Director of Public Prosecutions v King
[2022] VCC 765
•27 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02695
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARRYL KING |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2022 | |
DATE OF SENTENCE: | 27 May 2022 | |
CASE MAY BE CITED AS: | DPP v KING | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 765 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Use carriage service to access child abuse material – Use carriage service to solicit child abuse material – Possess or control child abuse material obtained or accessed using a carriage service – Guarded prospects of rehabilitation – Mental health – Drug abuse – COVID-19 pandemic
Legislation Cited: Crimes Act 1914 (Cth) ss 16A(2); 16BA; 16F(2); 17A; 19AC(1); 20(1B); 21(1)(b). Sentencing Act 1991 (Vic) s 6AAA. Sex Offender Registration Act 2004 (Vic) s 34(1)(c)(iii).
Cases Cited:DPP (Cth) v D’Alessandro [2010] VSCA 60; DPP (Cth) v Garside [2016] VSCA 74; R v Gent [2005] NSWCCA 370; Worboyes v R [2021] VSCA 169.
Sentence: Imprisonment for a period of 20 months imprisonment being released on a Recognisance Release order.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr E Diwell | Office of Public Prosecutions |
| For the Accused | Ms M Brown | Victoria Legal Aid |
HER HONOUR:
1Darryl King, you have pleaded guilty to an indictment containing the following charges: Charge 1, use carriage service to access child abuse material, Charge 2, use carriage service to solicit child abuse material, and Charge 3, possess or control child abuse material obtained or accessed using a carriage service. The maximum penalty for each charge is 15 years' imprisonment.
2In addition, there is one offence to be taken into account pursuant to s 16BA of the Crimes Act 1914. You admit the offence and ask the court to take it into account in passing sentence on you, in relation to Charge 2 on the Indictment, which I will do. The offence which is to be taken into account is item 1, use carriage service to transmit indecent communications to a person believed to be under 16 years of age.
Circumstances of the offending
3The full circumstances of your offending are set out in the summary of prosecution opening, marked as Exhibit A on the plea.
4In relation to Charge 1, between 9 December 2020 and 15 June 2021, you accessed child abuse material on the website Tumblr, via private blogs hosted on the website. During the offending period, you accessed this material on Tumblr and downloaded it to your telephone, which was located and seized by police during the search of your home. This was verified by forensic analysis of your phone, which discovered 374 files that had been accessed from Tumblr.
5In relation to Charge 2, a Snapchat conversation between you, using Snapchat username ‘kingd7510’ and Detective Senior Constable Flynn, using the covert profile of a 14 year old girl ‘Lucy’, revealed you soliciting child abuse material from Lucy. This offending occurred between 22 and 24 April 2021. Extracts of the conversation are reproduced in the prosecution opening and involve you inviting Lucy to, 'send [you] a photo of her in [her] panties and bra, front of [her] legs wide open for the money. Do this, [she] can have the credit card … [your] Mastercard Platinum limit is $200,000'.
6The conversations are sexually explicit and you made further requests for photos, in exchange for money, messaging at one point, 'love you and I really want to see and masturbate and come for you’. You were told by Lucy twice that she was 14 years of age and yet you persisted with your requests. During this same period, on seven unsolicited occasions, Lucy was sent either photos of your erect penis, or videos of you masturbating, which is the subject of Item 1.
7In relation to Charge 3, on 2 July 2021, the day of your arrest, you were found in possession of child abuse material on your mobile telephone by police, which was later verified during a full forensic analysis of the phone. Subsequently, police identified 374 unique images that were classified as Category 2, other child abuse material, on the Interpol Baseline. The guide provides that Category 2 material is:
Other child abuse material that is illegal within Australia, but does not fit within category 1. Media may include images of children, which are likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality, or humiliation. Images may depict a child as the person conducting the activity, or observing other persons.
8The material in your possession generally depicted children aged between 15 and 17 years of age, with some images depicting children at least as young as 12. A detailed description of some examples of the child abuse material images is provided in paragraph 20 of the prosecution opening.
9On 2 July 2021, police attended your residential address and executed the search warrant. As previously noted, they seized your mobile telephone, you were arrested and taken to Melbourne West Police Station for interview. You participated in a record of interview and made a number of admissions, including to ownership of a mobile phone and your use of Snapchat. You were also shown sexual photos that were sent to Lucy and you admitted that it was you, or probably you, in the photos.
Arrest and procedural history
10On 2 July 2021, you were arrested and remanded. You have therefore served a total of 328 days in presentence detention. You entered a plea of guilty at an early stage, approximately five months after first being charged and prior to the cross-examination of any witnesses.
Nature and gravity of the offending
11The maximum penalties, as already referred to, signify how seriously the community view these offences. This is serious offending as acknowledged by your Counsel, Ms Brown and it warrants condign punishment. Ordinarily, persons that plead guilty or are found guilty of these offences can expect a term of imprisonment to be imposed. In addition, for Commonwealth child sex offences committed after 23 June 2020, there is a presumption of an immediate custodial sentence, unless an offender can demonstrate the existence of exceptional circumstances. In your case, sensibly, it was not submitted that exceptional circumstances exist and accordingly, it was conceded that the only appropriate disposition was a custodial sentence. Both Counsel agree that a term of imprisonment was required and that a recognisance release order was the appropriate mechanism for such a sentence.
12General deterrence is the primary sentencing consideration for offending involving child abuse material and the online sexual exploitation of children, given the prevalence and ready availability of child abuse material on the internet and the need to protect children online from sexual abuse. Your crimes, Mr King, are not victimless crimes. Seeking out and possessing child abuse material fuels demand, which subsequently encourages supply. The victims not only have to endure the abuse that occurs in producing such material, but must live with the consequences of their images being swapped, traded and accessed potentially indefinitely.
13In relation to Charge 1, you accessed child abuse images between 9 December 2020 and 15 June 2021 from Tumblr. I accept that this is not an insignificant period of offending, as was put by Mr Diwell, but I note that the majority of the child abuse material, as submitted on your behalf, was accessed over around two days in December. Also, your offending did not involve the use of two-way anonymity software, encrypted communication applications, or the use of pseudonyms.
14On Charge 2, you engaged in a conversation with Lucy between 22 and 24 April 2021, in which you repeatedly asked for images of her, which would constitute child abuse material, after being told she was 14 years of age. I note here that it was fortunate that Lucy was, in fact, not a real child. In this regard, while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it. I also take into account when sentencing for this charge, your conduct in transmitting indecent communications to Lucy on seven occasions, which in the circumstances, I regard as serious.
15In relation to Charge 3, you possessed 374 unique images located on your mobile phone. While the defence did not dispute the nature or accuracy of the examples cited at paragraph 20 of the prosecution opening, it did dispute that they were a representative sample. A great deal of the child abuse material in your possession depicted solo sexual posing, a matter not disputed.
16In assessing the gravity of this offending, I have had regard to the factors outlined in the various cases, including DPP (Cth) v Garside[1], R v Gent[2] and DPP (Cth) v D'Alessandro[3] . I note that your offending was not for the purpose of sale, or further distribution and that you were not intending to profit from it. Whilst this does not mitigate the offending, the absence of certain aggravating features is relevant to my assessment of the gravity of your offending.
[1] [2016] VSCA 74.
[2] [2005] NSWCCA 370.
[3] [2010] VSCA 60.
17I also accept the submission made on your behalf that your offending occurred in the context of extreme drug use and lowered inhibitions and hypersexual activity. You told consultant psychologist Mr Simon Candlish that while engaging with online sexual communications with Lucy, you had been awake for many days as a result of injecting methylamphetamine. He concludes that you appear to have been highly disinhibited by your chronic stimulant abuse.
18While this does not mitigate the offending, or moderate your moral culpability, (nor was it suggested that your offending was divorced from or unrelated to sexual gratification), I accept, on the evidence, that it occurred within this context and that you do not appear to suffer from an underlying paedophilic disorder. This is relevant to my assessment of your rehabilitative prospects and community protection.
19The Court was provided with a table of comparative cases. I have carefully considered these cases and I found them useful, in particular, for their statement and application of general principles. The comparative cases are one factor to consider, with all the other factors I must take into account in the instinctive synthesis of sentencing.
Personal circumstances
20I take into account your background, as outlined by your counsel and in the neuropsychological report of Ms Jane Lofthouse of 11 March 2022 and Mr Candlish of 30 January 2022. As part of these proceedings you were also assessed by the Australian community support organisation (ASCO) who provided a detailed report to the Court of 19 May 2022.
21In brief, you are presently 54 years of age. Your parents separated when you were around 28 and you remained living with your mother. You have three siblings. You have not had contact with your family now for a long time. Your father is deceased and you think it likely that your mother has also recently passed away. You have no contact with your three siblings. Your sister was the victim of significant sexual abuse perpetrated by your father. Your two brothers have both received prison sentences in the past for offending relating to weapons and drugs.
22You completed school to Year 11. You previously worked as a forklift driver in logistics and manufacturing, but you have not worked since you were around 32 years of age.
23You have previously been in several age appropriate long-term relationships, your last one ending when you were in your forties. You have no children. Between approximately 2016 and 2019, you were homeless and sleeping rough. In the seven months prior to your arrest and throughout the offending period, you lived with a friend Neil in a unit in Kensington, that had been arranged by Launch Housing.
24You have used amphetamines, heroin, methamphetamine and cannabis for various periods of your life. You started smoking cannabis from the age of 16 and also soon after started using amphetamines. In later years, you started using drugs intravenously and since your early to mid-thirties you have been injecting methylamphetamine. At the time of your arrest, you had been using methamphetamine daily for an extended period of time. During your ACSO assessment, you indicated using between two to eight grams of ice daily intravenously for around six months leading up to your arrest and remand.
25Consultant psychologist Mr Candlish in his report states that you had shown some signs of intellectual compromise. Based on testing, you met the criteria for a stimulant use disorder and a moderate personality disorder, with prominent features of dissociality and disinhibition. Your recent and past sexual offending indicates the presence of sexual deviance. In your case, there is a stronger possibility of hebephilia (arousal to pubescent or post-pubescent females) compared to paedophilia. You also appear aroused to adult females. You have not been detected having engaged in any contact sexual offending against children. There have also been long periods of apparent desistance from deviant activity, which suggests some capacity to control your behaviour and manage your deviancy to some degree.
26Neuropsychologist Ms Lofthouse in her report noted in particular your history of head injuries and offered the following opinions: formal testing did not indicate the presence of an acquired brain injury, but you did demonstrate significant impairment in your non-verbal memory after a delay, which was difficult to explain in the context of your overall intellectual profile. You were assessed as being a risk of ongoing symptoms of anxiety, which might be a contributing factor in your drug use as a means of self-medication. Taking into account Mr Candlish's findings, it would appear that your psychological issues would, at times, destabilise your behaviour and capacity to consider information in a reasoned and informed manner.
27I also note that you have been diagnosed with hepatitis C, asthma, osteoarthritis and diabetes. You had an abscess in 2017 that ultimately developed into septicaemia.
Prior criminal history
28You have an extensive criminal history, dating back to 1991. Most of your previous offending can be characterised as low level dishonesty offences. Relevantly, you were found guilty on 7 February 2008 of indecent assault and on 16 March 1999, of wilful and obscene exposure in public. Your prior criminal history is relevant in particular to my assessment of your rehabilitative prospects and specific deterrence as a sentencing consideration. I do take into account the significant passage of time since your last court appearance.
Relevant considerations under s16A(2)
29Subsection 16A(2) of the Crimes Act 1914 sets out a non-exhaustive list of factors the court must take into account where relevant. I have already referred to the nature and circumstances of the offences and my assessment as to their gravity. I further note that Charge 1 is a between date offence that represents separate instances of accessing child pornography and consists of a series of criminal acts within the meaning of s 16A(2)(c).
30I have already referred to your early plea of guilty. I accept that this has saved the community the expense of conducting a trial and that the utilitarian benefit of your plea is heightened in circumstances where the ordinary operation of the courts has been interrupted by the COVID-19 pandemic. This will attract an actual and palpable amelioration of sentence.[4] I also take into account the substantial admissions you made to the police and consider that this, coupled with your early plea of guilty, demonstrates that you have accepted responsibility for your conduct.
[4] Worboyes v R [2021] VSCA 169.
31As to the deterrent effect on you and others, it is important to again acknowledge that general deterrence is the paramount sentencing consideration for child pornography offences and offending involving the exploitation of children. While your acceptance of responsibility will bear upon the weight to be given to specific deterrence, it is clearly still an important sentencing consideration in your case, particularly given the period of time of your offending, your history and engagement in previous sexual offending courses and the assessment of you as a moderate to high risk of further sexual offending.
32I will take into account and have already referred to matters pertaining to your character, antecedents, age, means and physical or mental conditions.
33As for your prospects for rehabilitation, I agree with the prosecution that, in line with your prior history and previous opportunities, they are guarded and largely dependent on you remaining abstinent from drugs and receiving targeted treatment. I take into account the risk assessment of Mr Candlish. As I have already noted, he concludes that you fall into the moderate high risk category of sexual offending, in the absence of any further interventions designed to address your risk. He considers that you are highly susceptible to a relapse of substance abuse and use. Your personality impairment will affect your capacity for self-direction, empathy and interpersonal functioning. He recommends that further treatment be targeted for it to specifically address the factors that have contributed to your more recent and past sexual offending. Based on your presentation and history, Mr Candlish considers that you show good prospects of rehabilitation and recommends a number of interventions, as outlined in his report at paragraph 137.
34Neuropsychologist Ms Lofthouse also considered that you would benefit from treatment programs to address your issues of reoffending and that you should be afforded the opportunity to address psychological issues relevant to your personality anomalies, anxiety and your chronic drug use. She opines that if you are able to engage in treatment to address your longstanding drug use, your psychological issues and inappropriate and criminal sexualised behaviour, then your risk of reoffending will be reduced.
35During your ACSO assessment, you could not recall any past engagement in alcohol and other drug treatment. You presented as open to exploring your support post release and presented willing to engage in drug and alcohol counselling. You were assessed in this report as high risk in relation to your substance use and relapse into poly-substance use and a number of recommendations were also made, including alcohol and other drug counselling, recovery work and bridging support.
Sentencing principles
36In sentencing you on these Commonwealth charges, I have had regard to a range of different factors as they are non-exhaustively outlined in s 18A(2) of the Crimes Act. Again, I must give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community. I must also promote your rehabilitation, have regard to current sentencing practices for offences of this kind and take account of your personal circumstances.
37For all the charges on the indictment, you fall to be sentenced in accordance with Part 1B of the Crimes Act 1914. Section 17A states that the Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case. I have also already noted the presumption, in your case, of an immediate custodial sentence. In light of the objective gravity of your offending and in all the circumstances, I consider that a term of imprisonment is the only appropriate sentence in your case.
38In relation to Charge 2, as I have already noted, I will take into account Item 1. In this respect, I am guided by the outline provided by the prosecution as to how the scheduled offence is to be taken into account in sentencing on the respective count on the indictment. After hearing detailed plea submissions, I had you assessed by Corrections to receive some guidance as to your treatment needs. What I ultimately propose to do, as I’ve already foreshadowed, is to impose a term of imprisonment on these matters by way of a recognisance release order.
39In particular, this will balance the competing considerations in this case and it will properly reflect the weight that needs to be given to general and specific deterrence. The structure of this sentence will also provide for your rehabilitation and the necessary interventions and treatment will operate to reduce your risk of reoffending. I have also taken into account the principles of proportionality and totality in your case. I note that there is some overlap between Charges 1 and 3 on the indictment, although I do accept, as was submitted by Mr Diwell, that both charges represent distinct criminality.
Sentence
40In respect of these charges, Mr King, you are convicted and sentenced as follows.
41In relation to Charge 1, you are convicted and sentenced to 11 months' imprisonment. Charge 2, you are convicted and sentenced to 16 months' imprisonment. Charge 3, you are convicted and sentenced to 12 months' imprisonment.
42Charge 2, which is the 16 months' imprisonment, is the base sentence. I am ordering cumulation of two months on Charge 1 and two months on Charge 3 and I am going to order that cumulation as follows: the sentence on Charge 1 is to commence nine months prior to the expiry of the sentence on Charge 2, which is the base sentence; the sentence on Charge 3 is to commence ten months' prior to the expiry of the sentence on Charge 2, which is to add a further two months' imprisonment. That should arrive at a total effective sentence of 20 months' imprisonment.
43So can I pause there to ensure, I am sorry for that confusion to everybody, including you, Mr King, but it is a total effective sentence of 20 months, with the orders of cumulation, the intention being that it is two months and two months on the base sentence. Does it arrive at 20 months?
44MS BROWN: Yes Your Honour, that is correct.
45MR DIWELL: Your Honour, I am instructed that that is appropriate and that maths adds up.
46HER HONOUR: All right, thank you. Now I have given, Mr King, careful consideration to how much of your sentence you should immediately serve and that is a matter of dispute between the parties, or rather, I should note that the prosecution submit that your offending warrants a further period than what you have already served in custody. Ultimately weighing up all of the matters that I have referred to, I have come to the view that you have served a sufficient amount of time in custody on remand to now be released into the community with the interventions that I propose to order.
47So in relation to Charges 1, 2 and 3, I direct that after serving 328 days imprisoned, you are to be released on a recognisance, under s 21(1)(b), in the amount of $2,000, to be of good behaviour, for a period of three and a half years. So, in terms of that figure, it is a security. It does not require you to pay that amount, Mr King, but it is a security effectively, on your release.
48OFFENDER: I understand.
49HER HONOUR: I also direct that your representatives explain to you the consequences of a recognisance release order. So, Mr King, you have served your 328 days. The remaining part, which is about 10 months or so, the remaining part of the sentence , is effectively going to hang over your head for the period that I have stipulated. There is a condition that for that period of time you be of good behaviour for that period of time. The recognisance period will take effect as of today, which will be the date of your release, for the three and a half year period. Now, if I can pause there, Mr Diwell, Ms Brown, that is permitted. I want him to be of good behaviour for three and a half years and so, I know that the recognisance release order can be up to three years, but I am able to have that period hanging over his head for three and a half, is that right?
50MS BROWN: That is correct, Your Honour.
51HER HONOUR: Yes.
52MS BROWN: So, the period of imprisonment is confined, the period of good behaviour ‑ ‑ ‑
53HER HONOUR: Yes.
54MS BROWN: ‑ ‑ ‑ the effective period of the recognisance and - can be for that duration.
55HER HONOUR: All right, thank you. In addition, I impose the following conditions and that is, for a period of two years, you are to be subject to the supervision of a probation officer, appointed in accordance with the order. You are to obey all reasonable directions of the probation officer. You are not to travel interstate or overseas without the written permission of the probation officer and Mr King, importantly, you are to undertake such treatment or rehabilitation programs that the probation officer reasonably directs. I note here that I expect such treatment and programs to take into account and to be in accordance with the detailed report obtained from ACSO, dated 19 May 2022.
56So Mr King, if you do not comply with those conditions, if you reoffend within the period that you are required to be of good behaviour, which is three and a half years, you are at risk of facing breach proceedings. Ms Brown can perhaps explain the effect of that order again to you, once I leave the Bench.
57Now, each charge is a Class 2 offence within the meaning of the Sex Offender Registration Act 2004 and accordingly, upon your sentence, you will be a registrable offender and must comply with the reporting obligations for life, pursuant to s 34(1)(c)(iii) of the relevant Act. So, Mr King, you - I am effectively required to make that order and to place you on the sex offenders registration and that period, which is the mandatory period, is for life, in your case. Mr Diwell, Ms Brown, that was a matter that, from my notations and memory, was agreed upon between the parties, correct?
58MS BROWN: That is correct, that is correct.
59HER HONOUR: In terms of the s 6AAA declaration, I can indicate that, but for your plea of guilty, I would have sentenced you to a term of three years and three months' imprisonment, with a non-parole period of two years.
60MS BROWN: Your Honour pleases.
61HER HONOUR: All right, does that deal with all the matters?
62MS BROWN: Yes Your Honour.
63MR DIWELL: Yes Your Honour.
64HER HONOUR: All right, thank you. Adjourn the court.
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