Director of Public Prosecutions v Mason (a Pseudonym)
[2017] VCC 1467
•11 October 2017
| 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) |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2017 & 5 September 2017 | |
DATE OF SENTENCE: | 11 October 2017 | |
CASE MAY BE CITED AS: | DPP v Mason (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1467 | |
REASONS FOR SENTENCE
---
Subject:Criminal law
Catchwords: Sentencing – Indictment G11239340 – Using a carriage service to make available child pornography – Incest – Indecent act with a child under 16 (representative charge, three occasions) – Produce child pornography – Indictment H11449314 – Using carriage service to access child pornography – Possess child pornography – Summary charge – Commit indictable offence whilst on bail.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Di Pietrantonio | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J. D. Williams | Victoria Legal Aid |
HER HONOUR:
1 Sean Mason,[1] you have pleaded guilty to two indictments. On Indictment G11239340, there is one charge of using a carriage service to make available child pornography, one charge of incest, one charge of indecent act with a child under 16 years, which is representative of three occasions, and one charge of production of child pornography. The offending, the subject of the first indictment, occurred between the dates, 6 June 2015 and 23 January 2016.
[1]Sean Mason is a pseudonym.
2 Each of those charges are serious and that is reflected in the maximum penalties prescribed by law.
3 In respect to Charge 1, using a carriage service to make available child pornography, that is 15 years’ imprisonment.
4 In respect to Charge 2, the incest, it is 25 years’ imprisonment.
5 In respect to the charge of indecent act with a child under 16 years, Charge 3, that is ten years’ imprisonment.
6 Similarly with production of child pornography, that is ten years’ imprisonment.
7 In terms of the second indictment, H11449314, you have pleaded guilty in respect to one charge of using a carriage service to access child pornography, which has a maximum penalty of 15 years' imprisonment, and one charge of knowingly possess child pornography, which has a maximum term of ten years' imprisonment.
8
The offending, the subject of Charge 1, occurred between 7 May 2017 and
24 May 2017 and in respect to Charge 2, that is for one day only and that is, 24 May 2017.
9 You also pleaded guilty to a related summary offence, in respect to the second indictment, that you committed an indictable offence whilst on bail. The maximum penalty for that offence is 30 penalty units or three months' imprisonment and any term of imprisonment imposed must be served cumulatively under the provision of s.16 of the Sentencing Act1991 (Vic).
10 In addition, you admitted your prior criminal history. There are three court appearances spanning a period from 23 August 2006 onwards and the end date is 6 October 2008.
11 You have no prior criminal history in respect to sexual offending. Those prior court appearances relate to dishonesty offending, criminal damage, drug-related offences and failure to comply with a community based order. You have never undertaken a term of imprisonment before.
12 At the time of the offending, you were aged 29, in respect to Charge 1 and you were aged 30 in respect to Indictment No.2.
13 I turn now to the circumstances of the first indictment, which is G11239340.
14 On 9 October 2015, the Australian Federal Police received information from Europol that your email address, [email protected],[2] was linked to
a KIK user, suspected of uploading and sharing child pornography material.[3]
[2]Exhibit 1: Microsoft Hotmail report, HUB page 61.
[3]Kik Messenger is a free instant messenger application for mobile devices from Kik Interactive, available on iOS, Android and Windows Phone operating systems. It uses a smartphone’s data plan or Wi-Fi to transmit and receive messages, photos, videos, sketches, mobile webpages and other content after users register a username.
15 The report contained details of three KIK messenger accounts, which were created on 6 June 2015:
(a)Username: daddybigcockforyoung
First Name: daddybigcockforyoungunderageboys
Last Name: trade pictures or video
Email Address: [email protected][4]
The user profile picture for this account depicted three prepubescent males all engaged in anal penetration and/or fellatio acts with each other and is categorised as child pornography (CEM classification system – Category 4 image).[5]
This account was suspended by the KIK administration on 6 June 2015.
(b)First Name: pedodadlookingforpedomumwithkidsorbaby
Last Name: for dating or relationship in Melbourne vic
Email Address: [email protected]
Username: daddylikestofuck.[6]
The user profile picture for this account depicted an early prepubescent female on her hands and knees who appears to have an item inserted in her anus. Neither breast, vagina nor anus are visible due to camera angle and is categorised as child pornography (CEM classification system – Category 2 image).[7]
This account was suspended by the KIK administration on 15 July 2015.
(c)First Name: Looking4pedos/pedofamily/inmelbouren/
[4]Exhibit 2: KIK report dated June 7 2015, pages 62-77.
[5]Exhibit 3: Child Pornography image, page 78.
[6]Exhibit 4: KIK report dated July 15 2015, pages 79-85.
[7]Exhibit 5: Child pornography image, page 86.
Last Name: for children sex and baby sex party’s
Email: [email protected]
Username: daddywannafucklittle.[8]
The user profile picture for this account depicted a female baby lying on her back with a penis inserted into her vagina, with text, "Can I fuck your baby in front of you?” and is categorised as child pornography (CEM classification system – Category 4 image).[9]
This account was suspended by the KIK administration on 10 July 2017.
[8]Exhibit 6: KIK report dated July 10 2015, pages 87-88.
[9]Exhibit 7: Child pornography image, page 89.
16 In order to access child pornography material, you used the internet services available on your mobile phone and used a friend, Lauren Kirkland’s[10] internet and computer. She allowed you to use her computer and internet, but had no knowledge that you were using it to access child pornography and those circumstances constitute Charge 1.[11]
[10]Lauran Kirkland is a pseudonym.
[11]Statement of Lauren Kirkland.
17 Charges 2 and 3. On 10 May 2016, a Commonwealth 3E search warrant and 3LA order were executed at your home address in Carrum Downs. A Samsung S4 mobile telephone, Nokia mobile telephone and USB stick were seized.
18 An initial examination of the Samsung mobile phone identified four images of the victim, which were identified as child pornography.
19 The victim in this matter was Zoe Mason-Clarke[12], your youngest child. She was two years old at the time of the offending.
[12]Zoe Mason-Clarke is a pseudonym.
20 At the time of the offending, the Department of Health and Human Services (“DHHS”) were involved with your family and you were permitted to have supervised access with your children, with only 20 minutes unsupervised access allowed.[13] The offending, in relation to Charges 2 to 4, occurred on occasions when you had access visits with Zoe.
[13]Statement of Jane Clarke (Jane Clarke is a pseudonym), paragraph 20.
21 On 16 May 2014, a forensic analysis was conducted of your Samsung S4 mobile phone and that analysis confirmed four images of child pornography depicting the victim.
22 One image depicted the victim with your erect penis penetrating her mouth. That is CEM classification Category 4. That image was identified as being taken by you on 10 June 2015.[14] That constitutes Charge 2, incest. The image is also part of the basis relied upon for Charge 4.
[14]Exhibit 16: Samsung CETS report, pages 112-114.
23
A second image depicted the victim holding your erect penis in her hands. It has a CEM classification Category 3. This image was identified as being taken by you on 10 June 2015.[15] That forms part of the basis for Charge 3 and that is the first occasion. The image is also part of the basis relied upon for
Charge 4.
[15]Exhibit 16: Samsung CETS report, pages 112-114.
24 A third image depicted the victim’s face with your erect penis in the foreground. CEM classification Category 3. This image was identified as being taken by you on 10 June 2015. That forms part of the basis for Charge 3. This is the second occasion. This image is also part of the basis relied on for Charge 4.
25 A fourth image depicted the victim naked with her legs forced behind her head and your penis against her vagina. That is a CEM classification Category 3. This image was identified as being taken by you on 23 January 2016.[16] This forms part of the basis for Charge 3. This is the third occasion and the occasion on which you are to be sentenced. This image is also part of the basis relied upon for Charge 4.
[16]Exhibit 15: Samsung Exif report.
26 The forensic analysis of your Samsung mobile telephone also located five additional images of the victim that also forms part of the evidence relating to Charge 4. There were three images of the victim’s vagina, CEM classification Category 1, an image of the victim’s vagina with an adult’s fingers close by, CEM classification Category 2, and an image of the victim’s vagina and anus with an adult’s hand present, CEM classification Category 3. These images were identified as being taken by you on 23 January 2016. In total there were nine images, as described, that form the basis for Charge 4.
27 Context evidence that was referred to by the Crown in the opening details additional child pornographic material, identified on your Samsung mobile phone and also your Nokia phone and on the USB stick that was seized and details of the material are as follows:
Category Images Videos 1: CEM - No Sexual Activity 75 0 2: CEM - Solo\Sex Acts b/n Child 43 5 3: CEM - Adult Non-Penetrate 50 0 4: CEM - Child\Adult Penetrate 153 35 5: CEM - Sadism\Bestiality\Child Abuse 9 0 6: CEM - Animated or Virtual 25 25 0
28 On 30 May 2016, the forensic analysis of your Nokia mobile telephone identified additional child pornography material.[17] The child pornography was categorised using the CEM scale:
[17]Exhibit 17: Child pornography sample report, page 117-120.
Category Images Videos 1: CEM - No Sexual Activity 4 0 2: CEM - Solo\Sex Acts b/n Child 3 0 3: CEM - Adult Non-Penetrate 1 0 4: CEM - Child\Adult Penetrate 4 0 5: CEM - Sadism\Bestiality\Child Abuse 1 0 6: CEM - Animated or Virtual 0 0
29 On 21 June 2016, a forensic analysis of your USB stick identified additional child pornography material.[18] The child pornography was categorised using the CEM scale:
[18]Exhibit 20: Child pornography sample report, page 123-127.
Category Images Videos 1: CEM - No Sexual Activity 100 1 2: CEM - Solo\Sex Acts b/n Child 51 12 3: CEM - Adult Non-Penetrate 10 6 4: CEM - Child\Adult Penetrate 30 45 5: CEM - Sadism\Bestiality\Child Abuse 4 3 6: CEM - Animated or Virtual 0 0
30 In total, you had the following number of additional child pornography images in your possession:
Category Images Videos 1: CEM - No Sexual Activity 179 1 2: CEM - Solo\Sex Acts b/n Child 97 17 3: CEM - Adult Non-Penetrate 61 6 4: CEM - Child\Adult Penetrate 187 80 5: CEM - Sadism\Bestiality\Child Abuse 14 3 6: CEM - Animated or Virtual 25 0
31 You were present during the search and police recorded the search and a conversation that was held with you.
32 During the search, you made statements about accessing child pornography and made some false denials.
(a)You admitted that you accessed child pornography a few times "ages ago" and that you had "Just seen pictures. Seen bits and pieces of kids having sex";[19]
(b)You admitted you used a KIK account once before on your phone;[20]
(c)You admitted that you used your mobile phone, that you did not have internet access at your home and denied accessing it anywhere else;[21]
(d)In order to access child pornography, you “Just ask the right people the right questions. There’s plenty of people that send stuff out to you”;[22]
(e)When asked about the user names you had, you stated, "The names don’t mean anything, it’s just a name. It doesn’t mean I’ve actually gone ahead and done it”;[23]
(f)You admitted you had viewed child pornography material, however stated “I haven’t actually done anything, so it doesn’t technically make me a bad person”.[24]
[19]Transcript Q&A 16-20, 45 and ROI Q&A 40-58.
[20]Transcript 21-28.
[21]Transcript 26-29 and ROI Q&A 75.
[22]Transcript Q&A 30-32.
[23]Transcript Q&A 33-73.
[24]Transcript Q&A 38.
33 You were arrested on 10 May 2016. A formal interview was undertaken, with the assistance of an independent third person. During that interview, you stated:
·When questioned regarding the KIK accounts and child pornography images attached to your KIK files, you stated, “No comment”;[25]
[25]ROI Q&A 77-105.
·However, you later stated, “Let’s just say I was in a group. I was in a group chat and I said a few things and then the next minute, you know, my season goes shut down”;[26]
[26]ROI Q&A 122ff.
·When reminded about the 3LA order, requiring you to give police your username and passwords, you stated, “Well, I don’t know my passwords and I don’t know my usernames”, as you logged in once and did not logout;[27]
[27]ROI Q&A 133- 140.
·When asked about the image depicting the sexual penetration of the victim, you stated, “No, I do not sexually penetrate my daughter. I do not do that to my daughter, no. That picture was actually sent to me. That is not me and that is not my daughter either;”[28]
[28]ROI Q&A 143- 153.
·Further, when asked about the nature of the image and if you could remember who sent it to you, you stated, ‘I know, that’s disgusting. It's disgusting to hear that. I can’t remember who sent it to me” and you admitted you did not tell anyone about the image;[29]
[29]ROI Q&A 185-195.
·You did not say anything to the person who sent the image to you and said, “I was just in a maze. It’s like, well, OK, that’s happened and yeah
I haven’t said anything about it, no”;[30][30]ROI Q&A 197.
·You received the image via text, however deleted the text and accidentally saved the image;[31]
·When asked about the image depicting the victim holding your penis, said, “No, that’s wrong, it got sent to me like I said”;[32]
·When asked about the image depicting the victim’s face with an erect penis in the image, you stated, “it’s not me” and again stated that the image was sent to you some time ago, but would not comment on when;[33]
·
When police asked if the image was taken on your phone, you stated,
"I don’t know if it was taken on my phone;”[34]
[31]ROI Q&A 155-60.
[32]ROI Q&A 162-64.
[33]ROI Q&A 165-71.
[34]ROI Q&A 199-205.
34 Police proposed to conclude the interview and took a short break. When the interview resumed, you said:
·“The three photos you’re talking about, yeah, I took them, but I do not sexually molest my daughter, just because I took those three pictures”;[35]
[35]ROI Q&A 290.
·"The only pictures you would know about of is what’s in my phone, unless you’ve gone into something else to get something else”;
·When asked if you took the three photos, you stated, “Not the one with the mouth, no, but the other ones, yes. No, it’s not my penis”;[36]
·When asked whose penis it was, you stated, "Oh fuck man, cross-reference. I’m now confusing myself. I’ve just stuck myself in something.” But later you admitted it was you, that it happened "ages ago" and you did not remember taking the photos;[37]
·You admitted they all happened at the same time and when asked how it came about, said, “It just happened and I’m not explaining myself. I just did it. I shouldn’t have done it in the first place, it was just stupidity and stupid thinking”;[38]
·"It only happened once, only lasted a second" and you said you did not ejaculate;[39]
·You did not post the images, you just kept them for yourself;[40]
·You admitted that you penetrated the victim’s mouth, but not her vagina;[41]
·When asked how you got the victim to participate, you said, “I don’t know. I didn’t force it. She just looked at it, just touched it and that was it”;[42]
·When asked about the other images of the victim, you stated that they did not involve other children as, “I’m not like that”. You admitted the additional images were taken at a different time, showed the victim’s vagina and that you had hidden them on your phone in a different file.[43]
[36]ROI Q&A 298-99.
[37]ROI Q&A 300, 307-314.
[38]ROI Q&A 318-9.
[39]ROI Q&A 322-4, 330.
[40]ROI Q&A 325-8.
[41]ROI Q&A 337-8.
[42]ROI Q&A 346-50.
[43]ROI Q&A 370-87.
35 I did not view the sample of child pornography material. Mr Williams, your counsel, confirmed that he has viewed the sample and there is no issue taken with respect to the classification of the child pornography, as described in the prosecution opening. Having regard to the specific descriptions of the child pornography material and this concession, I have not separately viewed the material.
36 I turn now to the circumstances of Indictment H11449314.
37 Following your arrest and the laying of charges on 10 May 2016 relating to the first Indictment, you were bailed on that date with various conditions, including one that you could not use the internet, except for banking purposes.
38 On 16 March 2017, you were placed on County Court bail with the same conditions. You remained on bail for the offences until your arrest on 24 May 2017.[44]
[44]pp 116-20.
39 On that date, as a result of information received from the National Centre for Missing and Exploited Children, regarding your internet account,
a Commonwealth 3E search warrant and 3LA order were executed at your home address in Carrum Downs. Police seized your Samsung S4 mobile phone and a pocket Wi-Fi connector.
40 When police informed you of the reason for their attendance, you stated, “Yeah, I haven’t though. I just use the internet for Facebook”. When asked if you had child pornography images on your telephone, you stated, “There’s no child stuff, it’s just adult porn stuff”.[45]
[45]Statement of Monica HOGAN p 18-19.
41 You were arrested and again interviewed, with the assistance of an independent third person. You made a "no comment" record of interview.
Charge 1
42 Turning to Charge 1, using a carriage service to access child pornography. Police examined the SAMSUNG mobile telephone and discovered that on 7 May 2017, you had registered an internet account, pipper696969 (user name loveyoung) with the website imgsrc.ru.
43 That website is a Russian-based website that facilitates the trade in child exploitation material by child sex offenders. On 7 May, you received an account from that site and your account was noted as [email protected], confirming your registration.[46]
[46]See screenshot p 63.
44 Police ascertained that you accessed and commented on other users’ posted images as follows:
(a)19 May 2017
· In relation to an image of a 5 year old female child in a purple leotard performing a standing split – “yummy”.
This image is categorised as child pornography (CEM classification system) – Category 1.
(b)20 May 2017
· In relation to an image of a 9 year old Asian female child wearing a pink bikini, with the image focusing on her genitals – “looks ready for daddy”.
This image is categorised as child pornography (CEM classification system) – Category 1.
(c)22 May 2017
· In relation to an image of a 6 year old female child, with the image focused on her genitals, while dressed and sitting on the floor with her legs spread – “take them off”.
This image is categorised as child pornography (CEM classification system) – Category 1.
· In relation to an image of a 5 year old Asian female child, dressed in an orange bikini, squatting, with the image focused on her genitals – “sit on my lap anytime”.
This image is categorised as child pornography (CEM classification system) – Category 1.
· In relation to an image of a female toddler sitting on the floor eating an iced bun – “fill her mouth with white sauce”.
This image is categorised as child pornography (CEM classification system) – Category 1 image.
45 Further examination of the SAMSUNG mobile phone revealed that you received a number of images and emails from other imgsrc.ru users as follows:[47]
[47]See screenshots pp 52-61, 82.
(a)20 May 2017 at 3.13pm
· From [email protected]: an image of a prepubescent girl with her legs spread. This image is categorised as child pornography (CEM classification system) – Category 1.
(b)22 May 2017 at 4.06pm
· From [email protected]: “show what you have to trade please”.
(c)22 May 2017 at 10.23am:
· From [email protected]: “I also love kids. Love to play with girls”.
(d)23 May 2017 at 8.05pm
· From [email protected]: A child pornography video which depicts a toddler being anally and vaginally penetrated by an adult penis. This image is categorised as child pornography (CEM classification system) – Category 4.
(e)23 and 24 May 2017
· From [email protected], and 5 other imgsrc.ru users: conversations regarding the trading of child pornographic images.
· From [email protected]: “Sounds good, what do you like? Send me a sample and I will send some in return”.
· From [email protected]: “kids sex, video cam etc videos pls” and “what do you prefer?”
(f)23 May 2017 at 9.42 pm
· From [email protected]: “saw ur profile on imgsrc what you got young”.
Charge 2
46
Charge 2, possession of child pornography is in respect to the one day only,
24 May 2017. That relates to a forensic analysis of your Samsung mobile phone, that was conducted on 9 June 2017 and child pornography material was identified and characterised and recorded as follows:[48]
[48]See pp 71-77.
Category Images Videos 1: CEM - No Sexual Activity 25 0 2: CEM - Solo\Sex Acts b/n Child 2 5 3: CEM - Adult Non-Penetrate 2 0 4: CEM - Child\Adult Penetrate 20 1 5: CEM - Sadism\Bestiality\Child Abuse 0 0 6: CEM - Animated or Virtual 21 0 TOTAL 70 1
Summary offence
47 The summary offence of committing an indictable offence on bail relates to the fact that Charges 1 and 2 on the second indictment were both committed whilst you were on bail, for the first indictment, being for offences of a similar nature. In order to facilitate the offending, you breached a condition of your bail, namely that you "would not use the internet, except for banking purposes".
48 It is an aggravating feature that you committed offences of this nature whilst you were on bail for similar offending.
49 It is accepted that you have entered a plea of guilty at an early stage, with respect to both indictments. The first indictment resolved on 25 November 2016 at committal and the second matter resolved on 11 August 2017 at committal mention stage.
50 Following your arrest and charges on 24 May 2017, in relation to the charges of possession of child pornography, use carriage service to make available child pornography and breach of bail, you were remanded in custody and
pre-sentence detention will be declared.
51 Mr Mason, this is very serious offending, especially those charges which specifically concern your then very young two year old daughter. The offending involves a serious breach of trust. Further, there is an aggravating feature that you did not use a condom when you committed the conduct, the subject of the Charge 2 and therefore there was a risk of sexually transmitted disease.
52 Incest is a serious crime. It has always been considered a very serious crime by courts in this State.
53 The Court of Appeal in the recent case of DPP v Charlie Dalgleish (A Pseudonym),[49] said about an offender, who, at the time of the offending, had ongoing parental responsibilities to a child under the age of 18:
[49][2016] VSCA 148 at p 20.
"Such offending has a number of recurrent features: extreme invasion of the victim’s person; exploitation of a vulnerable child; violation of social norms; long-term and severe victim impact; serious breaches of trust reposed in the offender by the child and by the spouse or partner; and an undermining of the familial roots of society.”
Those comments are relevant here.
54 I do not consider this to be a worst example of this type of offence, but nonetheless, it still is a serious example of this serious offence and denunciation, deterrence and community protection are important sentencing considerations.
55 Your offending has impacted on your former partner, whose victim impact statement sets out graphically how your actions have affected both her and the other children of your relationship. She states in her statement that her family will never be the same. It greatly disrupted the children's lives when you were arrested. It meant that the children were removed from their nanna's care and placed in her care, which was difficult because she was not really prepared. Your offending has aggravated an underlying anxiety condition. She has become overprotective of the children. It is very difficult to explain to the children why you are not there. Your very young daughter's behaviour has changed. She was subjected to blood tests, urine tests and other tests around the issue of the sexual assaults and your former partner describes her behaviour as regressing to more baby-like behaviour. She now has issues with trust and that also affects how she relates to the children. She worries about what the future holds.
56 The child pornography charges, the subject of the first Indictment, are serious. The photos, the subject of Charge 4, depict the charged behaviour contained in Charges 2 and 3 and I have taken that into account and substantial concurrency will be ordered to avoid double punishment.
57 With respect to the charges, the subject of the second Indictment, you actively sought out the Russian site that facilitated access to child pornography and having regard to the nature of those charges, I have formed the view that you knew what you were doing was wrong, but you persisted in your actions.
58 I note that you commented upon viewing other people's child pornography material and you were receiving messages from others during the period of the charged acts, the subject of the first charge on the second Indictment.
59 There is a variety of child pornography material that was accessed within a range of child exploitation material in Categories 1 to 4 and Category 6 was also represented.
60 By your actions in doing that, you supported the making and proliferation of child pornography material that involves exploitation of young, vulnerable people. It is recognised that such exploitation has the real potential for harm to those victims. You actions also support a market for such a corrupting industry and it is not a victimless crime and such harm continues on in perpetuity as the images are swapped, traded and accessed by others engaged in the child pornography trade.
61 The maximum penalties imposed by both State and Commonwealth Parliaments for the offences for which you have been charged, reflects the seriousness with which those charges are viewed.
62 General deterrence is paramount when sentencing an offender for child pornography offences and that has been confirmed by the courts on many occasions and I refer to DPP v Garside.[50]
[50][2016] VSCA 774 [20]-[21].
63 I have had regard to the nature and content of the material and have taken into account the principles set out in the reported decision of R v Porte,[51] particularly paragraph 63.
[51][2015] NSWCCA 174.
64 Overall the number of images involved is not high in volume, nonetheless, they still are of young children, including your own, very young biological child.
65 You are being sentenced for accessing and possession and production of child pornography material and incest and indecent act with a child under 16. There is no evidence to show that you were involved in the sale of child pornography material, or that you shared the pictures of your very young, vulnerable daughter whom you were exploiting.
66 In formulating the appropriate sentence, I must formally denounce your behaviour on behalf of the community and I will be emphasising both general deterrence and specific deterrence in the sentence and the protection of the community.
67 On your behalf, Mr Williams considered appropriately that the offending, the subject of both indictments is serious and that those principle all apply. He also emphasised the need for just punishment.
68 I now turn to your personal history and background. You are currently 31. You are the only child of your parents' union. Your mother and father still support you and visit you in gaol. You have an older half-brother, who is your father's son, with whom you have no contact.
69
At the time, prior to your remand, you had been living alone in a cabin in
a caravan park nearby to your mother's home.
70 I have had regard to the background and history material that has been documented in the comprehensive report of Mr Michael Davis, forensic psychologist. I do not propose to repeat that in full, but I noted that you did have a fairly chaotic early childhood that was characterised by extreme acts of domestic violence that you witnessed and also your parents’ separation when you were aged eight. You have had ongoing contact with both parents, but predominantly you have been raised by your mother.
71
In the past, you have been diagnosed with attention deficit hyperactivity disorder, for which you were treated. You attended a number of different primary schools. After completing Grade 6, you went to secondary college in Frankston North. With special assistance, you completed up to
Year 10, I believe.
72 On leaving school, you worked for a period as a fiberglass finisher, in a company where your father also worked and you also have done a number of unskilled jobs, predominantly as a labourer.
73 You have not worked for the past six years and you were on a disability support pension.
74
In 2002, when you were aged 17, you suffered a severe brain injury, as
a consequence of being struck by a motor vehicle. As a consequence, your acquired brain injury has impacted greatly on your functioning ever since.
75 You are also a heavy user of cannabis and you have been a heavy user over the past 15 years and there is some methamphetamine use as well.
76 Since being charged with the first set of offences, you had some counselling with a psychologist, Michelle Thompson, and also with a counsellor, Gary Forbes at “Dads in Distress”, although nothing specifically was addressing your issues in relation to your sexual offending.
77 You still have very substantial family support from both your parents, who are continuing to contact you and support you whilst you are in gaol.
78 I accept that the prior criminal history is relatively modest and there is nothing of real relevance in terms of today's sentencing exercise.
79
In relation to the mitigatory factors, I accept in respect to both Indictments, there was an early plea of guilty. I accept that there is real utility in the pleas of guilty and that you facilitated justice and that as a consequence of your pleas of guilty, you are entitled to a significant discount in your sentence.[52] By your pleas you have obviated the need for a trial and the expense and unnecessary inconvenience of a trial and particularly, you have spared the complainant's mother from having to give evidence and be cross-examined and be
re-traumatised. It certainly has reduced what would otherwise be
a protracted process and by your actions, thereby you facilitated the personal recovery of everyone involved.
[52]Reid v The Queen [2014] VSCA 15 per Priest, JA at [111].
80 I have had regard to the contents of the report of Mr Michael Davis. It is a very comprehensive report. I understand that you have had lengthy discussions with him and I am satisfied, having regard to your expressions to him, that there is some degree of insight and a degree of remorse. You expressed to him that you felt very bad after doing it, stating that you have ventured across the bridge from internet offending to contact offending and you now realise it is not worth it.
81 His psychological testing confirmed below average cognitive abilities and below average intellectual functioning. He said, "While you show some very poor insight into your offending, you were able to provide a seemingly honest account of your sexual interest in children”, which is important, because as I understand it, it is the first time that you have disclosed fully that interest.
82
As far as your future is concerned, Mr Davis opines that you currently pose
a high risk of sexual recidivism. The most likely form of further sexual offending will be further child pornography offences, however given your sexual deviance, insofar as children contact offences are concerned, they are also possible and the most likely victims of any future contact sexual offending will be children with whom you have unrestricted access.
83
He noted that you currently suffer from a major depressive episode, as
a consequence of poor coping with prison life; that you meet the criteria for borderline personality disorder and the formal criteria for paedophilic disorder.
84 It was submitted by Mr Williams that Limbs 5 and 6 of Verdins[53] are enlivened and that submission was accepted by the prosecution. I accept that your time spent in custody has been challenging and more difficult, by reason of your known psychiatric conditions and also that there is a likelihood that prison may exacerbate your underlying conditions as well.
[53]R v Verdins; R v Buckley; R v Vo [2007] 16 VR 269.
85 I note that there are subsequent offences that are of a very concerning nature. You face charges of producing child abuse material and a charge of persistent contravention of family violence intervention order, relating to conduct whilst you have been on remand. I note that those charges have yet to be dealt with.
86 Overall, I consider your prospects of rehabilitation to be extremely guarded and are dependent on the treatment recommendations that have been suggested being fulfilled and also you responding appropriately to treatment.
87 Mr Davis has recommended a comprehensive assessment by a clinical neuropsychologist; treatment directed at your complex sexual interests and entrenched sexual deviance; treatment directed at risk behavioural and emotional skills and mental health treatment.
88 Mr Williams, on your behalf, considered that a sentence of immediate imprisonment, with a non-parole period, is the only appropriate sentence in all the circumstances.
89 On behalf of the Crown, Ms Dipietrantonio, emphasised the serious nature of the charges and the need for the court to emphasise deterrence, both general and specific and protection of the community and that is a significant factor, especially having regard to the content and subject matter of the second Indictment.
90 She emphasised that rehabilitation prospects are guarded and she also highlighted the fact that the offending, the subject of the first indictment, primarily related to offences against your young daughter.
91 She noted that incest is a very serious charge and this is a serious example, with the aggravating feature that no condom was used and you breached the trust of your very young daughter and you offended whilst exercising unsupervised access.
92 She sought an immediate custodial sentence that reflects the gravity of the offending.
93 Because of the nature of the charges that you have been charged with, the serious sex offender provisions of the Victorian Sentencing Act 1991 apply.
94 It is accepted that the provisions under s.6B(2)(a) of that Act apply to the State offences only.
95 It was conceded on your behalf that you fall to be sentenced as a serious sexual offender in respect to Charge 4 on the first Indictment and Charge 2 on the second Indictment.
96 As a consequence of the serious sexual offender provisions, the protection of the community is the principle purpose for which the sentence is to be imposed, s.6D. There is a presumption of cumulacy, unless otherwise directed, s.6E.
97 The provisions also mean that in sentencing you, the court, in order to achieve the purpose of the protection of the community as a principle purpose of sentencing, may impose a longer sentence than that which are proportionate to the gravity of the offences, considered in the light of their objective circumstances.
98 The Crown, in this case, is not seeking a disproportionate sentence.
99 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.[54]
[54](2000) CLR 452. That case deals with the predecessor to s 6E of the Sentencing Act 1991 but the same reasoning applies. See para graph [76] per McHugh, Gummow and Hayne, JJ 476-7.
100 Ultimately, I must impose just punishment.
101 In respect to the State offences, I take into account all the matters personal to you, to which I have referred, including your prospects for rehabilitation, which are guarded. I also must take into account such matters as deterrence, especially general deterrence and in your case, specific deterrence and I am required to have regard to the protection of the community, as a consequence of the serious offender provisions. I must also bear in mind the likelihood of your re-offending. I consider that to be high currently, having regard to your current assessment, as provided by Mr Davis.
102 In all the circumstances, I am of the view that I have no alternative but to impose a term of imprisonment.
103 In respect to the Federal charges, I must and do take into account all the matters referred to in s.16A(2) of the Crimes Act1914 (Cth) and I am required to make orders that are of a severity appropriate in all the circumstances of the offending. And again, in respect to the Federal charges, I have no alternative than the imposition of terms of imprisonment.
104 I will now announce the term of imprisonment. I will do it in this way. I will impose the Commonwealth sentences first in time.
105
In respect to Indictment 1, Charge 1, use carriage service to make available child pornography, you will be convicted and sentenced to one year imprisonment, to commence today, 11 October 2017 and that will expire on
11 October 2018.
106
In respect to Indictment 2, Charge 1, access child pornography using a carriage service, you are convicted and sentenced to one year imprisonment, to commence six months before the expiration of the sentence imposed on
Charge 1, Indictment 1. So that is to commence on 11 April 2018 and to expire on 11 April 2019.
107 In respect to the State offences, Indictment 1, Charge 2, the incest charge, you are convicted and sentenced to six years' imprisonment, to commence on the date of the expiration of the Commonwealth sentence.
108 Charge 3, indecent act with a child under 16, that is representative of three occasions, you are convicted and sentenced to two years' imprisonment.
109 Charge 4, production of child pornography, convicted and sentenced to one year imprisonment.
110 In respect to Indictment 2, Charge 2, possession of child pornography, you are convicted and sentenced to one year imprisonment.
111 In respect to the related Summary Charge 4, commit indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
112
In respect to the State offences, I make the following orders for cumulation:
I direct that six months on Charges 3 and 4, on Indictment 1, and six months on Charge 2 on Indictment 2, and one month of Summary Charge 4, are cumulative upon the sentence imposed on Charge 2 of Indictment 1. Therefore, the total State effective sentence is seven years' and seven months' imprisonment. I fix a non-parole period in respect to the State sentence of five years' imprisonment.
113 In the circumstances, pursuant to s.19AD(4)(b) of the Crimes Act 1914 (Cth), I have declined to fix a recognizance release order with respect to the Commonwealth offences. This is because, in the circumstances, you are to commence the State sentence immediately upon completion of the Commonwealth sentence.
114 I have further had regard to the nature and seriousness of the State offences and consider that a recognizance release order for the Commonwealth offences is not warranted.
115
Pursuant to s.6AAA of the Sentencing Act1991 (Vic), but for your pleas of guilty, I would have imposed a sentence of 12 years' imprisonment, with
a non-parole period of seven years' imprisonment.
116 I make the forfeiture orders sought.
117 I direct that the fact that you have been sentenced as a serious sex offender be entered into the records of the court with respect to Charge 4 on the first Indictment and Charge 2 on the second Indictment.
118 I make a declaration of pre-sentence detention. How much is it?
119 MS DIPIETRANTONIO: 140 days, Your Honour.
120
HER HONOUR: 140 days. I direct that that be entered into the records of the court and be reckoned as time served under the sentence
I have imposed this day.
121 In relation to the Sex Offenders Registration Act 2004, in respect to Indictment 1, you have pleaded guilty to one Class 1 offence, incest; three Class 2 offences, the remaining charges, so that registration is mandatory and the reporting period is life, pursuant to s.34(1)(c)(3) of that Act.
122 In respect to Indictment 2, you have pleaded guilty to two Class 2 offences and registration is mandatory and the reporting period in that instance is 15 years.
123 Information concerning the Sex Offenders Registration Act 2004 has been prepared and a notice will be provided.
124 Is the sentence clear, Mr Williams, to you?
125 MR WILLIAMS: I am sorry, Your Honour?
126 HER HONOUR: Is the sentence clear to you?
127 MR WILLIAMS: It is, Your Honour, yes.
128 HER HONOUR: Yes, all right. So you can explain to - - -
129 MR WILLIAMS: All right.
130 HER HONOUR: - - - Mr Mason he has got to do the Commonwealth sentence first.
131 MR WILLIAMS: Yes.
132 HER HONOUR: Followed by the State sentence.
133 MR WILLIAMS: Yes, Your Honour.
134 HER HONOUR: All right, thank you. I believe I have covered everything.
135 MS DIPIETRANTONIO: Yes, Your Honour.
136 HER HONOUR: I make the forfeiture orders sought. I just need to sign the forfeiture orders and I will undertake to revise the sentencing remarks as quickly as I can. That will depend on VGRS, all right? And I will ensure that they are anonymised, prior to publication.
137 MS DIPIETRANTONIO: If Your Honour pleases.
138 HER HONOUR: Thank you.
139 MR WILLIAMS: If Your Honour pleases.
140
HER HONOUR: Thank you both for your assistance in this difficult matter.
I appreciate your assistance. Thank you. We can adjourn.
- - -
0
3
0