Director of Public Prosecutions v Martin
[2017] VCC 199
•6 March, 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01948
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON JOSEPH MARTIN |
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JUDGE: | Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2017 | |
DATE OF SENTENCE: | 6 March, 2017 | |
CASE MAY BE CITED AS: | DPP v Martin | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 199 | |
REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Verdon | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr M Page | Leanne Warren and Associates |
HER HONOUR:
1 CAMERON JOSEPH MARTIN, you are to be sentenced in the respect of the following charges:
a) one charge of solicit child pornography material using a carriage service contrary to section 474.19 (1) of the Criminal Code (Cth) (“the Code”) – Charge 1, which carries a maximum applicable penalty of 15 years’ imprisonment;
b) one charge of cause child pornography materials to be transmitted to yourself using a carriage service, also contrary to section 474.19 (1) of the Code – Charge 2, which carries a maximum applicable penalty of 15 years’ imprisonment;
c) one charge of access child pornography material using a carriage service contrary to section 474.19 (1) of the Code – Charge 3, which carries a maximum applicable penalty of 15 years’ imprisonment;
d) one charge of use a carriage service to cause offence contrary to section 474.17 (1) of the Code – Charge 4, which carries a maximum applicable penalty of three years’ imprisonment;
e) one charge of use a carriage service to transmit indecent communication to a person under 16 years of age contrary to section 474.27A(1) of the Code – Charge 5, which carries a maximum applicable penalty of seven years’ imprisonment;
f) one charge of make child pornography material available using a carriage service contrary to section 474.19 (1) (a) (iii) of the Code – Charge 6, which carries a maximum applicable penalty of 15 years’ imprisonment;
g) one charge of transmit child pornography material using a carriage service contrary to section 474.19 (1) of the Code – Charge 7, which carries a maximum applicable penalty of 15 years’ imprisonment;
h) one charge of using a carriage service to procure a person under 16 years of age for sexual activity contrary to section 474.26 (1) of the Code, which carries a maximum applicable penalty of 15 years’ imprisonment, Charge 8; and
i) one charge of knowingly possess child pornography contrary to section 70 (1) of the Crimes Act 1958 (Vic) – Charge 9, which carries a maximum applicable penalty of 10 years’ imprisonment.
2 You pleaded guilty before me when arraigned on 23 February 2017.
Circumstances of offending
3 The circumstances of offending are well set out in the prosecution opening for plea tendered as exhibit A. Rather than read that document again in open court, I shall attach a copy of it as Attachment A. to these reasons for sentence. You accept the accuracy of the facts as asserted in Attachment A and you will be sentenced on that basis. In addition I was urged to read the communications in which you engaged as set out in the hand-up brief.
4 The prosecutor, Ms Verdon also tendered a number of annexures referred to in the prosecution opening, exhibit A. These were tendered as exhibit B. I am satisfied that these documents accurately summarise the communications in which you participated. I shall attach a copy of exhibit B to these reasons for sentence as the summaries are lengthy and they contain lewd dialogue and suggestions (Attachment B).
5 I do not propose to permit general publication of the annexures contained in exhibits A and B given their highly graphic, violent and depraved nature. The purpose of attaching the exhibits is to avoid the need to read in open court the detail of your crimes on the one hand, but also to ensure that a record is retained of the basis upon which you were sentenced in case of appeal on the other.[1]
[1]I have followed a course similar to that adopted by the Court of Appeal in R v Luguancio (2000) 1 VR 235 at paragraph 4, per Callaway JA
6 Suffice it to say for present purposes that the charges to which you have pleaded guilty cover a range of offending in the category of sexual exploitation of children. Your offending was finally detected after you engaged in online communications with a person whom you believed to be a 14-year-old girl from Melbourne named “Chelsea”. In fact the person with whom you were chatting was an undercover police operative. A “sting” operation ensued. You arranged to meet Chelsea at a fast food restaurant after having discussed various ways that you would like to entertain her. Police attempted to arrest you in the car park of the restaurant but you attempted to escape. You did not get far. You crashed your car into a bollard in an access road.
7 Following your apprehension, police seized a number of your electronic devices. Examination of them uncovered a staggering number of online communications over an 18 month period. In this period you solicited child pornography material and caused such material to be transmitted to yourself, you made child pornography material available to others, and you transmitted child pornography material and other indecent and offensive material to other users of an application called “Kik”.
8 Police also discovered that you had both accessed and possessed child pornography material. I was asked to view a small but representative sample of the pornographic material retained in your possession. I acceded to that request and viewed exhibit C for Identification. It is relevant primarily to Charges 9 and 3.
Charge 1 – solicit child pornography
9 In the period 14 July 2014 and 2 November 2015 (almost 16 months) you solicited child pornography from 23 Kik users and you asked users to send you child pornography photos or videos. These conversations are summarised in exhibit A paragraphs 16 to 19 and in exhibit B, Annexure A.
Charge 2 – cause child pornography to be transmitted to yourself
10 In the period 14 July 2014 to 3 January 2016 (almost 18 months) in 25 separate chats with Kik users you caused child pornography to be transmitted to yourself. In response to your requests the users sent child pornography images, videos and/or textual child pornography.
11 The details are summarised in exhibit A paragraphs 20 to 24 and in exhibit B, Annexure B.
Charge 3 – access child pornography
12 In addition to the pornographic images the subject of Charge 6, a number of child pornography files were located in your various electronic devices. These were categorised according to the Australian National Victim Image Library (ANVIL). In total there were 683 files comprising 575 in category level one, 17 in category level two, 37 in category level three, 40 in category level four, two in category level five and 12 in category level six. Level six files are not relevant for present purposes since they involve animated images.
13 Further details of this charge are contained in paragraphs 37 to 43 of exhibit A.
Charge 4r – use carriage service to cause offence
14 In the period 10 January 2015 and 19 December 2015 you sent images of a penis to a number of Kik users. You also engaged in offensive conversation.
15 Further details of this charge are contained in paragraphs 33 to 36 of exhibit A and in exhibit B, annexure D.
Charge 5 – transmit indecent communication to a person under 16
16 Between 14 May 2015 and 9 September 2015, on two separate occasions, you sent an unsolicited image of a penis to other Kik users whom you knew or believed to be under the age of 16. The chats are summarised in paragraph 32 of exhibit A.
Charge 6 – make child pornography available
17 During the course of two Kik chats between 10 May 2015 and 13 September 2015 you provided two Kik users direct access to your “Dropbox” a “cloud” storage service that can be accessed on different devices. Access to your dropbox revealed 21 child pornography images, 16 of which were assessed in ANVIL category one, two in category two, one in category three, one in category four, and one in category five.
18 Further details of this charge are contained in paragraphs 25 to 27 of exhibit A.
Charge 7 - transmit child pornography
19 Between 4 July 2015 and 22 December 2015, in some 58 separate chats with other Kik users you transmitted child pornography comprising of photographs, videos, text or a combination of same. The chats in which you participated were sexually explicit and quite frankly disgusting. You shared a total of 83 images with one user.
20 More disturbing and sickening is your discussion with a woman you believed to be the mother of a seven-year-old girl. In graphic detail you described how the two of you, that is you and the mother, could repeatedly and brutally rape, sexually assault and physically harm this child.
21 The details of this charge are summarised in exhibit A paragraphs 28 to 31 and in exhibit B, annexure C.
Charge 8 – procure a person under 16 years of age for sexual activity
22 This charge arises from your communications with the undercover police operative posing as Chelsea. As I said earlier you thought Chelsea was a 14-year-old girl. You told Chelsea that you were 22 years of age. Following a number of explicit conversations in which you provided photographs, you obtained Chelsea’s Skype account details which you used to send further explicit messages. In these messages you disclosed a desire to engage in sexual activity with a schoolgirl and outlined the sorts of things you would like to do to her. You told Chelsea that you worked for the RACV and explained how you would use your van during sexual acts with her. I do not propose to provide any further specifics of your conversations. The clear inference to be drawn is that the conversations were designed to enable you to meet with Chelsea with a view to engaging in sexual activity with her. As I said before, you thought you were about to meet her when you pulled into the car park of the restaurant.
23 The details of this charge are set out in paragraphs 5 to 10 in exhibit A.
Charge 9 – possess child pornography
24 You told police that you had saved between 100 and 200 images on your computer. Consistently with this, 21 child pornography images were located in your dropbox account, 16 in ANVIL category one, two in category two, and one in each of categories 3, 4 and five. In your laptop computer there were a total of 169 images, 164 in ANVIL category one, one in category three and four in category four.
25 This charge is summarised in paragraph 44 of exhibit A.
Arrest and interview
26 I have already mentioned the circumstances of your arrest. When apprehended, your car was searched and police seized a mobile phone that you used to commit some of the charges described.
27 You later participated in a record of interview during which you admitted that you had come to the restaurant to meet a 14-year-old girl named Chelsea, expecting to have sex with her. You told police your conversations with Chelsea were “sexual and messed up” and that you sent naked images of yourself to her.
28 After the record of interview police took you to your home where they conducted a search and seized a laptop computer and a “smart phone”.
29 In a subsequent recorded conversation you told police that you communicated with Chelsea using Skype and by text message using your mobile phone. You admitted that you logged into “teen chat” when bored, looking to meet females in Melbourne. You admitted you sent Chelsea pictures of your penis and of your naked body. You said that you were expecting to be arrested that day but even so, you were hoping to have sexual intercourse with Chelsea. You said you lied about your age and that you saved about 30 images of young naked girls onto your computer. You also received images from other users. You told police that you did not share those images unless others were willing to trade with you. You admitted that you masturbate when looking at the images. You confessed that you know the images are child pornography and that child pornography is illegal. As I said earlier, you told police you had saved another 100 or 200 images on your laptop in a picture file in a library directory. You provided police with passwords so that they could access your computer.
30 You also told police that you viewed child pornography images of children between 12 and 15 years. You expressed relief at being arrested saying they stopped you “from doing anything with an underage girl”. You told police you first started viewing child pornography about five years beforehand and that you took naked images of your penis in your bedroom and bathroom and sent them to Chelsea.
31 Police then took you to Rosebud police station where you were charged and released on bail.
Gravity of your offending
32 The offences to which you have pleaded are extremely serious. So much is clear from the maximum applicable penalties.
33 Australian Courts have made it abundantly clear that the legislation under which you stand charged was designed to protect young children from exploitation by adults. The applicable sentencing principles were drawn together recently in DPP (Cth) and DPP v Garside[2]:
[2][2016] VSCA 74
“Principles governing sentencing for child pornography offences
[18] …. [R]eference to well established principles and considerations relevant to sentencing offending of this nature should be made.
[19] Child pornography offences are considered especially grave by both the Courts and the legislature. In Director of Public Prosecutions (Cth) v Watson,[3] the reasons for which were published at the same time as these reasons, the legislature’s continuing response to such offending was considered to be of particular significance. The ‘access’ offending under the Criminal Code 1995 (Cth) (‘Criminal Code’), now carries the 15 year maximum penalty which was increased by 50 per cent in 2010,[4] despite only having been introduced in 2005.[5] These amendments reflect the legislature’s recognition, as stated in the Explanatory Memorandum to the 2010 amendments, ‘that the Internet is creating ever greater demands for new material of ever greater levels of depravity and corruption.’[6] In R v Porte,[7] while speaking about the legislative amendments of 2010, Johnson J said:
[3][2016] VSCA 73.
[4]Crimes Legislation Amendment (Sexual Offences Against Children) Act2010 (Cth).
[5]Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2)2004 (Cth)
[6]Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 81.
[7][2015] NSWCCA 174 (‘Porte’).
At the same time as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.[8]
[8]Ibid [59].
[20] General deterrence is to be a paramount consideration in sentencing child pornography offenders. In Fitzgerald v The Queen,[9] Hoeben CJ at CL said:
[9][2015] NSWCCA 266.
As his Honour recognised, general deterrence is of paramount importance when sentencing for these kinds of offences. This kind of offending primarily requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.[10]
[10]Ibid [33].
[21] Similarly, in D’Alessandro,[11] Harper JA, with whom Redlich JA and Williams AJA agreed, said that the
[11](2010) 26 VR 477.
prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.[12]
[12]Ibid 483 [21] (emphasis added).
[22] The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation,[13] is grave. It must ordinarily be the subject of substantial punishment. The fact that an offender, is charged only with accessing child pornography material, does not mitigate the gravity of the offending.[14]
[13]R v Coffey (2003) 6 VR 543, 522 [30]; R v Cook; Ex parte DPP (Cth) [2004] QCA 469 [21]; R v Jongsma [2004] VSCA 218; Heathcote (A Pseudonym) v The Queen [2014] VSCA 37.
[14]Porte [2015] NSWCCA 174 [66]; Saddler v The Queen [2009] NSWCCA 83; R v Booth [2009] NSWCCA 89 [46].
[23] Child pornography offences generally require that a person’s prior good character is to be given less weight. In Mouscas v The Queen,[15] Price J, said
[15][2008] NSWCCA 181.
the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor.[16]
[16]Ibid [37].
[24] In construing and applying Commonwealth legislation, this Court applies principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. In D’Alessandro,[17] Harper JA (Redlich JA and Williams AJA agreeing) reviewed appellate decisions, and found there to be unanimous support across the jurisdictions for the following propositions:
[17](2010) 26 VR 477.
First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make-up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:
(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.[18]
[18]Ibid [21].
[25] Since then, these principles have been frequently repeated in different appellate courts.[19] The matters relevant to sentencing for child pornography offences were further expanded upon by the New South Wales Court of Criminal Appeal in the recent decision of De Leeuw,[20] in these terms:[21]
[19]Minehan v The Queen (2010) 201 A Crim R 243, 261–262 [96]–[101]; Smith [2010] VSCA 215 [23]; Guest [2014] VSCA 29 [25]; Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [40]; R v Linardon [2014] NSWCCA 247 [58]; R v Martin[2014] NSWCCA 283 [37]; Porte [2015] NSWCCA 174.
[20][2015] NSWCCA 183.
[21]Citations omitted
Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed.
(c) General deterrence is the primary sentencing consideration for offending involving child pornography.
(d) Less or limited weight is given to an offender’s prior good character.
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography.
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet.
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children.
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market.
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.
34 In your case, you persisted in your conduct for a considerable period, you engaged in many chats, you sent and received many pornographic images, and your offending seemed to escalate, culminating in your attempt to meet a person whom you believed to be a 14 year old girl with the expectation of having sex with her.
35 As your counsel, Mr Page correctly conceded during a comprehensive plea in mitigation on your behalf,[22] the only appropriate response to your offending is the imposition of a term of imprisonment. That is because, as he said, principles of general and specific deterrence loom large. I shall now turn to the matters raised by your counsel.
[22]A written outline of plea was tendered as exhibit 1
You admitted your crimes at the first opportunity
36 You took responsibility for your actions at the earliest opportunity. When apprehended by police, as mentioned earlier, you admitted immediately all aspects of your offending. You facilitated the search of your various electronic devices. That is true, but it must also be acknowledged that you were caught “red-handed”.
You pleaded guilty at the earliest reasonable opportunity
37 You indicated your intention to plead guilty to some of the crimes at the earliest opportunity. In respect of other charges, you indicated an intention to plead guilty to an appropriately framed indictment. Following negotiations you indicated your intention to plead guilty. I accept that overall, you indicated your intention to plead guilty at the earliest reasonable opportunity.
38 A guilty plea, no matter why or when entered, must almost always attract a sentencing discount. In your case when assessing the weight to be given to your guilty plea I take into account:
(i) the timing of your plea;
(ii) you are entitled to a statutory discount because of your plea;
(iii) I accept that your plea is indicative of some level of remorse;
(iv) you have avoided the cost and inconvenience of a trial.
(v) your plea is consistent with your co-operation with the police evidenced in the police interview; and
(vi) there is social utility involved in your guilty plea.
Your personal history
39 Your personal history is well set out in the report of Mr Jeffrey Cummins, consulting clinical and forensic psychologist, dated 22 February 2017.[23]
[23]Exhibit 2
40 You are aged 30 years and until remanded in custody on 23 February 2017, you lived with your mother, stepfather and maternal uncle in Rye. Your father died, possibly by suicide, when you were aged approximately two years.
41 Your mother and stepfather have been together since you were eight years. Despite her serious health issues,[24] your mother works from home and for the past 24 years has owned an RACV Roadside Service franchise. You were working for the business at the time of offending. Your stepfather and other members of your family also worked in the business.
[24]Exhibit 3
42 Apparently, when you were a young teenager, you considered your stepfather to be a strict disciplinarian, and in order to live a more independent lifestyle, you made false allegations that he was physically abusive towards you. These false allegations resulted in the intervention of the Department of Human Services and this led to your various residential placements including at foster homes. You told Mr Cummins:
“I was in and out of residential care between 13 and 18 – like I had multiple foster parents. I got myself put into residential care when I exaggerated the extent to which my stepdad was bashing me. I had a mate who was in resi care and he said it was cool, so I wanted to join him….. I’ve lived on the streets on and off between about 15 and 18 and between about 18 and 26. I returned home at 26 when I saw mates dying because they were living homeless.”[25]
[25]Exhibit 2, paragraph 16
43 You were educated until year nine then dropped out of school at age 15.
44 When you finally returned to live at home at age 26, you obtained a heavy rigid truck licence, a skid steer licence, your “White Ticket” and a civil construction Certificate II. You drove trucks for a number of years but gave it away after being involved in a serious collision in approximately 2014. After that, your mother gave you a job at the family RACV franchise where you drove patrol vans and tow trucks until recently when your mother decided to sell the business and move to Queensland.
45 Although you have never been hospitalised for any psychiatric problems, in your mid to late adolescent years, whilst feeling depressed, you lacerated your throat and cut your wrists. You sought professional assistance but were turned away as your case was considered “not being a serious enough case”.
46 In 2010 you were arrested for drink-driving and whilst in the police cells you attempted to cut your wrist with your toenail.
47
You have not received any mental health treatment in your adult years, but
I note that when you were aged approximately 16 or 17, you were admitted to the “Stepping Stones” residential program at Monash Medical Centre where you remained for approximately three months. Apparently your placement resulted from an incident where you apparently jumped off a bridge whilst intoxicated following which you jumped in front of a truck. Police took you to the Monash Medical Centre.
48 You told Mr Cummins that you attempted to commit suicide whilst in police custody at Rosebud police station when you lost your driver’s licence approximately eight years ago. You were later placed on a Mental Health Care Plan.
49 Some years ago you were diagnosed with Attention Deficit Disorder and depression. Medication was prescribed for you, but you felt you derived no benefit from it. You have never received any ongoing psychiatric or psychological treatment.
50 You told Mr Cummins that at the time of offending you had a “drinking problem”. You described yourself as a “borderline alcoholic”.
51 You have never formed any enduring long-term relationships with women.
52 According to Mr Cummins, you stated
“Well I think the big problem for me – and this is why I was into the child pornography – is that I look a lot younger than my age. I’ve been told I’ve got a baby face. I was often asked for ID up until I was about 26. I’ve always felt I could relate to young teenage girls more easily than any other females because most of the girls I would have had sex with when I was in foster care would have been around 14 or 15”.[26]
[26]Exhibit 2, paragraph 30
53 Mr Cummins considered that you did not present as being psychotic or schizophrenic. Nor did you present as having an Antisocial Personality disorder. He thought you displayed some elements of a Borderline Personality Disorder of a Dependent Personality Disorder and a Narcissistic Personality Disorder. He thought you presented as being relatively immature and of being of low average intelligence.[27]
[27]Exhibit 2, paragraph 47
54 Mr Cummins noted that you reported becoming progressively addicted to viewing child pornography and fantasising about having sexual contact with underage females with the predominant focus of your fantasies on females who were just post pubescent. This addiction developed over a number of years. You told Mr Cummins that you consider this aberrant focus of your sexual thoughts developed in the context of you being in foster care between the ages of 13 and 18. As an adult, you have had sexual intercourse with only two partners.
55 You acknowledged to Mr Cummins that you require offence specific treatment. Mr Cummins diagnosed you as suffering from both paedophilia and hebephilia.
56 Mr Cummins considered that your sexual development has been significantly delayed, as evidenced by your comments regarding having a focus on under-age females. He also thought you presented as being genuinely immature and interpersonally naïve. In his opinion your general level of immaturity also exacerbates your fears in relation to seeking an age-appropriate sexual partner.
57 Mr Cummins also considered that you present as a psychologically vulnerable person and that therefore there is a high probability you would be at psychological risk in custody. Mr Cummins stated:
“In my opinion there is also a definite risk he could be at risk of being physically assaulted in custody because he does present as being immature and relatively interpersonally naïve. Further, he has stated that if incarcerated he will take his life. It is therefore my opinion the prison authorities should be alerted to this possibility.
Finally, it is my opinion he has developed a reactive Adjustment Disorder with Mixed Anxiety and Depressed Mood in response to his legal situation and in particular to the risk of incarceration. In my opinion he most probably suffers from a Personality Disorder.”[28]
[28]Exhibit 2, paragraphs 56 and 57
58 Mr Cummins assessed you as posing a moderate-high risk of reoffending. Unfortunately, although acknowledging you needed it, you showed little motivation to actively participate in offence specific treatment.
Jail will likely be more onerous for you
59 As mentioned above, Mr Cummins considers gaol will be more onerous for you. It is a fact I take into account.
Your character and antecedents
60 I have mentioned driving offences. They are of little relevance to my task in sentencing you today. You have no relevant prior convictions.
61 You have adhered to your conditions of bail, and there are no charges pending.
You are remorseful
62 You have expressed remorse as evidenced in an undated reference from James Sykes, tendered as Exhibit 4.
Your prospects for rehabilitation
63 As mentioned, Mr Cummins assessed your risk of offending as moderate-high.
64 You have the support of your family some of whom were able to attend court at the plea hearing.
Prosecution submissions
65 Ms Verdon drew attention to a number of authorities,[29] and noted that in some cases the terms of imprisonment imposed must be read in light of the fact that the maximum penalty for the relevant offences was 10 years’ imprisonment not the current maximum of 15 years’ imprisonment set in 2010.[30]
[29]Including DPP (Cth) v D’Alessandro [2010] VSCA 60; DPP (Cth) v Zarb [2014] VSCA 347; DPP (Cth) and DPP v Garside [2016] VSCA 74; Gifford v R [2016] NSWCCA 302; R v Gajjar [2008] VSCA 268; R v Porte [2015] NSWCCA 174
[30]For example DPP (Cth) v D’Alessandro [2010] VSCA 60
66 Ms Verdon also noted the concerning nature and content of the material supporting each of the charges and your role as contributor to the various conversations.
67
I should add here that having viewed exhibit C for identification, the disc containing representative images, generally the few images contained on the disc do not, in my view sit at either the upper or lower end of each category.
I would assess them as falling somewhere in the in the midrange of each category. However, one image was particularly disturbing in that it showed a girl obviously distressed whilst apparently performing oral sex. It appeared she was or had been crying - her eyes were red and were filled with tears. Eye make-up or mascara had run down under her eyes.
68 Ms Verdon also noted the length of time over which you committed your offences and that this conduct could not be described as a “one off fleeting offence”. She referred to the entrenched sadistic features exhibited in your conversations and pointed to your lack of victim empathy and your total disregard for the welfare of the children concerned. That is particularly so in regard to Charge 7.[31] I agree with Ms Verdon’s observations about Charge 7.
[31]See for example chat 76 which, by inference, concerns the same user.
69 Ms Verdon also identified Charge 8, the procuring offence as a very serious example in this category of offence. I agree. You persisted in your course right to the point of attempting to meet Chelsea for the purpose of engaging in sexual activity with her. Ms Verdon submitted that the gravity of this offence is not diminished significantly by the fact that there was no real child named Chelsea. You did not know that and you acted in the belief that she was real and only aged 14. At no time did you resile from your plan.
70 Ms Verdon submitted that generally I should assess your moral culpability as high notwithstanding the opinions expressed by Mr Cummins. You were aware of what you were doing, a fact you told police and repeated to Mr Cummins, you were not drug affected at the time and when apprehended by police you were not affected by alcohol. You were not suffering from any serious mental or behavioural disturbance or disorder and at all times you maintained control of the conversations and over your actions.
71
Ms Verdon noted with concern your risk of reoffending as assessed by
Mr Cummins and your diagnosis of paedophilia and hebephilia. Although
Mr Cummins opines that the risk will be ameliorated over time with treatment, Ms Verdon submitted that at this stage it is too soon to say with any degree of confidence that this result will likely be achieved. So far, you have taken no steps to engage in any form of treatment and, as Mr Cummins remarked, you did not seem keen to participate in any such treatment.
72 Ms Verdon also questioned whether you are genuinely remorseful for your conduct.[32] I have however found that to a degree, you are remorseful.
[32]Barbaro v R; Zirilli v R [2012] VSCA 288
73 Ms Verdon submitted that although there may be some limited overlap between the transactions the subject of some of the charges, generally the offending covered discrete acts and that some cumulation between terms of imprisonment is warranted.
74 Finally, Ms Verdon submitted that after appropriate sentences have been imposed, together with periods of cumulation a recognizance release order would be ruled out since a head sentence of at least three years imprisonment ought be imposed.
Reply
75 In reply, your counsel acknowledged that it is appropriate to direct periods of cumulation in respect of some of the terms of imprisonment. Even so, principles of totality apply.
Sentences to be imposed
76 I have already referred to the applicable sentencing principles.
77 There are many factors that I must take account of when sentencing you, including:
1. Principles of general deterrence;
2. The nature and circumstances of the offences including your moral culpability;
3.
The maximum applicable penalties;
4. Any injury, loss or damage resulting from the offences;
5. The degree to which you have shown contrition for the offences;
6. The fact that you have pleaded guilty to the charges;
7. The social utility inherent in your guilty pleas;
8. The degree to which you have cooperated with law enforcement agencies in the investigation of the offences;
9. The deterrent effect that any sentence or order under consideration may have on you;
10. The need to ensure that you are adequately punished for the offences;
11. Your character, antecedents, age, means and physical or mental condition;
12. Your prospects of rehabilitation; and
13. Principles of parsimony.
78 In all the circumstances I have no option but to impose terms of imprisonment.
Federal offences:
79 On Charge 1, solicit child pornography, you are convicted and sentenced to 12 months’ imprisonment.
80 On Charge 2, cause child pornography to be transmitted to yourself, you are convicted and sentenced to 12 months’ imprisonment.
81 On Charge 3, access child pornography you are convicted and sentenced to 18 months’ imprisonment.
82 On Charge 4, use carriage service to cause offence, you are convicted and sentenced to 6 months’ imprisonment.
83 On Charge 5, transmit indecent communication to a person under 16, you are convicted and sentenced to 9 months’ imprisonment.
84 On Charge 6, make child pornography available, you are convicted and sentenced to 12 months’ imprisonment.
85 On Charge 7, transmit child pornography, you are convicted and sentenced to 3 years’ imprisonment.
86 On Charge 8, procure a person under 16 years of age for sexual activity you are convicted and sentenced to 3 years’ imprisonment. This will be the base sentence for the Federal charges.
87 Both your counsel and the prosecutor agree that some period of cumulation is required in all the circumstances. I also agree that total concurrency would fail to do justice. I note that there is overlap between some of the transactions but that also much of the offending is discrete.
88 I intend that 12 months of the sentence imposed on Charge 7, 6 months of the sentence imposed on Charge 3 and 3 months of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 8, the base sentence, and with each other, resulting in a total effective sentence of 4 years and nine months imprisonment in respect of the Federal offences. This will be achieved by directing the respective commencement dates of each of the offences.
89 The sentence imposed on Charge 8, the base sentence, commences today. The sentence imposed on Charge 7 commences two years before the expiration of the sentence imposed on Charge 8. The sentence imposed on Charge 3 commences 12 months before the expiration of the sentence imposed on Charge 7. Charge 6 commences 9 months before the expiration of the sentence imposed on Charge 3. Charges 1, 2, 4 and 5 are concurrent and commence this day.
90 In fixing the non-parole period I note that I must consider mitigation of your punishment in favour of your rehabilitation through conditional freedom, when appropriate, once you have served the minimum time the court considers that justice demands, having regard to the circumstances of the offences.
91 In all the circumstances I direct that you serve a minimum of three years’ imprisonment before becoming eligible for parole.
92 I am required to explain the sentence. The total effective sentence in respect of the Federal offences is four years and nine months’ imprisonment. I have directed that you serve a minimum period of three years before becoming eligible for parole. Accordingly you will be required to serve a minimum period of imprisonment of not less than three years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
93 I have already explained the purposes of fixing the non-parole period.
94 Having come to the conclusion that I have no alternative but to impose terms of imprisonment, I direct that my reasons for so finding be entered in the records of the court under section 17A(2)(b) of the Crimes Act 1914 (Cwth).
State charge
95 In sentencing you for your State charge, many of the sentencing principles referred to above are also relevant.
96 Further, in view of the convictions and sentences just imposed in respect of the Federal charges, under Part 2A of the Sentencing Act 1991 (Vic) you fall to be sentenced as a serious sexual offender on Charge 9, the State charge. In determining the length of the sentence to be imposed for that offence I must regard the protection of the community from you as the principal purpose for which the sentence is imposed and I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. In my opinion a disproportionate sentence is not required. Nor has one been sought.
97 In all the circumstances I have no option but to impose a term of imprisonment.
98 On Charge 9, possess child pornography, you are convicted and sentenced to 6 months’ imprisonment. That charge will commence today and is concurrent with the sentences imposed on the Federal charges.
99 In view of the length of the State sentence imposed, and taking account of the length of the minimum term to be served in respect of the Federal sentences, no period of parole can be fixed.
100 The total effective sentence on the State charge is therefore six months wholly concurrent with the Federal sentences imposed this day.
101 I note that you were sentenced as a serious sexual offender for Charge 9 and I direct that this fact be entered in the records of the court.
Registration under the Sex Offenders Registration Act
102 You have now become a registrable sex offender. You are required to comply with the provisions of the Sex Offenders Registration Act 2004. The delegate of the Secretary of the Department of Justice – in these circumstances, my associate – will give you notice of your obligations under the Act. I note that the length of the reporting period is for the rest of your life.
103 Cameron Joseph Martin, you have signed an acknowledgement in receipt of the paperwork that I have just referred to; that is, the notice of your obligations under the Sex Offenders Registration Act. Do you agree that that is your signature?
104 PRISONER: Yes.
Presentence detention
105 By virtue of s16E of the Crimes Act (Cth) and s18 of the Sentencing Act (Vic) the time you have already spent in custody will be taken into account:
106 I declare that the period of 11 days is to be reckoned as a period of imprisonment already served under all the sentences imposed this day and I direct that the fact of this declaration and its details be noted in the records of the court.
Section 6AAA Statement
107 Under s.6AAA of the Sentencing Act (Victoria), and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are as follows:
108 On the Federal charges, you would have been convicted and sentenced as follows:
109 On Charge 1, 18 months’ imprisonment; on Charge 2, 18 months’ imprisonment; on Charge 3, 27 months’ imprisonment; on Charge 4, nine months’ imprisonment; on Charge 5, 13 months’ imprisonment; on Charge 6, 18 months’ imprisonment; on Charge 7, 4 ½ years’ imprisonment and on Charge 8, 4 ½ years’ imprisonment.
110 With cumulation, I would have ordered a total effective sentence of seven years and two months’ imprisonment. I would have directed that you serve a minimum of four years and six months before becoming eligible for parole.
111 As to the State charge, Charge 9, I would have ordered that you serve a minimum of nine months’ imprisonment.
112 I direct that the sentences that would have been imposed but for the guilty plea be noted in the court’s records.
113 So far as welfare issues are concerned, I propose that my associate notify the prison authorities of the welfare issues referred to in this sentence and in the report of Mr Cummins.
HER HONOUR: Is there anything further?
MR PAGE: No Your Honour.
MS VERDON: No Your Honour.
HER HONOUR: So far as Exhibit C for identification is concerned, I can confirm that the CD was placed in the court's safe with the registrar. I placed it in a sealed envelope, I signed the envelope at the back where the seal is and I noted on the envelope that the envelope is not to be accessed without further leave of the court. I propose that the disc remain in the safe until the appeal period has expired to maintain its continuity. Thereafter it can be returned to the prosecution if someone would please come up and sign for it at the relevant time.
MS VERDON: As Your Honour pleases.
MR PAGE: May it please Your Honour.
HER HONOUR: I thank counsel for their assistance. Please remove the prisoner. Please remove the prisoner now, in accordance with standard security practice.
MR PAGE: Yes Your Honour.
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ATTACHMENT “A”
Exhibit A - Prosecution Summary
Note: the document is not suitable for publication.
ATTACHMENT “B”
Exhibit B - Annexures referred to Prosecution Summary
Note: the document is not suitable for publication.
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