Director of Public Prosecutions v Lau, Ricky
[2012] VCC 1703
•5 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00756
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY LAU |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 November and 5 November 2012 | |
CASE MAY BE CITED AS: | DPP v Lau, Ricky | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1703 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Lynch | Office of Public Prosecutions |
| For the Accused | Ms A. Norton (2/11/2012 Ms J. Munster (5/11/2012) |
HIS HONOUR:
1 Ricky Lau, on 23 March 2012 I sentenced you to six months imprisonment for indecent assault, three months' imprisonment for procuring a minor for child pornography and three months' imprisonment for possession of child pornography. On the count of sexual penetration on a child under 16 you were sentenced to two years' imprisonment. The total effective sentence was 25 months and I ordered a non-parole period of ten months. You were sentenced for Counts 3 and 4 as a serious sexual offender and you were registered as a sex offender for life. Those offences were committed in January and February 2011.
2 On your plea hearing in relation to those matters I ordered a Forensicare report. I received that report in December 2011. Also during the December hearing I was told you had breached your bail and had been in custody. The matters giving rise to the breach of the bail I had set, for the period between the plea hearing and the sentence, were said to be of a similar nature to the ones that I was dealing with.
3 At the time no charges relating to the breach of bail offences had been laid. I was also told that other charges had been laid about matters which predated the offences for which I ultimately sentenced you for. I make clear that that sentence imposed in March did not relate in any way to either of the charges which had been laid and the alleged breach of bail for which no charges had yet being laid.
4 Those two matters now come before me. You have pleaded guilty to charges which pre-date the offences for which you were sentenced. Those charges relate to offences committed in July, October and November 2010. You have also pleaded guilty to an offence in November 2011, that is, while you were on bail for the matters for which you were in prison between the plea date and the sentencing date.
5 As to the first presentment, in a chronological sense, you have pleaded guilty to two charges of sexual penetration of a child under 16, procurement of a minor for child pornography, using a carriage service to procure a person under 16 for sexual activity and possession of child pornography. At the relevant time you lived in Shepparton where you offended against the complainants to whom I shall refer to as J and C. J was 15 at the time of the offences and C was 14.
6 You were employed locally as an apprentice cook and lived with your step-father. In July 2010 C moved in with her mother. She shared a bedroom with other children and she started to flirt with you. You shared a bungalow at the rear of the house. She was the daughter of your step-father's partner. You knew she was 14. On an occasion in July 2010 you sexually penetrated C while lying together on your bunk bed. On October 2010 C was again in your room. You removed two smaller children from the room and you then sexually penetrated her.
7 When C's mother became aware of the sexual activity between C and yourself C stopped living there. You remained in touch by Facebook and you asked her to send pornographic images of her to you. Between September and November 2010 you and J also exchanged many messages on Facebook. In October you had requested to be her Facebook friend. You told J you missed C so J agreed to go out with you. You talked to her of sexual matters on Facebook.
8 On 27 October 2010 you contacted J on the phone and began nagging her about sending photos of herself to you. On 31 October you exchanged messages with J about the possibility of her having sexual intercourse with you in which you professed your love for her. You then proceeded to ask her for photos of her genital area and also asked her to send a video of her masturbating herself. J did not accede to these requests but did send photos depicting her breasts and close ups of her vagina.
9 Following on from that you said to J that you wanted to meet her and have sex with her. J did not contact you again. On 9 November police executed a warrant on your home address and found a data DVD containing child pornography. One such image showed a child performing fellatio on a male adult. When police came to your place of work you surrendered your mobile phone to the police and they found two photos of J sent by her. Charge 5 , possession of child pornography , relates to images on this phone as well as on the DVD.
10 You were aged 20 at the time of the offences and you have also pleaded guilty to the charge of using a carriage service to procure a person under 16 for sexual activity in November 2011. By this time you were 21 years old and had come before me facing serious offences for which you were bailed to await your sentence.
11 The victim in this case was a 15 year old female under the care of Berry Street Housing in the Shepparton area. You were seen by police in possession of a mobile phone sending messages to G, as it turns out, to arrange a meeting. You met her that day and went walking together until you were apprehended by police. The messages on the phone indicated you had been trying to meet G for sexual purposes. You knew she was not 16. G expressed her love for you and a consent to sexual activity.
12 In my view given the matters for which you had been placed on bail while waiting sentence this later offending in November 2011 carries an aspect of aggravation because of this timing and your conditional liberty on certain conditions which you flaunted. It indicates that at that time you were completely oblivious not only to the predicament that you were in but lacked any insight, much less remorse, for the offending you have pleaded guilty to which was serious offending.
13 In relation to the 2010 offences I received a victim impact statement written by J. She reflects on the effect of the crime as "affecting her trust, her relationships and friendships". She is hyper vigilant and feels less safe as a result of your behaviour seeking to procure her for sexual activity. The effects of this dealing will no doubt persist for a long time to come.
14 The sentence must reflect principles of general deterrence to discourage others, who are like minded, from such behaviour. The court must denounce this behaviour as completely unacceptable. A measure of retribution for the violation of two young persons is appropriate particularly in the case of C.
15 Though it is clear in some circumstances, particularly in the case of G, you were able to extract affection and cooperation, it was the pressure exerted and the encouragement given by you which would lead to your sexual satisfaction which can be seen to be manipulative and designed to benefit you alone.
16 As I indicated in the sentence of March of this year, an important factor then and now is your youth. It is in the long term interest of the community to seek to ensure that youthful offenders be encouraged to rehabilitate so as to promote reclamation and rehabilitation. This, of course, within parameters of the proper application of sentencing principles.
17
You are now 22 years of age. You have one prior in February 2011 when you were convicted of burglary and theft, aggravated burglary and criminal damage for which you were placed on a community-based order. Upon your first plea on the matters I sentenced you in March I received a report from
Mr Jones which indicated you were not suffering any major psychological illness but had a chronic anxiety disorder accompanied by clinically serious emotional adjustment and immaturity.
18 You were said to be self centred with low capacity to emphasise and relate to the emotional concerns of others. A clinically significant adverse pattern of sexual behaviour consistent with compulsive behaviour and beyond voluntary control was noted. He diagnosed a probable but not formally diagnosed sexual disorder. I understood that to mean a set of symptoms including consistent sexual hyper-arousal coupled to a compulsive drive to repeated sexual relationship and gratification.
19 In December 2011 Dr Ong, a consultant psychiatrist with Forensicare, wrote a report upon my request. He indicated you were highly emotionally immature. You were the only child of separated parents and had a difficult childhood. Your mother had several admissions in the past. Dr Ong found neither paraphilia nor paedophilia. You met criteria for adjustment disorders with anxious and depressed moods and given your circumstances at the time that is not surprising. He said you would benefit from supportive therapy and the Sex Offender Program.
20 After the breach of bail obligations I asked Dr Ong for an update. He found nor formal thought disorder. You coped reasonably well with incarceration. You claimed that someone had hacked into your Facebook account to set you up and clearly this was not true.
21 Dr Ong provided a further update in September 2012. You were more forthright than in previous interviews, admitting responsibility for your offences. You stated that you understood why your actions were wrong in relation to the victim's age. You were at Morngannet and you found your reclusion relatively easy. You have engaged in work during this time.
22 During your remand period you reported a sexual approach from a prisoner and a subsequent assault. I have little doubt you may be vulnerable in prison and take this into consideration. You told Dr Ong you acknowledge you had lied to him and you admitted responsibility and expressed some regret.
23 In relation to Charge 5, the possession of child pornography that related to the DVD disc as I have said. You claim this had been given you by your father's mate several years prior and though you had accessed the adult pornography contained upon it you had not, you said, accessed the child pornography on the disc.
24 You do not exhibit features of major mental illness and have adjusted well to incarceration but I again emphasis that I take into consideration your ongoing immaturity and age.
25 Dr Ong stated you had started to develop some understanding of the wrongfulness of your actions. He stated you probably had a hebephilic interest and that the Sex Offender Program would help reduce your risk of offending.
26 Specific deterrence must be an element of the sentence which is imposed by me today because in my view both your prospects of rehabilitation and the risk of re-offending should be approached cautiously in your case. There are some signs that perhaps you are beginning to reflect on your behaviour but your course of conduct in the past two years gives pause for concern. I must take into account the principle of totality.
27 The 2010 offences had been dealt with the other matters I sentenced you before in March. There may well have been a longer sentence but all matters would have been dealt with and wrapped up. I do consider that there should be some degree of cumulation, particularly for charges of sexual penetration and for the latter charges but I am conscious of imposing an appropriate sentence which now deals with the totality of your offending. I take your plea into account and accord it an appropriate discount.
28 Would you please stand.
29
On presentment 10661353 on Charge 1 of sexual penetration of a child under 16 you are convicted and sentenced to 18 months imprisonment. On
Charge 2 of sexual penetration of a child under 16 you are convicted and sentenced to 18 months imprisonment. On Charge 3 procuring a minor for child pornography you are convicted and sentenced to three months imprisonment. On Charge 4 of using a carriage service to procure a person under 16 for sexual activity, a Commonwealth offence, you are convicted and sentenced to three months imprisonment. On Charge 5 of possessing child pornography you are convicted and sentenced to three months imprisonment.
30 On the second presentment 11850758 on Charge 1 of using a carriage service to procure a child under 16 for sexual activity, I should say a person under 16 for sexual activity, you are convicted and sentenced to three months imprisonment.
31 I order that four months on Charge 2, one month on Charge 3, one month on Charge 4 be cumulative on Charge 1 making a total effective sentence of 25 months. This sentence will be concurrent with the sentence being currently served commencing today. I order a new non-parole period of nine months commencing today.
32 As to the Commonwealth offences, that is Charge 4 on the first presentment and Charge 1 on the second presentment for which I imposed three months, I order that one month of that sentence and one month of Count 1 on the second presentment be cumulative upon the head sentence and upon each other.
33 I order that the sentences commence at the completion of the seven months of the State sentence, that is, on 2 June 2013. The cumulative sentence on Count 4 will commence on that date and then the cumulative sentence on Count 1 on the second presentment will commence on 2 July.
34 VOICE (from body of court): Is it the 7th or the 2nd?
35 HIS HONOUR: 2 July so the first month to commence at the end of the seventh month of the non-parole period on 2 June and the second month to commence at the end of that month on 2 July.
36 But for your plea I would have sentence you to 30 months imprisonment with a 16 month non-parole period.
37 I will order disposal of items included in the disposal order.
38 MR LYNCH: There are two orders, Your Honour.
39 HIS HONOUR: Yes and, Mr Lynch, I thought that there was a 464ZF application. Was that for a retention? I can't quite recall, just give me a moment. I think that might have been previously, an order that I might have previously made.
40 MR LYNCH: I'll just check, Your Honour. I suspect it would have been made at the time of the original sentence.
41 HIS HONOUR: Yes I think I made that order in March.
42 MR LYNCH: Yes, Your Honour, Your Honour says "I have signed the 464ZF disposal orders".
43 HIS HONOUR: Yes. Just to make it clear what I have done is imposed three months sentence on each of the Commonwealth offences. One being Count 4 on the first presentment and one being the count on the second presentment. I have made one month of those sentences cumulative upon the base sentence, that is, Count 1 of the first presentment. I have ordered as commencement date for those 2 June being in effect the eighth month of the non-parole period and second month cumulative being the ninth month of that non-parole period. Is that clear?
44 MR LYNCH: So effectively, Your Honour, that means one month after the non-parole period ends?
45 HIS HONOUR: No it's the last month of the non-parole period and the second last period of the non-parole period so that although I've ordered a nine month non-parole period - yes that's a good point.
46 MR LYNCH: If this is Your Honour's intention that there be, effectively, one further month served in relation to two Commonwealth matters?
47 HIS HONOUR: No what I want to ensure is that he serves nine months from today - - -
48 MR LYNCH: I think the dates ought to be, with respect, 2 May and 2 June.
49 HIS HONOUR: Yes. I've gone the other way. So that the Commonwealth sentences which I have ordered to be cumulative will commence on 2 May and then on 2 June.
50 I think I said 2 July because I calculated that nine months from today was going to finish on 2 August. Isn't that the case?
51 MS NORTON: Your Honour, I think it might be 2 July.
52 HIS HONOUR: Yes.
53 MS NORTON: But it would conclude - - -
54 HIS HONOUR: That the sentence would conclude?
55 MS NORTON: The nine months.
56 MR LYNCH: Yes so therefore the last of the Commonwealth - - -
57 HIS HONOUR: Is June.
58 MR LYNCH: - - - would start on 2 June.
59 HIS HONOUR: Right.
60 MS NORTON: I beg your pardon, Your Honour, I think it should be 2 August that it concludes.
61 HIS HONOUR: Today is 2 November so if one goes forward nine months the conclusion of those nine months is 2 August.
62 MR LYNCH: Right so - - -
63 HIS HONOUR: So the last of those months would begin 2 July.
64 MR LYNCH: Yes.
65 HIS HONOUR: And the second last of those months would commence 2 June.
66 MR LYNCH: Yes, Your Honour.
67 HIS HONOUR: Yes. So if I stipulate that that two months, which I have made concurrent, will commence on those dates then on 2 August the sentence - the non-parole period will have expired and Mr Lau will be eligible for parole at that time. Is that clear, Ms Norton?
68 MS NORTON: Yes, Your Honour.
69 HIS HONOUR: Yes I have signed those disposal orders, Mr Lynch. Are there any other orders, Mr Lynch?
70 MR LYNCH: No thanks, Your Honour.
71 HIS HONOUR: Thank you.
72 MR LYNCH: Your Honour pleases.
73 MS NORTON: As Your Honour pleases.
74 HIS HONOUR: I'll stand down.
5 NOVEMBER 2012
75 HIS HONOUR: Mr Lynch, now I had my associate hand down to you a series of communications.
76 MR LYNCH: Yes.
77
HIS HONOUR: First of all, I will just make sure that Mr Lau can hear.
Mr Lau, can you hear us? At the moment we cannot hear you, but I do not know that you will have that much to say in any event. But if you cannot hear us, can you just indicate? Right. Yes, wave your hands or do the Gangnam style or something. Yes.
78 Yes, Mr Lynch. Now I had some communication given over too so that we could just clarify this. The sentence, I think, as it was put into the order, cumulated Commonwealth and State sentences and that cannot be, so when my associate received the email, it clarified that I should - I thought that I should clarify the fact that rather than cumulating sentences that I cannot cumulate by law, that the effect of it is as is at the bottom of that email.
79 MR LYNCH: Yes.
80 HIS HONOUR: That is, that the Commonwealth sentences have a particular commencement time, so that the total effective sentence will be 23 months rather than 25 months and that then the Commonwealth sentences have a particular starting point which I think were the starting points that we - - -
81 MR LYNCH: Discussed on Friday.
82 HIS HONOUR: - - - discussed and declared on Friday.
83 MR LYNCH: Yes.
84 HIS HONOUR: Yes. But I just wanted to make sure that in open court and on the record that it was made clear that the orders will be amended to reflect the fact that the Commonwealth sentences are not cumulative on the State sentences, but rather the total effective sentence was 23 months and that the Commonwealth sentences would have a commencement time, as they are supposed to have, which was specified and will be specified in the order.
85 MR LYNCH: Thank you, Your Honour.
86
HIS HONOUR: Thank you for attending. I appreciate it very much.
Ms Munster, do you understand the import of all that?
87 MS MUNSTER: I do, Your Honour. Thank you.
88 HIS HONOUR: Yes. Mr Lau, I am sorry to have disturbed you, but we needed to make something plain and clear in terms of how the sentence is written up in the order of the court so that it is absolutely clear as to what it is that you are undergoing in terms of sentence, and we have got that clear, and even though it does not change anything in relation to the end result of time in custody for you, but it is important to make sure that it is right so that you do not spend any more unwarranted time in custody. Do you understand?
89 PRISONER: Yeah.
90 HIS HONOUR: Thank you. Thanks very much for attending there, and we will cut the video link now, all right? Thank you.
91 Thank you both, you're excused.
92 MR LYNCH: If Your Honour pleases.
93 MS MUNSTER: If Your Honour pleases.
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