Director of Public Prosecutions v Mackay, Garry Norman
[2013] VCC 334
•28 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
Case No. 12-02107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| GARRY NORMAN MACKAY |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 22 February 2013 | |
DATE OF SENTENCE: | 28 February 2013 | |
CASE MAY BE CITED AS: | DPP v Mackay, Garry Norman | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 334 | |
REASONS FOR SENTENCE
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Catchwords: Using carriage service for grooming child x 2; early PG; remorse, youth; suffers from spina bifida with attendant physical difficulties including being confined to wheel chair; suffered physical and sexual abuse as child in foster care; limited education; limited emotional and social outlets; voluntary engagement in psychological counselling and ongoing need for same; moderate risk of re-offending; CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sprague | CDPP |
| For the Accused | Ms J. Digby | Julianna Smith |
HER HONOUR:
1 Garry Norman Mackay, you have pleaded guilty to two charges of using a carriage service to groom a person under 16 years of age for sexual activity, these offences are contrary to s.474.27(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is 12 years' imprisonment.
2 You committed these offences in October and November 2011, when you were aged 21, using your mobile phone and a Facebook account. During those months you engaged in a number of online communications with two covert police operatives who were posing as 13 and 14 year old girls.
3 On 12 October 2011 you sent an online message to a Facebook account in the name of Samantha Lane after accepting her friend request. She was a covert police operative and you engaged in online conversations with that person, believing her to be a 14 year old girl, on seven occasions in October and November.
4 You used sexually explicit language in these conversations including telling her that you had your hands down your pants playing with your penis, and asking if she had ever touched herself between her legs. You asked about her clothing and her body, specifically as to the size of her breasts. You told her accurately that you were 21.
5 On 25 October 2011 you sent an online message to a Facebook account in the name of Caitlin Higgins, after accepting her friend request. She was also a covert police operative and you engaged in online conversation with her on five occasions during October and November. She told you she was 13 years old, and you said you were 21. You told her she was beautiful, and raised the possibility of meeting her and that she might allow you to kiss her. You asked her to keep this secret and talked of looking at her breasts and asked what sort of underwear she had on. You said you wished she was 18 so you could make love, and that if you met, you could teach her. You talked about seeing her naked and referred to her "sexy little body." You asked her if she would like to have sex, whether she had ever touched herself, and finally, very specific questions about what her vagina looked like.
6 Following the execution of a search warrant at your home on 2 March 2012, your mobile phone was seized by the police, and on 2 July you were interviewed and charged. You made full admissions and expressed your remorse for having offended.
7 You entered pleas of guilty at the committal hearing on 14 November 2012, which was by way of straight hand-up brief. That is an early plea, and you are entitled to a discount on your sentence for having avoided the need for the expense and inconvenience of a trial. That assistance, together with your admissions and co-operation with the police, is also accepted as an indication of remorse.
8 I turn now to your personal background and circumstances.
9 You were born with the condition of spina bifida and you are confined to a wheelchair. You are unable to live independently, and you live with your mother who cares for you. You have a colostomy bag and other physical limitations and you are dependent on others for many day-to-day matters.
10 As a four year old you were removed from your mother's care and placed in foster homes, where you were subjected to physical and sexual abuse. You never reported this, as you did not think you would be believed. You were able to see your mother, who still had the care of your older sister, for only one hour a month. Your father has not been a positive presence in your life and left the family when you were 15. You do not have an ongoing relationship with him.
11 When you were in Grade 5, you were placed in an overly hot bath by a worker in a respite home and you were badly burned. You received compensation for your injuries and that money is kept in trust for you.
12 You appeared in Shepparton Children's Court on 26 April 2004 at the age of about 13 and were placed on probation for 18 months for two charges of sexual penetration of a child under 16 and two charges of indecent assault. You committed these offences on children in the foster home where you were living at the time. It resulted in you receiving treatment through MAPPS at the ages of 14 and 15, and it appeared to have been of benefit to you in that you did not offend in that way again.
13 With the aid of assistants, you completed Year 10 at school, having returned to live with your mother in Year 8. Following school, you attempted a TAFE course in carpentry but found it too difficult.
14 During your teenage years you have sadly experienced a great deal of loneliness and depression and this has led to attempts at taking your life. Despite seeing a doctor, you did not have any treatment at those times. However, after the police came to your home in March last year, you voluntarily contacted your previous case manager from the time when you were treated at MAPPS. He helped you to obtain a referral to Ms Shona Innes for psychological counselling, and you attended for ten sessions paid for by Medicare.
15 A report was provided by Ms Innes dated 11 January 2013. Ms Innes recounted your early history and your present circumstances. You have a few friends whom you have met at a local hotel, and you like to go there once a week to see them. Although not a heavy drinker, you have now reduced your alcohol intake since you have commenced taking antidepressant medication. You suffer from hydroencephalitis, and you understand that excessive consumption of alcohol would be a risk to you because of that condition.
16 You use cannabis occasionally.
17 You have had three girlfriends in the past, but not since 2010, and you have few interests. You have recently enquired about undertaking a course in woodturning at TAFE.
18 Ms Innes noted that you experienced boredom, loneliness and anger and occasional suicidal ideation, particularly linked to concerns about being imprisoned. You told Ms Innes that you were attracted to younger people on the internet because you get along more easily with them, you have the same sort of mind. You expressed something similar to the police in your interview, suggesting an immaturity that is perhaps consistent with the test results Ms Innes reported, of low average intelligence, and test results also indicated a moderate to high risk of re-offending.
19 While the reasons for your removal from your mother's care can only be speculated upon, the facts are that you suffered quite tragically from that removal through various forms of subsequent abuse. In outlining your childhood history, Ms Innes noted that you have unmet basic emotional needs.
20 As to the period when you returned to live with your mother, Ms Innes said, and I shall take the trouble to quote directly from her report on p.5:
"With risk perpetuated and maintained by lowered mood, poor self-care, alcohol and other substance abuse, little perceived autonomy, ongoing family conflict, isolation, few opportunities for activity, friendship and intimacy, Mr Mackay began to meet his emotional and social needs by contacting young people in chat rooms over the internet."
21 Ms Innes diagnosed major depressive disorder in the context of your physical condition of spina bifida. She suggested to you that you take steps to see whether you would qualify for further counselling paid for by Medicare, but unfortunately you did not do that. Despite that apparent reluctance, Ms Innes thought you were well motivated to have treatment, and she noted temporary improvement in your mood, but this was not long lasting, hence the clear need for ongoing long-term treatment. She concluded that you are therefore at moderate risk of re-offending. She said loneliness and deteriorating quality of life appear linked to that risk.
22 As to the appropriate sentence in this case, a most important component is that it should properly address the need for general deterrence. That is because these are serious offences as they exploit the vulnerability of young people and children, and the courts and the community do not tolerate that sort of behaviour. Sentences imposed by the courts should strongly reflect that disapproval.
23 In your case the need for specific deterrence is also important, that is, that the sentence should be directed towards preventing further offending by you. However, your particular circumstances indicate compelling reasons why I should take a lenient approach.
24 Apart from your early plea of guilty and your remorse, other matters to take into account are your youth and the importance of rehabilitation for a young person.
25 The prosecutor, Mr Sprague, conceded that your depressive illness and your physical condition, with the consequent need for care, are matters which would make prison more onerous for you than for others who do not suffer in these ways, but he submitted that they are not so exceptional as to take your case outside the range of immediate custody as an appropriate sentence. Mr Sprague also conceded that your loneliness and isolation helped to explain your use of the internet to find relationships but that it does not explain your pursuit of young girls. He submitted that a head sentence of between 15 and 24 months was appropriate with a non-parole period of between three and nine months.
26 I was referred to a number of cases which deal with general sentencing principles in this area and was provided with a useful table of comparative cases. The cases generally stand for the proposition that offenders in these types of matters can ordinarily expect to receive a term of immediate imprisonment.
27 Ms Digby, who appeared on your behalf, also referred me to cases in which leniency was justified in the particular case, and in those cases a community disposition was imposed. I am satisfied that the mitigating factors in your case warrant a lenient approach such as to avoid immediate custody.
28 You have already demonstrated that you have the potential to benefit from treatment. There are important aspects of your emotional and social needs which should be addressed, and if that takes place, your prospects for rehabilitation will be increased.
29 You have been assessed as suitable for a Community Corrections Order which would provide for various of your needs and will have the advantage of treatment being able to take place while you remain in the community.
30 You will be convicted of each of the charges, and I will impose a Community Corrections Order as the sentence in each case. The order will begin today and will last for two years. You will be under supervision and you will be required to perform 50 hours of unpaid community work. That is a modest amount taking into account any possible difficulty in finding suitable work for you and the possibility that you may have some difficulty completing it, for whatever reason. However, I consider that the advantages such experience could bring you might outweigh those difficulties.
31 You will also have treatment and rehabilitation for alcohol and drug use and for any mental health problems. You will also be required to participate in appropriate programs to reduce the risk of offending, specifically the sex offender program.
32 As part of the conditions of the order, it has been recommended that you be ordered to abstain from using alcohol and drugs and that you be excluded from using or registering with Facebook for a period of time. Although I intended to adopt that recommendation and order that you do not use alcohol for a period of 12 months, Ms Digby submitted that as you do not have an alcohol problem, and attending the hotel and drinking moderately is important to provide the opportunity for you to socialise with age appropriate people, I make no order as to alcohol.
33 I order that you abstain from using illicit drugs and that you submit for assessment and treatment if necessary for alcohol and drug use.
34 I order that you do not use or register with Facebook for a period of two years.
35 Mr Mackay, you must report to the Bendigo Community Corrections Office, which is at 18-20 Andrews Avenue, Bendigo, by 4 pm on Monday 4 March. That is next Monday.
36 The Sex Offenders Registration Act applies, and that order requires that you report your details to the police every year for the rest of your life. That is not something that I have any discretion about. That is a mandatory matter.
37 Under s.6AAA of the Sentencing Act, I am required to state the sentence I would have imposed. If you had pleaded not guilty to these charges, I would have sentenced you to a Community Corrections Order for four years.
38 (Discussion ensued re alcohol and cannabis use)
39 I will just see that there are no other matters that I have omitted. Mr Sprague, is there anything else?
40 MR SPRAGUE: I don't believe so, Your Honour, no.
41 HER HONOUR: Ms Digby?
42 MS DIGBY: No, Your Honour.
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