Director of Public Prosecutions v Kirke (a pseudonym)

[2017] VCC 1982

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB KIRKE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	DPP v Kirke (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1982

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I. Cameron
For the Accused	Mr D. Lamovie

Pages 1 - 12

 

 

HER HONOUR:

1Jacob Kirke[1], you have pleaded guilty to one charge of grooming for sexual conduct a child under 16 (Charge 1);

[1] ‘Jacob Kirke is a pseudonym’

2One charge of procuring a minor for child pornography (Charge 2); 

3Two charges of indecent act with a child under the age of 16 (Charges 3 and 4); and

4One charge of possession of child pornography (Charge 5).

5The maximum penalty for each of these offences is ten years' imprisonment. 

6The prosecutor made application for the taking of a forensic sample from you and the forfeiture and disposal of certain items.  The making of those orders was not opposed.

7The circumstances of your offending are set out in the Summary of Prosecution Opening on Plea which was tendered as Exhibit A.  The circumstances in brief are as follows.  In about September 2015 your daughter, who was then aged 12, came to live with you and your partner.  You had separated from your daughter's mother and had had little contact with your daughter since she was about two. Your daughter came to live with you because there were concerns about her welfare with her mother.  She came to live with you with a Children's Court Supervision Order in place.  You were 34 at this time.

8Between 1 September 2015 and 22 January 2016 you sent regular messages to your daughter through Facebook.  In those conversations you asked your daughter questions about whether she would do various things which were obviously of a sexual nature.  For example, "Do you want me to kiss or touch you anywhere?" And, "Would you sleep in my bed naked?" 

9There were other conversations in which your daughter referred to herself as being fat or ugly.  You sent her messages saying, "You're hot and sexy" and that you would date her.  You said you would go out with her and wished you could be her boyfriend. 

10You asked her other questions of a sexual nature in relation to being seen naked by each other.  You said in the conversations that you might buy her something the next day if she did something for you that night.  You asked her what type of underpants she was wearing and again spoke to her about letting you see her naked. 

11On 22 January 2017 you sent a picture of your penis to your daughter when she was sending pictures of herself in underwear over Facebook.  These activities which are described in further detail in the Summary of Prosecution Opening on Plea are the subject of Charge 1, grooming for sexual conduct a child under 16. 

12In the same period between 1 September 2015 and 22 January 2016 you asked your daughter to send pictures of herself wearing underwear.  She sent a series of pictures of herself wearing a school uniform and you provided instructions to her on positions and poses.  She sent further images of herself wearing only her bra and underwear (Charge 2, procuring of a minor for child pornography).

13Again, during the same period you asked you daughter to "rub your doodle" she refused.  You admit in your record of interview with the police that she had touched your penis once or twice (Charge 3, indecent act with a child under the age of 16).

14In the same period your daughter would often walk around the house, on multiple occasions when she went past you whilst you were in the kitchen or sitting at the kitchen table, you would grab her on the buttocks over the top of her clothing.  There was reference to such an action in one of your Facebook messages (Charge 4, indecent act with a child under the age of 16).

15In January 2016 your daughter disclosed to your brother's fiancée that you had asked her to take pictures of herself and walk around the house in her underwear.  Your brother's fiancée saw some of the messages and the matter was reported to the police.  You were interviewed by police on 5 February 2016. 

16Police seized your mobile phone and computer and these items were forensically analysed.  There were images of child exploitation material located.  These consisted of 14 Category 1 (no sexual activity), two Category 2 (solo/sex acts between children), three Category 3 (adult penetrate) and five Category 4 (child/adult penetrate images). There were some additional images of females posing in their underwear which were not illegal (Charge 5, possession of child pornography).

17You were not charged until almost a year later with a filing hearing in the Melbourne Magistrates' Court on 11 February 2017.  The matter proceeded at the committal stage by way of straight hand-up brief with pleas of guilty being entered in May 2017. 

18A victim impact statement was tendered as Exhibit B. In her victim impact statement, your daughter describes her feelings about your offending.  She describes her fear that you might come to the area where she lives or her school.  She says she is confused about why you did what you did.  She says, "You're my parent.  You should know the laws.  It's not right and it's wrong but you chose to ignore them; didn't you?  I expected you to be a good parent and let me grow up and let me be me but obviously not."  She says that she feels like she is in trouble because it is her fault but understands that it is your fault, not her fault. 

19A number of exhibits were tendered on your behalf being two hand-written letters from you to the court (Exhibit 1),  a patient record from a medical centre in Wodonga (Exhibit 3), a psychological report of Ms Carla Lechner dated 22 August 2017 (Exhibit 4), a neuro psychological report of R. Byers dated 2 November 2017 (Exhibit 5) and a report of Dr Menashi Tolat dated 18 February 2014 (Exhibit 6).

20Your personal circumstances were outlined by your counsel in oral and written submissions and in the reports.  Your counsel's submissions made on your behalf were tendered as Exhibit 2.  I have taken your personal circumstances into account in sentencing you.

21You are now 37 years old.  You were brought up by your mother in country Victoria and never knew your father.  Your mother re-partnered but her new partner did not provide a strong male role model in your life.  You have one brother from whom you are now estranged.  You were injured in a motor vehicle accident when you were nine years old. You say that you were the subject of inappropriate conduct by your mother as a child.  That matter has never been reported to the police and, as I understand it, your mother does not accept those allegations. 

22You were asked to leave school after Year 8 due to conduct and mood issues.  You then commenced Year 9 but were asked to leave school in a short time. You have made further attempts to undertake education but have been unable to succeed in those efforts.  You say you were bullied at school.

23You have worked in a number of labouring roles over the years.  You have been in receipt of disability support pension since 2014. 

24You have had three significant relationships.  Your relationship with your daughter's mother started when you were about 20 years old.  You were together for about 18 months.  You subsequently met and formed a relationship with a second young woman with whom you have another daughter who is now aged 12.  You have a current relationship with a third young woman which commenced three or four years ago.  You have three children with that partner.  You have some contact with your partner and have had occasional supervised access with the children. Your current partner remains supportive of you.

25You have admitted a prior criminal record which consists of one court appearance in 1999 on unrelated offending. 

26In sentencing submissions your counsel submitted that the appropriate sentence would be a combination of a sentence of imprisonment with a community correction order.  Your counsel particularly relied on the application of Verdins principles in respect of an acquired brain injury and your history of depression and anxiety.  Your counsel relied in mitigation on your early plea and the delay in this matter together with the application of Verdins principles. 

27Your counsel submitted that the sentence that was sought would provide for intensive treatment and your rehabilitation in the community.  She submitted that deterrence, punishment and denunciation could be adequately addressed through such an order. 

28The prosecutor in sentencing submission submitted that your offending warranted a sentence of imprisonment with a non-parole period.  The prosecutor's submissions on sentence were tendered as Exhibit C.  The prosecutor in written submissions and oral submissions addressed the nature and gravity of the offending, your prospects of rehabilitation and matters raised by your counsel.  The prosecutor submitted that there should not be any application of Verdins principles apart from perhaps in relation to your depression making imprisonment more difficult for you.

29The prosecutor accepted that there had been some delay in this matter and there was no doubt that the matter had been weighing quite heavily on you.  The prosecutor also submitted that there should be some cumulation in sentencing but submitted that if the serious offender provisions were to apply then the prosecutor would not seek a disproportionate sentence.  The prosecutor submitted that a community correction order alone or in combination with imprisonment would not appropriately reflect the objective gravity of the offending and the need for general deterrence. 

30In her report, Ms Lechner says that you present with symptoms of major depressive disorder with a long history of depression.  She says that arose from the physical and psychological aftermath of the motor vehicle accident in your childhood.  She says that you also have had an underwear fetish from an early, from early adolescence.  She says you were initially co-operative at interview but became "distinctly hostile" when attempts were made to discuss your offending behaviour.  She says that your history indicates you have suffered quite severe depression for a number of years.  You currently have high levels of anxiety related primarily to the court hearing.

31Ms Lechner says "Mr [Kirke] views himself as somewhat of a victim and is therefore inclined to project blame and to find it hard to take perspectives other than his own.  This impacts on his capacity to feel and express empathy."  Ms Lechner says you have very limited insight in respect of the negative impact of your offending on the victim.

32She says your fetishistic disorder, "would not be problematic if it was confined to consenting adults but Mr [Kirke] has clearly crossed appropriate boundaries and fails to recognise the seriousness of this rationalising his actions as ‘teaching her’."

33Ms Lechner says that a hebophilic sexual interest cannot be ruled out although she says you do not fill the criteria of paedophilic disorder.

34Ms Lechner assess you as being moderate to low risk of further sexual offending.  Ms Lechner's opinion is that you would benefit from treatment for your sexual offending.  She makes other assessment and treatment suggestions, she describes your attitude about therapeutic input as "at best ambivalent."

35Dr Tolat in his letter of 18 February 2014 describes your difficulties with depression and cannabis use.  He says he was of the view that you described problems with impulsivity and mood swings.  Dr Tolat was of the view that the mood swings could possibly arise from an acquired brain injury following the motor vehicle accident.  There had been a diagnosis of epilepsy with which you did not agree as it impacted on your ability to drive.

36In the Arbias report, Ms Williamson discusses the material that has been able to be gathered in respect to your hospital admission after the motor vehicle accident.  She says that the current assessment findings are not suggestive of an acquired brain injury from the motor vehicle accident in childhood.  She says there may be some changes in your cognitive profile since you were assessed 18 months before she assessed you but that was most likely due to "the influence of acute factors including his emotional state given that he reported extremely severe symptoms of depression, anxiety and stress within the context of ongoing homelessness and social isolation and recent consumption of alcohol and cannabis."

37Ms Williamson says that you may also be starting to show long term effects from your alcohol and cannabis use.  She says your relatively weaker verbal abilities are likely to reflect the combined effects of your disrupted education and personality factors.  The results of testing indicated that your verbal intellectual abilities were within the borderline range of functioning and were a significant weakness relative to your perceptual intellectual abilities which were in the average range. Some improvement was noted in your verbal learning and recall compared to an assessment in May 2016.

38Ms Williamson says "The cognitive issues apparent on current testing indicate that his verbal abilities are a relative weakness and his difficulties with verbal reasoning and knowledge of appropriate social norms may reduce his ability to appreciate the wrongfulness of his conduct."

39It Is Ms Williamson's opinion that you may struggle with certain aspects of the prison environment if your cognitive issues persist.  She also suggests that there could be a negative effect on your mood if you are imprisoned.  Ms Williamson makes various recommendations on ways in which you might be assisted.

40Jacob Kirke, the offending in which you engaged in relation to your daughter was very serious.  Your offending constituted a gross breach of trust.  Your daughter was vulnerable having lived to move with you after difficulties whilst living with her mother.  A supervision order was in place. The purpose of that order was to keep her safe.  She was entitled to feel safe in her own home and with her father.  You knew what her background was and the difficulties she had been facing.  You then engaged in what can only be described as disgusting and abhorrent behaviour towards your own daughter.  Your offending would be serious enough if it were in relation to any 12 year old child.  The fact that you engaged in this offending in such circumstances towards your own daughter was utterly wrong.   Your moral culpability is very high. 

41Your offending against her has caused the complainant harm of the type that she describes in her victim impact statement.  Your offending against your daughter warrants strong denunciation and stern punishment. 

42The additional charge of possessing child pornography is of considerable concern given your behaviour in relation to your daughter.  That behaviour and what you said afterwards about it to the police and to those who assessed you indicates that you have an entirely warped viewpoint when it comes to the protection of children in respect of sexual matters.

43What you said to the police and to others indicates a significant and serious lack of insight into appropriate boundaries and the appropriate relationships between adults and children.  There is no doubt in my view that your actions in respect to your daughter was sexually motivated.  The fact that you are reluctant to discuss those matters or to acknowledge that is in itself very concerning in terms of your prospects of rehabilitation.

44The first letter that you wrote to the court as part of Exhibit 1 is consistent in tone with what Ms Lechner says you told her.  The letter has a long introduction about the difficulties you have faced.  You do say at the end of that letter that you are extremely embarrassed, ashamed and very remorseful for what you have done.  You say that you want to say sorry to people whom you have disrespected and torn apart.  In your second letter written after you had read the victim impact statement, you say that you assure the victim that you will not ever be in the area where she lives and that you are sorry. 

45The complainant in this matter has shown considerable courage in bringing the matter forward.  It is to be hoped that with support and time this matter will be able to be put behind her at some stage in her future.

46My view is that by the time of the plea hearing you were demonstrating some degree of insight and remorse in the sense of being remorseful for what you had done rather than just the consequences for yourself.

47I consider that despite your lack of prior offending your prospects of rehabilitation are moderate.  I consider that there is at least a moderate to low risk of your re-offending against any post-pubertal female especially living in domestic circumstances with you. 

48It is of considerable importance that you engage in a sex offender treatment program and that you gain much deeper insight into your offending and into the need for appropriate boundaries between adults and children in respect of sexual matters.

49There is no causal link between any level of cognitive impairment or mental health issues which form any causal or realistic link with in connection with your offending.  I am satisfied that your cognitive difficulties and mental health issues would make imprisonment more difficult for you and that imprisonment is likely to make your mental health worse.  I have taken those matters into account in limited mitigation of sentence.

50There has been some delay in the matter which has been hanging over your head for a period of time.  I have taken that into account in mitigation of sentence.  I have also taken into account that you have not re-offended during that period of time. 

51I have taken into account that the offending covered by Charge 3 is reliant on an admission made by you to the police. 

52In determining the appropriate degree of cumulation and concurrency I have taken into account that there is some overlap between the offending in Charge 1 and Charges 2, 3 and 4 especially in respect of Charges 1, 3 and 4.  The offending in Charge 5 is distinctly separate.           I have applied the principles of totality and proportionality in determining the degree of cumulation.  There will be some cumulation in sentence to reflect the distinct nature of the offending in various aspects against your daughter and the separate offending covered by Charge 5.

53You will be sentenced in relation to each of the matters to a sentence of imprisonment.  That means on the sentences on Charge 3 and following you will be sentenced as a serious sexual offender.  Community protection must be the principal purpose of my sentence.  I do not intend to impose a disproportionate sentence for those purposes.

54A sentence of a community correction order alone or in combination with imprisonment could not adequately meet the sentencing requirements of denunciation, just punishment, general deterrence, specific deterrence and community protection. A sentence of imprisonment is the only sentence which could adequately meet those sentencing considerations.   

55Could you please stand, Mr Kirke? 

56HER HONOUR:  Thank you.  Jacob Kirke, on Charge 1 you are convicted and sentenced to 21 months' imprisonment.  On Charge 2, you are convicted and sentenced to 9 months' imprisonment.  On Charge 3, you are convicted and sentenced to 9 months' imprisonment.  On Charge 4 you are convicted and sentenced to 10 months' imprisonment.   On Charge 5 you are convicted and sentenced to 3 months imprisonment. 

57On Charges 3, 4 and 5 you are sentenced as a serious sexual offender.  The sentence on Charge 1 is the base sentence.  Three months of the sentence on Charge 2, two months of the sentence on Charge 3, three months of the sentence on Charge 4, one month of the sentence on Charge 5 are to be served cumulatively on each other and on the sentence on Charge 1.

58The total effective sentence is 30 months imprisonment.  I fix 18 months as the period that you are required to serve before being eligible for release on parole.  I declare that you have served 15 days of this sentence by way of pre-sentence detention to be deducted administratively.

59But for your plea of guilty I would have sentenced you to a terms of imprisonment of 40 months with a non-parole period of 28 months.

60I am making an order for the taking of a forensic sample from you.  I am making that order because of the seriousness of your offending and because the order was not opposed.  I am required to tell you that you must co-operate with the authorities when they come to take a sample.  They will come to take a saliva sample from your mouth.  I am sure that you will co-operate but if you do not co-operate they are entitled to use reasonable force and to take a blood test.

61OFFENDER:  Yes, Your Honour.

62HER HONOUR:  I have also made the orders for forfeiture and disposal that were sought because you have been convicted of three or more Class 2 offences, you will be required to report - to comply with the reporting requirements of the Sex Offender Registration Act for the period of life.

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