Director of Public Prosecutions v Kelly, Phillip John
[2012] VCC 2054
•17 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-12-00792
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP JOHN KELLY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 2 November 2012, 17 December 2012 | |
DATE OF SENTENCE: | 17 December 2012 | |
CASE MAY BE CITED AS: | DPP v Kelly, Phillip John | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2054 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Use of a carriage service to groom a person under the age of 16 years for sexual activity – Knowingly possess child pornography – Community Corrections Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Tatas | Commonwealth DPP |
| For the Accused | Mr N. Papas SC | Nelson Partners Lawyers |
HER HONOUR:
1 Phillip John Kelly, you have pleaded guilty before me to two charges on the indictment; Charge 1 is the Federal offence and concerns the use of a carriage service to groom a person under the age of 16 years for sexual activity; and Charge 2 is the State offence of knowingly possess child pornography.
2 The charges are serious and that is evidenced by the maximum penalties that are prescribed by Parliament and that is 12 years' imprisonment for the Federal offence and 5 years' imprisonment for the State offence.
3 I shall now proceed to sentence you on the basis of the Crown opining. I note that is an exhibit and it has been marked Exhibit 1 at the plea hearing.
4 Briefly, the context of the offending was that you began to have internet contact with a teenager, whom I shall call by the acronym "SP". SP was born in 1997 and lives in British Columbia, Canada. She was 13 when you first contacted her. You were aged 47. The relationship continued for two years.
5 You befriended each other on Facebook in early May 2010 and began communicating with each other via Facebook messages and chat, Twitter, telephone conversations and Skype.
6 You were both aware of each other's respective ages. You began communicating on a regular basis and your relationship developed into a more intimate boyfriend/girlfriend type relationship. At first it was conversations about casual things and over time it escalated into conversations with sexual connotations.
7 On 9 February 2012, the Australian Federal Police executed a search warrant at your unit in Grovedale near Geelong. They seized an HP laptop computer and a Lexar SD memory card that was found to contain naked pictures of SP.
8 You were formally interviewed and during that interview you made full and frank admissions about your relationship with SP and confirmed all aspects of the relationship, including the fact that she had sent naked photographs of herself to you showing her vagina after she masturbated. You also told police you downloaded and possessed probably about 30 child pornography pictures and 8 or 9 child pornography videos on your laptop computer.
9 Later, forensic analysis of the computer revealed: 27 child pornography images; 15 erotic posing with no sexual activity; one depicting sexual activity between children; a solo masturbation; 5 depicting non-penetrative sexual activity between adults and children; and 6 depicting penetrative sexual activity between adults and children.
10 Your computer also contained 13 child pornography videos, 9 of which were classified as depicting penetrative sexual activity between adults and children and 4 depicting sadism, cruelty or bestiality with children.
11 Analysis of Lexar SD memory card revealed four images classified as child pornography, that is, depicting erotic posing with no sexual activity.
12 I have physically reviewed all the material that was provided to the court on a laptop.
13 The offending, the subject of Charge 1, is alleged between 15 April 2010 and 27 January 2012. In relation to Charge 2, child pornography, that was located on your equipment on 9 February 2012, the Crown concedes that it does not say it was in your possession for a lengthy period of time and I believe a period of two weeks is the estimated time.
14 When you were charged you were aged 49.
15 You are a person who comes before the court with no prior criminal convictions.
16 Mr Papas, on your behalf, tendered reports from Mr TR Charlton, a treating psychologist, Mr Ian Joblin, forensic psychologist, and Dr Danny Sullivan, consultant psychiatrist. Those reports are all exhibited.
17 Mr Papas correctly and readily conceded that these were serious offences and that generally speaking an immediate custodial sentence would be warranted with respect to the grooming charge, Charge 1, to emphasise the need for general and specific deterrence.
18 He submitted however, having regard to the particular circumstances of your case, the court ought consider the imposition of a non-custodial disposition. He pointed out that whilst this is a serious example of this sort of offending, there were no attempts on your part to disguise your identity or your whereabouts for the entire duration of the two year online relationship.
19 He submitted that yours was a genuine friendship and not one that was developed solely to enable you to exploit your relationship for the purposes of sexual gratification. He relied on the assessments and expressed opinions of Mr Charlton, Dr Sullivan and Mr Joplin.
20 Having read all the exchanges set out in the depositional material, I accept the submission that your relationship with SB was more of a friendship initially and that it was not developed solely for the purposes of your own sexual gratification. Over time it developed into a more intimate and inappropriate relationship
21 Overall, I consider the context to your offending was driven by your social isolation and loneliness rather than by sexual deviance. I shall refer to that aspect further when I am discussing the material that I received from the various experts
22
23 Mr Papas emphasised the mitigating features, namely the plea of guilty entered at the earliest stage at committal mention on 17 May 2012. He emphasised, when arrested, you were fully cooperative with the authorities and made full admissions in the record of interview. You told police that you sent images of yourself to the complainant, you provided them with your password and assisted them in everyway in which they requested information.
24 I accept by your plea of guilty you have now acknowledged that your conduct was wrong and that you are now very remorseful for your actions. By your plea you spared the State the expense and inconvenience of a trial and you have relieved the witnesses the burden of having to come to court to give evidence on your trial and you have thereby facilitated justice.
25 In such a circumstance, it is an important policy consideration in the administration of justice, that not only that you should receive appropriate credit for your plea of guilty but you must appear to receive credit for such plea. Therefore, you will receive a sentencing discount to reflect the benefit of your guilty pleas.
26 In relation to your personal circumstances: you are a single man who is unemployed currently on New Start benefits. You live alone in rental accommodation provided by your elderly stepfather, Mr Suitors. He remains supportive of you and has been present at each plea hearing.
27 I note your childhood was marked by the death of your father when you were very young, aged only seven months. You were an only child. Your mother died in 2004 and her death has had a dramatic effect on you.
28 You were diagnosed with Glaucoma as a toddler and have vision impairment. Your condition is currently stable, although intermittently painful. I note you also have a medical history of abnormal liver function tests and occasional gastric reflux and possibly arthritic changes to the fingers but no other significant health problems. Currently you are taking Zoloft, an antidepressant, for your depression.
29 You completed Year 11 and have undertaken vocational courses post-secondary school. You have an excellent work history. You have studied Materials Handling at the Gordon Institute of TAFE and you have also done some courses in hospitality.
30 You have worked in the stores at CSIRO for a short period, following that you worked in a carpet factory and then as a porter at the Gordon TAFE. You also worked at an extrusion plant for 12 months and in a factory that manufactured blinds for seven years as a press operator. You were made redundant from that last employment in 2006 and unfortunately you have not been able to secure employment since that time.
31 Your present accommodation has been provided by your stepfather, Mr Suitors. In the plea hearing it was submitted that you had some significant issues with hoarding and that you are an isolated and socially withdrawn person.
32 Whilst you do not have any prior criminal convictions, you do have a history of offending behaviours relating to driving under the influence of alcohol and I have had regard to the extract from VicRoads that shows you have some drink driving-related offences over the years.
33 You have a history of being treated for mental health issues and Mr Charlton, your treating psychologist, detailed his attendances on you. You commenced seeing him in June 2007 at which time you were referred under a mental health care plan prepared by your general practitioner, Dr Telligan. He diagnosed you with depression and generalised anxiety disorder, as well as suicidal ideation.
34 In 2007 you had been made redundant and were having difficulties finding other work. You were noted to be socially withdrawn and drinking heavily. He found you to have low self esteem and extreme levels of depression, anxiety and stress. He continued to monitor your progress over that year.
35 In June 2008, you represented to him, and you were continuing to express difficulties coping with looking for work. You were referred back to your general practitioner after a couple of sessions and you were asked to begin a course of antidepressant medication.
36 You then presented in May 2010, following the break-up of a relationship that had lasted some 18 months and again you were treated for severe depression and anxiety and placed on antidepressant medication.
37 On 11 January 2012, Mr Charlton saw you again for treatment for your condition of depression and anxiety and he placed you on antidepressants which you have now persevered with and he says that has improved your mood and you have also stopped drinking which he says will lower your depression.
38 You told him about the Internet relationship that you had had with the young girl from Canada and the fact that you had been charged with various criminal offences, including child pornography.
39 It is important that he noted that you do not have children and have no previous contact with young teenage girls and that you have no perception of their maturity or immaturity levels at all. Due to your isolation and depression, you accepted everything that the complainant told you on face value rather than as the fantasies of a young teenager experimenting with adult concepts.
40 Mr Charlton concluded that you suffered major depression and social anxiety that has fluctuated from time to time but you have never been totally free from those conditions. Consequently, you have become more and more socially isolated and consumed alcohol to excess and that exacerbates your depression and anxiety.
41 Currently you have stopped drinking, you are presently on antidepressant medication, which is starting to work well, and you continue to see him fortnightly for cognitive behaviour therapy. To date, he has not been successful in connecting you with social support groups because he says you feared the social stigma involved with criminal charges.
42 Importantly, he does not consider you to be a person who displays any signs of paedophilia or in anyway sexually interested in minors or adolescents. He attributes this relationship to your major depression, extreme anxiety and social isolation and complete lack of knowledge of a maturing personality of a young teenage girl and your own immaturity and somewhat socially inadequate personality.
43 He states that you would have difficulty with prison and the close contact that you would have to endure and he recommends treatment in the community.
44 Those sentiments are reflected in the report from Dr Glowinski, psychiatrist, who saw you at the request of the court for the purposes of a report. His report of 20 November 2012 is now an exhibit. He notes that his diagnosis is that you have a personality disorder with probably avoidant narcissistic and dependent elements and that you are likely to suffer major depressive disorder of moderate severity.
He considers that you would be at risk in a prison environment because of your depressive disorder and the likelihood of victimisation given your personality difficulties and the nature of your offending.
45 Mr Joblin, the consultant psychologist, agrees that you have a somewhat inadequate and immature personality. He notes also your history of alcohol abuse and your past history in terms of your personal circumstances, employment and history of relationships.
46 He notes that you fortunately have the support of your stepfather, Mr Suitors. He considers that you have an inadequate personality that expresses itself in lack of self esteem and lack of self confidence and those factors, in his opinion, present to a serious degree and are responsible for your lack of stability and impact seriously on your lifestyle and the continued use of alcohol and drugs and are germane to the offending.
47 He says there is no doubt you formed what you considered to be a very close emotional relationship with the complainant and that you were providing her with some assistance, and to a degree that was reciprocated. He attributes your relationship to your psychosocial difficulties rather than any underlying psychosexual disorder. There is a general consensus amongst the experts concerning the attribution of your relationship not to any underlying psychosexual disorder but rather your personality traits.
48 He recommended continuation of your therapeutic relationship with
Mr Charlton and for you to continue to take antidepressants. He also recommends you complete the Sex Offender's Treatment Program. He too underscores the difficulties you would experience in custody because of your inadequate personality.
49 Dr Danny Sullivan, a consultant psychiatrist, also confirmed your clear history of personality difficulties and your significant social withdrawal. He says you satisfy a diagnosis of avoidance personality disorder. He says that you also satisfy a diagnosis of major depressive disorder, moderate in severity and chronic.
50 The diagnosis of paedophilia, in his opinion, is clearly not made out. He considers that it is likely poor relationship skills and social isolation have been associated with your increasing acceptance of the concept of minors who are sexually available.
51 He considers that these offences occurred in the context of your isolation and lack of structural meaningful activity. He considers your personality and mood disorders have impaired your capacity to think clearly or make rational choices and that your judgment was impaired and that there is a causal relationship between your isolation and the retreat to idolised fantasy world of internet relationships.
52 He agrees gaol would make your depression and avoidance worsen and that you would be very vulnerable to assaults from other prisoners given your obvious poor eyesight and fact that you are likely to isolate yourself.
53 He notes that you have been intermittently suicidal and in early 2012 you did attempt to take your own life. He recommends that you participate in the Sex Offender's Treatment Program to address the issues raised in your case. The purpose of such treatment would be to enable you to develop a deeper understanding of the emotional and interpersonal problems which predisposed you to this offending as well as to develop a life plan to address personality and mood vulnerabilities.
54 He notes that you are well engaged with your psychologist, compliant with medication and have taken measures to reduce the risk of inappropriate contact over the internet. I note Mr Papas told the court that you no longer have a computer in your possession or any access to such.
55 Dr Sullivan appreciates that your personality structure may render mood disorder less responsive to treatment but considers that with sustained antidepressant medication, the psychological input, assistance to reverse your isolation and avoidance and cessation of substance abuse with all those factors you have a reasonable prognosis of returning to work and meaningful engagement in the community.
56 I have had regard to the sentencing principles applicable to your offending and the factors set out in 16A(2) of the Crimes Act (Commonwealth) and s.5 of the Sentencing Act (Vic) 1991.
57 Overall, I accept that the principles of Verdins are enlivened in this case having regard to the uncontested expert opinion evidence. I consider that your personality and mood disorders and major depressive illness have impaired your capacity to think clearly or make rational choices and that your judgment was so impaired at the time of the offending.
58 I find that there is a causal relationship between your conditions and the fact that you are a very socially isolated man who has retreated into a fantasy world of internet relationships. I consider that your moral culpability was reduced. There is a need to moderate both general and specific deterrence in this case. Further, your physical and psychiatric conditions combine such that gaol would be very difficult and make it very onerous for you than a person of normal health and there is a real likelihood that your mental health conditions would become worse in a gaol setting.
59 I consider that there are special circumstances that prevail in your case that justified a departure from the general expectation that ordinarily a gaol term ought to be served in relation to the grooming charge.
60 I am further mindful that it is important for courts to consider whether a non-custodial disposition is to be preferred, even in the case of serious offending, if it is in the long term interests of the community. I consider that this is a case where it is imperative that you continue to maintain your therapeutic relationship with your treating psychologist, Mr Charlton, who has known you over many years and who has insight into your conditions and is cognisant of all the relevant features concerning your offending.
61 I have also had regard to your post-offence conduct. You have been compliant with your medication and with your cognitive behaviour treatment. You have expressed a willingness to continue your treatment and, in addition, to undertake the Sex Offender's Treatment Program for which you have been assessed as being suitable.
62 I consider that your prospects for rehabilitation are good and the likelihood of re-offending is low.
63 I consider that yours is a case where there is a vital community interest in maximising your prospects of rehabilitation and ensuring that you continue to behave and engage in a way that is appropriate and in accordance with the community's standards. That can be achieved by the proposed treatment regime continuing in the community.
64 You have been assessed as suitable for a community corrections order and that is set out in Mr Alois' report of 2 November 2012.
65 The defence, through Mr Papas, has submitted a non-custodial order is warranted. The Crown has submitted that a term of imprisonment is appropriate and that some of that term ought to be served. A head sentence of between 1 ½ - 2 ½ years was submitted as being appropriate with a
non-parole period of between 4-10 months.
66 The Crown prosecutor relied on a number of factors:
· She acknowledged the plea of guilty being entered at the earliest stage at committal mention and your cooperation with the police and the fact that you had no prior criminal history but she did emphasise that there were two separate charges and there was a need to cumulate between the two sentences;
· She emphasised the nature and severity of the offending and the significant age differential.
· She emphasised that it is the intention of Parliament, reflected in the maximum penalty prescribed for Charge 1, that generally a gaol term ought be imposed and that the legislation was introduced to address the specific problem of internet grooming; and
· She emphasised general deterrence was an important sentencing consideration but conceded the principles of Verdins had been enlivened in the circumstances of your case.
67 Here the victim was a real person, not a fictitious identity, and that is an aggravating feature.
68 Insofar as Charge 1 is concerned, she considered that high level offending involving contact over two years where the behaviour escalated and where there was an exchange of sexually explicit photos. Charge 2 she considered was at the lower level for this sort of offending.
69 In her submissions, the prosecutor considered that there was a need to moderate general deterrence. She submitted that the prospects for rehabilitation were difficult to determine and finally she referred the court to the case of The Queen v Belleth (unreported Judge Taft 27/03/09). That case involved an offender who was charged with the same charges that are before the court.
70 In his two records of interview, the prisoner made substantial, but not complete, admissions and finally, he created several fictitious identities of young women and used their profiles on social networking sites to foster and encourage the victim to send nude photographs of herself to the prisoner and that degree of manipulation is certainly not present here.
71 Also, the features of your situation are unique and are dictated, to a large extent, by reason of your pre-existing psychological and psychiatric conditions that I have referred to extensively. Therefore, R v Belleth has not been of really much assistance to me in my final decision in terms of the appropriate sentence.
72 I have had regard to the report that I have received from the Sex Offender's Treatment Program which states that you are assessed in the moderate/low risk category relative to other male sexual offenders and that there was minimal evidence to support sexual deviance as you did not appear to have a preferential sexual interest in children, rather your offending and any arousal to the victim is believed to be the result of your offending situation and overall, upon consideration of the presence of both meaningful risk factors as well as relevant protective factors, you appear to fall in the lower end of the moderate risk category of re-offending and therefore your recommended for moderate/low intensity intervention at the Sex Offender's Program and to participate in targeted case management in consultation with the Sex Offender's Program to address and manage your offending behaviours.
73 All of that lends weight to the views that are expressed by your treating psychologist and all the other experts who have interviewed you and assessed you and provided reports to the Court.
74 Overall, I consider that the sentencing objectives can be achieved through the imposition of a community corrections order with respect to both charges, with special conditions, and that will reflect appropriate punishment for the offences.
75 In sentencing you, I must have regard to your rehabilitation prospects, which are good, but I also must, on behalf of the community, formally denounce your behaviour and set up your circumstances to better your rehabilitation in the future.
76 I will now ask that you stand, Mr Kelly. I will be making the formal court orders now.
· On Charge 1, the grooming charge; you will be convicted and sentenced to a two year community corrections order and that is to commence from today's date, 17 December 2012 and the order will be with conditions of supervision, treatment and rehabilitation programs for alcohol and mental health and the Sex Offender's Program and the problem behaviour program, if deemed appropriate.
· On Charge 2, possession of child pornography; you will be convicted and sentenced to a six month community corrections order and that is also to commence from today's date, 17 December 2012, and that order will be with the conditions of supervision and treatment for alcohol and mental health.
77 Mr Kelly, you did have an interview. I know it was some time ago, with Mr Alois where he explained to you all the terms and conditions of a community corrections order. You did acknowledge, in writing, that you understood those. So are you wiling to consent to the making of those two orders?
78 PRISONER: Yes, Your Honour.
79 HER HONOUR: All right, and you understand the conditions?
80 PRISONER: Yes.
81 HER HONOUR: All right, and if you were to breach them you would be brought back before me and I would have to deal with you for the breaches. You have signed an acknowledgment here that I am reading from, which is dated 2 November 2012, which says you have had the conditions and requirements of the order explained to you and understand what your obligations would be if you were to receive such an order.
82 The consequence of failure to meeting those obligations have also been explained to you and it says “I understand what may happen if I do not do what the order requires.” That is formally acknowledged in writing and before me, thank you.
83 Now, the next order that I have to make is a declaration. As required by s.18(4) of the Sentencing Act and by s.16E of the Crimes Act (Cth), I declare no time spent in custody and I direct that that should be noted in the records of the court.
84 I now do a s.6AAA declaration: But for your plea of guilty I would have imposed a total effective sentence of two years and nine months' imprisonment and that you be released on a recognisance release order after serving 12 months' imprisonment.
85 Finally, the Sex Offenders Registration Act 2004: the two offences are Class 2 offences under that Act and that makes you a registrable offender on sentence. The reporting period applicable at law is 15 years and accordingly I order that you be registered for 15 years under the Sex Offenders Registration Act 2004.
86 I have to confirm, Mr Kelly, you are now subject to reporting obligations for the next 15 years and the court is required to notify you, in writing, of those reporting obligations and any consequences should you fail to comply. I will ask that my associate accompany Mr Papas to provide you with the written notice and could you please just acknowledge receipt of that by signing the acknowledgment.
87 The last order, the Sex Offenders Registration Act order, is quite onerous in terms of what you are required to do in terms of your reporting obligations and the consequence of any failure to comply is very serious and can result in further criminal charges being laid so it is really important that you go through those obligations with Mr Papas when I leave the court. All right, thank you.
88 All those orders have been signed and I will just ask my associate to approach you and get you to acknowledge all of that.
89 All right, so you may come out of the dock now and I will leave the Bench. I will just ask my associate to copy all those documents and provide them to you before you leave the court.
90 Thank you both for your assistance.
91 MR PAPAS: Thank you, Your Honour.
92 MS TAYLOR: Thank you, Your Honour.
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