Director of Public Prosecutions v MP

[2016] VCC 1050

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

AT LA TROBE VALLEY
CRIMINAL JURISDICTION

CR 15-02095

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

MP

---

JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	La Trobe Valley
DATE OF HEARING:	20 April 2016, 18 July 2016
DATE OF SENTENCE:	21 July 2016
CASE MAY BE CITED AS:	DPP v MP
MEDIUM NEUTRAL CITATION:	[2016] VCC 1050

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Breckwig - Plea Ms J. Hortle - Sentence
For the Accused	Mr B. Lindner

HIS HONOUR:

1MP, you have pleaded guilty to one count of using a carriage service to communicate with a person under the age of 16 with the intention of procuring the person to engage in sexual activity contrary to s.474.26(1) of the Criminal Code (Cth).  The maximum penalty is 15 years imprisonment.

2The circumstances of the offending was set out in a comprehensive plea opening which was read in open court on the plea by the learned Crown prosecutor and which I incorporate by reference.  I will not repeat the Crown opening.

3It said in essence you came across the complainant as a result of both of you being parties to an adult chat room and you then commenced a series of communications - Facebook communications or chat communications or instant message communications on Facebook, with the complainant who went by the name of Lilly Cat, with the intention of procuring her to engage in sexual activity with you.

4At the time you were 24 and lived in Victoria and she was a user who was aged 15 in South Australia.  They commenced on her Facebook account on
14 May 2014 and continued until 7 July 2-14.  That is the period of the offending.

5The offending ranges from literally hundreds of communications between the two of you by Facebook, some of which are intensely sexual and others more mundane discussions about what she was up to and events that occurred in her life and what you were up to at the time.  But they certainly included proposals by you to have various forms of sexual activity with her.  Those matters continued in the chat logs over that period, as I have said.

6There were breaks when there were no text massages or chat messages between the two of you and that was set out in a chart that was exhibited by
Mr Lindner, your counsel.  There was discussion about you going to Adelaide to collect her and also sending money over to Adelaide for her and getting her another mobile phone or getting phone credit for her.  None of that occurred.

7Then there was discussions about having children and when you were going to have children, or when she was going to have children.  There was reference to having intercourse and whether or not she had a contraceptive device.  So it was very sexual - a lot of the communications.  In the end, there was either discussion about you proposing to marry her and she accepting.  During that period there was also discussions by telephone but they seemed to be less than those of the internet chat logs. There were two mobile phones involved.  One of them you actually had to pawn and lost.

8Then by 6 July, things petered out and the communications then ceased.  At that point, her mother had become aware that she was communicating with adults and had taken her to the police station.

9You were then interviewed by the police about six months later and you made a number of false statements in that interview, but there was enough material in the interview to confirm that you in fact were on the other side of the chats between you and the complainant.

10You were using different names.  There were two different names.  One was MN and there was also a name, MP.  It turns out that MN is in fact the family name of your father.  So there was some truth in the names that you were using, but there was also, in a sense, you go by the name of MP.

11So as I said, you denied in the record of interview that the chats were for the purposes of procuring her for sexual services.

12Ultimately you were, as I say, were interviewed by the police and these charges were brought.  You were committed for trial on 24 November 2015 following a contested committal hearing and you entered a plea to the charge on 20 April up in Morwell, because you had been living originally in Carlton, but then you moved to Morwell.  So that is why it was dealt with in the Morwell circuit.

Victim impact statement.

13The complainant in this matter has read a victim impact statement to the court two days ago.  That statement indicates that she suffered depression and anxiety and suicidal thoughts.  The emotional side of the matter has been hard for her and it has affected her relationship with her father as well as her mother.

14She fears she has become a victim and has affected her self-esteem.  It has impacted on her ability to form relationships.  She feels that she has been used by you and says her anxiety is a lot higher than it used to be.

15So the victim impact statement in this matter indicates that your offending has had a significant impact on the young complainant.  That is a matter that I take into account and goes to the seriousness of the offending.

Seriousness of the offending.

16The offending here spanned a period of just under two months.  As indicated in the Crown opening, there were literally hundreds of communications between the two of you over that period, not all of which contained a sexual element, but as a whole, make it clear that there was an intention by you to procure the complainant to engage in sexual activity.

17Mr Lindner, on the plea, put that there was an element of fantasy in the content of the communications on the basis that there was no actual meeting between the two of you, notwithstanding that there had been an extensive exchange between the two of you over that period.  This made the case different from other cases where soon after the use of a carriage service, a meeting in person has been arranged.

18Here, as he submitted, notwithstanding discussions about difficulties that the complainant was having with her phone and her location in Adelaide and lack of money, no money was in fact sent by you to her.  She did not attend to Victoria.  You did not attend in Adelaide and thus there was no meeting.

19As I said, the communications between the two of you are a combination of expressly sexual communication as well as numerous exchanges of mutual affection leading ultimately to you proposing to the complainant to marry her and she accepting.

20The volume and seriousness of the sexual communications do not allow the overall communications to be characterised as fantasy.  On the other hand, as submitted, within the communications were a number of offers of assistance by you to the complainant to address real problems she was having in her difficult and fraught life.  This was in circumstances where you at the time were in fact living in a relationship with a woman and with your daughter in Melbourne and were probably in very little position to take action to advance the relationship beyond Facebook communications and a number of phone calls.

21Although your offers to her in this respect came to nothing and appeared genuine, they do allow the overall communications between the two of you to be characterised in the lower range of seriousness for this offence.

Your personal circumstances.

22Your personal circumstances were set out in the plea and the plea outline of
Mr Lindner.  It also set out the report from Dr Cunningham, forensic psychologist.

23You are now aged 27.  Your family background is uncommon.  I incorporate by reference, a family tree prepared by your counsel.

24You were born in England in 1989 as a result of an extramarital affair.  You have never met your natural father in person.  You had three siblings of your mother and the person who was in fact your step-father.

25You had physical difficulties in growing up in that you had a cataract in your left eye which created difficulties in learning as well as playing sport and interacting with other children.  You were picked on at school and even expelled from primary school.

26Your mother's husband died in 1998 and in around 2000 she migrated to Australia.  At that point, she met your step-father, Mr Graham Cox and married him in 2001.

27Upon arrival in Australia, you went to primary school in Monbulk and were identified as a slow learner.  You had surgery on your cataract in 2003.  As a result of that, you lost all vision in your left eye.

28You also went to a special needs school in the area for Year 7-9 and left halfway through Year 10.  You had a couple of short term jobs after you left school and have not really been in employment since then.

29The signal matter in your upbringing was that from around 2001, you were the subject of sexual abuse at the hands of your stepfather.  The chronology of the abuse is set out in the sentencing decision of the sentencing judge in relation to your stepfather.

30He pleaded guilty to a representative count of incest and a representative count of indecent assault.  Mr Lindner tendered on the plea the 25 incidents that the two counts of which he pleaded guilty were representative of.

31As a result of you, as indicated in the sentencing remarks of Her Honour Judge Quin, resisting his demands when you were aged about 16, you were forced out of the family home.

32As was put in the plea, in that period after that, you were effectively living on the streets.  You met your partner, Amanda and in April 2011 a daughter Ruby was born.

33Amanda had an intellectual disability and you had been caring for your daughter.  DHS has closed the file on her.  You subsequently commenced a relationship with Susan and you have been living in rental accommodation with her in Melbourne when this offending occurred and subsequently in Morwell.

34On the plea, it was indicated that this relationship has recently broken down.  You also have the custody of your daughter Ruby.

35According to Her Honour Judge Quin, in 2012 at one stage, you returned to the family home but the abuse resumed and you then left.  Around that time, you advised your mother of the abuse and also reported it to the police.  As a result of those actions, your relations with your mother fractured.

36It was around that time as a result of information received from a step-sister in the UK, you made contact via Facebook with your natural father and you had telephone contact with him but have never met him in person.

37It is not surprising that as a result of the sexual abuse at the hands of your stepfather, you have suffered significant psychological problems.  Your upbringing in that sense has been blighted.

38You were examined by Dr Aaron Cunningham, forensic psychologist and he found that you were suffering from post-traumatic stress disorder.

39He also undertook a comprehensive psychometric assessment of you and found that you were in the bottom 2% of the population for verbal comprehension, 1% in perceptual reasoning, 3% on working memory, 3% on speed processing and that you had a full scale IQ of 63 within a range of 60 to 68, putting you in the extremely low range of IQs.

40Your overall skills were assessed as being in the intellectually disabled range.  He opined that you had a moderate risk of sexual reoffending.  He confirmed with your partner that you are currently suffering from nightmares.  He found that you did not present with insight into your offending behaviour and have difficulty being labelled as a perpetrator.  He recommends that you require stable accommodation and engagement with treatment and support.  He was of the opinion that you should be assessed by disability services and would benefit from psychological intervention.  He found that incarceration would be more burdensome for you as you would be vulnerable and engagement with psychological intervention and disability services management would improve your prospects of rehabilitation.

41Also before me on the plea was a report from Cote à Cote consulting where you have been engaged with a counsellor for PTSD.  That counselling seems to be progressing but it is a long road ahead.

42It is appropriate at this time to refer to your prior convictions.  You have admitted a prior conviction for begging arms and failing to comply with a CBO as well as recklessly causing injury.  This was in 2011.  You also have prior convictions for contravening a family violence intervention order, an unlawful assault and failure to answer bail.

43These events, I was advised, occurred while you were living on the streets.  This would be consistent with the fact that you had been forced out of your home as a result of the sexual abuse perpetrated by your stepfather.

44Significantly, you do not have any prior convictions for sexual offending and I give your prior convictions little weight in sentencing you in this matter.

Purposes of sentencing.

45The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

46Here the learned Crown prosecutor submitted that a sentence of imprisonment to be followed by release upon a recognisance was the appropriate disposition.

47Ms Breckweg, relying on comments made in a number of decisions of Courts of Appeal around the country, pressed upon the court that this type of offending called for a sentence of imprisonment in the usual course.  The basis of that submission was the ubiquity of the availability of means of communication by carriage services and the ease with which children can be sexually exploited using social media.

48These matters are such that in all cases, general deterrence calls for a sentence of imprisonment in order to deter others.

49In a frank and helpful submission, Ms Breckweg conceded that in the particular circumstances here, having regard to your personal circumstances, it would be in the discretion of the court to order immediate release upon a recognisance following the imposition of a sentence of imprisonment.

50Mr Lindner on the other hand, submitted that applying principles of parsimony, all the sentencing factors under s.16A of the Crimes Act (Cth), could be addressed by imposing a conviction followed by a community corrections order.  I have had you assessed as suitable for a community corrections order.

51Mr Lindner referred to a chart of cases where judges of this Court in cases involving this offence have imposed community corrections orders rather than terms of imprisonment and also referred to some interstate cases with the same dispositions.

52In response, Ms Breckweg emphasised that in sentencing for federal cases, comparability around the country should sought to be maintained.

53It is clear from the prosecution case as relied on by Ms Breckweg that included Gajjar, Hizhnikov, Adamson, Rampley, Fuller, Collier, Tector, Burdon and Chatterton, that in most cases a sentence of imprisonment was imposed.

54In Burdon, the headnote reads,

"Nevertheless people who were considering using the internet likely responded to attempt to make contact with young people with a view to corrupting or sexually exploiting men, must now be on notice that such behaviour would be likely to generally involve a term of actual imprisonment, even where indecent physical conduct does not and could not eventuate."

Consideration.

55Having considered the submissions of both sides and notwithstanding the seriousness of the offending and how sentencing is to be approached in these types of cases, I apply principles of parsimony and also the principles of Verdins.

56You were aged 24 at the time that this offending occurred and you are now 27.  Considerations of relative youth must be given weight.  I have also taken into account that you have pleaded guilty, albeit it was relatively late but you are entitled to the benefit to the plea of guilty.

57Considerations of general deterrence and specific deterrence are relevant.  Notwithstanding this and in applying all the considerations I am required to consider under s.16A, I am satisfied in this case the appropriate sentence is a conviction followed by an 18 months community corrections order.

58Here for sentencing purposes, considerations of general deterrence are moderated significantly due to your psychological condition and your intellectual capacity, although your moral culpability is not reduced as there was no evidence to suggest that you did not understand right from wrong.

59You are at the very bottom of the range of intellect as identified from Dr Cunningham.  You are therefore not in any way representative of the community.

60Next, you suffer from PTSD.  That to date, has not been appropriately addressed although you have commenced therapy.  That also makes you not an appropriate candidate for general deterrence.  Both conditions are also relevant to the type of sentence to be imposed.

61Due to your intellectual deficits as well as your PTSD, I am satisfied that you would find a sentence of imprisonment more burdensome than a person without your condition or those attributes.

62While it is not suggested that there was any causal relationship between the PTSD and your offending, the two victim impact statements filed by you in relation to the abuse perpetrated on you indicated that when the perpetrator sought to resile from his original plea of guilty, that it was around that time that you did not proceed with counselling.  You then committed this offence in the immediate aftermath.

63Subsequently the perpetrator, your stepfather, did plead guilty and was dealt with by this Court in Deptember 2015.  In sentencing remarks, the sentencing judge accepted the seriousness of the impact of the abuse on you.

64I regard the undisputed fact that you have been the subject of sexual abuse and that it has had an impact on you as calling for significant leniency in the sentence to be imposed.

65All the matters that I have discussed as such that notwithstanding the seriousness of the offending here, considerations of parsimony are such that all the sentencing factors under s.16A can be addressed by a community corrections order.

66I am proposing conditions on that order that you undertake community work and that you also undertake treatment and rehabilitation and mental health treatment and offender behaviour programs.

67You are already undertaking counselling from Coat R Coat and I propose that this continue or as directed by the regional manager.  I am also proposing that you be referred for the sex offender program.

68I also propose as a condition that you be referred to the Department of Human Services for assessment as to whether you are eligible for case management services by DHS.  I do not propose to do this by way of a condition of a justice plan.

69Rather, if you are eligible for DHS services as a result of your intellectual deficits, then they can be provided to you as appropriate.

70So I have a draft order here and I will hand it down to both counsel and ask them to peruse it and see whether there are any issues and then I would ask that, Mr Lindner, you explain it to your client and then get him to sign it.  When it is done, we will resume.

71MP, you also go on the sex offender register for eight years and the documents associated with that will be handed to you and I will ask Mr Lindner to explain that to you.  That is a consequence of your conviction but it is not a sentence.

72So I will stand down while all that is done and resume at that point.

73MR LINDNER:  If Your Honour pleases.

74(Short adjournment.)

75HIS HONOUR:  Ms Hortle, did you say you have something to say or not?

76MS HORTLE:  Nothing to say, Your Honour.

77MR LINDNER:  And I was just going to indicate that I have gone through the assessment - the community corrections order assessment outcome report with my client and the Sex Offender Registration Act matters.  He has got a copy of that and all matters have been signed.  He has acknowledged and as far as I can tell, understands each and every one of those documents.

78HIS HONOUR:  Now MP, I have got to explain my sentence to you.  I have accepted Mr Lindner's submission that the appropriate disposition is an entry of a conviction and a community corrections order.  So I am emphasising rehabilitation.

79A community corrections order is an onerous disposition because it imposes a number of requirements on you.  If you breach them, that is an offence of itself and you will be brought back for that offence and resentenced on this offence.

80Those orders are that you not commit another offence for the next 18 months.  That is the first one.

81Secondly, you have got to obey directions of the regional manager.  Now you have been on a community corrections order before and you breached it.  Now that was four or five years ago so you are older and wiser now.

82You are up in Morwell, so you have got to obey the directions of the regional manager.  In addition to that you have got to report to them within two business days up there in Anne Street and be checked in.

83You have got to tell them of a change of address and you have got to accept lawful directions from them.  They are the general terms of a community corrections order.

84Then there are specific ones in this order.  You have got to do 100 hours of community work within the next 18 months.  They will tell you when to turn up and what to do.  So that is that.

85In addition to that, you are under supervision.  So if they say they want to see you at 10 o'clock on 28 July at Anne Street, you have got to be there.  Do you understand?

86OFFENDER:  Yes, Your Honour.

87HIS HONOUR:  All right.  Now the next thing is, you have had problems and you still have got problems, so I have recommended - I have ordered that you continue to go to Cote à Cote consulting.  Now if they will not take you, then the regional officer can arrange another counsellor for you for your PTSD, because you have got PTSD that needs treatment.  So you have got to continue with that.

88Now also they will - if they determine it is appropriate, they will refer you for a sex offender program because you are a sex offender.  So when that program is organised for you, you have got to go to it.  Do you understand that?

89OFFENDER:  Yes, Your Honour.

90HIS HONOUR:  The final thing that I have recommended, is that I have ordered that you go down to the Department of Human Services to be assessed to see whether they have got any programs or case management for you because of your level of intellectual deficits.

91Now it may be that they do not, but maybe they do.  But until you go down there and get assessed, who knows.  But Dr Cunningham has said you might be eligible and if you are eligible, that will help you - help you get possibly into the workforce or just deal with life because you have drawn a pretty tough deck of cards.

92So all those matters are coercive.  You have got to do them for the next 18 months.  Do you understand?

93OFFENDER:  Yes, Your Honour.

94HIS HONOUR:  The final matter is that you are on the sex offender register for eight years which means you will be given the documents and that means you have got to notify the register or the manager of that register when you change your address, get a new phone, your phone number, get a new Facebook account, get a new car, all those communication matters - change your address.  You have got to do that within 14 days of one of those events happening.  Again, if you do not do that, that breaches the sex offender register laws.  So that is onerous, but once you get used to it and understand what the obligations are, you should be able to comply.  Do you understand?

95OFFENDER:  Yes, Your Honour.

96HIS HONOUR:  That is not part of my sentence.  That happens because of the offending you have undertaken.

97So as I have said in my sentence - well I say again now.  You have drawn a pretty tough set of cards in life.  So I have extended leniency on that basis for you, but you have got to understand that carriage services are not to be used to engage in chats et cetera, with underage girls.  That is what this offending is and you are not to do it again.  Do you understand that?

98OFFENDER:  Yes, Your Honour.

99HIS HONOUR:  I just hope you can get the counselling, get your PTSD under control and see whether you can go forward in your life.

100I want to thank you Ms Hortle for your assistance and Mr Lindner.  I will just stand down temporarily.

‑ ‑ ‑