Director of Public Prosecutions v Lopez (a pseudonym)

[2019] VCC 1828

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN LOPEZ (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 November 2019
CASE MAY BE CITED AS:	DPP v Lopez (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1828

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Larkin
For the Accused	Ms D. Lamovie

HIS HONOUR

1Shaun Lopez[1], you have pleaded guilty to the following offences, which carry the following maximum penalties:

·Stalking, 10 years' imprisonment;

·Producing child abuse material, 10 years' imprisonment;

·Attempting to produce child abuse material, five years' imprisonment;

·Accessing child abuse material, 10 years' imprisonment;

·Possession of child abuse material, 10 years' imprisonment;

·Possession of a drug of dependence, being a small amount of cannabis, a fine of up to five penalty units.

[1] A pseudonym.

2As I intend to convict and sentence you to a term of imprisonment on
Charges 2 and 4, you fall to be sentenced as a serious sexual offender on Charge 5.  The law provides that any term of imprisonment on this charge must be served cumulatively, unless otherwise directed.

3In addition, you have pleaded guilty to four Class II offences and you are therefore subject to the mandatory registration under the Sex Offenders Registration Act.  This will require you to report for the rest of your life.

4You have admitted your prior convictions.  As these date back to 1989 and 1997 respectively, I do not consider them particularly relevant to this offending and
I do not consider that, of themselves, they should influence the principle of specific deterrence in this case.

5The Crown tendered a summary of prosecution opening on plea as Exhibit A. A summary of your offending is as follows:

6The offending on Charges 1 to 3 was committed against your daughter.  She was born in December 2001 and was 16 years of age at the time of your offending.

7Charge 1 of stalking was committed between 11 June and 11 September 2018 and Charge 2 of produce child abuse material was committed between 31 July - 23 September 2018.  The first charge of stalking was committed when you filmed the complainant in the bathroom, around the house and out in public. You used secret cameras, including one mounted in a canvas painting,
a camera mounted in a laundry basket, a camera mounted in a toilet roll and a hand-held mobile phone.  Whilst a number of the images, that is, those relating to Charge 1, are not child abuse material, you filmed your daughter without her knowledge around the house and in public places.

8The images constituting Charge 2 constitute child abuse material, as you filmed your daughter while she was naked in various acts of showering or using the toilet.

9The third charge was committed on 22 September 2018, when your daughter caught you mounting a mobile phone behind a canvas painting in the bathroom.  She found the phone taped to the back of the canvas painting and it was positioned behind a small hole in the canvas.

10On 23 September 2018, you told your daughter that you were obsessed with her and in love with her.  You said that seeing pictures of her got you excited and it was a thrill.

11These matters were reported to the police and on 26 September 2018, you were arrested and a search warrant was executed at your home.  Police located a small amount of cannabis, that is, the subject of Charge 6.  Police also seized your two mobile phones.

12When your phone was analysed, police found the material relating to your daughter which, as I have noted earlier, depicted covertly taken material of her which was both child abuse material and otherwise and there was also found child abuse material which you accessed from the internet.  In total, there were 1,817 child abuse material photographs and one video.  According to the ANVIL rating, 1,451 images and one video fell within Level I; 181 images fell within Level II; 103 images within Level III; 79 images within Level IV and three images within Level VI.  There were a further 304 images which were not illegal but connected.  The child abuse material in your possession constitutes the evidentiary basis for Charge 5.  The material within the images found in your possession which were taken from the internet constitutes Charge 4 of accessing child abuse material.

13The police found, on my reckoning, approximately 187 files depicting your daughter.  These files constituted both child abuse material and non-child abuse material, but were the subject of the first charge of stalking.

14When interviewed by police, you admitted to your offending, although I note that you told police that you only accessed child abuse material when they 'popped up' at a time or times when you were looking at adult pornography.

15When the matter was opened to me, I was told that after you were interviewed by police, you were released from police custody, pending summons.  On
16 October 2018, the informant contacted you by telephone and requested you attend the police station the following day.  Instead, you fled to New South Wales, where you were arrested on 17 October and extradited back to Melbourne.  As I was not addressed on the question of flight, I do not intend to add it to the mix in the sentencing consideration.

16You have now been in custody since 17 October 2018 and with other time spent in custody after your arrest, you have now served a total of 407 days
pre-sentence detention, excluding today, which I will reckon as already served. 

17Your daughter made a victim impact statement which was read to the court.  Her statement speaks of the breach of privacy, her feelings of being exposed and feeling vulnerable; that you objectified her and of the gross breach of trust your acts involved.  Most of all, your daughter poignantly speaks of the breach of trust within the father/daughter relationship.  She said that you were the person who were 'meant to protect her and make her feel at her best, but you made her feel scared and useless to this world'.  Unsurprisingly, your daughter now receives psychological counselling.

18As your daughter relates in her statement, your crimes have broken up the family unit.  Your wife wants nothing to do with you; you are prevented from seeing your youngest son and you still have the support of two other sons, your parents and your sister, who was present in court on your plea hearing.  The immediate consequence is that the family unit has dispersed.  It is not clear where your daughter is presently living, but she is no longer living with her mother, who has had to move to her brother’s place.

19In other words, you have had a cataclysmically destructive effect on your own family.

20I turn now to consider the objective gravity of your offending.  The offence of stalking, producing child abuse material and attempting to produce that material, are always serious offences and in this instance, are all the more serious for the fact that it was your own daughter who was the subject of your lascivious desires.

21On the plea you were ably represented by Ms Lamovie.  Ms Lamovie submitted that I should view your stalking as without malicious intent.  Whilst I accept that you did not, for example, leave overt hints of your conduct in order to worry and terrify your daughter, the end result, the uncovering your actions, has led to devastating results on your daughter and family.  You have instilled in your daughter feelings of betrayal, exposure, objectification, uselessness, vulnerability, isolation, fear and anxiety.  All of these words come from her.  As the person in the world she is supposed to be able to trust the most, she now trusts no one, so whether you had a malicious intent or not, your actions have had a malicious effect.

22Moreover, the offence of spying on your daughter at times when she thought she was safely private in the sanctity of the bathroom, toilet and rooms in her own home, is a disgraceful breach of trust and of boundaries.  To record and keep these images suggests that you had lost your moral compass.

23I note that Charges 1 and 2 occurred over a period of weeks and involved multiple instances of covert filming.  I consider this adds somewhat to the seriousness of both of these charges, as these offences were each both sustained in their duration and they were planned.

24It appears, at least from your cooperation with the police in the record of interview and that the answers you provided to the forensic psychologist that you have some insight, albeit it was conceded by your counsel that it was limited, into the fundamental wrongfulness of your actions towards your daughter and in respect to accessing and possessing child pornography.

25As Ms Lamovie pointed out in her submissions, whilst you accessed and possessed child abuse material, there was no suggestion of distribution or dissemination, commerciality or profit motive and the overwhelming majority of the images found in your possession were Level I images.  I accept these submissions, but still consider your offending serious, particularly as a number of the files related to the images you made of your daughter.

26In this process, I am mindful of the fact that a number of the screenshots were taken from videos that you had filmed of your daughter, so whilst there was duplication, these were not subtracted from the overall number of images found in your possession.  Further in this respect, Ms Lamovie submitted there is some overlap between the production, the attempt to produce child abuse material and then between accessing and possession of child abuse material.  I agree that I must be mindful to take these factors into account in the sentence I impose for each offence and overall.

27I consider your moral culpability on Charges 1 to 5 to be high.  There is no one else involved and you are entirely the author of your own predicament.  As
I have already stated, your covert actions, the breach of trust involved in your actions and the devastating effect you have had on your daughter’s life, upon the discovery of your crimes, is utterly deplorable and must be denounced.  The fact that you, as a father, did not think of the consequences, or thought of them but carried on with these crimes, is abhorrent.

28The criminal law presumes that sexual offences directed at children is harmful to them.  Your daughter has provided cogent evidence of the harm you have caused to her.

29Your actions must be met by principles of general and specific deterrence and denunciation.  Ms Lamovie submitted that specific deterrence should not weigh heavily in the sentencing consideration, as you are unlikely to offend again and unlikely to have the opportunity to offend again.  Whilst I consider these to be largely realistic, your overall offending provides serious examples of each of these crimes.

30I address the question of protection of the community separately.  The fact that your offending occurred over a period of weeks and involved multiple instances of stalking your daughter and filming her naked, speaks of  your unhealthy obsession with an underage child and secondly, that child being your own child. Added to this, you had accessed, downloaded and stored many images of child abuse material.  In my view, the sentence I impose must reflect the need to protect the community.  Moreover, you will be sentenced on Charge 5 as a serious sexual offender.  Accordingly, the protection of the community becomes a significant factor in the sentencing process.  I note in this respect, however, that the Crown does not seek the imposition of a disproportionate sentence in respect to Charge 5.  I shall not impose a disproportionate sentence on this charge.

31I turn now to your personal circumstances.  You are 51 years of age and you were born in October 1968.  Your parents had earlier migrated from Spain. Your parents are still alive and you have three sisters.

32You left school in Year 11 at age 17 and you worked initially with your father in his car spare parts business.  At age 20, you started work at a fibreglass manufacturer.

33When you were 20 years old, you married your wife.  

34You have four children.  As I have stated, you still have some contact with your two oldest boys.

35You and your wife moved to the Gold Coast for four years.  When you returned, you started work as a delivery driver.  You had to work very long hours to provide for your family.

36It appears that you have been a long time user of cannabis.  It is apparent from the report of Dr Dion Gee, to which I will refer later in these remarks, that your use of cannabis has been both heavy and sustained.  Dr Gee considers that you need intervention to focus on the inhibiting effects of the substances and their association with your deterioration in mental health and you need to be provided with insight into the connection between the substances you have been ingesting and aberrant behaviour.

37Since you have been on remand, you have completed a number of vocational courses.  You have the support of your sons, your sister and your parents.  Your father provided a character reference, as did your sister.  It is apparent that their support for you will continue after your release.  This is a positive protective factor which will assist in the consideration of your prospects for your rehabilitation.

38I also note on the question of your rehabilitation that you have had a solid work history up to the point of your imprisonment.  It is also apparent that you have kept yourself very busy with the courses you have completed whilst in custody.

39Notwithstanding your industry, your time in custody has not been easy.  It is apparent that you have been assaulted on a number of occasions.  You are currently held at the Hopkins facility.

40As I previously mentioned, you were assessed by forensic psychologist, Dr Dion Gee. His report is dated 12 September 2019.  Dr Gee concluded that you did not meet the diagnostic criteria for paedophilic disorder.  Rather, he concluded that your

'aberrant sexual behaviour appears best construed as an unsophisticated attempt at intimacy and sexual expression in a man with dysfunctional sexual/self-regulation, a reduction in sexual outlets, diminished identity/self-worth, reduced affective awareness, compromised interpersonal functioning and increased feelings of isolation and loneliness.'

41Further, Dr Gee found that you have deficits of insight in relation to your mental health and reduced understanding of your risk profile and potential future risks. He found that you somewhat lack empathy.  Nevertheless, he concludes that if you were afforded the opportunity to engage in psychological intervention, you would present with a good prognosis for your rehabilitation.  On testing, Dr Gee found that you have an average risk for being charged or convicted of another sexual offence for your two ensuing years in the community.  You have a moderate, or low to moderate risk of sexual violence in the community without further intervention.  You did not demonstrate the personality traits or behavioural component of psychopathy, which is found to strongly correlate with the risk of future sexual offending.  Finally in this respect, Dr Gee considers that your present circumstances highlight several key protective factors against a relapse into sexual violence.

42Dr Gee recommends that you complete a group sexual offender intervention program; that you require intervention to address your long-time cannabis use; intervention to deal with interpersonal relationships and the need for case management through the Community Corrections office once you are released, in order to help implement goals and a pro-social identity.

43Ms Lamovie submitted that your sentence should be mitigated by the following:

·First, your early plea of guilty was attended by remorse and insight;

·Second, notwithstanding the fundamental breach of trust involved in your crimes, you realise that you have failed your daughter and you want to act to regain her trust and the trust of your family;

·Third, the need for specific deterrence is limited, as I have already discussed; and

·Fourth, you have a strong work history and skills, family support and a determination to overcome your aberrant behaviour, such that you have good prospects for your rehabilitation.

44Whilst Ms Lamovie conceded that you face a further period in prison, she submitted that, in all the circumstances, I should consider imposing a long parole period, so that your transition back into the community can be structured, monitored and supported by Corrections.  Ms Lamovie submitted that I should not impose a crushing sentence and she submitted that I must take into account the subjective factors and particularly your prospects for rehabilitation in balancing the sentence I impose.  I see good sense in Ms Lamovie's submissions.

45Ms Peek, on behalf of the Crown, conceded the early plea of guilty and the demonstration of some remorse should mitigate your sentence, but submitted that remorse was indeed limited, as your answers to police were often qualified in the admissions they contained.  Ms Peek submitted that your offending was marked by the breach of trust, the effect it had had on your daughter and your family and that it was sustained and planned offending.  Ms Peek pointed
to Dr Gee’s conclusion as to your limited insight and reduced appreciation of your wrongfulness.  Ms Peek submitted that overall, the question of your remorse and your prospects for rehabilitation were not clear-cut and that you must serve a further period of imprisonment, with the imposition of a non-parole period.

46I consider that your prospects for rehabilitation should be assessed as reasonable, provided that you address and receive intervention to address the issues particularly highlighted by Dr Gee.  I consider that your plea of guilty, your cooperation with the police and your answers to Dr Gee, demonstrate the beginning of remorse and at least the beginning of insight into your offending. It is clear, however, that you still have a long way to go.  I intend therefore to impose a non-parole period which will give you the opportunity to be released upon parole.  You must work hard whilst in custody in order to achieve an order for your release on parole.  However, as I said earlier, in the context of the submissions made by your counsel, parole will provide you with the opportunity for structure, monitoring and support on your release back into the community.

47Mr Lopez, I will ask you to stand now and I will impose the sentence. 

48

On Charge 1, the charge of stalking, you are convicted and sentenced to

16 months' imprisonment.

49On Charge 2, the charge of producing child abuse material, you are convicted and sentenced to two years and two months' imprisonment.

50On Charge 3, the charge of attempting to produce child abuse material, you are convicted and sentenced to nine months' imprisonment. 

51On Charge 4, accessing child abuse material, you are convicted and sentenced to nine months' imprisonment. 

52On Charge 5, the charge of possession of child abuse material, you are convicted and sentenced to 12 months' imprisonment. 

53I declare you to be a serious sexual offender and I order that fact be noted on the records of the court. 

54On Charge 6, the charge of possession of a drug of dependence, without conviction, the charge is proved and you are discharged. 

55I make the following orders for cumulation:

56Obviously Charge 2 is the base sentence of the 26 months. 

57

I order that eight months of the sentence on Charge 1 be cumulated on

Charge 2 and all other sentences.

58I order that four months on Charge 3 be served cumulatively.

59I order that nine months on Charge 5 be served cumulatively. 

60

I have not ordered total cumulation of the sentence on Charge 5, as I consider that a portion of the child abuse material in your possession arose out of

Charge 2.

61In that way, I consider there is a small degree of overlap between the two charges. 

62Moreover, I am required to achieve an overall totality of sentencing which does not impose a crushing sentence.

63Taking those considerations into account, I have determined that a majority of the sentence on Charge 5, but not the whole of that sentence, should be cumulated on the balance of your sentence.

64

It leads to a total effective sentence of three years and 11 months.  That is,

47 months.

65I order that you serve a non-parole period of 30 months before you are eligible for parole.

66I declare the period of 407 days, excluding today, pre-sentence detention reckoned as already served. 

67I have already noted that you will be registered on the Sex Offenders Registration list for life.  There is certain paperwork that must be provided to you now, Mr Lopez.  I will have that paperwork provided.

68The paperwork that has been provided to you, Mr Lopez, sets out a number of the obligations that you will be required to comply with under the Sex Offenders Registration Act.  They are numerous and they are onerous.  They will be explained to you, I am sure, by Ms Lamovie, who has, to this point, represented you most ably, as I have already said.  You will need to comply with those conditions upon your release. 

69The 6AAA declaration is, but for the plea of guilty in this matter, I would have, all things being equal, imposed and overall sentence of six years, with four years to serve. 

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