Director of Public Prosecutions v Milford (a pseudonym)
[2023] VCC 2146
•16 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO AND MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEREMY MILFORD (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Bendigo and Melbourne |
DATE OF HEARING: | 20 July 2023, 3 November 2023 |
DATE OF SENTENCE: | 16 November 2023 |
CASE MAY BE CITED AS: | DPP v Milford (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2146 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – failing to comply with SORA obligations (rolled-up charge), knowingly possess child abuse material, distributing child abuse material, produce child abuse material - plea of guilty.
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169, Bugmy V R (2013) 302 ALR 192, DPP (Cth) v D’Alessandro [2010] VSCA 60
Sentence: Sentenced as a serious sexual offender- charges 2 – 12, imprisonment, aggregate sentence, Total effective sentence 5 years, 3-year non-parole period, SORA registration for life. Forfeiture order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Thomas | Ms K. Parnham, Office of Public Prosecutions |
For the Accused | Mr G. Cooper | Ms C. O’Gorman, Victoria Legal Aid |
HIS HONOUR:
1(Recording commenced at 14:52:13)
2Five charges of knowingly possess child abuse material, four charges of distributing child abuse material, and two charges of produce child abuse material.
3The facts of your offending are set out in Exhibit A, the prosecution plea summary. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.
4Very briefly stated, on 24 June 2021 you were placed on the Sex Offenders Register and were subject to SORA requirements for life. You were aware of your obligations. You failed to disclose that you created a WordPress account on 18 November 2021 and a Dropbox account on 21 November 2021.
5Both these accounts allowed sharing of material online. The creation of these two accounts is the basis of Charge 1, the rolled-up charge of failing to comply with SORA reporting obligations.
6On 12 December 2021 you uploaded 46 child abuse images to WordPress. This is the basis of Charges 2 and 3, possessing child abuse material and distributing child abuse material.
7On 13 December 2021 you uploaded seven child abuse material images to Dropbox and this is the basis of Charges 4 and 5, possess child abuse material and distribute child abuse material.
8Three of the seven files were videos and the contents are set out in paragraph 19 of Exhibit A. I do not intend to read them but they are truly depraved and disgusting material.
9On 21 December 2021 you sent 27 child abuse images to Facebook Messenger and then forwarded them to you, at a created an email address. This is the basis of Charge 6, possess child abuse material.
10Having received them you then altered a photograph containing child abuse material to include a sexually explicit story involving the rape of a child and her mother. This is the basis of Charge 8, produce child abuse material; and then you uploaded this photo and story to Facebook Messenger committing Charge 7, distribute child abuse material.
11Further, on 21 December 2021 you uploaded another seven child abuse material images to Facebook and sent them to an unknown recipient by email, and that is the basis of Charge 7 as well, distribute child abuse material.
12On 8 May 2022 you uploaded one child abuse material image to Flirt.com. This conduct is the basis of Charge 9, possess child abuse material and Charge 10, distribute child abuse material.
13The next day police executed a search warrant on the caravan you were living in, in Kangaroo Flat. They seized four mobile phones and arrested and interviewed you. Your phones contained 14,223 child abuse material images and a total of 48 minutes 37 seconds of child abuse videos. That is the basis of Charge 12, possessing child abuse material.
14An outline of the nature of the images and videos recovered is set out in paragraph 41 of Exhibit A. I will not repeat those descriptions in these reasons for sentence, save that to say that they are perverted, sickening, and depraved. Very young children are penetrated by adults and animals. Some children are crying and in obvious pain.
15Located on your phone was graphic sexual fantasy stories and speech bubbles associated with child abuse material. These created stories are the basis of Charge 11, production of child abuse material.
16When interviewed on 9 May of last year you were very compliant and forthcoming. You made full admissions to downloading and possessing child abuse material. You admitted creating the WordPress and Facebook accounts and using Dropbox and Flirt. You admitted downloading between 50 and 1000 images at a time and that you had done so since you were released from prison in 2021.
17You admitted masturbating to the child abuse material. You said you would download child abuse material after long periods of methylamphetamine use.
18You admitted breaching your SORA requirements. You admitted all the conduct constituting all of the charges to which you have pleaded guilty.
19You have admitted a criminal history that is both lengthy and relevant. You have prior convictions for drug offences including trafficking and possession. You have prior convictions for dishonesty offences.
20In 2004 you were sentenced to nine months' imprisonment to be served by way of an intensive corrections order for recklessly causing injury.
21In 2005, three months' imprisonment partially suspended for reckless conduct endangering serious injury, driving under the influence of alcohol, and failing to stop and render assistance.
22In 2018 you were before the Melbourne County Court for offences of possessing child abuse material, trafficking in a drug of dependence, distributing intimate image, breaching of family violence intervention order, and transmitting child pornography and other related offences.
23You were sentenced to four years' imprisonment with a non-parole period of two years eight months.
24On 7 March 2022 you were fined $500 for failing to comply with reporting obligations.
25As the court will be imposing terms of imprisonment on all charges, you fall to be sentenced as a serious sexual offender in respect of Charges 2 through to 12. I must regard protection of the community from you as the predominant sentencing consideration. To achieve this the court can impose a disproportionate sentence.
26The prosecution did not submit that such a sentence should be imposed, and I do not intend to impose such a sentence.
27I can I believe properly protect the community with the sentencing options otherwise available to the court.
28I do direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender in respect of Charges 2 to 12.
29There is also a presumption of cumulation for serious sexual offences however, principles of totality and the structure of the indictment in this case require the court to order substantial concurrency in this case. Your offending represents a mid-level example of the offence of possession of child abuse material.
30Both the prosecution and your counsel agree that it was appropriate to impose aggregate sentences for each type of offence; so, on the possession Charges 2, 4, 6, 9 and 12 could see the imposition of one aggregate sentence. Similarly, the distribution of child abuse material Charges 3, 5, 7 and 10 and the production of child abuse material Charges 8 and 11, can be aggregate sentences.
31You possessed a total of 1,431 child abuse images and a further 48 minutes 37 seconds of video. Given the number of images and videos sometimes seen in this court, I assess your possession charge as mid-level of seriousness.
32Your distribution of a total of 61 child abuse images on four separate occasions in my view it represents a lower-level example of that offence. You produced child abuse material of a fictional story type and although sickening, represents a lower-level example of that offence of producing child abuse material. There were no young, distressed victims photographed or filmed by you. Your possession charges relate to real victims. Your production charges did not.
33Personal circumstances.
34You are now 43 years of age, being born in January 1980. You grew up in Diggers Rest and then moved to Bendigo when you were 12. You have one younger brother.
35Your history is set out in your counsel's submissions (Exhibit 1), and in the report of Carla Lechner and Anna McLaren (Exhibits 3 and 2 respectively).
36Your father runs a business producing fishing lures and your mother is a retired pre-school teacher. You believe you were well brought up and supported during your childhood.
37You have been in a significant relationship with a woman called Laura Newport[1] and you have a daughter from that relationship, but you have not had any contact with her for some six years.
[1] A pseudonym
38You had some difficulties at school because of a diagnosis of ADHD and dyslexia and you left school at Year 9 and did not return.
39You have been employed in a number of roles as an arborist between the ages of 18 and 20 years, although your employment suffered when you began to use drugs. You have subsequently worked as a tattooist and you told
Ms Lechner that your principal occupation was that of drug dealer.40You claimed to be a victim of childhood sexual abuse perpetrated by a group leader when you were 11 years of age in Grade 6 or 7 and that led to your drug use as a strategy to block internal distress.
41Ms Lechner concluded:
He is a thrill seeker who will push limits in an effort to prove himself and to show others that he is no longer the vulnerable child he was at school. To this end his level of maturity is low, his level of insight limited. Mr Milford is able to identify some triggers to his negative feelings but retreats into drug use as a form of stress and mood management and self-soothing. As a consequence, his behaviour becomes increasingly deregulated. Whilst he has some insight regarding the nexus between his drug use and offending, he has less insight regarding the origins of substance dependence, nor a strong desire to fully address them.
42And then later Ms Lechner said:
He admitted to being aroused by the material. Given that he had been accessing such material for about six months in the light of his previous offending, his behaviour is at the very least reflective of paedophilic sexual interest, if not paedophilic sexual disorder non-exclusive.
43Ms Lechner opined that you will need offence specific intervention and in addition to substance abuse and rehabilitation programs.
44Clearly you will be required to complete the sex offender's course in custody. You have used illegal drugs since you were a child. You used cannabis and then heroin at the age of 14 and you have abused amphetamines and then methylamphetamine from the age of 21.
45Ms McLaren completed a comprehensive assessment of your cognitive function and she assessed you as having a full-scale IQ of 73, which placed you in the borderline range.
46Your cognitive deficits are associated with your ADHD and acquired brain injury from a car accident in 2015 and you have a history of chronic polysubstance abuse.
47Your current neuropsychological profile was characterised by performance ranging from extremely low to average, with impairments in attention functioning, aspects of executive functioning and you demonstrated difficulties with verbal learning and memory. You are however able to retain new verbal information over time.
48I take the contents of both Ms Lechner and Ms McLaren's reports into account in sentencing you.
49Your counsel submitted that limbs 5 and 6 of Verdins[2] were enlivened in your case, based on those reports. I accept those submissions and reduce the sentence I would otherwise impose for your offending.
[2]R v Verdins [2007] VSCA 102
50I do not however accept that Bugmy[3] principles are engaged in your case. The matters relied upon in your counsel's submissions do not establish that submission and I do however take your background into account in a general way in sentencing you. Your sexual abuse as a child saw you turn to drug abuse, which in turn assisted or promoted your child abuse material offending. It explains to some extent your repeated child abuse material offending, but there is in my view no proper nexus between your childhood deprivation, if there was any, as such as it was, and your offending.
[3]Bugmy V R (2013) 302 ALR 192
51I do take into account in sentencing you your pleas of guilty. I accept that they were made at the earliest opportunity. You are entitled to a reduction to the sentence I would otherwise impose for your offending. You have saved the community the cost of a criminal trial and your pleas of guilty have increased utility because of the Worboyes[4] considerations, that is the effect that COVID had had on our criminal justice system. That means you have a greater reduction in sentence than you would otherwise get.
[4]Worboyes v The Queen [2021] VSCA 169
52Secondly, I take into account your admissions and cooperation with investigating police. You were completely frank and cooperative with them.
53Thirdly, your prospects of rehabilitation are somewhat gloomy. Your prior criminal history demonstrates you to be a recidivist offender. Ms Lechner assesses you as a high risk of reoffending. Clearly any prospects will be enhanced by your remaining drug free and getting offence specific treatment from the sex offenders’ program.
54Fourthly, I accept that you have expressed remorse and even disgust for your offending. The need to address your drug abuse is critical. Your lack of insight and remorse is tempered by that lack of insight.
55Your offences are serious offences as demonstrated by the maximum penalties prescribed by Parliament. The children in those images are real human beings, traumatised and damaged by the exploitation involved in the production of that material. The Court of Appeal in this State has provided guidance as to the assessment of child pornography material in the case of D'Alessandro[5]. They outlined the factors which bear upon the objective seriousness of child pornography including the nature and content of the pornographic material, the age of the children, and the gravity of the sexual activity portrayed, the number of images or items or material possessed, whether the possession or importation was for the purposes of sale or further distribution, in your case there was some distribution, and whether the offender will profit from the offence, and in your case there was no indication of that.
[5]DPP (Cth) v D’Alessandro [2010] VSCA 60
56The nature and content of the files and images is serious, as detailed in paragraph 41 of the prosecution opening, including a significant quantity of images of pre-pubescent children engaged in penetrative acts. As I have already indicated, I assess as mid-level seriousness your possessions offending.
57Your counsel properly conceded that nothing other than a term of imprisonment was appropriate for your offending.
58In arriving at an appropriate sentence, I balance the mitigatory factors I have referred to, with the need for general deterrence, specific deterrence, just punishment and denunciation of your conduct. The proliferation of child abuse material is prevalent and perverted. Real children are suffering. People minded to promote the abuse of children by dealing and possessing child abuse material need understand that they will go to prison. You need to be deferred from repeating crimes.
59On all charges you are convicted.
60On Charge 1, the rolled-up charge of failing to comply with your SORA reporting obligations, you are sentenced to 12 months' imprisonment.
61On Charges 2, 4, 6, 9 and 12, the possession of child abuse material charges, you are sentenced to an aggregate term of imprisonment of four years.
62On Charges 3, 5, 7 and 10, the distribution of child abuse material, you are sentenced to an aggregate term of imprisonment of 12 months.
63On Charges 8 and 11, the production of child abuse material, you are sentenced to be imprisoned for nine months.
64I order that six months of the sentence imposed on Charges 1 and 3, 5, 7 and 10 be served cumulatively upon the aggregate sentence imposed on Charges 2, 4, 6, 9 and 12, which I declare to be the base sentence.
65An aggregate sentence means that for those five charges of possession, I give you one gaol term to cover the whole period, rather than five separate gaol terms. Do you follow?
66ACCUSED: Okay, yes, yes, Your Honour.
67HIS HONOUR: That means I have sentenced you to an effective term of imprisonment of five years and I order that you serve three years before being eligible for parole.
68What is the PSD please?
69MS THOMAS: Your Honour, I have 552 days including today.
70HIS HONOUR: Or 551 not including today?
71MS THOMAS: That's my calculation, Your Honour.
72HIS HONOUR: Do you agree with that? Mr Cooper, you are not switched on.
73ACCUSED: I don't know, about two years I thought I had been locked up.
74MR COOPER: Your Honour if I can just quickly check that.
75HIS HONOUR: Yes, well it's not quite two years but you're getting there.
76ACCUSED: Yeah.
77MR COOPER: Five fifty-five, not including today.
78HIS HONOUR: Five, five, five. Well, there's a discrepancy of four days.
79MR COOPER: So, I have arrested and interviewed on 9 May 22 to today and not including today.
80MS THOMAS: So, Your Honour, just to add to that. It was agreed to be 543 to the day before the plea, so not including the day of the plea was 543 up until 2 November and then we have another 14 days since then.
81HIS HONOUR: Fourteen days.
82MS THOMAS: So that would seem to be five, five.
83HIS HONOUR: Yes, five, five, six to today, five, five, five not including today. Is that what you say?
84MS THOMAS: Yes. I think my learned friend is correct.
85HIS HONOUR: All right. I will declare that 550 days of the sentence I have just imposed has already been served by way of pre-sentence detention.
86MR COOPER: I'm sorry, Your Honour, did Your Honour say 550?
87HIS HONOUR: Five, five, five.
88MR COOPER: Thank you.
89HIS HONOUR: I make the disposal orders sought by the prosecution and you are subject to sex offenders reporting obligations for life. There is nothing new in that, you already were, but I am making the order that you be so.
90Pursuant to s6AAA of the Sentencing Act 1991[6], I indicate that but for your pleas of guilty I would have imposed an effective term of imprisonment of seven years with a non-parole period of five.
[6]Sentencing Act 1991
91ACCUSED: Thank you, Your Honour.
92HIS HONOUR: And you will recall that I declare that you have been sentenced as a serious sexual offender in respect of Charges 2 through to 12.
93Are there any other orders required?
94ASSOCIATE: Your Honour, can I just please Charge 11? Could you repeat? I didn't get Charge 11.
95HIS HONOUR: No, no, 8 and 11 is an aggregate sentence of nine months.
96ASSOCIATE: Thank you.
97HIS HONOUR: They're the two distribution charges. And I only ordered
12 months' cumulation in relation to Charges 1 and the combination of the distribution charges. I didn't order any cumulation in relation to the production charges.98ASSOCIATE: Thank you.
99MS THOMAS: I think Your Honour said eight and 11 were distribution charges, but in fact they're the production charges, Your Honour.
100HIS HONOUR: Eight and 11 are the production, 3, 5, 7 and 10 are the distribution charges. Yes, all right. So that's all the matters we have to deal with?
101MR COOPER: Yes, Your Honour.
102MS THOMAS: Yes, Your Honour.
103HIS HONOUR: Thank you. We can terminate the link please.
104ACCUSED: So, I've got a five with a three, Your Honour, yes?
105HIS HONOUR: Five with a three and you've done 555 days.
106ACCUSED: Yes, Your Honour. Thank you very much.
107HIS HONOUR: Thank you.
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