Director of Public Prosecutions v Menhenett

[2016] VCC 1243

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00890

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER MENHENETT

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 August 2016
CASE MAY BE CITED AS:	DPP v Menhenett
MEDIUM NEUTRAL CITATION:	[2016] VCC 1243

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lye
For the Accused	Ms B. Franjic

HIS HONOUR:

1Christopher John Menhenett, you have pleaded guilty to an indictment charging you with one offence of theft, one of accessing child pornography, one of making available child pornography and one of knowingly possessing child pornography.  You have also admitted a related summary offence, namely failing to store cartridge ammunition appropriately.

2The offence subject to Charge 1, occurred between 20 August 2010 and
20 August 2014.  The offence subject of Charges 2 and 3 occurred between
23 October 2014 and 18 June 2015.  The offence of knowingly possessing child pornography took place on 20 August 2015, the day of your arrest.

3The offence of theft carries a maximum term of imprisonment of 10 years.  Each of the offences of accessing child pornography and making child pornography available carries a maximum term of imprisonment of 15 years and the offence of possessing child pornography carries a maximum term of imprisonment of 5 years.  The related summary offence carries a maximum term of imprisonment of 2 years or 120 penalty units by way of a fine.

4You have no prior criminal history.  The prosecution tendered a folder of materials which was Exhibit A.  Under tab 3 of Exhibit A included the prosecution opening which is treated as an agreed statement of facts for the purposes of sentencing.  I incorporate that document into these reasons for sentence in its entirety.

5Suffice to say, it indicates that on 20 August 2015, the police carried out a search of your home.  They discovered the cartridge ammunition. They discovered a locked shed and some ladies undergarments, the subject of Charge 1 on the indictment, which had holes cut in those garments.

6You were not present at your home at the time the police arrived. They went to your place of work. You agreed to accompany them and indicated during interview that you had accessed and did possess child pornography on your mobile telephone. You made admissions as to the offences contained in the indictment.

7As was pointed out during the course of the plea, it may very well be that even with further interrogation of your mobile phone, it would have not have been possible to lay some of the charges against you had it not been for the admissions that you made. That is to be taken into account in your favour.

8Interrogation of the phone did reveal a total of 2015 child pornography files on the mobile phone.  They are classified in the prosecution opening, with the majority of the files, falling into the relatively low end classification.

9Nevertheless a number of the files fell into the more serious end of the classification, including 19 images of adult-child sexual penetration, 18 videos of that kind of material and 15 images and three videos in the classification which involves sadism, bestiality and child abuse.  One of those videos includes some sexual acts being between a female child and a dog.

10The prosecution provided me with a folder of images which enabled me to assess the classifications that they have attributed to the images and I accept entirely that those classifications are accurate.  It is not challenged by the defence that those classifications are accurate.

11To describe the material as indicating depravity, not just in those that created the images and the videos but also those who seek to view the material, is not an understatement.  However as I indicated, I have seen much worse and they do not seem to me to be generally at the high end of depravity when compared with other similar cases.

12Turning to matters personal to you, you pleaded guilty at the first available opportunity.  You co-operated with the police.  You are now 47 years of age and between I think 41 and 46 at the time of the offending.

13Your counsel provided me with a helpful outline of submissions, along with a report from Pamela Matthews, psychologist, dated 14 August 2016 and a letter from Dr Christie Sprote.  Both documents indicate that you have made efforts to rehabilitate yourself, to address the issues that gave rise to your offending and underpinned your offending conduct and that you now have a better understanding of what motivated you in the first place and the nature of the harm that this offending supports.

14The report of Ms Matthews also gives a catalogue of your past history which indicates that you have had a relatively normal upbringing.  You have been with your wife for some 18 years of which you were married to her during nine of those years.  You have two children between you, although your wife has an older child that you treated as your own by a previous relationship.  You have two daughters, aged 17 years and 9 years.

15You have no prior convictions and have had a good work record.  I have also been provided with a number of references which speak extremely well of you as an individual and show that you have many good qualities.

16To suggest that they were shocked by the revelations of your conduct is an understatement.  You have been employed by PACAR Australia Pty Ltd as a plant specialist in the engine assembly department since July 2010 and it seems possible, if not probable, you will be able to return to that work.

17It is important that you have taken steps to address the psychological issues which gave rise to your offending conduct. That helps me to conclude that your prospects for rehabilitation seem to be good.

18Ms Matthews concludes that your risk of reoffending, having had the treatment that is set out in Dr Sprote and Ms Matthews' reports is assessed as being low and very low for offending that does not involve conduct of this kind.  I would be surprised if you offend again.  I take all that into account in determining the appropriate sentence.

19I have a number of sentencing principles to consider.  Under state legislation, I need to consider just punishment, protection of the public, denunciation of your conduct, deterring you from committing further offences of this kind and deterring others.

20Under the Commonwealth legislation, although couched in different terms, similar principles apply.

21There is no doubt that your incarceration will have an effect on your family.  It is not suggested that that raises a spectre of exceptional circumstances and permits me to reduce sentence accordingly, but I take that into account in a general way and in appreciating that you will feel that whilst you are serving your sentence.

22You have brought shame on yourself and those around you.  There will be punishment involved in you having to deal with members of the community and it will not be easy necessarily for you to hold your head up in society as you have done in the past.  All of these are factors which have resulted from the choices that you made.

23You have to take responsibility for that.  I have no doubt that you do now and that that is all very clear to you.  It will, I think, help you to ensure that you do not offend again in this way other ways.

24Your counsel appropriately acknowledged that these offences are often committed by people with no prior criminal history and that sentencing considerations such as general deterrence and just punishment ordinarily require a term of immediate imprisonment.  She has not, and I think very realistically, sought to persuade me that any sentence other than a sentence which involves you serving some time in prison is appropriate in all the circumstances.

25She provided me with, as did the prosecution, tables of cases that bore some similarity, at least in broad terms, to your case and she acknowledges as the prosecution do, that every case has to be dealt with on its own facts.

26My attention was drawn to the case of Guest which was said to have similarities with your case.  It does but I sentence you on the basis of the facts relevant to your particular case.  It seems to me that your situation is somewhat less serious than that faced by Mr Guest.

27Balancing all of the competing considerations, I am now ready to pass sentence upon you.  Would you please stand.

28On Charge 1, I convict you and discharge you;

29On Charge 2 of accessing child pornography, I convict you and sentence you to imprisonment for a period of 12 months;

30On Charge 3 of making available child pornography, I convict you and sentence you to imprisonment for a period of 12 months;

31On Charge 4 of possessing child pornography, I convict you and sentence you to imprisonment for a period of 5 months;

32For the related summary offence of failing properly to store cartridge ammunition, I convict you and discharge you.

33I have to consider the degree to which the sentences that I have imposed attract some cumulation as between the sentences to come to a total effective sentence.  I do that by ordering that all of the sentences start today, except for the sentence on Charge 3 of making available child pornography.  I order that that sentence of 12 months commence on 25 November this year which makes a total effective sentence of 15 months' imprisonment.

34I order that you be released on recognisance after you have served a period of six months of that sentence.  The period of the recognisance will be two years.  It will require you to be of good behaviour.  It will be on your recognisance of $1000 and the other condition beyond the core conditions, is that you complete a sex offender program during the period of the order.

35If you are in breach of the order by committing a further offence punishable by imprisonment, then you are liable to be resentenced on these matters.  You are liable to lose your recognisance.  It would almost certainly involve you serving out the full term of your sentence, being 15 months, plus of course any sentence that might be imposed for the offence that put you in breach of the order.

36As I have indicated, I do not expect you to breach the order but are you willing to be placed on a recognisance in those terms?

37OFFENDER:  Yes.

38HIS HONOUR:  Yes, all right.  I sentence you on Charge 4 on the indictment as a serious sex offender.  It was indicated on behalf of the prosecution that they did not seek that I order a disproportionate sentence.  I acknowledge that protection of the public is the most significant consideration that I have to bear in mind in imposing sentence for such an offence.  I do take that into account and have taken that into account in the sentence that I have imposed.

39You will be the subject of the reporting requirements under the Sex Offenders Registration Act for the rest of your life and you will be provided with some information about those obligations.

40But for your pleas of guilty to these offences, I would have sentenced you to a total of 20 months imprisonment and ordered your release after serving a total of ten months of that sentence.

41Are there any other orders that I need make counsel?

42MS LYE:  No, Your Honour.  Just to state what the closest community corrections centre and reporting date ‑ ‑ ‑

43HIS HONOUR:  Can you help us with that, Ms Franjic?  Take instructions if you need to.

44MS FRANJIC:  Thank you, Your Honour.  It is Ringwood.

45HIS HONOUR:  Ringwood.  Take a seat for the moment please.  Is it usual to require that to occur within 24 hours of release or ‑ ‑ ‑

46MS FRANJIC:  Two days, Your Honour.

47HIS HONOUR:  Two days of release.  Perhaps you would include that then - because it may not be possible to identify the precise date, his precise earliest release date at this stage.

48MS FRANJIC:  Yes.

49HIS HONOUR:  You will need to sign for the information that is to be provided to you in relation to the Sex Offenders Registration Act and you will need to sign the recognisance release order.  In a moment I will get Ms Franjic to join my associate to ensure that you understand precisely what you are being asked to sign.

50MS FRANJIC:  May I leave the Bar table, Your Honour?

51HIS HONOUR:  You may.  Yes, thank you.

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