Director of Public Prosecutions v Martin
[2024] VCC 489
•18 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00432
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRAEME MARTIN |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2024 | |
DATE OF SENTENCE: | 18 April 2024 | |
CASE MAY BE CITED AS: | DPP v Martin | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 489 | |
REASONS FOR SENTENCE
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Subject:Sentence
Catchwords: Commonwealth Offences --- Using Carriage Service to Procure Person Believed to be Under 16 --- Possess or Control Child Abuse Material --- Victim was 18 year old posing as 14 year old --- Focus of Legislation on belief of the offender --- Communication over 10 month period --- Plea of Guilty --- 70 year old --- No Prior criminal history --- Delay
Legislation Cited: Criminal Code Act 1995 (Cth) ---Sex Offenders Registration Act 2004 (Vic)
Cases Cited:DPP (Cth) v Hiznikov (2008) A Crim R 69 --- R v Gaijair (2008) 192 A Crim 76 --- DPP (Cth) v Singh [2017] VSCA 146 --- R v Fuller [2010] NSWCCA 192 --- Worboyes v The Queen [2021] VSCA 169 --- Western Australia v Collier (2007) 178 A Crim R 310--- Hort v The Queen (16 April 2021, VSCA unreported); --- Gifford v R (2016) 263 A Crim R 373 --- Wilson v R (Cth) [2020] NSWCCA 211 --- Moore v R [2018] NSWCCA 226 --- Clarke-Jeffries v R [2019] NSWCCA 56
Sentence: Total Effective Sentence of 26 months imprisonment --- To be released to a $5,000 Recognisance Release Order after serving 12 months imprisonment --- To be of Good Behaviour for 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms G. McMaster | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. Dunn | Doogue + George |
HER HONOUR:
1Graeme Martin, on 21 December 2023, after a sentence indication given by me on 14 November 2023, you entered pleas of guilty to one charge of using a carriage service to procure a person believed to be under 16 years of age and one charge of possess or control child abuse material obtained or accessed using a carriage service.
2Those charges relate to sexualised communications you engaged in between 30 September 2020 and 11 August 2021 with Kristie Sanders,[1] a young woman who you believed was under the age of 16.
[1] A Pseudonym.
3You met Ms Sanders on ‘KinkD’, an adult fetish dating site where users are required to be over the age of 18. Ms Sanders was born in March 2002 and was in fact between the ages of 18 to 19 during the period of your offending.
4During that period you were between 66 to 67 years of age. You are now 70 years of age.
5On or about 1 September 2020, Ms Sanders followed your profile on KinkD. You and she began communicating, first via WhatsApp and then on iMessage.
6Ms Sanders initially told you that she had turned 18 in August 2020. Later on the same day, she told you that she was still 17 and will be 18 soon. On 4 September 2020, Ms Sanders told you that she was 16 and that she would turn 17 in December. Finally, on 30 September 2020, Ms Sanders told you that she would turn 15 in December. From that time on you believed you were communicating with a 14 year old.
7You and Ms Sanders exchanged over 6,500 pages of messages. Four thousand five hundred pages of messages were sent after Ms Sanders told you that she was 14 years of age.
8On 30 September, you replied immediately to the information about her age by saying, 'I'm still your daddy … But you do realise your mum could go to the police about this'. On the same day a number of other messages were exchanged which included discussion about her age and what would happen if got caught. You referred to her as your ‘hot little 14 year old daughter’ and made comments that although ‘on the good side’ this was 'way hotter … on the bad side it makes things a lot more complicated and waaaay more dangerous for me'.
9Your later communications confirm your ongoing belief in her age. Those communications included telling her 'I’m really torn. I do SO want to fuck you at least once when you are 14, but if we were ever to be caught, it is the only way we can be kept apart when you are 16'. Along with reference to the fact that once she was 15 and a half it would be 'much safer to meet up and do non-sexual things'. You told her 'but you ARE 14. That’s the whole point. And even though I think you are a very intelligent and mature 14 year old, you are still 14.’
10You comment in October that '…sometimes I look back at the things I’ve said to you and think to myself, "That was a bit inappropriate to say to a fourteen-year-old"'. You make comments that once she was of legal age no one can stop you, but 'we just have to make it through to when you are legal'.
11You justified your behaviour in a series of messages which included the comment, 'I don’t believe what we are doing is morally wrong. It is wrong when an adult takes advantage of a child’s innocence to get the child to engage in sexual behaviour that they don’t want.’
12On 1 October 2020, Ms Sanders sent a message that said, 'I don’t know if what we’re doing is right daddy...'. You replied and she again queried, 'But daddy, what about the law...'.
13It is clear from the messages which followed 30 September and which form the basis of this offending that you were well aware of the illegality of sexual communications with a child of that age. Those communications included you cutting and pasting an article from Wikipedia about ‘grooming’ which read as follows:
'Child grooming is befriending and establishing an emotional connection with a child, and sometimes the family, to lower the child's inhibitions with the objective of sexual abuse. [sic].'
14That page included an outline of s474.26 of the Australian Criminal Code Act 1995 which the article stated 'prohibits the use of a "carrier service" to communicate with the intent to procure a person under the age of 16, or expose such a person to any indecent matter for the purposes of grooming'. That is the section under which you were eventually charged.
15At one point Ms Sanders says 'I just don’t understand why the law says it’s wrong daddy... I feel so confused'.
16Your communications with Ms Sanders nonetheless continued. On 22 October, you and she discussed whether you were in fact grooming her, and ultimately you accepted that to be the case.
17You sent numerous messages that demonstrated your willingness to engage in phone or FaceTime sex with her. These include you asking on multiple occasions to call Ms Sanders and messages such as on 17 October 2020 including the comments, 'You’re starting to need more than just phone sex, aren’t you' and 'Phone sex is great, especially when you first start doing it and if you haven’t had real sex'.
18Paragraph 63 of the Prosecution opening outlines other similar messages. Given there is no statement from Ms Sanders, the prosecution do not allege that you had engaged in phone sex but your willingness to do so provides context to the communications.
19You also sent multiple messages that indicated your intention to engage in sexual activity in person with Ms Sanders. Those include:
a) On 3 October, you asked her whether she could catch an Uber to your house for your first meeting. After she was hesitant about this, you said that you could collect her.
b) On 11 October 2020, you suggested a plan of Ms Sanders catching the train to Flinders Street Station, then to Sunshine, where you would pick her up and drive her to your home.
c) On 17 October you made comments about her coming to your home, saying 'All you have to do is get yourself here … Safely, without your mum or the police finding out'.
d) On 20 October 2020, you said that your first meeting should be in the city and that you could touch her in a way that would be appropriate for a father to touch a daughter.
20On 30 October you discussed your conversation with a friend ‘Kelly’ wherein you said the following:
a) 'I told her that I was keeping you and that what I want most is for you and I to be together properly, when you are 16 because then we can have all the sex we want, when we want, and no-one can stop us.’
b) She pointed out something I already knew and that you and I have already talked about, that you and I can’t be together if I’m in jail.
c) Well first she said (and I know in my heart she is right) that if we ever got caught, it wouldn’t matter that we met on an adult site and that you contacted me first. Everyone would say it is my fault.
d) At very least, they would say I should have stopped any sex stuff as soon as I knew you were 14.
e) And it’s probably true. I probably should have. I’m supposed to be the adult.
f) Then she pointed out that if I was sent to jail as a paedophile, then it would have a huge impact on many of the people around me - and around you too, really.'
21Nonetheless, the communication continued.
22On 22 November 2020, you suggested meeting with Ms Sanders at the Victorian Art Gallery as a late birthday present after she had finished school. You also instructed her on how to send you underwear, including keeping it in her schoolbag. You spoke about taking her virginity and you spoke about impregnating her.
23On 13 December 2020, Ms Sanders said 'I tried to kill myself last night'. Your response included comments such as 'I think, baby, I might be doing more harm than good by talking to you. I do love you, and you have become a very important person in my life. It may have started off as a purely sexual thing, but it hasn’t been that for a long time. I have done everything I can to make your life happier and better, but I’m starting to wonder if I might be part of the problem. I think you need professional help'.
24In addition to her reported attempt at suicide, there were other indications of Ms Sanders’ vulnerability. She told you:
a) 'I don’t think that you’ve groomed me at all, but sometimes I wonder if I would still want this if it weren’t for what happened to me.' And;
b) 'And I think that’s what some people mean when they think old men take advantage of young girls.' and further;
c) 'Because maybe I am vulnerable because of the bad stuff that happened to me.'
25On 13 April 2021, you and she again discussed keeping the relationship a secret due to the illegality of an adult being with a 14 year old.
26On 6 May 2021, Ms Sanders sent a photo of her when she was six years old. A number of messages were then exchanged, in which you referred to her as being 'a real little temptress and seducer'.
27On 8 May 2021, Ms Sanders sent a message in which she asked 'Daddy are you a paedophile'. You said no. Ms Sanders then asked, 'But you were turned on by my child photo weren’t you?' You replied, 'Yes - but that was different. I was turned on because it was you, and because I am aware of what was being done to you at that time. That’s why I found it hot, not just because of your age' and 'But as far as pre-pubescent children in general are concerned, no, I am not attracted to them. Teenagers are about the youngest that turn me on.'
28From 9 May 2021, the frequency and quantity of the messages declined. At several stages you made contact with her and attempted to initiate messaging. At various points she does not respond or makes comments such as that she is questioning your relationship with her. The tone of your messages changes and you accuse her of being ‘mean’. Two months go by and you again initiate contact.
29The last text exchange occurred on 11 August 2021.
30On 6 August, Ms Sanders had made contact via Facebook with your sons and reported your relationship to them. In turn they reported the matter to police.
31Charge 1 of using a carriage service to procure a person believed to be under 16 reflects your communications with Ms Sanders between 30 September 2020 and 11 August 2021.
32You attended the police station on 12 August 2021 with your son, and took with you two laptops, an Apple iPhone 12 and an Apple iPad Pro, providing consent for police to examine them.
Charge 2 – Possess or Control of Child Abuse Material Accessed or Obtained from a Carriage Service
33On 12 August 2021, five images of child abuse material (CAM) were located by police on your iPad. Those images were sent to you by Ms Sanders. Those images are the basis for Charge 2 possess or control child abuse material access or obtain from a carriage service.
Record of Interview
34You made admissions in your record of interview. You stated that if Ms Sanders had said she was 14 from the start, you would have 'cut and run so bloody fast' and that you could not take the messages back.
35You told police that you remained in contact because she had told you that she had attempted suicide three times and that her father had left her and that you did not want to similarly abandon her.
36You agreed that you had communicated with her via a video call and that you recognised that she was very young, you estimated 16 or 17.
37You denied wanting to actually meet up with her because she was under age.
38You said you and she 'seemed to be getting on very very well' and that she was a 'nice kid', that it was 'just fun talking to her about stuff' and that you were 'lonely' and 'very depressed' and lockdown made it feel like 'nothing was real'.
Sentencing Principles
39The general principles which apply to this type of offending are as follows.
40The law recognises the gravity of offending against children. Sexual offending against children is particularly serious.
41As the internet has developed, so have the ways in which sexual offences can be committed against children. There is often difficulty in detecting and prosecuting that type of offending. Not uncommonly children are encouraged to keep the communication secret from parents and other adults who could recognise the potential for harm. When it is detected and prosecuted, the law has as a focus the principle of general deterrence.[2]
[2] DPP (Cth) v Hiznikov (2008) A Crim R 69, 74; R v Gajjar (2008) 192 A Crim R 76
42That is, the sentence imposed must generally deter other adults from taking advantage of the easy access to children via the internet, and of the naivety and innocence of young people. It must have as an aim, community protection for the same reasons, and must generally announce the denunciation of such conduct on behalf of the community.
43Teenagers are a vulnerable cohort when it comes to online communication. Sexualised conversations with teenagers have the potential to interrupt their natural sexual development, to lead to confusion, self‑doubt and mistrust. Such conversations with a teenager also tend to occur at a time in a young person’s life when they are most likely to push the boundaries of parents. An adult encouraging them to lie or deceive parents or act in secret can lead to disruption and mistrust within families.
44There is a presumption of harm to any victim, both immediate and potentially long‑term.
45In addition, generating sexualised conversations with children can add to the plethora of material available online to others and in turn may lead to the exploitation of other children.
46For those reasons Parliament sets a maximum penalty of 15 years imprisonment for this type of offending. That penalty applies to both of the offences here.
47Sentences ordinarily result in imprisonment and such sentences are usually severe.
Objective Gravity
48Assessing the objective gravity of your offending covered by Charge 1 is not a straight‑forward task. There are unique factual matters which form the basis of the offending, the dominant one being that you were not in fact dealing with a child but an 18 or 19 year old adult.
49You did not seek out a child and in that way your conduct was not predatory or deliberate. Your error was in continuing your sexual communication with her after she told you she was 14. Your communications bear out that you were aware of the illegality of doing so.
50To the sentencing task it matters little that she was in fact an 18 or 19 year old. In that way there are analogies to be drawn with cases where police posed as child victims of online offenders. As I said at the sentence indication hearing, when online sexual communications developed, State and Commonwealth Parliaments grappled with the task of creating offences to reflect the fact that sexual communication with children online was a prevalent and potentially harmful activity. When cases occurred which involved police posing as children and engaging in communications with offenders, sometimes to the point of arranging a meeting, there were legal arguments mounted that this was entrapment. Those arguments failed.
51That is because it is within the power of the adult offender to stop what they are doing, and because of the focus in sentencing on general deterrence. The legislation establishes that the focus both in proof of the offence and in sentencing must be on the belief of the offender. That is – their belief that they are engaging with a child under 16. Section 747.26 of the Criminal Code makes that clear:
Section 474.26(1) of the Criminal Code (Cth) provides for the principal form of the offence of using a carriage service to procure a person under 16 years of age to engage in sexual activity. It provides:
(1)A person (the sender) commits an offence if:
(a)the sender uses a carriage service to transmit a communication to another person (the recipient); and
(b)the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and
(c)the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d)the sender is at least 18 years of age.
Penalty:Imprisonment for 15 years.
[Emphasis added.]
52I reject the idea that you were somehow entrapped by Ms Sanders into the communication, or that I should view her actions as a vigilante exercise. You were the adult as you several times acknowledged and it was within your capacity to desist. At times you sought to reengage her, even when she was expressing reluctance. You were not lured into saying what you did. You made the communications voluntarily and because you were sexually aroused by the thought of sexual activity with a 14 or 15 year old child.
53Higher Courts have stated a number of times that the absence of a ‘real victim’ does not mitigate sentence. The NSW Court of Appeal in DPP v Singh[3] stated:
It does not matter that the recipient to whom the sender believes he or she is transmitting the communication is a fictitious person represented to the sender as a real person. In that regard, while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.
…
These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young children from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue. It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment. Deterrence, both general and specific, is the paramount sentencing consideration. It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors. [4]
[3] DPP v Singh [2017] VSCA 146
[4] R v Fuller [2010] NSWCCA 192 referring to Gajjar (2008) 192 A Crim R 76 and Hizhnikov (2008) 192 A Crim R 69
54In my view, your case is more serious than those where ‘the child’ is in fact a covert police officer. In those cases, the general principles about the potential for online sexualised communication to cause harm to children applies. However in those cases there is no actual or presumed harm to an actual victim.
55I cannot reach that same level of comfort here.
56Here the victim was an adult, but a young adult. She was 18 or 19 and considerably younger than you. In circumstances where she told you that she suffered some sort of abuse as a child, likely sexual abuse, that it likely occurred when she was very young as depicted in the photograph she sent you, that her relationship with her father was problematic, that her father abandoned her, and that she had made multiple attempts at suicide, including one during your communications with her, those facts demonstrate that your conversations with her had the capacity to create at least confusion if not distress or worse. You acknowledged as much after she told you she had attempted suicide.
57Whether and to what extent harm resulted I cannot conclude given Ms Sanders has not made a statement to police or a victim impact statement for sentencing. I therefore do not put those conclusions any higher. However the potential for harm is real.
58Those personal matters she told you (whether true or not) are relevant in another way. They demonstrate your awareness that you were dealing with a vulnerable young person. The fact that in the face of that history you were nonetheless willing to engage sexually with her believing she was 14 or 15 years old, significantly increases your moral culpability for this offending.
59Returning to the assessment of the objective gravity of your offending in the shadow of those conclusions. The following are aggravating features of your offending covered by Charge 1.
60The communication was not fleeting but lasted approximately 10 months.
61The communication was graphic, with themes of BDSM, masochism, rape, disturbing fantasy references to sexual acts against her as a much younger child, and about your own interest in hairless, flat chested young girls.
62It is apparent that there were additional conversations over the phone or on Facetime about sexual topics and sexual acts.
63The communications bear out your willingness to encourage her to hide her activity from her mother, and in addition to hide from police.
64The communication bears out your willingness to engage in phone and Facetime sex and plans to meet her for sexual activity.
65In addition to those matters, included as part of Charge 1 are your acts of sending to Ms Sanders sexually explicit material including of bestiality, as well as pictures of restraints on your bed, cuffs, collars, a leash and gag to secure her and flog her with.
66I accept there are other factors which serve to reduce the sentence here.
67In relation to Charge 1 as I noted, you did not seek out a child. You did not in any way seek to hide your identity or address. You did not in any way intend to share the communications with any other person or in any online community involved in the exploitation of children.
68Taking all of those matters into account, your communications the subject of Charge 1 with a view to procuring a child you believed to be under 16 for sexual activity, incorporating your provision to her of the bestiality videos is a serious example of this offence.
69In relation to Charge 2 reflecting the five images of child abuse material located on your laptop, the images are graphic; they show pain being inflicted on the child and they further the preponderance of and propagation of that type of material online. You possessed that material and that is the charge. I accept however that is a lower level example of that type of offending for the following reasons.
a) it is a single date offence;
b) the five images were sent to you by Ms Sanders;
c) that is a very low number of images in your possession. By comparison we see cases where there are hundreds and often thousands or tens of thousands of images;
d) the images are animation and not of real children; and
e) you did not possess those images for sale or further distribution and nor did you profit in any way from that offence.
70Further, I take into account the fact it was material possessed in the context of the communications which form the basis of Charge 1. As I indicated at the sentencing indication, for that reason I propose to impose entire concurrency in relation to that charge.
Submissions of the Parties at the Sentence Indication Hearing
71At the sentence indication hearing, your counsel sensibly conceded that a term of imprisonment must result here.
72The prosecution conceded that the term of imprisonment within range would open my discretion to impose a term with a Recognisance Release Order. What that means is that a term of three years or less is open to me. I accepted that any term of imprisonment I would impose on a plea of guilty would be under that outer margin.
73The issue for me to then determine in the exercise of my sentencing discretion was whether as the prosecution submitted, you should serve any of that term, or as Mr Parsons submitted, I should release you immediately.
74In order to release you immediately, I must be satisfied that exceptional circumstances exist. If so, they open that discretion to either immediately release you or to release you after serving some portion of imprisonment.
75I am satisfied that exceptional circumstances exist here as a result of the combination of factors which I will come to, but ultimately, as I indicated I am satisfied that the only appropriate sentence in all the circumstances involves a period of actual imprisonment before being released to a Recognisance Release Order.
76I turn to your personal circumstances which are as follows:
Personal Circumstances
77I have had the benefit of your Counsel’s eloquent submission on the plea. I have also had the benefit of a psychological report dated 2 November 2023 and prepared Mr Jeffrey Cummins who has been treating you since June 2022, and a psychological report prepared by Dr Matthew Barth dated 13 October 2023.
78You turned 70 years old last week. You do not have any prior criminal history or any subsequent criminal offending.
79You grew up in a working-class family in Clayton, Victoria. Your childhood you say was emotionally violent and turbulent due to conflict between your parents. Your mother consumed alcohol heavily and this was a source of tension between your parents. They separated when you were in your early twenties. Your parents both re-partnered and your mother moved to Western Australia.
80Your mother was diagnosed with dementia in 2008 and you brought her back to Victoria. She and your father have both passed away in the last decade.
81You have one brother. At the time of your sentence indication hearing you had not told him of your legal situation.
82You completed both primary and secondary schools in Huntingdale, completing Year 12, and then completed a Bachelor of Science in physics and applied mathematics at Monash University.
83You have maintained a life-long commitment to Aikido martial arts since you were 19 years old. You are a first degree black belt.
84You met your wife at the age of 23. You and she were married for 38 years and have three children together. They are now 39, 37 and 35 years old. You had a successful and happy family life.
85You worked as a computer programmer, in information technology and as a proposal writer and bid manager for several large companies including Telecom Australia and NEC Business Solutions Australia in management roles.
86As a 58 year old you commenced a Bachelor of Arts in philosophy, pure mathematics and communications with the Open University and later transferred that to Monash University.
87Your wife had ongoing health problems and was diagnosed with endometrial cancer in 2011. That cancer was very aggressive and she died in 2015. Towards the end of her life you took the active role in her ongoing care. That was described as demanding and very distressing and you struggled to cope.
88The death of your wife had a devasting impact on you and it is apparent that that time frame was the beginning of a spiral towards this offending. You consulted a grief counsellor but did not find this helpful.
89In 2016, you accepted an involuntary redundancy package. In doing so you left the solid base of your employment at NEC where you had worked for over a decade and left the connections that provided. Since then you have obtained some short-term contract work.
90In 2020, you commenced Honours in Philosophy during the COVID lockdowns.
91You engaged in a relationship with Kelly that ended shortly before the offending period. You met Kelly on ‘FetLife’. She is 26 years younger than you and has an open relationship with her husband. You remain close friends with Kelly and her husband Andrew. She has been present throughout these proceedings and both have written references attesting to your good character.
92Compounding the loss of your wife, employment and subsequent relationship, you then felt a palpable sense of isolation in the extended lockdowns of the COVID-19 pandemic.
93In addition to those feelings of isolation, anyone who lived through that time can well understand the ‘unreality’ of contact via an online platform. Your comments in the record of interview that no one was ‘real’ and that everyone existed on a screen are entirely plausible.
94Your mental health was negatively affected during COVID, and according to Mr Cummins and Dr Barth, you developed a major depressive disorder during the lockdown period. That is apparent in the communications with Ms Sanders where you variously refer to yourself as depressed. In your record of interview you say ‘my mental state was not good; I was very depressed’. At the end of lockdown you felt like you had disassociated, that everything was happening through a computer and in relation to the offending you said 'it was nice to feel connected to someone'.
95Upon being charged with these offences your mental health has further declined. You gave up employment due to the need for a police check.
96You had planned to build a house with Mr and Mrs Devlin and live in that home together, however, and again with the expectation of a custodial sentence, that plan has been abandoned at least for now.
97Of most significance, you have lost all contact with your three adult children. Prior to this offending you maintained a close relationship with them and with your one grandchild. However upon being informed of your offending they have ultimately ceased all contact with you. That is a real source of grievance for you.
98I accept that those features call for a degree of mercy here. You are 70 and have lost many of the pillars of your life as a result of your offending in a way many other offenders do not.
Delay
99I take into account the circumstances of your mental health as they are affected by the delay in this matter. Delay is relevant in two ways: first where an offender experiences the anxiety of having unresolved and serious offences hanging over them for a period of time; and second, it is relevant where an offender can demonstrate effort towards rehabilitation in the intervening period. Both of those considerations apply here.
100You were interviewed on 12 August 2021. Despite the fact you made numerous admissions, you were not charged until 26 April 2022. During that period of nearly eight months you were no doubt aware of the serious consequences you were facing.
101Your matter then proceeded by straight hand-up brief to this court in March 2023. You formally made application for a sentence indication in July 2023 and a hearing was listed in November 2023. You accepted that indication on 21 December 2023 and your plea hearing was adjourned to 4 April 2024.
102It is now over three years since the time of your offending. You have been in a state of uncertainty and concern about the outcome of your matter during that period and your time awaiting the plea hearing has been onerous on your mental health. You have intermittently engaged in suicidal ideation as a result of your embarrassment though you have not attempted to take your life.
Rehabilitation
103In relation to the second aspect of delay, you have voluntarily engaged in psychological treatment with Mr Jeffrey Cummins. You have attended on him between June 2022 and March 2024. Part of that treatment has been offence specific treatment in relation to sexual offending. You have not reoffended in any way.
104Mr Cummins opines that the communications between you and Ms Sanders were of at least hebephilia and potentially that of paedophilia. Your risk for committing a further sexual offence was assessed by him to be low and by Dr Barth as low-moderate.
105Dr Barth states that your offending 'represents a grossly dysfunctional difficulty maintaining appropriate "interpersonal boundaries" with an underage person which was characterised by deviant fantasies regarding her sexuality'. He strongly recommends that you participate in a comprehensive sex offender treatment program. I accept Dr Barth’s assessment of your risk of reoffending.
106The experience of these legal proceedings have also had a salutary effect on you. I accept your prospects of rehabilitation are positive and that the principle of specific deterrence while not eliminated is not significantly engaged here.
107You have made additional positive steps to demonstrate your commitment to an offence‑free future, including minimising your online presence, joining a community choir, and maintaining a commitment to your physical health through your martial arts and gym.
108In addition, in 2022, you completed a Graduate Diploma in Environment and Climate Emergency with Curtain University online. In 2023, you commenced a Masters of Environment at Melbourne University with your Graduate Diploma recognised from prior qualifications. As a result of the sentence indication I gave last November you have deferred that study. You understand you cannot defer it for more than 12 months or you are likely to lose your place.
109You have the ongoing support of Mr and Mrs Devlin who variously describe you as a ‘kind and respectful man who often puts others' needs before his own’ and ‘a reliable and trustworthy friend’ to them and others.
110You suffered from hypertension and since the time of the sentence indication you have been diagnosed with diabetes and are now medicated.
111Mr Cummins opines that your mental health would inevitably deteriorate if a term of imprisonment was imposed and that you are a significantly psychologically vulnerable person. I accept that to be the case and I take it into account in determining the appropriate length of sentence.
Plea of Guilty
112You have pleaded guilty to this offending and you receive the benefit of that plea. A plea of guilty has a utilitarian benefit in that it saves the court and the community the cost and time of a criminal jury trial.
113I accept that the principles of Worboyes v The Queen still have some application and your plea should receive some discount[5].
[5] Worboyes v The Queen [2021] VSCA 169
114In matters where a plea reflects genuine remorse, that is an additional consideration given it is usually reflective of some insight into the offending and a positive marker towards rehabilitation and away from the need for specific deterrence. I accept the comments by Mr Cummins that you are developing insight into your offending behaviour. I accept there is some regret and remorse for your offending expressed as early as your record of interview.
Current sentencing practices
115In determining the appropriate sentence for this offence, I have taken into account current sentencing practices across various jurisdictions, in particular a number of cases which Counsel helpfully referred me to and including those referred to in the Court of Appeal decision in DPP v Singh.[6] There are a range of analogous matters which relate to police posing as children which I have found most informative. As always there are differences in offender and offending and as such there are limitations. Ultimately I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
[6] Western Australia v Collier (2007) 178 A Crim R 310; Hort v The Queen (16 April 2021, VSCA unreported); Gifford v R [2016] NSWCCA 302; Wilson v R (Cth) [2020] NSWCCA 211; Moore v R [2018] NSWCCA 226; Clarke-Jeffries v R [2019] NSWCCA 56
Commonwealth sentencing
116In Commonwealth sentencing, to find exceptional circumstances they '…need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’ The matters which found my conclusion that there are exceptional circumstances in combination are as follows:
a) the unusual circumstances of the offending, in combination with your age, the background circumstance of the grief at losing your wife, losing your employment and relationship in context of the isolation created by the COVID-19 pandemic.
b) In addition, your loss of employment since then and the estrangement from your children;
c) further, your level of co-operation with police, not just in attending for an interview but in bringing your devices in an open way, knowing that they would be searched;
d) no other child abuse material was located;
e) in addition, the delay and your efforts towards rehabilitation by way of voluntary psychological treatment which is offence specific resulting in a low-moderate risk assessment and your positive prospects of rehabilitation.
117I take those matters into account not simply in relation to exceptional circumstances, but they have also worked to mitigate sentence generally.
Conclusion
118In all the circumstances of your case Mr Martin, I am of the view that the appropriate sentence on Charge 1 is a term of imprisonment. I am satisfied that no other sentence is appropriate.
119I have also concluded in relation to Charge 2 that the appropriate sentence is a term of imprisonment albeit a short one, that is reflecting the nature of the images in your possession.
120I am satisfied that the total length of the sentence should be under three years and rather than involving a non-parole period, should encompass a recognisance release order.
121The dispute in this case between the parties was regarding whether you must serve any term of imprisonment before being released on such an order.
122In my view you must. Again, having opened my discretion pursuant to s20(1)(b), I am ultimately satisfied that no other sentence is appropriate in all the circumstances of this case.
123I gave such an indication in November. It was argued on the plea that matters which have arisen since that time should ameliorate the sentence, in particular the additional delay of five months before being sentenced, your recent diagnosis of diabetes, the risk of losing your studies if you are imprisoned for longer than 12 months, and the ongoing disconnection from your children.
124I do not accept those matters should result in a further reduction of sentence. The estrangement with your children was clear at the time of the sentence indication. You are now medicated for your diabetes and I can expect will receive treatment in custody. I anticipate you will be in a position to recommence your studies after deferring this year. And finally, while I commend you for your ongoing treatment with Mr Cummins, on your arraignment I did not remand you at your request, but gave you the additional time to put your affairs in order before commencing to serve your sentence.
Sentence
125The sentence I imposed therefore is as follows.
126On Charge 1 you are convicted and sentenced to 26 months' imprisonment.
127On Charge 2 you are convicted and sentenced to 7 days' imprisonment to be served concurrently with the sentence on Charge 1.
128You will be required to serve 12 months' imprisonment before being released on a $5,000 recognisance release order, to be of good behaviour for a period of three years.
129Sorry I do not have the pre-sentence detention figure. I think it is 14 days but if counsel could just confirm.
130MS McMASTER: Yes so from 4 April, I have 14 days.
131HER HONOUR: Yes thank you. Ms Parsons, that is correct?
132MS PARSONS: Yes, Your Honour.
133HER HONOUR: Thank you. I declare that you have served 14 days of imprisonment and that that term should be reckoned as having being served under this sentence.
6AAA
134In relation to s6AAA, but for your plea of guilty the sentence I would have imposed would have been one of four years' imprisonment with a non-parole period of two years and four months' imprisonment.
Sex Offender Registration
135The prosecution made application for your registration under the Sex Offender Registration Act 2005. That is mandatory and it is for a period of 15 years. I make that order.
Ancillary Orders
136The prosecution also make application for forfeiture. You consent to that order and I propose to make it in the terms sought.
137The paperwork will be provided to you, Mr Martin in relation to both the recognisance release order and the sex offender registration.
138In relation to the recognisance release order you will be required to sign that order and that will be provided back to the court.
139In relation to the sex offender registration paperwork, that will be provided to you and it will be a matter for you whether you decide to sign that indication that you have received that paperwork. That will be explained to you and if signed will be returned to the court. Are there any matters to raise, counsel?
140MS McMASTER: No, Your Honour.
141MS PARSONS: No, Your Honour.
142HER HONOUR: All right. Thanks very much to both of you for your assistance in this matter. I'll now adjourn but Ms Parsons, my Associates can leave you on the link with Mr Martin if you'd like.
143MS PARSONS: Thank you. Thank you, Your Honour.
144HER HONOUR: All right, thanks very much, we'll adjourn.
(Short adjournment)
145HER HONOUR: Thank you very much. I will just confirm, Mr Martin, you can see and hear?
146OFFENDER: I can, Your Honour.
147HER HONOUR: Thanks very much. Thank you, Counsel and your instructors, for reconvening. When I went to make the recognisance release order it occurred to me that I had not sought any submissions from you about the probation aspect of it. It seems to me that that is mandatory but the discretion relates to the time length of probation. I am mindful of Dr Barth's recommendation for sex offender treatment and subject to hearing, in particular from you, Ms Parsons, it seems to me that the appropriate length of time for probation would be 18 months. The reason I choose that, and you are probably aware yourself, is that that tends to be the recommended time frame to ensure that that type of sex offender treatment program can be conducted.
148MS PARSONS: That's right and that was the submission which I had intended to make. I can see Mr Martin ‑ ‑ ‑
149HER HONOUR: Mr Martin, is everything okay?
150OFFENDER: I'm back now. It was the guard requiring my card, my ID card, my apologies.
151HER HONOUR: That's fine. No, not at all. Just as long as you can hear, that's fine. Sorry, Ms Parsons, that is what you were going to submit?
152MS PARSONS: Yes, that's my understanding of that period, the minimum period of time to complete that course.
153HER HONOUR: Yes, terrific, all right. As far as the other conditions go, I think they just mandatorily follow. That is, the type of standard conditions; don't travel without permission of the probation officer, and obey any other reasonable directions. Do you agree with that, they're mandatory as part of the probation?
154MS PARSONS: Sorry, Your Honour. Is Your Honour addressing that question to me?
155HER HONOUR: Yes, I am.
156MS PARSONS: Yes.
157HER HONOUR: So under 1B, yes (indistinct).
158MS PARSONS: Yes. Yes, Your Honour. I have got no difficulty with that as set out in the draft document that has been provided.
159HER HONOUR: All right, thank you. The other aspect of that is that it occurred to me I should have, and I am required to, I think this might have happened at the sentence indication hearing, but just to be sure I should have explained to
Mr Martin what the RRO is, and the consequences of any breach of it, and particularly in light of the requirement for probation I think I should do that, which is why I have also brought him back as well.160MS PARSONS: Thank you, Your Honour.
161MS McMASTER: Yes, Your Honour.
162HER HONOUR: Anything to add, Ms McMaster?
163MS McMASTER: I just note that in the draft order that we've sent you, that we've got the mandatory conditions from, as being sub-paragraph (e), (f), (g) and (h), but there are also the three that follow.
164HER HONOUR: Yes.
165MS McMASTER: Which, I mean they are not of too much consequence, but I do apologise, Your Honour. I should have brought it to your attention. I am just so used to, you know the words kind of following and ‑ ‑ ‑
166HER HONOUR: Yes.
167MS McMASTER: I do apologise.
168HER HONOUR: No, not at all. Well those additional three conditions are to give effect to the order, so it's a matter of what would be the closest community correction order for Mr Martin. Do Counsel know?
169MS PARSONS: My understanding is that Mr Martin will return to live in the Ardeer area.
170HER HONOUR: All right.
171MS PARSONS: So it would be the closest to that area.
172HER HONOUR: To that, all right.
173MS PARSONS: That's right, and I can see Mr Martin nodding there.
174HER HONOUR: All right, terrific. I wonder whether my Associates can just have a look for me to see what is the nearest Corrections Centre, while I just explain to Mr Martin the consequences of the order.
175Mr Martin, I am sure this has been explained to you by Counsel, but I am required under the legislation to explain to you what the sentence order I have made is. As you know the sentence I have imposed is one of 26 months, requiring you to serve 12 months, at which time you will then be released to what is called a recognisance release order and that order is that you be of good behaviour for the period of that order, which will be three years. The condition attached to it is that you pay $5,000; that is not paid up‑front. In effect that is forfeited if you breach the order by any
re-offending or by not complying with it.176And in addition, because of the nature of the offences which you have been now found guilty and convicted of, there are mandatory requirements that you be under probation. The period of probation is at my discretion and so I am not ordering that you be under probation for the entirety of that three year recognisance release order. The period I have chosen though is one of 18 months. The reason for that is because of the recommendation of Dr Barth, that you undergo sex offender program treatment, and the usual time frame required to make sure that that can happen is 18 months. It may not take the entirety of that 18‑month but that is the period that I am allowing for.
177The other mandatory conditions as part of that probation are: that you obey all reasonable directions of the probation officer; that you not travel interstate or overseas without written permission of the probation officer, or their nominee; and that you undertake treatment or rehabilitation programs that the probation officer reasonably directs. So be aware that you are required, as part of that recognisance release order, to comply with those mandatory conditions and that any breach would be a breach of the order.
178As part of that, you are also required to, in effect to give effect to those orders, you will be required to report to a Community Correction Centre within two clear working days of your release from imprisonment. I understand that that the closest Correction Centre is likely to be Sunshine, rather than Derrimut. Would that be correct, Mr Martin?
179OFFENDER: I suspect probably Derrimut would be closer, Your Honour, but I'd have to ‑ ‑ ‑
180HER HONOUR: Derrimut?
181OFFENDER: Yeah, I'd have to confirm that, I guess. But I think ‑ ‑ ‑
182HER HONOUR: I'm happy to – either is fine. I am just getting some information from my Associate. Some of the Corrections Offices are not full offices, they are just there for the purpose of work. So I think I will make it Sunshine and that is a matter that you are welcome to discuss. It's not unusual for people to transfer, for example if they move house, orders can be transferred from one Correction office to another. So I will make it Sunshine, so that you can make those arrangements.
183The other part of that is that that is a Community Correction Centre and obviously it will then form into probation, but you are required to report to and receive visits from a Community Correction officer and you are required to notify of any change of address or employment within two clear working days after that change. So you are required to notify the Community Correction Centre.
184Do you understand all of those conditions?
185OFFENDER: I do, Your Honour.
186HER HONOUR: All right. And you understand the consequence of breaching any of those conditions?
187OFFENDER: I do, Your Honour.
188HER HONOUR: Okay. Thanks very much. Are there any other matters, counsel?
189MS PARSONS: No, thank you, Your Honour.
190MS McMASTER: No, Your Honour.
191HER HONOUR: All right, thank you again for your help. I will make that order and that will be provided to Mr Martin.
192MS PARSONS: It please the court.
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