Director of Public Prosecutions v McCarthy
[2022] VCC 1840
•21 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Warrnambool CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00867
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN CARL McCARTHY |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 6 October 2022 | |
DATE OF SENTENCE: | 21 October 2022 | |
CASE MAY BE CITED AS: | DPP v McCarthy | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1840 | |
REASONS FOR SENTENCE
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Catchwords: Failing to comply with reporting obligations and use carriage service to access child abuse material
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Brown | CDPP |
| For the Accused | Mr G. Cooper | VLA |
HER HONOUR:
1
Benjamin Carl McCarthy, you have pleaded guilty to two charges of failing to comply with reporting obligations pursuant to s46(1A) of the
Sex Offenders Registration Act
(Victoria) (the SORA), the maximum penalty for those offences is five years, and one charge of using a carriage service to access child abuse material, the Commonwealth offence, the maximum penalty of which is 15 years.
2 As a result of you having been previously convicted of a relevant sexual offence, mandatory minimum sentence provisions apply to the sentence to be imposed in respect of the Commonwealth offence (see s16AAB, item 24 of the Commonwealth Crimes Act).
3 Further, as this is a Commonwealth child sex offence, the court must specify a period of imprisonment to be actually served unless satisfied that exceptional circumstances exist. It was conceded on your behalf that no such circumstances existed.
4
Both parties provided written submissions in addition to the oral submissions made on the plea. I have considered the matters raised in that material. That is in Exhibits B and 1. Additionally, I have considered the relevant matters as set out in the Commonwealth Crimes Act s16A(2), and the
Victorian Sentencing Act ss5(1) and 5(2).
5
The circumstances of your offending are set out in the
Summary of Prosecution Opening for Plea dated 19 September 2022,
Exhibit A, and can be summarised as follows.
Charge 1
7
As to Charge 1, in October 2010 you were convicted and sentenced in the
Victorian County Court sitting at Warrnambool for offences relating to making and production of child pornography. As part of the sentence imposed the court ordered you to comply with the reporting obligations under SORA for a period of 15 years and that you be placed on the register of sexual offenders for that period.
8
On 6 August 2021 a warrant was executed at your home and on your phone. Police located a Snapchat conversation between you and a 15 year old girl. The Snapchat conversation took place between 17 October 2019 and
30 March 2021. During the course of the conversation the exchange and other relevant posts are set out in paragraphs 7 and 8 of Exhibit A. I note that on 22 November 2019 when you discovered her age you ceased contact and that your responses to Snapchat posts were not until January 2021. You did not report any of this contact to police within one day as required by s17(1A) of the SORA legislation.
Charge 2
9 On the day the warrant was executed you participated in an interview for the purposes of complying with your annual reporting obligations pursuant to s16 of SORA. You told police that you had a Tinder and PlentyOfFish account and provided your username. You told police you had not reported either of these accounts within seven days as required under s17(1) of SORA.
Charge 3
10
When the warrant was being executed police discovered on your phone that you had accessed the pornography site ImageFap, some of which contained child abuse material. Further analysis of your phone revealed that between
20 September 2020 and 31 July 2021, using the Google account linked to your email address, you had accessed a number of URL links to that website and child abuse material. The number of images accessed and the categorisation of those images is set out in paragraph 15 of Exhibit A.
11
Of the 428 images nine depicted actual children and 419 depicted cartoons or
94 per cent were cartoons. As explained by your counsel, a large number of the files accessed were comic style images which consisted of multiple panels, alternatively known as frames or boxes, on a single page. Some pages contained up to seven panels.
12 In your interview with police you admitted the phone was yours and that you were the only one who accessed the Snapchat, Google and other accounts on the phone. You admitted you communicated with a child, but had probably forgot that she was 15. In relation to the failure to report the Tinder and PlentyOfFish accounts, you maintained this was due to a lapse of - that you just were not thinking. You admitted accessing ImageFap to view pornography and that some of the cartoon characters depicted in the animated pornography were school-aged children.
13
I received the psychiatric report of Dr Dan Sullivan dated 22 September 2022, Exhibit 2, and character references from Trevor and Katrina McCarthy dated
26 September 2022, and from Mariah Logan-Mundy dated
26 September 2022, Exhibit 3. I take all that material into account.
14 You are currently aged 35. You were born in Warrnambool and have always lived in this area. You have two brothers and enjoy a positive relationship with them and your parents. You grew up in a happy and supportive environment.
15 You obtained your VCE in 2005 and soon after commenced a hospitality traineeship at the local bowls club and completed a Certificate 3 in Hospitality. You have worked in hospitality or gaming at the one venue for eight years until you were charged with these offences. I was informed that you discussed the charges with your employer and decided to resign to ensure there was no negative impact or attention directed to the venue. You were advised if you did not resign your employment may have been terminated. You are currently employed in your parents' shop.
16
You were married in 2016. When encountering difficulties conceiving children you and your wife sought assistance with reproduction. However, given your previous sexual offending there was a presumption against the availability of this treatment to you. The relevant panel ultimately refused the application. I was informed that this process caused stress within the relationship and was a contributing factor to your separation in 2018 and ultimate divorce in
October 2019.
17 You are currently in a de facto relationship with Mariah Logan‑Mundy which commenced in 2019. In May this year you had a daughter. Given the nature of your previous charges the department have been involved and have indicated you should not be able to live with your daughter. You and your partner have engaged with the department on a voluntary basis. Since the birth of your daughter and department involvement you have been residing with your parents and you have supervised access with your daughter.
18 As to your mental health, Dr Sullivan opined a diagnosis of mild to moderate severity major depressive disorder with anxious distress. You have no history of cognitive impairment, major personality disorder or psychotic illness. You received psychological treatment in the context of your marriage breakdown and were prescribed antidepressants. You continue to take the medication as part of a mental health care plan and have continued treatment with your psychologist, though your last consultation was about 12 months ago.
19 You have a limited but relevant prior criminal history, none of which have involved you being required to serve any time in prison. The sentence I impose will be your first time in gaol. In March 2007 you were convicted of possession of child pornography and sentenced to a work-only community based order for six months.
20
Your 2010 convictions related to online sexualised discussions with a
13 year old girl, exchanging naked photographs and meeting her in person. You were sentenced by His Honour Judge Parsons to an intensive correction order for 12 months and were subject to reporting obligations under the SORA for 15 years. As part of your successful completion of that ICO you completed the sex offender program which involved group sessions of counselling for a period of six months.
21 In 2013 you were convicted and fined in respect of breach of a SORA condition. I note that you have been on the SORA register since 2010 and you have complied with the conditions other than on that occasion in 2013 and with these breaches before me. As to the objective seriousness of the offending, there are a range of factors that bear upon the objective seriousness of this type of offending:
(a) the nature and content of the pornographic material, including the age of children and gravity of the sexual activity portrayed;
(b) the number of items or images or material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution; and
(d) whether the offender will profit from the offence.
22
As to the nature of these images, all but nine were animated images or cartoons. The parties accepted the judicial analysis that there is a fundamental difference in kind between a depiction of an actual human being and the depiction of an imaginary person, and where no children are involved that the offending is of an altogether different order (see
McEwan v Simmons & Anor
[2008] NSWSC 1292 at 5 to 7).
23 Although the material did not involve actual physical or psychological harm to real children, it was conceded that such material was degrading and disrespectful of children generally, intended to normalise the exploitation of children and simulate interest in the abuse of children. Further, the images that did not depict real children, though small in number, that being nine, depicted depraved sexual abuse, including sexual penetrative conduct between an adult and a child.
The volume of images
24 It was submitted, and I accept, that the more appropriate way to describe your offending was by the number of files accessed as opposed to the total number of panels or pictures. A total of 172 files were accessed, including the
category 3 material. Seventeen of the files were duplicates so there were a total of 155 unique files accessed. It was submitted that this was a relatively low number of offending of this kind which in many cases often involves possession of thousands of images.
25 The offending was not sophisticated, nor aggravated by any commercial element. It did not involve the further dissemination of material and was not for profit. It was for your own use. Given your history, and the information provided by you, it would appear to have been for your own sexual gratification.
26 The charge relates to accessing material over a number of months and was not limited to an isolated incident. The offending was not spontaneous, but was committed over a lengthy period between 20 September 2020 and
31 July 2021. It was a rolled-up charge. The maximum penalty and mandatory sentencing provisions are indicative of the seriousness with which the legislature views this offending conduct. You were on the SORA Register when you committed this offence. I was informed that your mental health was impacted during the periods of COVID lockdown and that there was a degree of social isolation. You were accessing more pornography during that period.
27 You had been employed at The Tavern during the lockdown and there was a gradual resumption of work hours, but it was not full-time work. You viewed this as a stressful period given your management position, other responsibilities at the venue, all occurring in the context of your marriage breakdown.
28 Dr Danny Sullivan opined this offending appeared to be related to both a sexual interest in teenage girls and to a mood disorder. Additionally, your alcohol consumption had increased at the time due to work stressors associated with COVID and your marriage breakdown. Dr Sullivan noted that you acknowledge with your psychologist an association between negative mood and increased use of pornography, perhaps in an effort to use sexual outlets to lift your mood or to cope (see paragraph 44).
29 In respect of the objective seriousness of offending re Charges 1 and 2, the online accounts were not used for further offending and their existence became known as a result of your admissions. Your contact with the
15 year old ceased when you discovered her age and was brief in
November 2019, and your comments after she posted photos in January 21 were inoffensive. Given the time period between November 2019 and
January 2021 your explanation regarding you forgetting her age is plausible. Both offences, however, undermine the efficacy of a system designed to protect the community from the risk posed by sexual offenders.
30 I take into account your early plea, admissions and cooperation with authorities as evidence of contrition. Your plea was entered at the very earliest available opportunity. Although there was some delay with final resolution, that delay was not attributable to you. No witnesses were required and you have saved the cost to the community of a trial. Your pleas have additional value given the COVID situation and the delays encountered in the administration of justice in this State as a consequence. Your plea is indicative of your acceptance of responsibility for this offending.
31 You made admissions to the offending in the record of interview, including your use of devices. You provided access details to police for your phone.
Charge 2 is based solely on admissions made by you in your SORA and your interview.
32 The prosecution conceded that limbs 5 and 6 of Verdins applied to a limited extent, that there is a risk that the term of imprisonment is likely to have an adverse effect on your mental condition and thus make prison more burdensome for you. I take that into account.
33 In addition, I take into account the impact of COVID-19 on the prison system. Prisoners continue to experience periods of lockdown and isolation, are restricted in the contact that they can have with family, and can be limited in the rehabilitation programs that are made available. Although the conditions appear to be improving, the extra burden because of the pandemic remains. A term of imprisonment will separate you from your daughter, partner and parents. Despite not currently having unrestricted access with your daughter, you do play an important role assisting your partner and parents in your daughter's care and development and provide financial support.
34
As to your rehabilitation prospects, of relevance Dr Sullivan opined that you do not meet a diagnosis of paedophilia, but do attract a diagnosis of hebephilia. That is, attraction to sexually mature teenagers (see
paragraph 43). You were assessed as an overall moderate to high risk of sexually reoffending (see paragraph 55). In terms of insight, you have acknowledged issues with depression and anxiety. You have expressed a willingness to seek further psychological assistance, to continue with medication, and are not adverse to further sex offender treatment.
35 You acknowledge past escalation of drinking and reported this had settled since changing your life circumstances. You acknowledged a predominant sexualised interest in images of post-pubertal youthful looking girls and teenagers (see paragraph 34). There are some protective factors, including pro‑social orientation and employment (paragraph 55).
36 It was submitted that in addition to Dr Sullivan's opinion other factors were relevant to your rehabilitation prospects, namely, (a), the admissions to the offending and your plea of guilty, (b), the support of your family and partner and (c),your compliance with bail conditions and voluntary engagement with the department regarding contact with your daughter. Dr Sullivan recommended further offence-specific treatment and an assessment by Forensic Intervention Services.
37
Given the circumstances of your previous and this offending, previous participation in a sex offender program, and Dr Sullivan's risk assessment, I regard your rehabilitation prospects as fair, but dependent upon you continuing psychological treatment and participation with
Forensic Intervention Services.
38 The authorities are clear that general deterrence is a primary sentencing consideration. Specific deterrence is also a relevant factor given your prior criminal history, previous participation in sex offender programs and rehabilitation prospects. Protection of the community is also an important sentencing consideration. The requirement for registrable offenders to comply with reporting requirements is intended to protect the community from the risk posed by sexual offenders. Mandatory imprisonment for offences involving child sex offences also serves this purpose.
39
I received detailed submissions from the prosecution regarding the operation of provisions relating to mandatory minimum head sentence, which included excerpts from the explanatory memorandum setting out the purpose of those provisions. It was not disputed that your sentence in respect of the
Commonwealth offence qualified and needed to be applied to you given your previous conviction for a sexual offence. That is, I must impose for the Commonwealth offence a sentence of imprisonment of at least the period specified in the relevant table in the Act.
40 Accordingly, under s16AB, a sentence of at least four years' imprisonment must be imposed for the Commonwealth offence subject to any redaction which may apply pursuant to s16AAC. Section 16AAC provides that the court may impose a term of imprisonment of less than the specified period only if the court considers it is appropriate to reduce the sentence because of either or both of the person's plea of guilty, s16A(2)(g), or the person having cooperated with law enforcement agencies in the investigation of certain offences. In respect of each of these, an upper level reduction of 25 per cent discount is available on the minimum. In this instance one year.
41 It has been held that when sentencing where mandatory minimum sentences are prescribed, the sentencing judge is to have regard to the minimum penalty from the outset as prescribing the bottom of the range of appropriate sentence in the same way as the maximum penalty is used to prescribe the upper limit of appropriate sentence (see Bahar [2011] 214 ACR 417). The minimum penalty is for the least serious category of offending and the maximum penalty is for offences in the worst category, taking into account all relevant factors, including matters personal to the offender.
42 The approach to be adopted is that set out in Bahar where the court held that where there is a minimum mandatory head sentence the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls. The absence of an absolute minimum penalty because of the provisions for reduction does not affect that approach. Section 16ACC only comes into play where, after synthesising the objective and subjective features of the offending, the court determines that it cannot give adequate recognition to an offender's plea of guilty or cooperation without imposing a head sentence below the mandatory minimum sentence.
43 Recently the court in R v Glasheen [2022] ACTCA 49 outlined the appropriate method of utilising the s16AAC provisions where they are considered applicable. It is not necessary for the sentence to be the mandatory minimum sentence or even the lowest category of objective seriousness before the deductions in s16AAC can be utilised.
44 The prosecution submitted that when all relevant sentencing considerations, including the objective seriousness of your offending and the matters personal to you, including your plea of guilty and level of cooperation, are synthesised, that your offending falls within the available yardstick of four to 15 years' imprisonment. There was, in the prosecution's submission, no reason why the court would need to utilise the mechanism in s16AAC to sentence below the mandatory minimum sentence. The prosecution also referred to s16A(2)(k) and the need to ensure an offender is adequately punished.
45
Further, it was submitted that there should be a degree of cumulation between the State offences and the Commonwealth offence given the different types of offending. Reference was made to the different sentencing regimes and the manner in which the court should deal with sentencing for both
State and Commonwealth offences.
46
Your counsel submitted that in the proper exercise of sentencing discretion that I should apply the s16AAC reduction for your plea of guilty and cooperation to an extent that the mandatory minimum is reduced to at least
three years. Further, if that submission was accepted, that I should place you on a recognisance release order, with a short term of imprisonment to actually serve, then allow your continued rehabilitation in the community. Both parties conceded that, given you committed a child sexual offence, you were required to serve an immediate term of imprisonment.
47 The Crown submitted that given there should be accumulation in respect of sentences imposed in relation to Charges 1 and 2, even conceding that
s16AAC(2) and (3) may be relevant to the sentencing exercise, that the sentence should be greater than three years, thus involving a head sentence and non-parole period.
48 Taking into account all matters to which I must have regard when passing sentence upon you, including the maximum and minimum head sentence provisions, the objective seriousness of your offending and matters personal to you, I am of the view that it is appropriate to reduce the sentence for the Commonwealth offence below the mandatory minimum period to give way to your plea of guilty and, to a lesser extent, your cooperation with authorities. In this case the offence for which I am sentencing you is at the lower end of seriousness for this kind of offending given the matters that I have outlined in the course of these reasons.
49 I am satisfied that, given the weight to be given to your plea of guilty, that the mitigating matters in your case are such that when considered in combination with all other matters they make a sentence below the mandatory minimum sentence appropriate. To be clear, I regard you as entitled to the full
25 per cent discount for your plea of guilty and approximately 5 per cent for your cooperation with authorities.
50 In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of seven days.
51 In respect of Charge 2 you are convicted and sentenced to a term of imprisonment of seven days.
52 In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of 34 months.
53 I order that you are to be released after a period of five months on a recognisance in the sum of $1,000 to be of good behaviour for the remainder of the period.
54 Now, Ms Morgan, I need your assistance here. What I am proposing to do is to have the State sentence served first. So that would be seven days. And then have the Commonwealth sentence commence at the completion of the State offence. But in those circumstances - and what I'm anticipating is that then there will be release for Mr McCarthy after five months. Now, in terms of the good behaviour required, is it for the period of 34 months or is it
34 months minus five months? If you understand what I mean.
55 MS BROWN: I do.
56 HER HONOUR: I just don't want to muck it up.
57 MS BROWN: Of course. Can I ask this question, Your Honour: first of all for
Charges 1 and 2, are they to be served concurrently with each other?
58 HER HONOUR: Yes, yes.
59 MS BROWN: And does Your Honour want the accused to only serve a total of months in custody?
60 HER HONOUR: Yes. So that business about commencing doesn't - I don't need to make that declaration, do I?
61 MS BROWN: Well, it would be appropriate - - -
62 HER HONOUR: Or can they be served at the same time? That is one question I did want to ask you.
63 MS BROWN: They can. So all three charges can be wholly concurrent.
Your Honour just simply needs to direct that Charges 1, 2 and 3 all commence today.
64 HER HONOUR: Yes, all right. All right. I can do that. And then that other issue that I had in respect of a recognisance release order - - -
65 MS BROWN: Yes.
66 HER HONOUR: - - - it will be valid for 34 months minus five months, won't it?
67 MS BROWN: Only if Your Honour wants a period of good behaviour to be - - -
68 HER HONOUR: For the whole period.
69 MS BROWN: That's right. Because through the - - -
70 HER HONOUR: Which would take it to - so that would - - -
71 MS BROWN: The period of the recognisance doesn't have to be a relationship to the period of imprisonment so - - -
72 HER HONOUR: Yes, but it can be less though, can't it?
73 MS BROWN: It can. So - - -
74 HER HONOUR: All right. It could be for two years?
75 MS BROWN: It could be for two years.
76
HER HONOUR: All right. Well, that's what I'm going to do. The other thing is though, as part of the recognisance release order I want to order a
sex offender program condition. Now, I can do that, can't I, without having to have any other kind of order?
77 MS BROWN: That is correct. Your Honour can specify as a condition of the recognisance that one of the conditions will be of good behaviour.
78 HER HONOUR: Yes.
79 MS BROWN: Another condition will be to complete the sex offender treatment as directed by - - -
80 HER HONOUR: To participate in a sex offender - - -
81 MS BROWN: Yes.
82 HER HONOUR: Yes, within that two-year period. Yes.
83 MS BROWN: That's correct.
84 HER HONOUR: All right. All right.
85 MR COOPER: Your Honour, can I just raise something?
86 HER HONOUR: Yes.
87 MR COOPER: If it was Your Honour's intention for Mr McCarthy to serve a total of five months' imprisonment, there has been the short period of remand.
88 HER HONOUR: Yes, but I will declare PSD.
89 MR COOPER: Yes.
90 HER HONOUR: Yes.
91 MR COOPER: So if there was a - my learned friend might correct me, but if there was a start date for the Commonwealth charge - - -
92 HER HONOUR: Today.
93 MR COOPER: - - - and the start day was today, perhaps that could be the date of the plea.
94 HER HONOUR: Well, I don't want to do that.
95 MR COOPER: I just don't know how they - - -
96 MS BROWN: Your Honour can't - - -
97 HER HONOUR: No, I didn't think I could do that.
98 MR COOPER: All right.
99
MS BROWN: If the sentences are directed to commence today and
Your Honour makes a declaration that Mr McCarthy has served 15 days in custody, that 15 days comes off the five months in the same way.
100 MR COOPER: I see. Thank you. Yes.
101 HER HONOUR: Yes, it just operates in the normal way. Yes? Yes.
102 MS BROWN: Yes, it does.
103 HER HONOUR: All right.
104 MR COOPER: Thank you.
105
HER HONOUR: All right. Mr McCarthy, if you could just stand up for a moment. I am sorry, it is just a bit complicated because the Commonwealth offences sentencing regime is very different to the State sentencing regime, but what I am proposing to do is to sentence you to a term of imprisonment of
34 months, whereby you will be required to serve five months and at the end of that five‑month period you will be placed on a recognisance release order in the sum of $1,000 to be of good behaviour for two years and also to participate in a sex offender program.
106 I am required to explain the purpose and consequences of making that recognisance release order. The order reflects the gravity of your offence, but also mitigating factors to which I have referred to in the course of the reasons. If you are of good behaviour over the following two-year period, that is, upon your release, and participate in the relevant sex offenders program, that will be the end of the sentencing process as far as this court is concerned. If you are not of good behaviour or do not participate in that program in all likelihood you will be brought back before this court and, depending on the nature and seriousness of the transgression, the court might either take no action, impose a fine, extend the period of good behaviour or impose a different penalty, or revoke the recognisance release order or send you back to prison for the remainder of your sentence.
107 Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have imposed a term of imprisonment of four and a half years, with a non-parole period of two.
108
Charge 3 is a Class 2 offence under the Sex Offenders Registration Act.
Your reporting period will change now from 15 years to life.
109 Is there anything else?
110
MS BROWN: Your Honour, I can send through to Your Honour's chambers the draft recognisance release order, but with the bits filled in to give effect to
Your Honour's intention if that would be of assistance.
111 HER HONOUR: Yes, I think it would. Thank you. Can that be done immediately?
112 MS BROWN: Yes, Your Honour.
113 HER HONOUR: Yes, thank you. All right. Is that clear the sentence terms too?
114 MR COOPER: Yes, Your Honour.
115 HER HONOUR: And you can explain that to your client?
116 MR COOPER: Yes.
117 HER HONOUR: And we can get that order done pretty quickly. Sorry, PSD is how long?
118 MR COOPER: Fifteen days.
119 HER HONOUR: Fifteen days PSD is declared. Thank you.
120 MR COOPER: Not including today 15 days.
121 HER HONOUR: Thank you.
122 MR COOPER: Thank you.
123 HER HONOUR: Thanks.
124 MS BROWN: As Your Honour pleases.
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