Director of Public Prosecutions v Le Gassick

[2014] VCC 1288

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00914

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT LE GASSICK

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 August 2014
CASE MAY BE CITED AS:	DPP v Le Gassick
MEDIUM NEUTRAL CITATION:	[2014] VCC 1288

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms M Brown
For the Accused	Mr S Pearce

HER HONOUR:

1Brett Le Gassick, you have pleaded guilty before me to 23 charges laid under the Commonwealth Criminal Code.  They being one charge of using carriage service to procure persons under 16 years.  Two charges of using a carriage service to - excuse me, I have made a mistake immediately.  I am so sorry Mr Le Gassick.  One charge - The carriage service that is Victorian.

2Two charges of using a carriage service to access child pornography material.  Eight charges of attempting to cause a child to engage in sexual intercourse in your presence.  Five charges of causing a child to engage in sexual activity in your presence.  Two charges of attempting to cause a child to engage in sexual activity in your presence.  Five charges of causing a child to engage in sexual intercourse in your presence.

3You have also pleaded guilty to two charges under the Victorian Crimes Act.  They being one charge of producing child pornography, and one charge of knowingly possess child pornography.  The very detailed prosecution summary of facts is exhibited with these sentencing remarks. 

4In short compass, the offending took place between April 2009 and January 2004.  Charge 1 is a rolled up charge whereby between 5 April 2009 and 20 November 2013 you procured 54 individual children to engage in sexual activity.  Essentially this related to you engaging on online chats to under aged girls in the Philippines, where in explicitly sexual terms you asked them to engage in sexual activity.

5On one occasion, detailed as an example, you masturbated to the point of ejaculation while engaging in sexualised chat with an 11 year old girl and showing her your penis over the webcam during the exchange.

6You also forwarded monies to accounts in the Philippines in 56 international transfers via Western Union accounts controlled by you between May 2011 and January 2014 for a total of $3,676.90 which were payments for online live sex shows to be performed by the children with whom you had negotiated.

7Chat log conversations retrieved from your computer revealed that before the money was transferred, you would negotiate the price and the activity you wanted the children to perform regularly expressing a preference for young girls and asking them whether they would meet you in person and whether they would have sex with you, if you visited the Philippines.

8Charge 2 relates to screen shot images you took of the children during the live sex shows, which you saved to your computer.  These images described or showed children engaging in sexual activity or indecent sexual acts. 

9Those images and videos were categorised by the prosecution into four levels.  There were 248 video images and videos depicting nudity or erotic posing with no sexual activity.  There were 46 images and videos showing solo masturbation by a child, or non-penetrative sexual activity between children.  There were five images and videos depicting non-penetrative sexual activity between children and adults and there were 13 images and videos depicting penetrative sexual activity between children, or between children and adults.  They comprising at levels one to four, graduating in seriousness on the scale commonly used in order to classify such material.

10Charges 3 and 4, accessing child pornography arise from analysis of your recent internet browsing history, revealing you had accessed a number of child pornography sites, and searched the internet via Google for items explicitly describing particular under aged sexual activity.  You accessed child pornography between 20 February 2010 and 26 January 2014.

11Charges 5, 6, 7, 11, 13, 15, 16, 17, 19, 20, 21, 23 and 24 are charges of either causing a child to engage in sexual intercourse outside Australia in your presence, or attempting to cause a child to engage in sexual intercourse outside Australia in your presence.

12They relate to online negotiations by you with another party in the Philippines organising a sex show featuring under aged children.  Those charges of attempt related to situations where you paid money, but the show was not staged, and your money effectively taken.

13Each of those shows was to involve sexual penetration of the children involved.  However, on other occasions, your negotiations bore fruit, and the sex shows were performed with you directing the children to perform certain acts involving penetration, such as one of the participants placing a finger in the vagina of the other participant or an object such as a pencil.

14On average you paid about $30 for a one hour show, although sometimes it was less, and the shows would last from about 20 minutes to about two hours.  Other charges arising from the sex shows also led to charges of causing a child to engage in sexual activity outside Australia in your presence, they being Charges 8, 10, 12, 14 and 18 on the indictment, or attempting to cause a child to engage in sexual activity outside Australia, they being Charges 9 and 22, where you negotiated and paid for sex shows which were ultimately not performed.  The log chat conversations revealed the type of sexual performance envisaged which in those cases did not involve actual penetration.

15Some of the charges of causing a child to engage in sexual intercourse outside Australia, or causing a child to engage in sexual activity outside Australia, and the attempts related to particular girls who were identified by a first name. 

16Occasionally an adult woman was involved, or an adolescent aged 16 or older, but every sex show, attempted or actualised did involve at least one child aged under 16 and often more than one.  Overall, your offending involved 83 separate victims, the majority of them being aged between 10 and 12 years.  A few were aged 14 or 15, and one four year old was involved on an occasion.

17The maximum penalty for procuring a child for sexual activity is 15 years imprisonment.  The maximum penalty for production of child pornography is ten years imprisonment.  The maximum penalty for accessing child pornography using a carriage service was ten years imprisonment where that offence was committed prior to 2010, and thereafter the maximum was increased to 15 years imprisonment.

18The maximum penalty for attempting to cause a child to engage in sexual intercourse in the presence of a defendant is 20 years imprisonment.  The maximum penalty for causing a child to engage in sexual activity in the presence of a defendant is 15 years imprisonment.  The maximum penalty for attempting to cause a child to engage in sexual activity in the presence of a defendant is 15 years imprisonment.  The maximum penalty for causing a child to engage in sexual intercourse in the presence of a defendant is 20 years imprisonment, and the maximum penalty for knowingly possessing child pornography is five years imprisonment.

19I now turn to your personal circumstances.  You are 43 years of age, live alone and have not partnered.  You are one of two children, having a younger brother who is about two years younger than you.  You had a difficult childhood, as your father was an alcoholic who was often absent from home, and both you and your brother were subjected to emotional, verbal and physical abuse by your mother.

20You also frequently witnessed frequent arguing between your parents who separated when you were about 12.  Your brother has developed an ongoing depressive condition.  You completed Year 10 at secondary school, but left because of incessant bullying which began when you entered high school, whereby you were singled out by a particular group of students who regularly taunted you, harassed you verbally and physically, and on occasion, forced you into toilets and made you display your genitals which were then again the subject of taunts, and which harrowing experiences overall left you with feelings of inadequacy that have pervaded your life ever since.

21On leaving school, you undertook an accounting course at TAFE for two years, but you were unable to find work.  Between 1993 and 1996, you worked as a storeman/truck driver in which job you were also bullied primarily for your lack of experience, and were taunted for being a virgin.

22You resigned from that job in 1996 because of the bullying inflicted upon you.  You then began tertiary study, and between 1996 and 1998 undertook and completed a computer science course, and were employed between 1998 and 2003 by an IT consulting company.  That company eventually closed, and you were retrenched.

23You then returned to study on a fulltime basis, undertaking a graduate diploma and qualifying as a secondary school teacher.  Your counsel informed me that you enjoyed the study very much, and the placements that you undertook in the course of your diploma.  You felt you had some talents in this area, but ultimately never worked in it.

24It appears according to your counsel that your pervading sense of inadequacy had effected you to the point that you would become terrified at the prospect of success, and so whilst achieving very high marks during your course, struggled in the last semester when it looked as if the end was nigh, and you were in fact going to succeed, and barely managed to pass.

25In 2007, you were working fulltime at an IT company when you were arrested in April of that year, on charges of using a carriage to transmit objectionable material and knowingly possess child pornography.  You received an effective sentence of 15 months with a non-parole period of four months imprisonment.  This is your only prior criminal matter, but it is a serious and most relevant one in so far as sentencing for the matters before this court are concerned.

26Prior to your arrest, but before the hearing of the charges in December 2007, you attended upon psychologist Dr Sophie Reeds.  A copy of her report dated 9 December 2007 being tendered on the plea.  You attended 14 sessions with her.  Dr Reeves applied psychological testing which she said revealed a personality style she described as "Characterised by avoidant and dependent personality features.  Individuals with these characteristics, typically remain detached and isolated and do not have close friends.  They view themselves as weak and inadequate and strongly wished to be liked by others, but nevertheless have a great sense of rejection.  As a result, they tend to experience social situations negatively, seeming apprehensive and nervous".

27She said you reported a sexual interest in girls aged between 11 to 14, and met the criteria for hebephilia.  She stated "It appears that his internet child pornography used as functions both as a coping mechanism for him and as a sexual outlet for him occurring in a context of feelings of inadequacy and inferiority, and perceived inability to establish sexual relationships with adult women, and a background of family instability and bullying by his peers".

28She said that whilst you progressed and engaged well in your sessions with her, and made significant progress, that given the complexity and chronicity of your sexual problems, felt you needed to continued interventions spanning a period of at least 12 months involving cognitive behavioural relapse intervention framework.  Aversive therapy to assist in reducing deviant fantasies she said would also be important in reducing your chances of offending in the future.  Needless to say, the sentence you received attended to none of those difficulties.

29Dr Reeves described you as a gregarious, yet sensitive, emotionally immature man, with a number of psychological difficulties including sexual problems, intimacy, deficits arising from a number of aversive experiences in your childhood and adolescence that appeared to have impacted significantly upon you.

30You were released from gaol after serving the minimum term, that is four months imprisonment, and because of the length of that sentence, never undertook the sex offenders' program.  You did not seek, nor was it a condition of your parole that you seek further psychological assistance, which it is quite clear you very sorely needed. You apparently recommenced re-offending shortly your release from prison in 2008.

31You obtained work as a truck driver, which employment you maintained until your arrest for these matters, living in the meantime, an extremely isolated life with no social outlets it would seem, except for contact with members of your family.

32The prosecutor pointed out that the records show you use the internet virtually every day and it would seem that your life, from the years following your release from prison, until your re-arrest, essentially comprise of work and internet activity.

33Initially after being arrested by police in relation to these matters following a raid upon the house that you own and lived in alone in Brunswick, that is in relation to the matters that have brought you before this court, you conducted a no comment record of interview, but thereafter returned and engaged in a second record of interview comprising full and frank admissions as to your offending. You also began attending on psychologist Don Burnard whose report was tendered on the plea.

34Mr Burnard said that you attended upon him with a long term goal to understand why you had offended, and a short term goal to prepare for gaol.  He described the quality of your relationships with adult women as extremely naive and immature.  You told Mr Burnard you first became interested in child pornography when you were 27.  It starting with girls in bikinis, and you were eventually enticed into interest in children.

35He stated "Clinically he is mildly depressed, and has a moderate level of psychological distress.  Part of his distress is his increasing recognition of the harm done to young girls by involving them in pornography.  His loneliness has left him exposed to a life of fantasy".  Mr Burnard went on to state that your loneliness was more significant because you also have a hearing deficiency. 

36Your counsel informed me that you constantly felt guilty about your offending, and were aware of its exploitative nature, but were unable to resist it.  On occasions, you would completely erase the contents of your computer, which purged you of your guilt, but were then unable to stop yourself from beginning again.  You knew that you would ultimately be detected by the authorities.

37In your later co-operative record of interview with police, you said children aged ten were your lower limit, that you were ashamed, that you estimated you would have paid for about 20 shows, that you understood the children became involved because of poverty, that you received sexual gratification from the shows and would masturbate to them, that the girls would go on occasion to see your genitalia, and you admitted you would take screen shots of the girls and saved the images on to a file with the child's name as the title.

38Of concern is the fact that after speaking to a number of girls about the possibility of meeting up with them and engaging in sexual activity with them in the Philippines, you on 15 May 2012 flew there, arriving in Manila and disembarking, but you were denied entry and returned to Australia the following day.

39A search of your luggage on your return showed you had planned to stay there for about 20 days, and you were then going on to visit Thailand.  On a document entitled list of things to do, you had written "Clean PC", referring presumably to your computer, and had included condoms on your packing list.

40You pleaded guilty at what the prosecutor conceded was a very early stage, and it was also conceded that examination of the materials found on your computer did reveal a consistency as to your activities described by you in your record of interview, that is, at essentially the age of 10 was the bottom line in so far as the age of the girls was concerned.

41It was accepted, as I have said, that you are a Hebephile, that is a man, who is attracted essentially to pubescent children.  It is clear, and it has not been submitted otherwise that the only appropriate sentence to be imposed in this case is one of a term of imprisonment to be immediately served, and that being a term of imprisonment of some length.

42It was submitted, and I accept that the offending in effect was a course of conduct pursued by you over a period of years.  It involved the wholesale exploitation of vulnerable, poverty stricken children whose willingness to engage in the activities for which you paid only highlighted the desperation of their situation.  The number of victims was extremely large.  The amount of damage done to these girls as a result of your criminal activity is incalculable. 

43I do accept that at some level, you have a certain empathy and insight for your victims, but the fact remains that you directed in grossly sexual explicit activities they undertook.  You conducted negotiations for the cheapest possible price you could pay for these services, in a manner entirely divorced from a realisation of the enormity of your offending, and the vulnerability of your victims by virtue of their age and poverty.

44Further, whilst your contact with these girls was via the internet, it was in my view sufficiently direct that you should have experienced some realisation of the wrongness of your actions, and their exploitative nature.  I agree with the prosecutor's submission.  This is a serious example of serious offending.

45Unfortunate though it may be that the psychological services you so sorely required at the time of your offending in 2007, were not provided to you either by way of a sex offenders' program, or by conditions of parole, you still had the option of returning to Dr Reeves, should you have so wished once you left gaol.

46In saying that, I do accept that this may have been a difficult course for you on leaving gaol, over concern that discussions of the type you required in the therapeutic session could have led to your re-arrest.  In so saying, I deplore the fact that so often in cases of this kind, the offender is revealed as being an inadequate man, with very little social interaction in life, who has had very difficult experiences, both at home and at school, and often been the victim of bullying which has resulted in an inability to form adult relationships, and is often and otherwise unoffending productive citizen, but who requires strong social supports to overcome the inherent personality deficiencies that lead them to offending in the first place, but who is unable to secure the potentially valuable services of a sex offenders' program due to placement shortage.  This only leads to - and the court has seen this more than once, continued offending once a person is released from gaol, and often escalated offending has been the case here.

47If the authorities are serious about protecting children who are the subject of the sort of material, and activities undertaken by you, then the sorts of services - the psychological services that you require must be made more readily available to persons such as yourself.  As I have said, this is not the first time the court has seen an offender of precisely the same personality make up as you, be sent to gaol for more minor offending, then released without proper assistance, and go on to continue in precisely that offending, but on a more escalated scale.  The writing, if I can put it that way, is on the wall and it is my view that had you been able to access the sex offenders’ program after your 2007 offending you may not have gone on to offend as you did.

48There is no doubt that offending such as yours amounts to the provision of a market place for a product entirely built on the exploitation of already vulnerable children, living in circumstances of poverty, already without access to fundamental services and protection that will allow them to develop satisfactory and stable lives.

49It is horrendous that the lives of these children who must already navigate enormous problems, brought about by their socioeconomic position in life should be rendered so much more difficult by the sexual exploitation and degradation they experience, and their suffering is immense.

50Certainly your further offending represents an escalation of vast proportions.  You have maintained the support of your mother and your aunt and I am prepared to accept that you experienced conflicting emotions as you engaged in this sexually exploitative behaviour.

51I accept that you are remorseful for your offending, and believe that you are a person who will respond positively to, and receive benefit from the sex offenders' program in gaol.  But I also accept that in offending of this kind, the primary consideration for this court are ones of general deterrence, denunciation of your conduct, just punishment, specific deterrence and protection of the community in particular, the community of children living in deprived socioeconomic conditions who you exploited for so many years.

52I have been referred to decisions in similar cases, there being the sentence imposed in R v Goggins by Her Honour Judge Davis of this court on 7 July 2014.  The sentence imposed in the case of DPP v Hickey imposed by her Honour Judge Hampel on 10 September 2013 and a decision of the Court of Appeal in the case of Revo v R in a judgment delivered on 29 May 2012.

53I accept the prosecution's submission that the fact scenario of R v Goggins is the most comparable to the matter before this court, but that overall the sentencing in each case provides a clear guide as to the appropriate term to be imposed in this offending scenario.

54In sentencing you, I do take into account your early plea of guilty, your co-operation with police.  I note that you were keen to assist police in identifying others involved in your access to these children, your remorse, what I find to be your guarded prospects of rehabilitation and the factors which led to your offending in this and I therefore sentence you as follows.

55On Charge 1, you are sentenced to four years imprisonment.  On Charge 2, you are sentenced to two years imprisonment.  On Charges 3 and 4, you are sentenced to one year's imprisonment on each charge.  On each of Charges 5, 6, 7, 13, 16, 19, 20 and 21, you are sentenced to 12 months imprisonment.  On each of Charges 11, 15, 17, 23 and 24, you are sentenced to 18 months imprisonment.  On each of Charges 8, 10, 12, 14, and 18, you are sentenced to 14 months imprisonment.  On each of Charges 9 and 22, you are sentenced to 10 months imprisonment and on Charge 25, you are sentenced to one year imprisonment.

56The base sentence will be the sentence imposed on Charge 1 of four years.  I order that one year of the sentence imposed on Charge 2 and six months of the sentence imposed on charge 25, and that three months of each of the sentences imposed on Charges 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 be served cumulatively with the sentence imposed on Charge 1 and to each other.  Giving the total effective sentence of 11 years, and I order that you serve a minimum term of eight years.  Counsel you please have a seat Mr Le Gassick because I now have to go through the technicalities of outlining the commencement date for the Commonwealth sentences and you do not need to stand for that, so have a seat, thank you.

57I do not need to give a date for Charges 2 and 25.  The sentence on Charge 1 will commence on 13 February 2016.  The sentence on Charge 3 will commence on 13 May 2019.  The sentence on Charge 4 will commence on 13 August 2019.  Charge 5, 13 November 2019.  Charge 6, 13 February 2020.  Charge 7, 13 May 2020.  Charge 8, 13 June 2020.  Charge 9, 13 February 2021.  Charge 10, 13 April 2021.  Charge 11, 13 November 2020.  Charge 12, 13 June 2021.  Charge 13, 13 November 2021.  Charge 14, 13 December 2021.  Charge 15, 13 November 2021.  Charge 16, 13 August 2022.  Charge 17, 13 June 2022.  Charge 18, 13 December 2022.  Charge 19, 13 May 2023.  Charge 20, 13 August 2023.  Charge 21, 13 November 2023.  Charge 22, 13 April 2024.  Charge 23, 13 November 2023 and Charge 24, 13 February 2024.

58Does that make sense?  I know you have got to go through it, but I am required to do it in that unbelievably complicated way that the Commonwealth Code requires.  All right, it is a long sentence Mr Le Gassick.  I have got no doubt you have been informed that is what you would be looking at.  Can you her me sir?

59OFFENDER:  Sometimes Your Honour.

60HER HONOUR:  All right, your counsel will explain it to you.  Could you take Mr Le Gassick down please.  I have to do a s.6AAA?

61MS BROWN:  Yes Your Honour.

62HER HONOUR:  You can go Mr Le Gassick, thank you.  Pursuant to s.6AAA, I declare that had he not pleaded guilty, I would have sentenced him to a term of 13 years and ordered a minimum term of ten years.  Do you want a photocopy of the dates that I attached to each of those?

63MS BROWN:  Yes thank you Your Honour.

64HER HONOUR:  All right, I will get you a photocopy of that.  What I have done is there is two columns.  The first column is the date where it is meant to start and the second column is the date that that particular sentence - what it takes it to, and eventually it takes it up to 13 August 2025 which is the 11 years.

65MS BROWN:  Thank you.  Your Honour, can I confirm that sentences imposed on the state charges being Charges 2 and 25.

66HER HONOUR:  Charge 25 was one year and Charge 2 was two years.  The accumulation was six months of Charge 25, and one year on Charge 2 to be served cumulatively to the sentence imposed on Charge 1, and the other accumulations.

67MS BROWN:  So is there no non-parole period imposed on those two charges?  Are they straight sentences of imprisonment?

68HER HONOUR: All I have done is added it all - do I have to do that?

69MS BROWN:  Separate non-parole periods.

70HER HONOUR:  This is the most stupid system that could ever be imagined. 

71MS BROWN:  Your Honour can - has the option ‑ ‑ ‑

72HER HONOUR:  Because that means I'm going to have to redo all the sentencing.

73MS BROWN:  No Your Honour can decline to set a non-parole period on two charges in the circumstances of the offence.

74HER HONOUR:  Well what does that mean in terms of what - I want a non-parole of eight years.

75MS BROWN:  But the non-parole period will come into effect on the Commonwealth sentences, and because the state sentences are running cumulatively on the Commonwealth sentences, it won't affect the non-parole period.  Your Honour simply just has to note for the record, that on the state charges, Your Honour has declined to set a non-parole period.

76HER HONOUR:  Thank God for that, well I do so decline.

77MS BROWN:  Thank you Your Honour.

78HER HONOUR:  Now is there anything else you needed?

79MR PEARCE:  Nothing Your Honour, no.

80HER HONOUR:  All right then.  We will need copies of these.  We will send them back later, yes we want copies of those to go to the Parole Board and we want to make sure Mr Le Gassick is placed on the sex offenders' program, although ironically, if it is too short, they cannot get on the waiting list, and if it is too long, they will wait right until the end before they put him on it.

81I have to say Mr Le Gassick strikes me as the sort of person that had he been subjected to the sex offenders' program before his release, may not have gone on to re-offend.  All right, thank you very much, we will stand down to 10.30, thank you.

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