35MS WOODWARD: Your Honour, thank you for that opportunity.
36HIS HONOUR: All right we'll see. So have you got a form. No, well perhaps you, with the cooperation of the prosecutor, can we adopt your form.
37MR CHALLEN: We can adopt it, but it would ‑ ‑ ‑
38HIS HONOUR: Sorry - adapt it. Adopted and adapted.
39MR CHALLEN: Yes, I imagine we can, Your Honour.
40HIS HONOUR: My associate is quite skilled in these matters.
41I'll stand down while we get that done. Yes.
42(Short adjournment.)
43HIS HONOUR: I understand the form is now acceptable to you, Mr Prosecutor.
44MR CHALLEN: Your Honour, your associate and I have produced a form that is in the appropriate format.
45HIS HONOUR: Excellent.
46MR CHALLEN: All errors have been removed, and I understand that my learned friend has taken her client through the form.
47HIS HONOUR: Good. So I don't - he doesn't have to actually sign it, just my signature.
48MS WOODWARD: He's signed the acknowledgement.
49HIS HONOUR: He's signed, or hasn't signed.
50MS WOODWARD: No he hasn't.
51MR CHALLEN: He hasn't yet.
52HIS HONOUR: All right, well I think it better go now.
53MR CHALLEN: Just one issue, Your Honour, we were talking about the ability of the offender to discharge.
54HIS HONOUR: Yes.
55MR CHALLEN: That arises from s.20 (AA) set out on the ‑ ‑ ‑
56HIS HONOUR: Always have to be kept in tap with the Federal legislation. Section 20(AA) is it.
57MR CHALLEN: Double A, yes.
58HIS HONOUR: How to discharge or vary conditions. Probably always been there, but I've never heard about it.
59MR CHALLEN: The reason that I came across it, is because the statutory form that the associate and I were working with to produce the one that you are going to sign in a moment.
60HIS HONOUR: Sets it out.
61MR CHALLEN: Sets it out.
62HIS HONOUR: Thank you Mr Prosecutor.
63MR CHALLEN: Because I couldn't remember off the top of my head which one it was. I was aware of the power. I'm also aware of the obligation Your Honour has to explain that to the offender.
64HIS HONOUR: Yes. I thank you for that very much.
65Mr Keating, it has been explained to you what I am about to do is a chance you only get once in your life, all right.
66MR KEATING: Yep.
67HIS HONOUR: You can - you are able to say, although you have been found guilty, there is no conviction recorded against you. Okay.
68MR KEATING: Yep, thank you.
69HIS HONOUR: And that means that for the next three years, you have got to behave yourself, and that should not be too hard, because for the last three years, you have behaved yourself, okay.
70MR KEATING: Yep.
71HIS HONOUR: And that means, especially, when you're on the Internet, make sure you don't you don't talk to anyone under the age of 16, because you now know it's a crime.
72MR KEATING: Yes. Fair enough.
73HIS HONOUR: Or talk in the way you did. It's important to tell you that if you do breach this order, you can come back and be dealt with, and in those circumstances, there probably would not be any option as to what you would end up with. All right.
74MR KEATING: Yep.
75HIS HONOUR: The other matter I have got to tell you is this: that there are powers available for you to discharge or vary this order, but I wouldn't have thought, in the circumstances, that you would want to. I have set a recognisance of $1000. That does not mean that you have pay that, but what it means is if you did muck up in the next three years, you would lose that $1000. Do you understand. You do not have to pay it now or make a surety or anything like that. It is just a recognisance that is set. Okay.
76MR KEATING: Yep.
77HIS HONOUR: I think that's it, Mr Prosecutor, isn't it.
78MR CHALLEN: It is, Your Honour, thank you.
79HIS HONOUR: Righto. Well, what I will do firstly, I'll hand down this recognisance for your client to sign and Ms Woodward, I then ask you once that's signed, to assure the court that your client, as far as you're concerned, fully understands the terms of that recognisance.
80MS WOODWARD: Your Honour. Might I leave the Bar table Your Honour.
81HIS HONOUR: Yes, certainly.
82MS WOODWARD: Thank Your Honour. Mr Keating has signed the undertaking accordingly.
83HIS HONOUR: Now, Mr Keating, I want you to ensure you don't let me, or your family down, because you hear that it's the view of the prosecution that you should be convicted, all right.
84MR KEATING: Yes.
85HIS HONOUR: Now, you've been given a special opportunity in this case to be able to say for the rest of your life, that you don't have a conviction against your name, and that's important, and you probably don't appreciate how important it is now, but when you're looking for employment, those things are very important. You make sure you don't mess up.
86MR KEATING: Yes.
87HIS HONOUR: All right. I thank both counsel for their assistance, and I will excuse you, Ms Woodward.
88MS WOODWARD: Thank Your Honour.
89HIS HONOUR: I give you the Exhibits, Madam Associate, if you haven't got them already. Thank you for your written submission and outline. It was very helpful.
90MS WOODWARD: Thank Your Honour. May Mr Keating leave the dock.
91HIS HONOUR: Yes, certainly.
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