Director of Public Prosecutions v Lyon
[2024] VCC 1089
•22 July 2024
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01753
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| LYON, Paul |
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JUDGE: | His Honour Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2024, 20 June 2024, 10 July 2024 | |
DATE OF SENTENCE: | 22 July 2024 | |
CASE MAY BE CITED AS: | DPP v Lyon | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1089 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Use carriage service to procure a person believed to be under the age of 16 for sexual activity – Use a carriage service to solicit child abuse material– Kik – 14-year-old – Undercover police – General deterrence – Specific deterrence – Recognizance release order – Exceptional circumstances not found – Imprisonment
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth)
Cases Cited:Moore v R [2018] NSWCCA 26; Wilson v R [2020] NSWCCA 211; Rampley v R [2010] NSWCCA 293; Woods v R [2023] NSWCCA 37; R v Bredal [2024] NSWCCA 75
Sentence: 3 years Imprisonment to be released on recognisance release order after serving 3 months – Sex offender registry for 15 years.
6AAA5 years Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Cullen | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms A Beech | Slades & Parsons |
HIS HONOUR:
Circumstances of offending[1]
[1] The offending is set out in much more detail in Summary of Prosecution Opening for Plea (12 April 2024, Exhibit P1). I have also read and taken into account Crown Submissions on Sentence for Plea (9 May 2024, Exhibit P3); Outline of Submissions on behalf of the Accused (7 May 2024, Exhibit D1); report by Peter Hanley (6 May 2024, Exhibit D2), Geoffrey Burrows, Confidential Psychological Assessment (6 May 2024, Exhibit D3); character reference by Belinda Jones-Lyon (5 May 2024, Exhibit D4); bundle of medical documents (24 June 2022, 17 August 2023 and 18 August 2023, Exhibit D5); and Supplementary Submissions in relation to Exceptional Circumstances (9 July 2024). I have also taken into account all of the matters in s 16A(2) of the Crimes Act 1914 (Cth), in so far as they are relevant to this case.
Paul Lyon, on 10 February 2023 you began communicating on Kik, an encrypted messaging platform, with a person who called herself “Lucy”. Lucy told you she was a 14 year old girl. In fact, Lucy was an undercover police operative.
Over the course of the next four months you engaged in numerous highly sexualised discussions with Lucy. These included requesting sexual images of her and sending pornography and nude images of yourself to her. Eventually, you arranged to meet Lucy in person for sexual activity (charge 1). You did not follow through with this arrangement, and stopped communicating with Lucy.
On 19 March 2023, you communicated with another Kik user called “Sana” over the course of six hours (charge 2). Sana informed you that she was 15 years old. Your conversation with Sana was again highly sexualised. During the course of your online conversations Sana sent numerous images to you which purported to be of herself. Sana eventually stopped responding to your messages.
You were arrested on 14 June 2023, and made reasonably full admissions to your offending with Lucy. You did not volunteer any information in relation to the Sana offending, which was at that time unknown to police.
Maximum penalties
You have pleaded guilty to two charges. The maximum penalties for those charges are as follows:
a.Fifteen years’ imprisonment for the offence of using a carriage service to procure a person believed to be under the age of 16 for sexual activity, contrary to section 474.26(1) of the Criminal Code (Cth); and
b.Fifteen years’ imprisonment for the offence of using a carriage service to solicit child abuse material, contrary to section 474.22(1) of the Criminal Code (Cth).
Objective seriousness
The factors which determine the seriousness of your offending are well-established.[2] In this case, having regard to the following matters, I find that your offending was serious, but not at the most serious level of offending:
a.Your offending was relatively unsophisticated in that there was no extended grooming process, and you made little attempt to conceal your identity;
b.The Lucy offending lasted four months, although Lucy was an undercover operative rather than a real child;
c.You failed to go through with the arranged meeting with Lucy;
d.The Sana offending was of relatively short duration (although this was arguably due to her withdrawal from the conversations);
e.There is no evidence that you went onto Kik actively seeking to engage with a child;
f.There is no evidence that you distributed the material you obtained to anyone else;
g.However, you were persistent, and asked both Lucy and Sana whether they would engage in sexual activity for money.
[2] See Crown Submissions on Sentence for Plea, [30] and [38]; and Outline of Submissions on behalf of the Accused, [22].
Sentencing principles and practice
The relevant sentencing principles are helpfully set out in Parts C, D and E of the Crown Submissions on Sentence for Plea. The prosecution has also provided me with a Schedule of Comparative Cases Appellate Authorities (Exhibit P4), which sets out a number of helpful comparable cases.[3] In light of this material, it is apparent that:
a.General deterrence is the primary consideration in offending of this kind;
b.Specific deterrence, denunciation, punishment and community protection are also significant considerations;
c.Personal mitigatory factors are given less weight;
d.Offenders can ordinarily expect an immediate term of imprisonment;
e.Offenders cannot be immediately released on a recognisance release order (RRO) unless the court is satisfied that there are exceptional circumstances; [4] and
f.There is a presumption against concurrency or partial cumulation, which is subject to a statutory version of the principle of totality.[5]
[3] Moore v R [2018] NSWCCA 26; Wilson v R [2020] NSWCCA 211; Rampley v R [2010] NSWCCA 293; and Woods v R [2023] NSWCCA 37.
[4] Crimes Act 1914 (Cth), s 20(1)(b).
[5] Crimes Act 1914 (Cth), s 19(5) and (6).
In my view, the seriousness of your offending and the need for general deterrence and denunciation requires a term of imprisonment for both charges. However, the principle of totality requires some cumulation.
Your counsel submitted that there were exceptional circumstances such as would justify your immediate release on an RRO. At first, the defence relied primarily on circumstances relating to your physical health, and the plea was adjourned on two occasions to allow the defence to obtain further medical material.
By at least the time of the third plea hearing on 10 July 2024, the defence accepted that your medical issues did not, on their own, constitute exceptional circumstances. The defence instead submitted that it was the combination of circumstances that was exceptional. The prosecution denied that the circumstances were exceptional. Accordingly, one of the main issues I have had to determine in hearing your plea is whether your circumstances are exceptional.
Personal circumstances
You were 62 years old at the time of the offending, and are now 63 years old. You have some relevant prior offending, but it dates back to 1991 and 2001, so it is of limited relevance.
You were experiencing very stressful circumstances at the time of your offending. You were generally co-operative after your arrest, and pleaded guilty at the earliest reasonable opportunity. You have shown remorse and contrition for your conduct. This reduces the need for specific deterrence.
Since your arrest, you have engaged with treatment for your mental health and offending behaviour, and made good progress. This suggests that you have good prospects for rehabilitation. The fact that you have maintained full-time employment and a stable and loving marriage further confirms this.
You have serious health issues, including prostate cancer and diabetes. The medical material filed prior to the second plea hearing on 20 June 2024 suggests that you have a good prognosis of recovery from your prostate cancer, and that imprisonment would neither interfere with any active treatment nor make a significant difference to the illness.[6]
[6] Paul Gilmore, urological surgeon (16 May 2024); Dr Chris Rumley, radiation oncologist (11 June 2024); and Dr Rumley (18 June 2024).
While imprisonment could adversely affect your diabetic health, this would only be in ways that would be true of any person with diabetes. Further material was filed prior to the third plea hearing on 10 July 2024. This confirmed that stress (due to imprisonment) “impacts on all chronic disease management”, but did not suggest that your diabetes would be unmanageable in a prison environment.[7]
[7] Dr Debbie Gordon, endocrinologist (9 July 2024, emphasis added).
I accept that your health issues mean that imprisonment will weigh more heavily on you. However, your counsel did not submit that they constituted exceptional circumstances such as would justify your immediate release on an RRO.
Are there exceptional circumstances?
Your counsel submitted – and I accept – that a number of matters in combination may amount to exceptional circumstances; and that the more serious the offending, the more difficult it will be to establish that the circumstances are exceptional. Your counsel compared your circumstances with those in R v Bredal [2024] NSWCCA 75, where the Court ordered the immediate release of the offender.[8] Your offending has features in common with the offender in Bredal, including:
a.There was no evidence to suggest that you were actively looking to engage with a child (however, unlike in Bredal, you are being sentenced for two charges, rather than one, and it has not been – and could not be – submitted that “contact with a ‘child’ may well not have occurred but for the undercover police operation”);[9]
b.Your communications were (at least in the case of Lucy, but not necessarily in the case of Sana) with a covert operative rather than a real child (which is relevant to the harm your offending caused); and
c.You withdrew (at least in the case of Lucy, but not in the case of Sana) from the offending.
[8] Supplementary Submissions in relation to Exceptional Circumstances (9 July 2024), [4] and [12].
[9] R v Bredal [2024] NSWCCA 75 (Harrison CJ at CL, Button and Dhanji JJ), [113].
There are further differences, including:
a.Your offending with Lucy was of longer duration than that of the offender in Bredal;
b.You both co-operated with the police; however, the offender in Bredal was only found guilty after a trial, whereas you have pleaded guilty (and are therefore entitled to a sentencing discount);
c.The offender in Bredal had no prior criminal history, whereas you have some prior offending, albeit of limited relevance;
d.The offender in Bredal was the primary carer for three children with special needs, which the Court described as being both “unusual and significant”; [10]
e.On the other hand, you have medical issues which the offender in Bredal did not.
[10] R v Bredal [2024] NSWCCA 75 (Harrison CJ at CL, Button and Dhanji JJ), [117].
I have carefully considered whether these matters, along with the other matters raised in the written and oral submissions that were made on your behalf, constitute exceptional circumstances. I have concluded that they do not. However, I have also concluded that the relevant sentencing purposes can be served by ordering your release on an RRO after serving a relatively short portion of the sentence I will impose.
Orders
If you had not pleaded guilty, I would have sentenced you to a period of five years’ imprisonment. Instead I am imposing the following sentences:
a.On charge 1, I convict you and impose a sentence of two and a half year’s imprisonment.
b.On charge 2, I convict you and impose a sentence of 12 months’ imprisonment.
c.I order that 6 months of the sentence for charge 2 be served cumulatively on the sentence for charge 1, making for a total effective sentence of three years’ imprisonment.
d.I order that the sentence for charge 1 starts today. I order that the sentence for charge 2 starts two and a half years from today.
e.After serving three months of your sentence, I order your release on entering into a recognisance release order to be of good behaviour for two years and nine months.
f.Charges 1 and 2 are class 2 offences in the Sex Offenders Registration Act 2004 (Vic). I order under section 34 of that act that you are to be declared a registerable offender and are subject to reporting obligations for 15 years. You must report to Victoria Police within 7 days of the date of your release from custody. My Associate has a written notice to provide to you and you must acknowledge you have received this by signing it in court. My associate will also sign the acknowledgement and provide you with a copy.
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