Director of Public Prosecutions v Marks

[2014] VCC 392

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 13-02008

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS MARKS

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2014
DATE OF SENTENCE:	20 March 2014
CASE MAY BE CITED AS:	DPP v Marks
MEDIUM NEUTRAL CITATION:	[2014] VCC 392

REASONS FOR SENTENCE
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Subject:  Criminal law – plea – sentence
Catchwords:              Indecent communication – person under 16 years of age – police provocateur – intention of Parliament – mid-range class of criminality – Aboriginal community – disadvantaged and impoverished upbringing – problems with alcohol and anxiety – no background of sexual deviation – remorse – co-operation with the police
Legislation Cited:     Crimes Act 1914
Cases Cited:            Ibbs v R (1987) 74 ALR 1
Sentence: A term of imprisonment of 6 months but released forthwith pursuant to s.20(1)(b) of the Crimes Act 1914 upon giving security by recognisance of $1,000 to comply with a condition of good behaviour for 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Challen
For the Accused	Ms D Lamovie

HIS HONOUR:

1In this matter, Mr Marks has pleaded guilty to one charge on the indictment.  That charge is an offence against s.474.27A(1) of the Commonwealth Code. 

2The seriousness of that matter, albeit an indecent communication is demonstrated by the very terms of the legislation.  That is, it is an indecent communication to a person under the age of 16.  It is somewhat unique, and it has been in these Courts mentioned a number of times that there is in fact no victim in this crime.  The person posing as the child under the age of 16 is in fact a - I say this in the most gentlest of ways, a police “provocateur”. 

3These cases have arisen on a number of occasions before the Court.  Whether such police activity is appropriate is or not is really a matter for others to discuss.  Such is simply the facts of this case.  However, the learned prosecutor was not only good enough to supply me with recent like determinations of this Court, but also with material which was before Parliament, when it passed this legislation.

4It identified cases such as Mr Marks', where there is a significant age difference, he was aged 44 at the time, and as remarked by the relevant Minister, the legislation was passed to target adult offenders who exploit the anonymity of these services. 

5The major reason as set out in this very section, and for the much higher penalty, was to stop online grooming.  However, the other means in which a child's trust firstly is obtained, is essentially by chatting as we understand it in modern terms and it was felt by Parliament that the lesser charge was necessary to support the other, no doubt.

6It was stated by Parliament that the offences provide a firm legal base for proactive AFP policing on this disturbing practise.  The underlying rational for the new offences is to allow law enforcement to intervene before a child is actually abused.  In this case, this clearly fits in the proactive work by the AFP.  Perhaps I will say no more than that.  There is no dispute from Mr Marks' counsel that we are dealing with a serious offence, and as I have detailed, this is an offence passed by Parliament to protect children, and for which a lengthy maximum period of imprisonment is imposed.

7Against that of course, one not only has to consider based upon the principles set out by the High Court in Ibbs v R (1987) 74 ALR 1, where the offence lies on the scale of heinousness. I would classify it somewhere below the mid-range, even though it is classed as indecent, it does not seem to me grossly indecent, but it clearly is indecent. Equally, it does not run over a lengthy period, albeit when one looks at the actual offences, as analysed by the learned prosecutor, we are talking about a period of 11 days, and in total some 15 hours.

8Balanced against the will of Parliament, the maximum offence and the analysis of the criminality or heinousness of the crime must be of course the matters relevant to the offender.  In that regard, the submission which has been tendered for identification of counsel on behalf of Mr Marks, by Ms Lamovie, takes me through the relevant factors.

9Mr Marks is now 45.  He is a member of the Aboriginal community and has currently for the last three years, until this offence, been involved as a driver with the local Aboriginal Co-operative.  Since that time, he has been helping out on a voluntary nature.  He has unfortunately, as many of persons of his background have in this community, suffered what is described by the psychiatrist as a disadvantaged and impoverished upbringing.

10It is noted by the psychiatrist, and no doubt very fortunate in Mr Marks' life that in recent years he has found some stability in so far as his current place of employment and the fact that he has been able to maintain employment.  Unfortunately, his earlier acquired problems with alcohol and his anxiety disorder have still not been solved, and it may well be that they have causes going right back into his life.  Indeed, the psychiatrist talks of the life-long feeling of displacement, members of the stolen generation have, and I note that we have in court Ms Perez who is in fact trying to assist Mr Marks in that very regard.  No doubt that will continue.

11Mr Marks has no background of any type of sexual deviation.  The explanation for this offending is difficult, it probably came about as a combination of his social loneliness and restrictions, and together with a mixture of perhaps disinhibition caused by alcohol, and indeed no doubt the excitement of being able to use modern communications to have some socialisation.

12It should be noted of course that it was not that he did not recognise the inappropriateness of this behaviour.  Once being alerted to the age, he was able to say himself that he should not be continuing in this conversation, and his plea no doubt is based upon the fact that he continued to continue with the indecencies which it could not be disputed are indecent.

13In his favour, has been his reaction since.  His actual remorse expressed to his treating counsellors and the psychiatrists.  His co-operation with the police and indeed the continuation of his plea here today.  I think it is Exhibit 2 is it, the personal references, Madam Associate?

14ASSOCIATE:  Exhibit 4, Your Honour.

15HIS HONOUR:  Exhibit 4 the personal references confirm the steps that he has taken at recent times.  In particular I note the comments of Josephine Warren, who is the health unit manager who describes him as totally dependable and honest, and caring of the community and also Karen Heap from the same organisation who confirms the same.

16As I say, these matters always present a difficult balance.  I should of course say that because one is Aboriginal, as has also been decreed by the High Court, there is no basis in any way pronounce or treat a person differently from the rest of the community.  However, as has always been decreed, it would be totally inappropriate in considering Mr Marks' sentence not to take into account the background factors in his life.

17His counsel has submitted that an order should be made pursuant to s.20 of the Crimes Act 1914 and it is clear that apprised of all the information put before the court, in my view most professionally the prosecution albeit maintains the offence warrants imprisonment does not suggest that such an order by way of immediate release is outside of the terms which would be appropriate for such sentence.

18I have determined that is an appropriate order to make.  I would impose upon him a good behaviour condition for a period of three years.  It has been suggested that pursuant to Sub-paragraph 1(4), I could impose an order which would subject him to the Sex Offender Program.  I do not intend to do that.  I do not see any future risk with him.  All risk to the community in that form at all, seems to me this is a genuine mistake and I am quite satisfied with the counselling that he is getting, and the particular counselling that Ms Perez is giving, that that would be sufficient in all the circumstances.  So I do not intend to add any additional order.

19Ms Lamovie, it is necessary for me to explain the full terms of the order, and as I now understand, which I do not think I have ever done before ‑ ‑ ‑

20MS LAMOVIE:  That you may vary the order?

21HIS HONOUR:  Is to also tell you - for you to tell your client that there is (indistinct) discharge or vary such conditions.  The recognisance I will set is $1,000 and if you be good enough to explain that as well.

22MS LAMOVIE:  Yes Your Honour.

23HIS HONOUR:  I understand we might have a draft.

24MS LAMOVIE:  Yes Your Honour.

25MR CHALLEN:  We do time Your Honour, yes.

26HIS HONOUR:  I might stand down while you explain the full terms of that to your client ‑ ‑ ‑

27MS LAMOVIE:  Yes Your Honour. 

28HIS HONOUR:  And then I'll come back ‑ ‑ ‑

29MR CHALLEN:  Before Your Honour leaves the Bench ‑ ‑ ‑

30HIS HONOUR:  Yes.

31MR CHALLEN:  My understanding of your order is that a term of imprisonment, but with an immediate release?

32HIS HONOUR:  Yes, I'm sorry I haven't set the term, six months.

33MR CHALLEN:  Six months.

34HIS HONOUR: Yes, (indistinct) to apologise, a term of six months with an immediate release pursuant to s.20.

35MR CHALLEN:  Yes.

36HIS HONOUR:  And if I stand down - if you can explain the full terms to your client because I would want him to recognise that in court and to also understand that I would not be happy to have him back in front of me.

37MS LAMOVIE:  Certainly Your Honour.

38HIS HONOUR:  Yes.

39(Short adjournment.)

40MR CHALLEN:  Your Honour, my learned friend and I have in front of us a copy of the recognisance that's been signed in front of your Associate which is what's required.  All that's required now is Your Honour to just double check my horrible handwriting, and make sure that I've drafted an order that says that he's to be released forthwith on a good behaviour bond for three years, having been sentenced to term of imprisonment of six months.

41HIS HONOUR:  And the only thing that I need to say in regards to 6AAA is that of course had Mr Marks not pleaded guilty, such an imposition would have been impossible.  Now Mr Marks before I sign this, do I understand that your counsel has explained fully what it means?

42OFFENDER:  Yes Your Honour.

43HIS HONOUR:  All right, and I would expect in the next three years you behave yourself, all right?

44OFFENDER:  Yes Your Honour.

45HIS HONOUR:  And no more issues in this regard, certainly don't talk to anyone under 16 on the internet, all right.

46OFFENDER:  Yes Your Honour.

47HIS HONOUR:  Thank you very much, and I thank both counsel for their assistance and in particular Mr Prosecutor, thank you for the material which I would not say is unusual to get in federal matters, but it is certainly beneficial.

48MR CHALLEN:  May it please Your Honour.

49HIS HONOUR:  Thank you very much, and you will be good enough to pass on that material won't you, of my comments, because it seems to me that there should be some publicity in these matters.

50MR CHALLEN:  All I can say sir is that I will pass it up the chain in my office, that someone ‑ ‑ ‑

51HIS HONOUR:  Good because you're dealing with young kids in a very difficult time in their life, and you know some of them like today's person, whose just 20, he's an adult, but - is he?

52MR CHALLEN:  Is he - yes.  Points were made to me, but it relies on some ‑ ‑ ‑

53HIS HONOUR:  I'm sure it would be well made.

54MR CHALLEN:  It relies on someone more senior than me to make the represent ‑ ‑ ‑?---

55HIS HONOUR:  I've had a lot to deal with people more senior to you.  I'm sure the point will be well marked.

56MR CHALLEN:  May it please Your Honour.

57HIS HONOUR:   Thank you.

58MR CHALLEN:  Thank you.

59HIS HONOUR:  Thank you both.

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