Director of Public Prosecutions v Koscak

[2017] VCC 1054

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00505

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN KOSCAK

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2017 and 28 July 2017
DATE OF SENTENCE:	4 August 2017
CASE MAY BE CITED AS:	DPP v Koscak
MEDIUM NEUTRAL CITATION:	[2017] VCC 1054

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

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr A. Albore	Commonwealth Director of Public Prosecutions
For the Accused	Mr N. Papas QC	Schembri Lawyers

Pages 1 - 29

 

 

HIS HONOUR:

1Steven Daniel Koscak, you have pleaded guilty to the following charges - 

25 charges of using a carriage service to procure a person under 16 for sexual activity, contrary to s.474(26)(1) of the Criminal Code, the maximum penalty for that offence is 15 years' imprisonment;

36 charges of using a carriage service to solicit child pornography material, contrary to s.474(19)(1)(a)(iv) of the Criminal Code, the maximum penalty for that offence is 15 years' imprisonment;

42 charges of using a carriage service to groom a person under 16 years of age, contrary to s.474(27)(1) of the Criminal Code, the maximum penalty for that offence is 12 years' imprisonment;

51 charge of procuring a child to engage in sexual activity outside Australia, contrary to s.272(14)(1) of the Criminal Code, the maximum penalty for that offence is 15 years' imprisonment;

61 charge of using a carriage service to transmit child pornography, contrary to s.474(19)(1)(a)(iii) of the Criminal Code, the maximum penalty for that offence is 15 years' imprisonment and;

71 charge of knowingly possessing child pornography, contrary s.70(1) of the Crimes Act 1958, the maximum penalty for that offence is ten years' imprisonment.

8You pleaded guilty at committal, following negotiations between the prosecution and your legal representatives. 

9Your early plea is evidence of your remorse for your offending and has spared the community the expense of a criminal trial. 

10I have taken your pleas into account in your favour in mitigation of sentence. 

11You have no prior convictions, subsequent convictions or outstanding charges. 

12A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows -

13On 14 March 2016, you commenced communicating on an online chat forum "Chat Avenue" with a female named Amber, who you believed was aged 14.  Amber was, in fact, an undercover police officer.  You purported to be aged 18 and you were, in fact, then aged 28.  Between 4 March 2016 and 12 April 2016, you participated in a number of sexually explicit online conversations with her.  On 12 April 2016, you arranged to meet her at a café, where you were arrested by investigating AFP police.  During the course of your online conversations, you also requested that she send you pictures of herself that would be classified as child pornography. 

14Following your arrest, a search warrant was executed at your family home.  Your mobile phone and two laptop computers were seized.  Analysis of those devices identified evidence of the balance of the offending, which form the basis of the charges before the court.  Charge 14 and 15 on the Indictment concern your online communications with Amber. 

15Between 3 August 2013 and 22 December 2015, you engaged in sexually explicit online communication with Olivia Grace, who told you that she was 13.  The communications included live Skype chat and so you were able to see that she was a young woman. 

16Between 6 August 2013 and 8 June 2015, you also requested that she send you photos of herself that would constitute child pornography.  This offending constitutes Charge 1 and 2 on the Indictment. 

17Between 9 October 2013 and 29 December 2013, you engaged in sexually explicit online communication with a person named Jasmine, who told you that she was 13.  You asked her to engage in anal intercourse.  Between
9 October 2013 and 28 October 2013, you also requested that she send you photographs of herself that would be classified as child pornography.  This offending constitutes Charge 3 and 4 on the Indictment.

18Between 24 December 2013 and 8 February 2014, you communicated online with a person named Jessie Marie to procure her to engage in sexual activity.  She told you that she was 14.  This offending constitutes Charge 5 on the Indictment. 

19Between 28 December 2013 and 11 May 2014, you engaged in sexually explicit online communication with a person named May Belle, who told you that she was 13.  The communications included live Skype chat and so you were also able to see that she was a young woman.  On 4 January 2014, you masturbated while talking to her on live Skype chat.  On 11 May 2014, you requested that she send you pictures of herself that would constitute child pornography.  This offending constitutes Charge 6 and 8 on the Indictment. 

20Between 29 April 2014 and 1 May 2014, you engaged in sexually explicit online communication with a person named Anita, who told you that she was 14.  This offending constitutes Charge 7 on the Indictment. 

21Between 18 June 2014 and 22 October 2014, you engaged in sexually explicit online communication with a person named Jessica, who told you that she lived in Perth and was 12 years old.  You discussed visiting her in Perth.  Between 18 June 2014 and 25 June 2014, you requested that she send you pictures of herself that would constitute child pornography.  This offending constitutes Charge 9 and 10 on the Indictment. 

22Between 7 September 2014 and 31 January 2016, you procured online sex shows involving an 11-year-old girl in the Philippines.  You communicated with her mother and instructed that she engage in sexual acts with her daughter.  On 7 September 2014, you watched live sexual activity between the girl and her mother.  This offending constitutes Charge 11 on the Indictment.

23Charges 12 and 13 on the Indictment concern you soliciting and transmitting child pornography on 18 September 2016.  Charge 16 on the Indictment concerns child pornography material located on your laptop computers.  That material contained 358 images, the majority of which were in category 1 of that material. 

24It is plain from this summary that your offending are serious examples of the charges that you have pleaded guilty to.  Charge 11 is a grave offence that concerns the sexual exploitation of a child in a developing nation. 

25Your offending took place over an extended period.  You persisted in your criminal communications with persons you believed were children for your own sexual gratification.  You were arrested when you sought to meet a person you thought was a child for the purpose of engaging in sexual activity. 

26The victims of your offending have not been identified but I accept that your activities must be regarded as having caused them harm.  Further, your offending occurred in the context of the ever growing depraved sexual exploitation of children. 

27The sentence I impose must deter people like you from offending in this way and children and our community must be protected by the courts from offending of this nature and from people like you.  You must also be punished for your selfish and manipulative criminal conduct. 

28By operation of part 2A of the Sentencing Act 1991, you are to be sentenced as a serious sexual offender in relation to Charge 16. For that reason, there is a presumption of cumulation in respect of the sentence that I am to impose on that charge. The prosecution do not submit a disproportionate sentence should be imposed on that charge.

29I now turn to your personal circumstances. 

30You were born on 4 September 1987 and are now aged 29.  You have no criminal history, as I have already observed.  You are of Croatian descent and reside with your mother, grandmother and sister, who gave evidence during the course of the plea hearing.  Your parents separated when you were 18.

31I accept that your childhood and developmental years were seriously disrupted by severe physical and emotional abuse directed at you by your father.  It would also appear that your family was subjected to this abuse and, in my opinion, it is clear that this has impaired your capacity to form healthy adult relationships. 

32I have received, in evidence, a series of psychological reports of Mr Bernard Healey, a consulting clinical psychologist, in relation to your background and psychological profile.  Mr Healey also gave evidence on the hearing before me and concluded that you are immature and your capacity to form healthy adult relationships is impaired.  You are also of below average intelligence.  In his opinion, you fall at the medium to low range of reoffending.  He has undertaken clinical treatment with you and described your progress as positive in that regard.  He stated that you have gained appropriate insight into the seriousness of your offending. 

33As I have observed, your sister gave evidence before me.  She impressed me as an intelligent and supportive person and it is clear that your family support is a positive factor in your rehabilitation.  I have also received in evidence, a number of work and personal references that speak highly of you and you have a good work history.  You do not abuse alcohol or illegal drugs of dependence and this is also a positive factor in relation to your rehabilitation.  Prior to your arrest, you were actively involved in the Australian Army Reserve. 

34I accept, based upon the evidence before me, that your prospects for rehabilitation may properly be described as good.  Your offending has exposed the seriously abusive conduct of your father to scrutiny and this, in turn, will deepen your insight into the psychological matters that you must address and receive ongoing treatment for. 

35During the course of the hearing, I was referred to a number of comparable cases by the prosecution and submissions were made concerning them.  It is, of course, plain that each case must be assessed by reference to its specific factors and circumstances and I have approached this sentence in that way to arrive at an appropriate proportionate penalty in your case. 

36In the result, the sentence of the court is as follows.  On Charge 1, you are convicted and sentenced to be imprisoned for 15 months.  That sentence will commence today, that is 4 August 2017. 

37In relation to Charge 2, you are convicted and sentenced to be imprisoned for 15 months.  That sentence will commence today, 4 August 2017. 

38In relation to Charge 3, you are convicted and sentenced to be imprisoned for 9 months.  That sentence will commence on 4 March 2018. 

39In relation to Charge 4, you are convicted and sentenced to be imprisoned for 9 months.  That sentence will commence on 4 March 2018. 

40In relation to Charge 5, you are convicted and sentenced to be imprisoned for 6 months.  That sentence will commence on 4 March 2018.

41In relation to Charge 6, you are convicted and sentenced to be imprisoned for 6 months.  That sentence will commence on 4 November 2017. 

42In relation to Charge 7, you are convicted and sentenced to be imprisoned for 6 months.  That sentence will commence on 4 May 2018.

43In relation to Charge 8, you are convicted and sentenced to be imprisoned for 6 months.  That sentence will commence on 4 November 2017.

44In relation to Charge 9, you are convicted and sentenced for 6 months.  That sentence will commence on 4 January 2018.

45In relation to Charge 10, you are convicted and sentenced to be imprisoned for 9 months.  That sentence will commence on 4 January 2018. 

46In relation to Charge 11, you are convicted and sentenced to be imprisoned for 2 years.  That sentence will commence on 4 August 2018.

47In relation to Charge 12, you are convicted and sentenced to be imprisoned for 3 months.  That sentence will commence on 4 August 2017. 

48In relation to Charge 13, you are convicted and sentenced to be imprisoned for 3 months.  That sentence will commence on 4 August 2017. 

49In relation to Charge 14, you are convicted and sentenced to be imprisoned for 12 months.  That sentence will commence on 4 April 2018. 

50In relation to Charge 15, you are convicted and sentenced to be imprisoned for 6 months.  That sentence will commence on 4 April 2018. 

51In relation to Charge 16, you are convicted and sentenced to be imprisoned for 3 months.  That sentence will commence on 4 August 2017. 

52At the conclusion of the delivery of the Reasons for Sentence the prosecutor informed me that I was required to impose a Recognisance Release Order and not a non-parole period if the Commonwealth sentence I imposed was 3 years, even if the total effective sentence was 3 years and 3 months, if I directed the Victorian sentence of 3 months imprisonment be served cumulatively on the Commonwealth sentence. This submission was contrary to a submission made by the prosecution during the course of the hearing.

53Following further submissions from both parties, the prosecution accepted that in the circumstances of this case it was open to me to order the Victorian sentence be served concurrently with the Commonwealth sentence. In fact, s.16(4) of the Sentencing Act 1991 requires that I order a commencement date of the Victorian sentence no later than immediately after the non-parole or pre-release period. In other words, it was not open to me to order that the Victorian sentence be served cumulatively on the Commonwealth head sentence if a non-parole period was fixed or a Recognisance Release Order made. Having considered the submissions made by the parties I ordered that the Victorian Sentence commence on 4 August 2017.

54This makes for a total effective sentence of 3 years’ imprisonment.

55I order that you serve 18 months imprisonment before release on a Recognisance Release Order for a period of 18 months.  I fix the Recognisance in the sum of $500.00.

56I declare you have served 7 days by way of pre-sentence detention.

57But for your plea of guilty I would have imposed a total effective sentence of 4 years and 6 months imprisonment, and a non-parole period of 2 years and 6 months imprisonment.

58You will be placed on the sex offender register for life.

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