Director of Public Prosecutions v Lay

[2015] VCC 1563

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00517

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW LAY

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2015
DATE OF SENTENCE:	5 November 2015
CASE MAY BE CITED AS:	DPP v Lay
MEDIUM NEUTRAL CITATION:	[2015] VCC 1563

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:             Use carriage service to groom person under 16 years of age for sexual activity - use carriage service to transmit indecent communication to person under 16 years of age

Legislation Cited:     Criminal Code (Cth), Crimes Act 1914 (Cth)

Cases Cited:Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342

Sentence:2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr A. Dhillon	Commonwealth Office of Public Prosecutions
For the Offender	Ms J. Munster	Victoria Legal Aid

HIS HONOUR:

1

Matthew Lay, you have pleaded guilty to one charge of use a carriage service to groom a person under 16 years of age for sexual activity contrary to

sub-s.474.27(1) of the Criminal Code (Cth). The maximum penalty for this offence is 12 years' imprisonment.

2You have also pleaded guilty to one charge of use a carriage service to transmit indecent communication to a person under 16 years of age contrary to sub-s.474.27A(1) of the Criminal Code (Cth). The maximum penalty for this offence is seven years' imprisonment.

3You are presently 30 years of age, having been born on 14 March 1985, and you were aged 29 when this offending occurred in June and July last year. 

4You have no prior convictions and you have nothing pending.

5The circumstances of your offending are as follows. 

6The matter involves your online communications with a supposed 13-year-old girl named “Kaitlin Turner” on the online communication programs TeenChat and Skype.  In fact “Kaitlin Turner” was an account created and operated by members of the New South Wales police on the website TeenChat.  TeenChat is a social networking website which utilises the internet to enable two or more computers to communicate using text input and/or webcam.  It enables a number of people to converse (“chat”) simultaneously whilst also allowing two people to communicate privately in what is called "private chat".

7As to Charge 1, using a carriage service to groom a person under 16 years of age for sexual activity between 16 June 2014 and 3 July 2014, on 16 June 2014 you initiated an online chat with Kaitlin Turner using TeenChat. 

8You said "Hope it's cool that I'm 29, LOL, and I'm ok with u being 13 too".  You then said you feel like "hugs" and went on to say "if I was there u would be in my arms right now" and asked Kaitlin if she would come to Melbourne to "cuddle up" to you.  You then added "yeah ur still a bit young tho". Kaitlin told you that she was only 13 years old. 

9Kaitlin then asked you if you would chat to her via Skype, which is another online communication facility that allows users to chat using text and webcam.  You both resumed your conversation in Skype.  During the chat Kaitlin referred to her age and that she attended school.  You asked Kaitlin if she would like to kiss you on the lips. 

10At 6.02 pm on 17 June 2014 the two of you engaged in a lengthy conversation using Skype.  At the outset Kaitlin referred to school and being 13 years of age.  You said that you would like to kiss her slowly and that you would like to feel her breasts and touch her between the legs if she was okay with that.  You then referred to masturbating her genitals using more sexually explicit language.

11Approximately an hour into the conversation you asked Kaitlin if she would like to see you naked.  Kaitlin replied that she had not seen a boy naked.  You also said that you would like to see Kaitlin naked.  You stated that if you had the money you would travel to Sydney to see Kaitlin and asked what type of underwear she liked to wear.  At 7.33 pm you asked "If we were kissing right now would my age be a problem … because you're 13 and I'm 29”.  At this time you then activated your webcam and exposed your penis to Kaitlin.  That is represented by Charge 2.

12You then said "well I hope u won't kill me what ill say but if you wanted to go further I can make u feel what its like when u have sex".  Kaitlin replied that she was only 13. 

13On 18 and 19 June 2014 you sent messages to Kaitlin but did not receive a reply.  On 20 June 2014 the two of you engaged in another conversation during which you returned to expressing a desire to hug, kiss and touch Kaitlin's body.  During this conversation Kaitlin said she was a Year 8 school student.

14On 25 June 2014 you commenced another conversation with Kaitlin who reminded you that she was 13 years old.  You expressed a desire to massage Kaitlin's body, including her breasts and also to lay on top of her.  A little later you asked if she had pubic hair. 

15You then stated that you would like to visit Kaitlin in Sydney in a couple of months.  You said that you could find a hotel where you could “cuddle and kiss” and "go all the way" but that it would hurt a little bit.  You added that you would wear a condom so that Kaitlin would not get pregnant.  On 3 July 2014 the final conversation took place between the two of you.  You said that you wanted hugs. 

16As to Charge 2, transmit indecent communication on 17 June 2014, this charge relates to you exposing your penis to Kaitlin Turner using a webcam on your computer in the course of a Skype chat.  Undercover police recorded the footage in which you were observed masturbating for approximately 30 seconds whilst seated naked on your bed.

17On 2 January 2015 officers from Victoria Police's Taskforce Astraea executed a search warrant at an address in Skye where you resided with your mother.  Police located an Apple MacBook Air laptop computer in your bedroom.  Subsequent forensic examination of the seized MacBook Air laptop revealed a person named Kaitlin Turner stored within the Skype program’s list of contacts.

18On 6 January 2015 you were interviewed by police.  You stated:

(a)  that you used your laptop for TeenChat and Skype as well as other social media sites; 

(b)  that the ages of people on TeenChat go as low as 13 years and that you had communicated with 13-year-old boys and girls; 

(c)  that you had engaged in sexual chat on TeenChat and that you felt bad; 

(d)  that you recall chatting with Kaitlin Turner on TeenChat where you discussed kissing her, touching her breasts and wearing protection to prevent her getting pregnant; 

(e)  that you could not recall that Kaitlin was 13 years old but felt bad about it; 

(f)    that you were not too sure you would have travelled to Sydney if Kaitlin had asked you to see her; 

(g)  that if Kaitlin had wanted to come to Melbourne to see you, you would have been too nervous to see her; 

(h)  that you had sexualised conversations with young children out of boredom and that you had done that “a fair bit" meaning “a few times” over the last year; 

(i)    that you felt bad and had regretted your actions;

(j)    that you had masturbated using webcam when chatting to Kaitlin; 

(k)  that you had not met up with anyone you had communicated with on TeenChat or Skype; 

(l)    that you now realised you were wrong to do this with a 13-year-old girl but sometimes you cannot think properly because your disability; and

(m)  repeatedly, you said your behaviour was wrong and that you were regretting it.

19On 26 March 2015 you pleaded guilty to both charges at a straight hand-up committal at the Melbourne Magistrates' Court.

20I now turn to your personal circumstances. 

21As I noted earlier, you are presently 30 years of age and you were 29 when this offending occurred in June and July last year.  You have no criminal record. 

22You have had no contact with your father since birth, have no siblings and were raised by your mother with whom you have maintained a close relationship.  She has her own medical difficulties.

23You have never lived independently.  You experienced difficulties throughout schooling and issues became apparent from kindergarten, which you repeated.  You were educated through mainstream primary and secondary schools with the exception of Years 5 to 7 when you were enrolled in a special school for pupils with disabilities.  Your secondary school years were unhappy and you were bullied. 

24After Year 10 you attended specialist vocational programs for people with disabilities between 2002 and 2004.  From 2005 to the present time you have been employed part-time by Connecting Skills Australia, an employer of people with disabilities, in recycling and garden projects.  This employment is in jeopardy upon conviction for these offences.

25You are currently in receipt of the Disability Support Pension. 

26Of particular relevance are your mental health challenges.  You have been assessed as having a lifelong neurological disorder and a high level of anxiety and depression.  You were initially treated and prescribed for Attention Deficit Hyperactive Disorder and later diagnosed with Asperger's Syndrome.  Testing has revealed specific learning difficulties and there has been some reassessment of your particular condition.

27

You were treated by Dr Ronald Barry for some years from 2008 and have maintained counselling and treatment sessions to the present date under a mental health care plan with Ms Catherine Leigh-Smith, your current psychologist.  A report from Ms Catherine Leigh-Smith has endorsed your special limitations.    

28It appears clear to me that your neurological condition is likely to have contributed to your offending behaviour.  It also appears that you have not had the benefit previously of treatment specific to interpersonal and socialisation difficulties.  It is recommended that you would benefit from psycho-educational intervention, human relations and sexuality education, relapse prevention and social skill development to address offending behaviour.  You have indicated a willingness to participate in treatment and a motivation not to re-offend. 

29The basic purpose or purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and re-integrated into society.

30I have taken into account current sentencing practices by the courts in cases of this kind.  Within the context of other cases, ultimately each case must be decided on its own particular circumstances.  Here, there is a need to balance serious offending in the context of your personal disability in particular. 

31Sexual grooming of children through internet chat sites is, unfortunately, not uncommon and is to be deplored.  The current circumstances were aggravated by your exposure.  Whilst it is not the case that your attention was directed towards an actual child, that was your clear intent.  The authorities are expected to protect the rights of children and the process undertaken by police was directed to that end.  The courts are expected to support that process.  Cases such as yours often result in immediate imprisonment and that imprisonment can be responsibly be directed to be served for a significant period of time. 

32The ostensible victim in this case was a vulnerable young teenage girl - such girls, despite their apparent willingness to engage in sexual activity, have to be understood as needing to be protected also from themselves at a time of emerging emotions and understanding of sexual activity and its consequences, both physical and emotional.

33I have taken into account the matters set out in the provisions of s.16A of the Crimes Act (Cth) and in particular s.17A of that Act.

34In mitigation, I take into account the matters urged on your behalf by your counsel including:

·    Your early plea of guilty and your co-operation with investigation officials.  I accept that you have demonstrated genuine remorse and subjective acceptance of responsibility.  I am also persuaded by a revision of authority that the objective utilitarian benefit of a plea of guilty should be applied in mitigation. 

·    Your neurological and psychological difficulties, which continue to this day and for which you continue to require treatment including medication as outlined in the reports tendered. 

·    The remorse and shame you have expressed concerning your conduct.

·    The willingness and capacity you have shown to maintain appropriate counselling in the past and the assistance when provided. 

·    The fact of your age at 29 at the time of commission of the offences and at 30 at the time of sentencing, and that you have no prior offences nor any charges pending. 

·    The continuing support that you have from your mother and the stability you receive from your home environment.

·    Your capacity for rehabilitation which I assess as being good from your ability to comply with previous counselling and treatment and previous consistent good work record. 

35I have also taken into account the comprehensive sentencing submissions tendered and also submitted orally from prosecution counsel. 

36On balance, in the particular circumstances of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison.  In my view you will benefit from the availability of appropriate programs in an atmosphere which is more conductive to your rehabilitation than if you were confined to a period of imprisonment. 

37In light of the particular extenuating circumstances of this case a Community Correction Order would fall within appropriate sentencing range.  You have been assessed as suitable for such disposition.  In all the circumstances I am satisfied that a sentence of imprisonment is not the only appropriate sentence in your case.  I am reinforced in this aspect by the recent decision of the Victorian Court of Appeal: Boulton v The Queen[1]. 

[1]   Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342

38I have also carefully considered the prosecution submission as to a sentence of imprisonment but effectively wholly suspended by recognisance to give effect to matters of general deterrence.  However in the particular circumstances I do not consider that disposition necessary nor indeed helpful given the personal matters relevant to you.

39Mr Lay, could you please stand. 

40On Charge 1 of Use a carriage service to groom a person under 16 years of age for sexual activity and Charge 2 of Use a carriage service to transmit indecent communication to a person under 16 years of age, you are convicted and ordered to serve a Community Correction Order for a period of two years.

41The Community Correction Order commences today and ends on 4 November 2017.  The Corrections centre you will attend is the Dandenong Community Corrections Service at 46-50 Walker Street, Dandenong and you must attend there within two clear working days after the commencement of the order, that is, by 4.00 pm on Monday 9 November 2015.

42You will be given a copy of this order, which you will have signed, so you will have that to refresh your memory. Any further questions you have you may ask of your counsel and instructing solicitor but I am going to express the conditions of the order to you now so that it is clear what is being intended and agreed to if you sign.

43All the mandatory terms of a Community Correction Order apply and the additional conditions I impose are that:

·    you be under the supervision of a Community Corrections oficer;

·    you undergo mental health assessment and treatment, and that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager; and

·    you participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.

44The mandatory terms of the Community Correction Order are that:

·    you must not commit another offence for which you could be imprisoned during the time that the Order is in force;

·    you must report to and receive visits from a Community Corrections officer;

·    you must report to the Community Corrections centre, that is the Dandenong centre, within two clear working days of the order starting and as I have already indicated, that is by next Monday, 9 November;

·    you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and

·    you must obey all lawful instructions from and directions of Community Corrections officers.  Such directions may be given to you by being spoken to you or they may be given in writing. 

45Do you understand and agree to those conditions, Mr Lay?

46OFFENDER:  Yes.

47HIS HONOUR:  If you get sick or if there are exceptional circumstances, the Order may be suspended for a period of time, and if your circumstances materially alter you can apply for a variation or a cancellation of the Order.  In either case you must notify the Dandenong Community Corrections centre and I recommend that you obtain legal advice if any of these things happen.  The important thing is that you maintain communication with the people at the Community Corrections centre and just let them know what is happening in your life.

48However I must warn you that if you breach any condition of this Order you will be brought back before me, and one of the options open to me is to cancel the Community Correction Order and to resentence you on the original charges, and I may also deal with you for any breach by sending you to prison, even on the breach, for up to three months. 

49So, Mr Lay, do you understand the consequences of breaching the Community Correction Order?

50OFFENDER:  Yes.

51HIS HONOUR:  All right, there is a further matter to which I need attend.  You can take a seat for a moment, Mr Lay.  The charges to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004 and by reason of your being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.

52Pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.  I am also required to inform you of the length of your reporting period, which in your case is for 15 years.

53My Associate will shortly hand to you the Notification Of Reporting Obligations form which I have already signed.  Your representative in court today will ensure that you understand the requirements set out in this form and I'll ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgement to my Associate.

54Now the Community Correction Order and the Sex Offenders Registration materials can be passed to Mr Lay's representatives who will pass them on and explain them to him.  Yes, Mr Lay can come out of the dock to manage that.  Thank you.

55I have signed that form, Mr Lay.  You realise now what trouble you can get into when you start fooling around with things like this.  You can get into very serious trouble.  You are to be commended for the approach you took when the police officers came to you.  The immediate recognition you gave that what you had done was wrong is a good thing. 

56Also you have shown backbone by your ability to keep your employment up and to keep going to counselling and treatment.  If you keep that going and you listen carefully to the people who are going to give you treatment, and the discussions you will have with the counselling, you will not be coming back to court.  So make sure you comply with all those matters and we will not see you again in a place like this.  You do not need to be here.  Take a seat for a moment.

57Mrs Lay, his mother, do not stand up, but you are to be commended for the support that you have given over the years in your difficult circumstances.  I have read about your background, and I think the response you gave when you saw the distress that your son was under and the encouragement that you gave, I think that is a very important response to something which would have been quite shocking to you - but that has been a helpful process as well.

58Any further matters from either counsel?

59MR DHILLON:  No, Your Honour.

60MS MUNSTER:  No, Your Honour.

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