Director of Public Prosecutions v Marshman

[2021] VCC 749

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01792

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MARSHMAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2021
DATE OF SENTENCE:	7 June 2021
CASE MAY BE CITED AS:	DPP v Marshman
MEDIUM NEUTRAL CITATION:	[2021] VCC 749

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Plea – Commonwealth Criminal Code – carriage service to transmit – indecent communications – under 16 – recognisance – good behaviour – KIK – undercover – mental health – sex offender registration – good rehabilitation prospects – childhood – no criminal history

Legislation Cited: Criminal Code (Cth) - Crimes Act 1914 (Cth)

Cases Cited:

Sentence: $1,000 recognisance with conviction and condition to be of good behaviour and continued treatment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Dearman
For the Accused	Ms E. McKinnon

HIS HONOUR:

1Matthew Marshman, you have pleaded guilty to one count of using a carriage service to transmit indecent communications to a person believed to be under 16 years of age contrary to s474.27A(1) of the Criminal Code (Cth) - maximum penalty seven years' imprisonment.

2For the following reasons I propose to convict you and order, should you agree, that you be released under paragraph 20(1)(a) of the Crimes Act (Cth) upon entering into a recognisance in the sum of $1,000 to comply with the following conditions; that you be of good behaviour for 18 months and that you continue treatment with Dr Barth or Mr Geoffrey Burrows, or their nominee, until such time as the treatment is completed.

3These are the reasons why I am making that sentencing order, if you agree to enter the recognisance, and I gather from what your counsel said you will agree to that.

The circumstances of the offending

4The circumstances of the offending were set out in the prosecution opening, which was read in open court earlier this afternoon and which I incorporate by reference.

5In essence, you were using a social messaging app known as KIK, where users could transmit and receive messages, images and videos on the internet, and on 14 January 2019 you befriended a person known as, 'LS', on the internet - on KIK.  That person was in fact an undercover police operative based in Queensland.  On her profile she listed her age as 14.  You had a username known as 'MacMars' and you proceeded to engage in communications with her.  She stated that she was 14.  You stated that you were older, but you did not mind that she was 14 and, 'It will be fine'.

6The prosecution opening indicates - and it is clear from the messages that were retrieved from your phone and from the KIK - that you started initially conversing with her, sending her images and videos of your car as well as a selfie of your face and other internet derived material including torsos – men’s torsos.

7After a couple of weeks the communications then moved to more sexualised communications, with you describing her as, 'Gorgeous', and asking her about being in a bikini, and then you started to raise the matter that, 'I would totally steal you if you were older.  I'd probably steal you now - wait till you were older.  You are beautiful'.  You then went on:  'As long as you're okay with never letting me get married and me trying to always get into your pants', and then the communications then that are set out in paragraph 10 of the prosecution opening.  They move to more sexualised discussions where you said you had a big sexual appetite, you wanted to tear her pants off and lick her in various places and also engage in some - well, smacking.  At the same time - or in one of the communications - you sent her an image of two adults engaged in sexual activity and also an adult female with a male on a beach, and you basically said you would love to be kissing her on the beach.

8So those communications which, on any view, are indecent, constitute the offending.  The operative in Queensland discontinued responding to you on the 29th, so the offending is over the two-day period of 28 and 29 January 2019.  You in fact continued to seek to make communications with LS, the other user - the nominal person - on nine occasions in the period up until 20 February 2019 but then you stopped and that was the end of it.

9As I said, the operative was a Queensland police officer.  The matter was, after some delay, referred to the Victoria Police and they - some 15 months later in May of 2020 - interviewed you, asking you about your communications using the KIK messaging app and you made, effectively, full admissions - or fairly full admissions that you had been involved with her.  You said you could not remember the particular person that you were dealing with.

10At the time of the offending you were 29.  At that stage you had been married when you were 20.  You had an 11-year-old child.  You were then in another relationship with a woman and you had two children at that stage and she was pregnant with the third, and it was in those circumstances that you were using the internet to get sexual gratification.

11You bear high culpability for the offending, although it did only occur over a
two-day period.  As the prosecutor put, you were determined in that you kept attempting to communicate with her.  First of all, you started on 14 January, but it only became sexualised on those two days; the 28th and 29th, but then on nine occasions subsequently you tried to re-engage.  The prosecution accepted, however, that the offending was not as serious - in terms of exchange of indecent material - as some of the cases that come before this court both in terms of the number of indecent communications and the actual gravity of the communication themselves.  That said, however, it is still relatively serious offending because she made it clear that she was a 14-year old.  You were effectively over double her age at the time.  You had no prior relationship with her, so you were effectively picking up people on the internet at this site.  She made it clear she was 14 and you kept the conversation going when you must have known full well that you should not have done so.  So the offending is in the lower scale of seriousness, but it is still a serious offence, as evidenced by the seven year maximum set out in the Crimes Act 1914 (Cth).

12I turn to your personal circumstances and I have been able to deal with this matter relatively expeditiously due to the comprehensive chronology submitted by your counsel and by the sentencing submissions by both the prosecution and the defence, which I incorporate by reference and have exhibited.

13You had a difficult upbringing, which is set out in the chronology.  You are the oldest of three children.  One of your sisters died of SARS when she was seven months, leaving two boys.  Your parents divorced when you were 12, a bitter divorce.  Your grandparents both died at an early age and you were close to them and that had an impact on you.  Your schooling was difficult and you left at Year 9.  At that stage your mother was faking a cancer diagnosis.  You got into a major dispute with her and you then went to live with your father at age 17.

14The most relevant part of the chronology - I have left out a part of it - but you became involved with a woman who was seven years older than you early in the piece.  You were married when you were 20 and she bore you a child.

15You have a good work record in that you worked as an apprentice in painting and decorating and you had two or three different jobs in that field, as well as in cabinet making.  You completed your apprenticeship and later on you established your own painting business called Iconic Painting, but then that business - or a subsequent business - fell apart.

16The most relevant part of the chronology relating to your offending is that in September 2015 you entered a relationship with Brooke Gannon.  Six years after entering that relationship, in March or April of this year, you in fact married her.  At the time you entered the relationship with her she was suffering from the consequences of a stillbirth from an earlier relationship and she suffered PTSD as a result of that.  You supported her comprehensively in that period and, in fact, her older brother indicates that you really saved her life due to the condition she was in.  You took over parenting duties.  She then had another child, Tillysen, and so there was a lot of pressure on the family. You were involved in in supporting her and supporting the children, as well as being involved in the business trying to bring in the bacon for the house.

17After your business failed you got a job as a drainage supervisor and so you have, effectively - up until COVID last year, you have been in full employment, seeking to support both the children from your relationship with
Ms Gannon - and also Abby, the now 11 year old from the earlier relationship, who you are co-parenting with.  You have her at weekends, effectively.

18The explanation for your offending is articulated by well-known forensic psychologist, Dr Barth, and he indicates in paragraph 32 of the report your 'use of chat sites had become more problematic due to issues with sexual intimacy in his marriage, which culminated in him feeling frustrated and dissatisfied'.  And indeed Mr Burrows, who is a forensic counsellor who was involved, said that you were just unable to communicate with Ms Gannon your frustration with your relationship with her in circumstances where you had this pressure of the children and she was in the later stages of a pregnancy.  So, as Mr Burrows says in paragraph 3:

'Through structured exercises Mr Marshman identified the factors which had motivated his offending behaviour as having unmet intimacy needs, low self-esteem and feelings of inadequacy, applying poor coping skills and having a poor understanding of female psychosexual development and deviant sexual arousal patterns'.[1]

[1] Exhibit 4 on the Plea.

19And then he refers to interpersonal deficits that were identified as contributing to your intimacy needs not being met and your subsequent offending behaviour. So the explanation for the offending is identified as this lack of ability to communicate intimacy that led you to then seek to get an outlet of that through accessing the internet.

20You have obviously had your mental health problems over the years and you were referred for a mental health plan in April 2017, which was three years before the offending, and you were placed on an antidepressant in May 2020, which is subsequent to the offending but just before you were interviewed.

21So the reports provide an explanation for your offending but not a justification for your offending.  Your counsel put that you were immature - that is probably true - but at the time you were 29, so you have got to take responsibility for your conduct.  Though, overall, you were aged 29, I put the offending at a lower level of seriousness, but you were told that the person was 14 and yet you continued.

22I turn now to other matters that were raised in mitigation by your counsel in a comprehensive plea.  You pleaded guilty early, there was no committal.  You are entitled to credit for that.  You facilitated the course of justice - there is a utilitarian benefit to the system by you pleading guilty.  The plea is also insight of remorse - evidence of insight that is evidenced from the report of Dr Barth and Mr Burrows - and I am satisfied that there is remorse or contrition.  That is identified by Dr Barth and Mr Burrows in their reports and by a number of comprehensive references that have been supplied that I have exhibited.

23Also relevant to matters in mitigation is you are of good character.  You are now 32, you were 29 at the time of the offending.  No prior convictions are alleged against you but, as indicated by the learned prosecutor in her sentencing submissions, in these types of cases prior good character carries lesser weight when it is weighed against considerations of general deterrence.  Many of the offenders who come before the courts for this type of offending; internet use for downloading pornography, communicating pornography - many of them have no prior convictions.

24A further matter in mitigation put by your counsel was the delay in being charged.  There is some delay between when you were first detected and when you were interviewed, and then a further few months between May of 2020 and October, when you were actually charged, and then the matter came on for a committal in early January 2021 and then the plea today.  So once you were charged the matter moved at the usual speed but the important thing, as put emphatically by your counsel, is that you have used the period since you were interviewed to do something to address the underlying reasons for the offending and to advance your prospects of rehabilitation.

25Of course, what was put is that you have undertaken, at your own expense, a sex offender treatment program by Central Melbourne Psychology, including the counselling by Mr Burrows, and he has produced a report that is endorsed by his principal, Dr Barth, about how you are advancing in insight into your offending and addressing the underlying reasons why; psychological inadequacies that led you to the offending and being unable to communicate your intimate feelings and understand the needs of your partner.

26So looking at what you have done not only - further, soon after you were charged - or around the same time as you were charged - you were also referred to a clinical psychologist under a mental health care plan which commenced in October of 2020 and ceased in May this year, and there is a report from her where you indicate that you want to focus CBT (cognitive behavioural therapy) on your symptoms of depression and increase your motivation, and the important factor is that this clinician indicates that your partner is very supportive, and that is relevant to your prospects of rehabilitation because notwithstanding this offending your partner, Brooke, is prepared to support you and you are prepared to support her, and that is so important when you have got four young children under four.

27So, overall, I accept the submission of your counsel that your prospects of rehabilitation are very good and that is relevant to sentencing you.

28I turn now to the overall sentencing considerations which I am required to apply under s16A of the Crimes Act1914 (Cth) and the first matter, of course, is the nature and circumstances of the offence, which I have discussed previously.

29So I have got to take into account the seriousness of the offence, look at your lack of antecedents, whether or not there is a victim.  There is no victim involved in this case but all of this type of offending has a potential to impact on a victim if there is a real victim involved, and so that is why considerations of general deterrence are fundamental in sentencing for these types of offenders.

30The principle of parsimony is a very important principle.  Imprisonment has got to be a sanction of last resort.  That has even got greater salience in the COVID environment, where programs are less available in prisons and so prison is a more onerous sentence than it might have been say 18 months ago.

31So having considered all the competing considerations and the factors in s16A I have determined not to impose a sentence of imprisonment on you, but in sentencing you, as I said, general deterrence is a very important factor. Internet and social linking sites like KIK have made child exploitation material and child exploitation very available to average members of the community and this makes general deterrence very salient. This is regardless of the fact that you had no prior convictions and are of prior good character.

32In sentencing a signal must be sent to all internet users that the age of a person who is on the other end of some social communication or chatroom, or whatever, is relevant, and that where they are under 16 then you are not allowed to be involved in sexualised communication with them.  Parliament has sought, by a series of provisions in the Crimes Act 1914 (Cth), to protect children from premature sexual activity and to criminalise any such attempt even though it may be virtual, in a sense - over the internet.

33A further factor that is identified by the learned prosecutor in this matter in sentencing is that these types of offences are difficult to detect and so that when offenders like you are detected a signal must be sent to those tempted to offend - all those out in the community - that heavy penalties will result.

34In terms of disposition your counsel sought a non-conviction disposition. I considered this matter. A conviction is part of the punishment for an offence under s16A and while the entry of a conviction may have an impact on your future employment, the deterrent impact for all other people of an entry of a conviction is a very important sentencing consideration in sentencing for these type of offences. In those circumstances I regard it is appropriate to enter a conviction.

35In sentencing you I have taken into account the support that you have provided for your wife and children.  This, as I have indicated, provides an explanation for the offending and is relevant to the ultimate disposition in this matter which, I am satisfied, will allow you to continue to support them and progress your rehabilitation through involvement with Dr Barth and Mr Burrows.

36The issue of the Sex Offender Registration came up but it has been made clear by the learned prosecutor the fact that upon the entry of a conviction or the finding of guilt for this offence you will go on a register for eight years is a matter that is collateral.  It is not to be taken into account, so I do not take that into account.

37So weighing all the submissions made by your counsel and the submissions put by the prosecutor, as I indicated at the commencement of these reasons that I propose to - provided you will consent - convict you, release you upon a recognisance of $1,000 that you be of good behaviour for 18 months and that you continue with treatment with Dr Barth or Mr Burrows, or their nominee, until such treatment is continued - such time to be determined by the treating medical practitioner.

38So I have prepared a draft of this order which I will have my associate transmit to Ms Dearman and I will hand to Ms McKinnon now.

39Ms Dearman, if you could indicate to my associate whether it looks in order, the wording that I have used.  I used the wording that you sent except I added the word 'or their nominee', so in case they are not in the practice.  If it looks in order from your point of view if you could communicate that to my associate.  He will communicate ‑ ‑ ‑ 

40MS DEARMAN:  Yes, Your Honour.

41HIS HONOUR:  ‑ ‑ ‑ to Ms McKinnon and she will then explain that to the accused and I will ask him to sign it and then, after he has signed it, I will explain the sentence to him and that will be it.  Anything else?

42MS McKINNON:  Excuse me, Your Honour?  Just one thing.  I just want to clarify that I haven't misunderstood.

43HIS HONOUR:  Yes.

44MS DEARMAN:  Thank you, Your Honour.

45MS McKINNON:  And thank you very much for sentencing so promptly. 

46HIS HONOUR:  And so I'll ask you - we're sending it to Ms Dearman and you can start explaining it to your client on the assumption that Ms Dearman says it's okay.  I'll leave the Bench for the moment till you sort that out.

47MS McKINNON:  Yes.

48So the recognisance is in order, Ms Dearman?  Yes.

49MS DEARMAN:  Yes, Your Honour.  Thank you.

50HIS HONOUR:  Thank you.  Mr Marshman, I am required to explain the sentence to you.

51I have convicted you.  I have entered a conviction against you.  I am releasing you on the basis that you are to be of good behaviour for 18 months, which means if you commit an offence carrying a term of imprisonment in the next 18 months that breaches the good behaviour component of the order and it is a recognisance or a contract of $1,000, so you will blow $1,000.  You do not have to put it up now, but if you do that then you will come back to me and you are liable to be re-sentenced on the original offending, okay?

52A further order is that over that 18 month period you are required to comply with the further condition under (b)(i) that you continue treatment with Dr Barth or
Mr Burrows, or their nominee, until they determine that the treatment is no longer needed, and you have agreed to do that and you have signed the recognisance.

53In addition to that - as I said, a consequence of the conviction and the finding of guilt - you are to go on the Sex Offender Register.  You have signed the documents and you will be given the signed document as you leave the court, which means for the next eight years you are subject to the Sex Offender Registrar.  Your counsel has explained it to you, it is set out in the list, which means you have got to advise the register - I am not sure who is the registrar up there in Tatura - of your phone, your phone numbers, your car, the people that you deal with, change of address; everything within seven days or 14 days of it happening, or dealing with other children, for the next eight years.  Now, that is an onerous obligation but that is the way it operates.  So that is separate but, again, failure to comply with that carries a three month gaol sentence.

546AAA.  I am required to declare what I would have sentenced you to had you not pleaded guilty.  I declare that had you not pleaded guilty I would have imposed a community corrections order on you of two years duration.

55So I want to thank your counsel and thank Ms Dearman for the preparation for this plea, which has allowed the matter to be dealt with expeditiously - particularly because of the comprehensive submissions prior to the hearing - and with that, adjourn the court sine die.

56Thank you, Ms McKinnon.

57MS McKINNON:  Thank you, Your Honour.

58HIS HONOUR:  Adjourn.

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