Director of Public Prosecutions v Mason (a pseudonym)
[2019] VCC 61
•1 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN MASON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 December 2018 | |
DATE OF SENTENCE: | 1 February 2019 | |
CASE MAY BE CITED AS: | DPP v Mason (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 61 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentencing – Indictment H12447393 – one charge of producing child abuse material and one charge of contravention of a Family Violence Intervention Order – Indictment J11323583 – one charge of production of child abuse material – offences committed whilst undergoing sentence in respect to other offending – further term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P D’Arcy (Plea) Ms F Martin (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | G Chisholm | Victoria Legal Aid |
HER HONOUR:
1
Sean Mason[1], you have pleaded guilty on Indictment H12447393 to one charge of producing child abuse material. The offending occurred between
7 August 2017 and 16 August 2017.
[1] “Sean Mason” is a pseudonym.
2 In addition, you pleaded guilty to Summary Charge 3, contravention of a Family Violence Intervention Order, relating to your conduct between 29 June 2017 and 27 September 2017, and that was transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009.
3
You have further pleaded guilty on Indictment J11323583 to a charge of producing child abuse material. The offending occurred between
2 February 2018 and 5 May 2018.
4 The charges are serious and that is reflected in the maximum penalties prescribed by law.
· Production of child abuse material, ten years’ imprisonment.
· Contravention of a Family Violence Intervention Order, two years' imprisonment or level 7 fine, which is 240 penalty units, or both.
5 On 11 October 2017, you were convicted and sentenced in this court in respect to six charges relating to sex offences, to which clause 1 of Schedule 1 of the Sentencing Act 1991 (the Act) applies, and that is, the serious sexual offender provisions of the Act.
6 As a consequence of the serious sexual offender provisions, you are therefore to be sentenced as a serious sexual offender in relation to the current charges the subject of the two indictments,[2] and the protection of the community is the principal purpose for which the sentence is to be imposed. (S6D) There is a presumption of cumulacy unless otherwise directed. (S6E)
[2] Sentencing Act 1991 s6B(2)(a)
7The provisions also mean that in sentencing you, the court, in order to achieve the purpose of the protection of the community as a principal purpose of sentence, may impose a longer sentence than that which is proportionate to the gravity of the offences, considered in the light of their objective circumstances.
8The Crown, in this case, is not seeking a disproportionate sentence.
9 You have admitted your prior criminal history. In relation to Indictment
H12447393, there are three court appearances spanning a period from
23 August 2006 to 6 October 2008. Those court appearances relate to dishonesty offences, criminal damage, drug-related offending and failure to comply with a community based order.
10 In relation to Indictment J11323583, your prior criminal history includes an entry for the appearance at the Melbourne County Court on 11 October 2017, which related to sexual offences, including knowingly possess child pornography, access child pornography using a carriage service, incest, indecent act with a child under 16, make/produce child pornography and make available child pornography using a carriage service and commit indictable offence whilst on bail, for which you are currently undergoing sentence.
11 The sentence imposed was for a combination of Commonwealth and State offences. You were sentenced to 18 months' imprisonment for the Commonwealth charges effective from 11 October 2017, which sentence is to expire on the 11 April 2019, and a State sentence of seven years and seven months to commence on 11 April 2019 with a non- parole period of five years fixed. A declaration of 140 days pre-sentence detention was made.
12 You are now 32 and at the time of the offending the subject of Indictment H12447393, you were aged 31. And you were aged 32 at the time of the offending the subject of Indictment J11323583.
13 I shall proceed to sentence you on the basis of the summary of prosecution openings. Both openings were read at the plea hearing with respect to each indictment. Both openings are marked as exhibits, namely 1 and 2.
14 I do not propose to read in full the contents of the openings and shall refer to the offending in briefest terms only.
15 Turning firstly to Indictment H12447393, in relation to the one charge of producing child abuse material and the Summary Charge 3, contravention of a Family Violence Intervention Order.
16 The offending the subject of Charge 1 occurred between the dates 7 August 2017 and the 16 August 2017. And the summary charge relates to offending between 29 June 2017 and 27 September 2017.
17 You were formally served with a copy of the Family Violence Intervention Order on 16 September 2016 at 6.30 pm.
18 Condition 5 of the order states that you must not contact or communicate with the protected persons by any means. The protected persons include your former partner and the three children of your previous relationship.
19 In contravention of the order you wrote four letters to your former partner and spoke to your children on one occasion.
20 Two letters dated 29 June 2017 and 10 August 2017 were written to her when you were on remand, being held at the Karreenga Correctional Facility, Lara.
21 On 14 August 2017 at 4.43 pm, whilst on remand, you called your mother on her mobile phone. At that time, she was having unsupervised visits at a McDonald's restaurant with the three children of your previous relationship. During that phone call, again in contravention of the intervention order, you spoke individually to each of the three children.
22 Whilst on remand at the Karreenga Correctional Facility, you were held in a single person prison cell. On 16 August 2017, at approximately 4.00 pm, prison officers conducted a cell pack-up of your cell, at which time they located a handwritten story containing extremely explicit details of child sex and rape written by you in your room, and that forms the basis for Charge 1, production of child abuse material.
23 The contents of the material refers to your youngest child, and full particulars are set out in paragraphs 21 of the Crown opening. Suffice to say, the text contains sexually explicit, abusive and offensive material.
24 On 26 August 2017, again in breach of the intervention order, you wrote a third letter to your former partner and sent it to her home address through the prison mailing system.
25 This letter also forms part of the basis of the summary charge of contravention of a family violence intervention order.
26 You were charged in relation to Charge 1, and some of the matters relied upon for the summary charge on 30 August 2017. No formal record of interview was conducted.
27 An aggravating feature of the offending, the subject of the summary charge, was that thereafter at around 27 September 2017, following the laying of charges and whilst you were on remand at the Metropolitan Remand Centre, you wrote a fourth letter to your former partner and sent it to her home address through the prison mailing system in contravention of the intervention order.
28 Your former partner states that she refused to read the third and fourth letters because of the negative impact any contact has upon her.
29
Turning to the second indictment, J11323583, this relates to one charge of producing child abuse material between the dates of 2 February 2018 to
5 May 2018. At that time, you were serving a term of imprisonment that had been imposed, and you were at Ravenhall Correctional Centre.
30 Following a routine search of your single cell on 4 May 2018, a prison officer located your diary containing child abuse material, together with three newspaper cut-outs of young children with writing on them. And in addition, following a more thorough search, an exercise book containing a handwritten story of 38 pages, with some loose lined paper inside the exercise book, containing a story of 11 pages.
31 The Crown opening particularises in full, the explicitly sexual material that was contained within those pages that is of an abusive and offensive nature. Of particular concern are your written comments in relation to your youngest child, your daughter, who was the victim of your earlier sexual offending for which you received the sentence you are now serving.
32 The court must condemn your behaviour. In full knowledge of the Family Violence Intervention Order, you engaged in behaviour that blatantly contravened the order.
33 No victim impact statement has been filed; however, having regard to your past criminal offending, I consider that your actions would have caused further distress and anxiety to your former partner. The offending was deliberate and took place over a period of almost three months and was not isolated in nature.
34 Whilst on remand, you committed the charge of producing child abuse material, the subject of Charge 1 on the first indictment, and whilst undergoing sentence you committed the charge of producing the child abuse material, the subject of Charge 2.
35 You appear to have no insight into the effect of your conduct upon your former partner or the potential for harm caused by your offending. Your offending is abusive and exploitative. It is very serious and reflects a distorted view that infant children are appropriate sexual partners, and you have an unhealthy focus on your own daughter.
36 In sentencing you, denunciation, deterrence and community protection are predominant considerations.
37 On your behalf, Mr Chisholm conceded that the production of child abuse material in this instance was disturbing and horrifying and, in particular, referring as it does to one of your victims of your previous crimes. He made submissions that your offending was at the lower end of this type of offending, without seeking to downplay in any way the seriousness of the offending.
38 Mr D’Arcy, the prosecutor, submitted that the written word is less serious than production of images but, nonetheless, submitted that the content of the material was such that the subject matter was disturbing, and it was a serious example of this offending.
39 I do not consider that your offending, in respect to the charges relating to production of child abuse material is such that it sits at the lower end of spectrum of seriousness for this sort of offending. The content was abusive and sexually explicit. I adopt Dr Davis' analysis of the material and will refer to that shortly.
40 I accept that the material was personal to you and that no actual violence or no actual victim was physically harmed as a consequence of your writing. There is no suggestion that you had produced it for the purposes of sale or further distribution or that you would profit in any way from this offending. But in the context of a person writing these things about former victims, and you are currently undergoing a sentence in relation to that victim, I consider that it is a serious example of this type of offence. It is exploitative, and the material is of a nature that is very disturbing. Overall, I consider it sits in the mid-range of seriousness for this sort of offending.
41 Your personal history and background is as set out in my sentencing remarks of 11 October 2017 and they should be read in conjunction with these reasons. You are now 32 and undergoing sentence and have limited contact visits from your parents.
42 Your background and history is comprehensively detailed in the reports of
Dr Michael Davis, forensic psychologist, and his reports are dated
24 August 2017 and 3 September 2018, and the neuropsychological assessment provided by Dr Linda Borg dated 27 November 2018.
43 Dr Davis confirms in his latest report that you have had some difficulties adjusting to prison, but that you appear to have settled. Your mood appears to him to have lifted somewhat since his previous assessment, although he said you reported ongoing depressed mood.
44 He considered that you showed some very poor insight into your offending but that you were able to provide a seemingly honest account of your sexual interest in children and the sadistic aspects of what he describes as your written sexual fantasies.
45 It remains his opinion that you have an Acquired Brain Injury (ABI) that served to exacerbate personality dysfunction that was already present, and which has been compromised by chronic substance misuse. He states that you meet the formal criteria for borderline personality disorder. This is a chronic condition and it is characterised by a pervasive pattern of unstable and intense relationships, emotional instability and impulsiveness.
46 He noted you are currently prescribed antidepressant medication and he considers you meet the diagnosis for major depressive disorder in partial remission (most recent episode mild).
47 He states that you meet the formal criteria for paedophilic disorder (non-exclusive type, sexually attracted to both genders).
48 Your narrative indicates that your sexual preference is for three to ten-year-old females, but your written material suggests that prepubescent boys and babies are also of particular sexual interest. Accordingly, an additional diagnosis of infantophilia is also relevant and he considers you also meet the formal criteria for a diagnosis for sexual sadism disorder.
49 He states that the material produced the subject of the charges reflects your deviant sexual interest in children and, in particular, your sadistic sexual interest in the humiliation, degradation and suffering of children. The voluminous and repetitive nature of the material, and the fact that you were found with such material on two occasions in prison underscores just how important and intrusive such thoughts have become for you.
50 He postulates this likely reflects the fact that you have had no access to online child exploitation material that you previously used prior to prison and, therefore, you are creating your own material in prison.
51 He noted that you have not been found with any further such material since
May 2018. He states that whilst your deviant sexual interests would not have simply disappeared, his opinion is the lack of recent material may be a consequence of being prescribed antidepressant medication.
52 He notes that your disordered personality, along with the ongoing sequelae of your brain injury, means that you are less equipped to deal with the vicissitudes of gaol, that is the ups and down of gaol, than the average prisoner, and that you will require ongoing support in gaol.
53 He states you pose a high risk of sexual re-offending (that is, considerably higher than the average sexual offender). The most likely form of future sexual offending will be further child pornography offences, particularly the preparation of written fantasy material involving the sexually sadistic treatment of children. However, your deviant interests also indicate that further contact offences are possible, especially given that you have already made the progression from child pornography used to conduct offending in 2016.
54 He recommends ongoing treatment for your depression from a clinical psychologist and ongoing medication reviews from the visiting psychiatrist.
55 He recommends treatment that focuses on sexual offending risk and your deviant sexual interest in children and sexual sadism. The development of skills for managing your deviant sexual interest would be important, along with the development of behavioural and emotional regulation skills. He says, given your condition, offence-specific treatment that focuses on victim empathy is contraindicated.
56 He recommends the Specialised Offender and Treatment Service provides suitable treatment. He further recommends that upon your eventual release into the community you may benefit from a referral to the Problem Behavioural Program at the Victorian Institute of Forensic Mental Health.
57 He makes recommendations in respect to your substance use and recommends a referral to drug and alcohol treatment for the future. He states that it would be prudent and obvious to ensure that you do not have unrestricted access to any infants or prepubescent children until your risk can be appropriately treated and assessed as considerably lower than it is currently.
58 Dr Borg, neuropsychologist, agrees that you present with clear and defined personality dysfunction, indicating a diagnosis of borderline personality disorder with additional contributions from narcissistic and antisocial traits. She too noted improvement with your major depressive disorder.
59 She could not undertake a formal assessment of your IQ because of your refusal to perform some of the tasks required. You demonstrated a closed head injury. She noted the clinical indicators revealed a likely severe injury. However, medical documents suggests that you had returned to near normal function over a year post-injury. Furthermore, she noted you demonstrate a pattern of strong memory capabilities despite the presence of pathology within temporal brain regions on both sides, which further supports this assertion.
60 Hence, she says the likely impact of your head injury is considered mild in nature despite clinical injury indicators with personality dysfunction, psychological instability and an underlying neurodevelopmental disorder considered the most pervasive aspect of your current presentation. The impact of your ABI and underlying ADHD are considered to be enduring in nature with no ongoing improvement to be expected.
61 She states given a history of recurrent sexual offending behaviour, you have had reasonable exposure and capacity to develop an understanding of likely consequences of such actions.
62 However, in light of underlying personality dysfunction, you will be more likely to make decisions based purely on your own wants or needs, failing to consider implications. Furthermore, you are highly likely to justify your behaviour and tend to place blame onto others if confronted. She believes you have awareness of right from wrong, although the application of this awareness is negatively impacted by maladaptive aspects of your personality.
63 She says the ABI you have is not considered a causal factor to your offending behaviours. Ongoing deficits pertaining to that injury are mild in nature. In the light of this, the presence of longstanding clear and defined personality dysfunction is considered the most pervasive contributor to your offending, as well as the underlying sexual sadism disorder diagnosed by Dr Davis.
64 She too recommends psychological and psychiatric assessment and treatment whilst you are in jail. She agrees you pose a high risk for sexual recidivism. She concurs with Dr Davis' recommendations. She says that your response to the offences revealed lack of ownership and egocentric tendencies with little/no overt remorse exhibited.
65 On the basis of the expressed opinions of both Dr Davis and Dr Borg, I do not consider that the ABI you suffer has played an operative role in the offending. Rather, your personality disorder has played a significant role.
66 I accept Mr Chisholm's submission on this that your longstanding personality dysfunction and most likely borderline personality disorder is the most pervasive contributor to your offending.
67 Borderline personality disorders do not attract the application of Verdins principles.
68 I have had regard to all the matters put by Mr Chisholm in mitigation on your behalf.
69
You entered a plea of guilty at an early opportunity at committal mention on
23 November 2017. Your plea has significant utility. Through your plea, you have spared the State the time and expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
70 In all the circumstances having regard to the expressed opinions of both
Dr Davis and Dr Borg, I am unable to make any findings in respect to remorse.
71 I have taken into account the expressed opinions of both Dr Davis and Dr Borg in a general sense and also in terms of your future prospects for rehabilitation.
72 Overall, I consider your rehabilitation prospects are very guarded. I recommend that the authorities have regard to Dr Davis' recommendations and put in place strategies to support you being appropriately treated whilst being held in the custodial setting.
73 Your rehabilitation prospects are not entirely extinguished but are dependent on there being real progress made in order to address your lack of insight and lack of remorse. A positive factor is that you do express a willingness to undertake the sex offender treatment program if it is offered and available.
74 Mr Chisholm acknowledged that in sentencing you there is a real need to emphasise punishment and submitted that, having regard to your particular personality disorder, that you were not a good vehicle for general deterrence.
75 He highlighted that you have been productive in custody, attending programs, working as a kitchen cleaner, and expressing a desire to undertake sex offender treatment program if offered and available. You have regular counselling and you are demonstrating a more positive approach. Since being prescribed Zoloft, your behaviour is noted to be different.
76 He stated that regard should be had to the fact that the offending occurred in the context of you being in the early stages of your sentence and not having had any specialist treatment. One explanation for your behaviour was that you were continuing to have deviant thoughts that you thought would be eradicated if you wrote them down.
77 Whilst it is true that the offending the subject of the second indictment did occur whilst you were undergoing sentence and had not had treatment, overall I consider, having regard to Dr Borg's expressed opinion, that you are capable of knowing right from wrong and therefore, whilst accepting one explanation being possibly that you were untreated and therefore were just writing thoughts that you believed would be eradicated, nonetheless, there is still evidence before me that demonstrates that you did have the capability of knowing what you were doing was wrong and, therefore, general deterrence still have a role to play in this sentence, as well as specific deterrence.
78 There is evidence documented about your situation and the conditions personal to you, that to a large extent do explain your behaviour in committing these offences, but in no way does it excuse your behaviour. There is a real need for the court to condemn this behaviour.
79 Mr Chisholm referred to the burden of custody and punishment in a custodial environment in his submissions. After the 2017 offending, you were placed in a management cell for 72 hours. You wanted to be placed in a management cell because of mental health issues and for your own safety. After the 2018 offending, you were placed in a management cell for 33 days, with restrictions on privileges, and you were then sent to Port Phillip Prison for a period of time.
80 Whilst it is accepted where an offender must serve part of their term of imprisonment in conditions that are more onerous that those applicable to mainstream prisoners that may be a relevant factor.
81 In mitigating sentence, I do not consider that those principles have application in your case[3].
[3] See Muldrock v. The Queen [2011] HCA 39, [19]
82 The offending the subject of the two charges of producing child abuse material occurred in the custodial setting, whilst either you were on remand or undergoing sentence. During those occasions, you were subject to the prison rules and regulations which you breached by committing the offences and you were punished accordingly.
83 It is acknowledged that the first period of 72 hours was at your request and the second period was in relation to a management decision.
84 I consider that the steps taken by the prison management in respect to the second occasion to enforce the rules that you breached is not a form of extra curial punishment. The fact is that the management decision was taken because of your own conduct and it is attributable to your own breach of the prison rules. As a matter of public policy, I do not consider that that need be taken in to account as a mitigating matter.
85 Mr Chisholm acknowledged that a term of imprisonment is appropriate in respect to all charges. He submitted that a degree of concurrency should be allowed, notwithstanding the presumption of cumulation.
86 Mr D’Arcy, the prosecutor, acknowledged this is very serious offending, and submitted the court ought to be very guarded about your prospects of rehabilitation, having regard to your particular complex needs. He highlighted the fact that you are a person assessed as being high risk of repeat sexual offending. He submitted that a degree of cumulation is required on the sentence that you are currently undergoing to reflect adequate punishment.
87 Overall, I must have regard to the applicability of the principles of totality, limited, because regard must also be given to the statutory presumption of cumulation for serious sexual offences, and I refer to the dicta in the case of R H McL v The Queen.[4]
[4] (2000) CLR 452. That case deals with the predecessor to s6E of the Sentencing Act but the same reasoning applies. See paragraph [76] per McHugh, Gummow and Hayne, JJ 476-7
88 Ultimately, in formatting the appropriate sentence, I must impose just punishment.
89 Having regard to all the facts and circumstances, I consider that a term of imprisonment to be served is the most appropriate punishment.
90 In the circumstances, I will be announcing a term of imprisonment and then making orders for cumulation. The formal court orders are as follows.
91 I will deal firstly with Indictment H12447393.
92 Charge 1, producing child abuse material, convicted and sentenced to 18 months' imprisonment.
93 Summary Charge 3, the contravention of family violence intervention order, convicted and sentenced to six months' imprisonment.
94 Indictment J11323583.
95 Charge 1, producing child abuse material, convicted and sentenced to three years' imprisonment. This is the base sentence.
96 I direct that three months of the sentences imposed on Charge 1 and Summary Charge 3 on the Indictment H12447393 be cumulative upon each other and the sentence imposed on Charge 1. On the second indictment, J11323583, making a total effective sentence for both indictments of three years and six months.
97 I direct that two years of the sentence imposed this day be cumulative upon the State sentence that you are currently undergoing, and I fix a single new non- parole period of six years, and that starts from 11.April 2019, which is the commencement date of the State sentence imposed on 11 October 2017.
98 I make the following declaration pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of five years' imprisonment and fixed a new single non-parole period of seven years.
99 I make the disposal order sought. All right, so it is two years on the head sentence, the State sentence, and another year on the non-parole period, effectively. Mr Chisholm?
100 MR CHISHOLM: Yes, Your Honour, I follow that.
101 HER HONOUR: All right? All right.
102 MR CHISHOLM: And, Your Honour, that non-parole - - -
103 HER HONOUR: New single - - -
104 MR CHISHOLM: The new non - - -
105 HER HONOUR: Singe new non-parole period.
106 MR CHISHOLM: Of six years.
107 HER HONOUR: Yes.
108 MR CHISHOLM: Beginning 11 April - - -
109 HER HONOUR: Twenty-nineteen.
110 MR CHISHOLM: - - -2019.
111 HER HONOUR: Yes.
112 MR CHISHOLM: Thank you, yes.
113 HER HONOUR: Yes, yes, thank you.
114 MR CHISHOLM: Thank you, Your Honour.
115 HER HONOUR: Yes. All right, would you like some time with your client before we discontinue the link?
116 MR CHISHOLM: No, I am going to have to - - -
117 HER HONOUR: You will go out and see him?
118 MR CHISHOLM: I have to speak to him, yes, I will go and see him, I think that is probably the better way. Or I will organise - I would rather organise separate (indistinct).
119 HER HONOUR: All right. All right, no, that is fine, that is fine.
120 MR CHISHOLM: And, Your Honour, given the Commonwealth and State, will Your Honour's associate have some orders that perhaps the prosecution - I will check - that it affects?
121 HER HONOUR: Yes, yes, she can do that. And we have also checked with John Liddy at central records.
122 MR CHISHOLM: Excellent.
123 HER HONOUR: And I have had communicated to him my proposed intention and he has checked the draft order and confirms that that properly reflects my intention.
124 MR CHISHOLM: Excellent. Well, I am superfluous then.
125 HER HONOUR: Yes, well - - -
126 MR CHISHOLM: But I will - no, that would - - -
127 HER HONOUR: But my associate can show you - - -
128 MR CHISHOLM: Yes.
129 HER HONOUR: - - - once I leave the Bench.
130 MR CHISHOLM: Yes, thank you, Your Honour.
131 HER HONOUR: All right, good. Thank you both for your assistance. We can adjourn the court. We will discontinue the link. Thank you.
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