Director of Public Prosecutions v L P R
[2013] VCC 918
•21 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-13-00471
| THE QUEEN |
| v |
| L P R |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2013 | |
DATE OF SENTENCE: | 21 June 2013 | |
CASE MAY BE CITED AS: | DPP v. L P R | |
MEDIUM NEUTRAL CITATION: | [2019] VCC | |
REASONS FOR SENTENCE
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Subject: Criminal law – Commonwealth offence – plea – sentence
Catchwords: Use a carriage service to groom a person under 16 years of age – communication via Facebook
Legislation Cited: s.474.27(1) of the Criminal Code Act 1995 (Cth) – s. 20(1)(b) of the Crimes Act 1914 (Cth)
Cases Cited:
Sentence: 12 months imprisonment, and release ordered forthwith on recognisance of $2,000 & with the condition to be of good behaviour for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr H. Tilemann | Mr S. Young (Commonwealth Director of Public Prosecutions) |
| For the Accused | Mr T. Bourke | Mr A. Minahan (MW Law) |
HIS HONOUR:
1 Mr L P R is aged forty-nine, and was forty-eight at the time of these offences. The immediate point to be made is that the victim in this case was only thirteen.
2 The indictment to which Mr L P R has pleaded guilty is a Commonwealth Indictment which was dated 3 June 2013, and signed for and on behalf of the Director by Mr Tchakerian.
3 The Indictment involves one charge, being an offence against s.474.27(1) of the Criminal Code Act 1995 (Cth). It involves using a carriage service to transmit a series of communications, in this case to the victim, a person who is under the age of sixteen years, with the intention of making it easier to procure the recipient to engage in sexual activity. As I say, Mr L P R has pleaded guilty to that charge.
4 The seriousness of this offence is demonstrated by the fact that our Commonwealth Parliament prescribed as a maximum penalty, for such an offence, a period of imprisonment of twelve years.
5 The period of criminality involved, fortunately, was not lengthy, and took place from 22 August 2012 through to 4 September 2012, some fourteen days.
6 The learned prosecutor provided the Court with a plea summary, for which I thank him. That summary was tendered as Exhibit A and Mr Bourke, who appeared for Mr L P R, consented to such as an appropriate representation of the facts in this case. What that summary showed is that the victim had a previous association with the family of Mr L P R in that she had, sometime in the past, attended primary school with Mr L P R's younger son.
7 As I said, she was thirteen at the time of this offending.
8 The offending involved a relationship by way of the development of communication by way of Facebook. The particular circumstances as to that relationship are set out and detailed in the summary. I will not go into them again.
9 They involved Mr L P R having what is clearly inappropriate conversations with this young girl and, if I might say so, in no way of criticism to the young girl, whether it was the circumstances or the protection afforded, as she thought, by communicating through technology, she also, it would appear to me, was somewhat precocious, at least by way of conversation.
10 Of course, that is the very import of this legislation. This legislation is prescribed to protect young persons from persons, much older than them, grooming them by the use of this type of technology. Suffice to say that as a result of this discussion, an appointment was made to meet at the Epping station. Fortuitously that did not happen.
11 It is suggested by Mr L P R in his record of interview that once he had observed the age of the person, had the meeting taken place that would have been the end of the relationship. He would have perceived how young she was and nothing further would have happened. I find that somewhat difficult to accept. It was clear that he was well aware from the conversation and of his knowledge of this girl what her age was, but fortuitously the fact is that they did not meet.
12 Such came about because the victim was at the time fortunately in the care of her grandmother and, through her family, they became aware of these conversations. As a result, her access to Facebook was denied and thereafter, on 10 October, the grandmother contacted the police. Very shortly thereafter Mr L P R was interviewed. It must be said that from the start of his record of interview, which was undertaken on 9 November, he was cooperative and admitted fully his crime.
13 In looking at Exhibit B, which is the victim impact statement, it probably is interesting to observe the observations made. There is a comment made by the victim that she was very upset that Mr L P R was going to get into trouble as a result of these matters. It was clear that she was somewhat carried away by this conversation and, as I said, it is very much the intent of Parliament that this circumstance does not happen.
14 The issue as to her being scared, I do not think there is any reality to that. However, that is not to deny that such was her feeling. But clearly, however, Mr L P R was in error in being involved in these type of communications. He was smart enough, once the communication was closed down, not to pursue it in any way and, fortuitously for him, the criminality is, therefore, confined to the period that I have indicated.
15 In so far as the plea was concerned, the learned prosecutor took me to relevant authorities and it is quite clear, especially from the pronouncements made in the Court of Appeal, that we are dealing with, and no one should think otherwise, a very serious crime, that in the normal circumstances must involve immediate imprisonment. This situation was accepted fully by Mr Bourke.
16 Mr Bourke, in his plea, tendered a series of documents: firstly, a psychological report from Ms Rea (Exhibit 1), which I will come to; second, a letter from the school in support of Mr L P R; and, thirdly, two documents in regard to the state of Mr L P R' children. That matter is not disputed in any way.
17 Mr Bourke submitted that I should accept that in this circumstance this behaviour should be seen, given that Mr L P R has no priors of this type at all, albeit he does have, an unrelated prior but well back in 1988, that this should be seen as aberrant behaviour. He submitted that he has learnt a significant lesson.
18 In regard to his operations, he did not in any way hide his identity. Mr Bourke was at pains to submit that such showed that Mr L P R was somewhat misguided in his activity, but he was not the type of person who was surreptitiously trawling the Internet for the purposes of being able to groom anyone he came upon. It was also put, and I accept, that this was situational and came about from the earlier knowledge of the victim through the family.
19 As I said, Mr L P R is a person who comes before the Court with good character. It is also submitted that he is not only of good character, he is a person who has had to overcome significant challenges in regard to the upbringing of his own two children, that he has been a very diligent father.
20 The learned prosecutor, of course, stressed the important and protective nature of this legislation, and Mr Bourke was at pains to put to the Court that he did not in any way undermine that factor. Those matters are set out, as I have said, in the victim impact statement, Exhibit B.
21 Mr Bourke also took the Court to the circumstance that there has been a significant impact in regard to his client, both in regard to his personal relationship at home and to the quite obvious public shaming that Mr L P R is now going through.
22 In so far as the report by the forensic psychologist (Exhibit 1), Sandy Rea, that report was dated 3 June 2013. There are a number of factors that are relevant in that report which bear repeating.
23 Ms Rea remarked at p.7 that Mr L P R presented as a very involved and vigilant father. She referred to the reference that he had from the School, which is very similar to the circumstances that I have had in regard to Exhibit 2 myself.
24 In so far as the issue as to whether he had a broader purpose, she said this at p.16:
"Paedophiles initially disguise their true identity. Fantasy users often reveal their true identity such as age, appearance and employment. Mr L P R did not disguise his identity. Paedophiles aim to establish a close, intimate and special bond with a child. Mr L P R did not visit chat rooms only designed exclusively for children. There is no evidence that Mr L P R undertook this type of behaviour."
25 She goes on to describe the behaviour under the term dissociation as follows:
"Whilst engaged in the computer, it is likely that Mr L P R dissassociated psychologically whereby he disconnected parts of himself from reality, lost track and kept immersing himself in fantasy."
26 There is a lot of strength in that analysis, given the background material that I have had in so far as Mr L P R is concerned and his own prior record where a man of his age is before the Court without any significant priors, or offences of this type. Ms Rea confirmed that his wife is a significant partner in their relationship and that these particular circumstances have led to appropriate counselling and an improvement in that relationship.
27 As to this issue of fantasy, at p.24 she went on again and said:
"At best, Mr L P R, in so far as acknowledging it, conceded that he engaged in a fantasy of role playing and likely got consumed with the time spent on the Internet. He related that to some issues of low self‑esteem at the time."
28 She remarked that the comfort of cyberspace was a convenient way to escape from any negative effect that he was experiencing from the monotony of his life as it then was.
29 She concluded at p.25, para.89, that Mr L P R could be considered highly suitable for a mainstream sexual offence specific treatment program in the community.
30 She said, what I have concluded myself as quite appropriate:
"He shows strong commitment to his family and the care and welfare of his two sons. His aberrant criminal behaviour appears at odds with this profile."
31 Ms Rea finally concluded at para.94 where she refers obviously to the risk factors:
"In discussion with Mr L P R, it is the author's belief that the underlying causes of his offending behaviour have been largely identified. Recognition of this becomes the targets for treatment."
32 She finally concludes:
"Mr L P R appears to have been caught up in the cyber culture of permissiveness where his sexual activity was an escape. That obviously should be the target for therapy."
33 As I say, Exhibit 2 was a reference from the school with which he has been associated and it provided a very strong reference in these circumstances.
34 The final exhibits simply do not require me to refer to them, otherwise than to say that a very experienced medical practitioner in this state confirms the diagnosis of autism in so far as it relates to both of the children of Mr L P R.
35 In so far as the sentence is concerned, Mr Bourke did not in any way seek to undermine the comments of the learned prosecutor, that this serious offence is one warranting imprisonment. He argued, however, that in the particular circumstances of this case a wholly suspended sentence by way of a recognisance would be appropriate.
36 The learned prosecutor, it seems to me in a very professional submission to the Court, indicated the range of sentence that was appropriate in this case. He submitted that the appropriate range at top was somewhere between a period of eighteen months to twenty-four months imprisonment. He also submitted that it was also within the range that such a sentence was not necessarily to be served immediately and could be subject to a recognisance order.
37 Mr Tilemann was at pains to stress, which the Court fully accepts, that in this case, unlike some cases that have been dealt with in the past, we are dealing with a real victim. This is not a situation where there is a policeman at the other end of the Internet.
38 Mr Tilemann also remarked that it is clear that the Court should accept that Mr L P R did and was making arrangements to see this young person, that the offending was opportunistic and situational, and raised the issue, as shown in the authorities, that good character in such circumstances does not have the same impact. He submitted that it was very important in the circumstances for the principles of general deterrence and specific deterrence to be recognised and gave the range that I have said.
39 Mr Tilemann accepted the matters put by Mr Bourke that contrition was clear, that remorse was clear, that cooperation had been effected, that you could not, obviously, have had a much earlier plea of guilty given the circumstances when this occurred. However, in so far as the report of Ms Rea, Mr Tilemann pointed out to the Court that there was still, it seemed to him in reading the report, a failure to fully accept the role and the guilt in these circumstances and, in particular, on the issue as to the knowledge of age, and I have referred to that matter. He also remarked upon the comments and the personal issues set out in the victim impact statement.
40 I have taken all those matters into account. I do not think there is any doubt that we are dealing, as Ms Rea says and relied upon by Mr Bourke, with a person who is intellectually unsophisticated. That is not a criticism in any way; that is simply what Mr L P R is.
41 The fundamental matter in this case is that one has to balance the seriousness of such an offence and the intent of Parliament, that any sentence should reflect the protective nature of this legislation, against the other aspect of considering the particular nature and circumstances relevant to an accused and the particular issues of which he is involved. In those circumstances it has been a plea of some exquisite definition.
42 It is clear on the authorities, as I have said, that this is a serious crime where imprisonment must be imposed. I do not think there is any issue in regard to that.
43 As to the period of imprisonment put by the prosecution, I have taken the view in these circumstances that that is somewhat high. In my view, the appropriate period of imprisonment to impose in this case, taking account of all the matters, is one of twelve months. However, I accept totally that such a sentence of imprisonment is appropriate.
44 The real issue in this case is to consider the submission from Mr Bourke. Albeit that the Crown accepted that a suspended sentence was in range, the issue is for this Court to determine whether, given its responsibility to the community, an order should be made whereby a recognisance would effectively allow for a fully suspended sentence.
45 That has not been an easy consideration here. As the learned prosecutor says, the conversation was quite marked. Clearly it had an impact and clearly there was an intent behind it. They are the very factors that this legislation was promulgated for.
46 As I say, against that are the very strong factors going to mitigation of sentence that I have referred to.
47 In the end, this Court has always taken the view that a person who comes before the Court, having lived a crime free life, as I said we now have Mr L P R coming before the Court at the age of forty-nine, this Court has always recognised that as an appropriate factor which calls for leniency.
48 Mr L P R, I would not want you to think that the determination in this case has been clear. It has been a very difficult determination, but in the end I have acceded to Mr Bourke's submission that it would be appropriate that the twelve months imprisonment I intend to impose upon you should be fully suspended by way of an imposition of a recognisance.
Mr Prosecutor, what was that particular section again under the Crimes Act that we do it under?
MR TILEMANN: Section 20(1)(b).
HIS HONOUR: So it is necessary for me to set a security, isn't it?
MR TILEMANN: An amount of recognisance.
HIS HONOUR: Yes, upon setting a security. I set a security of $2,000.
MR TILEMANN: Yes.
HIS HONOUR: And the recognisance needs to be ultimately entered into; is that right?
MR TILEMANN: Yes.
HIS HONOUR: Mr Bourke, your client is aware of the consequences of such an order and the obligations on him during the period?
MR BOURKE: Certainly, Your Honour, I have explained it to him and I will certainly spend time afterwards explaining it to him again. I see my friend has got a pro forma or he has got an order already filled out.
MR TILEMANN: There also needs to be a period of good behaviour fixed, but that's all.
HIS HONOUR: I intend to impose a period of good behaviour of two years, Mr Bourke, in his own recognisance of $2,000.
Sentence
Mr L P R, formally what I will indicate is this. You will be convicted and sentenced to a period of imprisonment of twelve months.
In the circumstances I have determined to accede to your counsel's submission and to make an order under the appropriate section which has the effect of suspending this sentence. That means that clearly, for the period of the recognisance, and I have imposed an obligation on you for one of good behaviour, but I don't expect there to be any more, given your background, I don't expect this Court or any Court to ever see you again, all right?
OFFENDER: Yes, Your Honour.
HIS HONOUR: If you just take a seat and we'll get that filled out and I'll get you to sign it. I have set a recognisance of $2,000.
MR TILEMANN: If Your Honour pleases.
HIS HONOUR: What about the sex offender registration reporting?
MR BOURKE: Eight years.
MR TILEMANN: Eight years.
HIS HONOUR: Eight years, yes. Mr Bourke, I will give you the forms and you just have your client sign those.
Mr L P R, you have to sign these. Because of the regulations or Act imposed by Parliament, this is not a sentence by me, but you have become a person subject to the sex offender registration.
MR TILEMANN: Your Honour, I have drawn up the order. I will hand it up and then it is to be signed by Your Honour and then ‑ ‑ ‑
HIS HONOUR: Thank you. I mean those other provisions will be satisfied essentially on the reporting legislation anyway.
MR TILEMANN: I'm not sure that the assessment and treatment would be, Your Honour.
HIS HONOUR: No, the assessment doesn't have to be, but I think the effect will be.
Yes, thank you. I thank both counsel for their assistance and for the authorities. It was of much assistance in the matter.
Yes, Mr L P R, you can come out of the dock and good luck. Make sure you go back to living the crime‑free life that you have to date.
OFFENDER: Yes, Your Honour.
HIS HONOUR: All the best.
MR TILEMANN: Your Honour, if a copy of the order under the sex offender registration could be provided to the prosecution?
HIS HONOUR: Yes. I will excuse counsel and your instructors.
COUNSEL: May it please Your Honour.
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