Director of Public Prosecutions v Munn

[2016] VCC 1294

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00927

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MUNN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 August 2016
CASE MAY BE CITED AS:	DPP v Munn
MEDIUM NEUTRAL CITATION:	[2016] VCC 1294

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan
For the Accused	Mr J. Taaffe

Pages 1 - 9

 

 

HIS HONOUR: 

1Matthew Munn, you pleaded guilty to an indictment charging you with two offences of sexual penetration of a child under 16 and one of indecent act with a child under 16 and one of possession of child pornography.  You have no prior convictions.  The maximum term of imprisonment for sexual penetration of a child under 16 is ten years, and for indecent act with a child under 16, possession of child pornography is five years.

2The prosecution tendered and relied upon a summary of prosecution opening on the plea, which is Exhibit A. I incorporate that in its entirety into these reasons for sentence, including the addendum which contains extracts from the telecommunications between you and your victim.

3The prosecution summary speaks of the circumstances in which you came to be in contact with the victim in March 2015, on her Instagram account. You engaged with her in discussion on that account and then moved to another social media application called Kik.  The conversation between you and your victim soon turned sexual and you asked her, "What would you say if I told you I was rubbing my cock right now, making it hard?"  You continued to talk with your victim.  She told you she was 14 years of age.  It is quite apparent from subsequent aspects of the discussion between you that you knew perfectly well that what you were doing was illegal and improper and you went into this offending conduct with the victim with your eyes open.  You had plenty of time to consider what you were doing.

4You met her for the first time during the first week of the Easter school holidays last year.  During the afternoon, you drove to her home, parked your car in her street.  She got into the passenger seat and there, you engaged in conversation and you carried out the conduct which is reflected in Charge 1, in which you inserted your fingers into her vagina. Having engaged in that conduct, you then moved to the conduct which involved you in Charge 2, namely placing her hand on your penis over your clothing.

5After that offending conduct, you continued your communications with your victim and exchanged photographs, some of which involved her or you sending photographs of your private parts and her sending you photographs of herself in the bath.

6On 13 April last year, you met her for a second time.  Again, you met in the street in your car near her home.  She got into the passenger side of the car and you, amongst other things, penetrated her vagina with your finger.  On that occasion, the meeting between you was interrupted by the arrival of the victim's mother. The mother spotted the two of you together and extracted her daughter from your car.  Having done so, you left the scene.

7You were arrested on 15 April and taken to Box Hill police station.  An interview was conducted by police. You did not tell them the whole truth.  A search warrant was executed at your address and police took your MacBook computer and your Apple iPhone 4 and your iPhone 5.  Those items were analysed and photos of the victim which she had sent you were located on your iPhone 4.  Those photographs are the subject of Charge 4, the possession of child pornography.

8The analysis of your phones also revealed the various messages that had passed between you and the victim.  Those are reflected in Annexure 1 to the prosecution opening.  The communications are extensive and it shows, in my opinion, that you engaged in manipulative conduct.  The prosecution submitted that you were grooming her through this discussion and that that was a serious feature of your offending conduct.  I accept that submission.

9Offending of this nature is serious because of the harm that sexual contact between older people and persons under the age of 16 can have upon the emotional wellbeing of the victims. The laws are there to protect victims under the age of 16, not just from the people who engage in conduct such as you engaged, but also from themselves.  You have a better understanding of that now because you have engaged in a number of sessions with Dr Godfredson and according to you, you have progressed significantly in your understanding of not just your own motivations but also in the harm that conduct of that kind can do and according to him, you are now remorseful for your conduct.

10I accept that, but of course it does reflect the fact that conduct of this kind is harmful and you now realise that and the law therefore requires the courts to impose sentences that impose just punishment and denunciation and have the capacity to deter others. It is upon that basis that I have to approach this sentencing exercise.

11The age gap between you was significant.  Fifteen years.  There is no victim impact statement in this case, but it is presumed by the courts that conduct of this kind would have a significant adverse effect on the young person and I have to take that into account in assessing an appropriate sentence.

12This was not an isolated incident in the sense that there were two occasions on which you met this young lady and you had adequate opportunity to consider your position after the first of those meetings.  You knew perfectly well what the consequences were if you got caught and you told her.

13Turning to matters personal to you, your counsel provided me with a written submission including a chronology of relevant events and in that, he has essentially identified the factors in mitigation that I have to take into account on your behalf.  It is a particularly helpful document in that your counsel has been realistic in assessing the appropriate approach of the court to offending of this kind.  He makes no bones about the fact that you have to face a term of imprisonment. You have come to terms with that and the document that he has provided me with really is directed at those features which should reduce the length of that sentence as far as the court reasonably can in all the circumstances.  It is the duty of the court to impose no longer sentence than is necessary in all the circumstances.

14In addition to the written submissions and in support of those submissions, I was provided with a report from Dr Rachael McKenzie, dated 20 August 2016, which is Exhibit 2.  Two reports from Dr Godfredson, dated respectively 24 and 25 August 2016.  The 25 August 2016 report being essentially an addendum to the earlier report in which he underscores the proposition that your offending can be described as situational rather than preferential.  By that, he means, as I understand it, that the offending arose from the circumstances in which you were in at the time of the offending, rather than because you have a preference for sexual contact with persons under the age of 16.

15I was also provided with reports or letters which identify the extent of your back injury and the nature of the treatment for that injury.  I was provided with a number of written references which show that you have considerable support in the community, not just from friends but also from family, that you are well thought of and that people would generally regard this as being totally out of character and explicable at least in terms of context by the isolation that you felt as a result of the debilitating back injury that you suffered in May 2014.

16Returning to the submissions of your counsel, he acknowledges the gravity of the offending and the fact that you took advantage of the young person who was to some extent vulnerable.  Perhaps more vulnerable than a 14 year old might ordinarily have been.  He points out that you had a somewhat difficult early life that you have been regularly employed or had been regularly employed up to May 2014 and it seems that you were popular and that you engaged in social and community activities.  But since that time, you have become increasingly isolated and depressed.  The psychological reports suggest that you fell into a major depression during that period.

17You have pleaded guilty.  You indicated a willingness to plead guilty at the earliest reasonable opportunity.  That is very much in your favour.  It supports the proposition that you are remorseful.  It also has significant utilitarian benefit in that it saves the cost of a trial and the inconvenience and psychological impact of witnesses having to give evidence in a trial.  There is no doubt that there has been a delay.  I would not regard this as an inordinate delay.  It is nevertheless a period during which this matter has been hanging over your head and I have no doubt it has caused you a good deal of anxiety and distress knowing that you face a term of imprisonment at the end of the day.

18But it has also given you the opportunity of seeking to rehabilitate yourself, to address the issues that led to your offending conduct, to demonstrate to the court that you present, at least, a moderate to low risk of reoffending and that your prospects of rehabilitation and prospects of staying out of trouble in the future are good.  I accept that.  I think that there is enough in the material to suggest that you are capable of putting all this behind you and subject to your physical health, leading a productive life in the future.

19I do not regard the prosecution or the police as being responsible for undue delay in this case.  It seems to me that cases which involved analysis of mobile phones and computers unfortunately do take time for assessment and frequently do result in delay as a result of the workload upon the technical staff responsible for that kind of analysis.  But whatever the cause of the delay, it matters little.  The fact is there has been some delay and I take that into account in reducing the sentence that might otherwise have been appropriate.

20Your counsel relied also upon the fact that you have a significant and debilitating back injury which has been the subject of surgery that has not been entirely successful and that you are on painkilling medication, or you were, that involved the use of opiates.  He has provided me with an affidavit this morning which indicates that as he submitted in the course of his submissions it was likely that you would not be permitted to remain on that treatment regime because of pressure that is likely to be applied to you by other prisoners.  That fear has eventuated and you are no longer on that treatment regime.  It is not for me to judge the extent to which the treatment you are having is adequate, but no doubt the fact that it is not the same and that there will undoubtedly be a period of withdrawal from the opiate medication will cause you discomfort and further anxiety. I take that into account.

21There is no doubt that it will be harder for you to deal with your time in custody with the physical injury that you have suffered and the fact that you are on medication to mitigate that, the pain arising from that injury.  It will be more difficult for you than for another prisoner who did not have that same physical injury, and I take that into account in reducing the sentence that would otherwise be appropriate.

22The reports of Dr Godfredson and Dr McKenzie not only deal with the circumstances in which the offending occurred, but set out details about your background and give some context to the offending.  I am not going to go into great detail about that.  Whatever difficulties you had, your family has rallied around you, friends have rallied around you and that you will have the support that you undoubtedly need when you have completed your sentence.

23I accept, as I have indicated, that your risk of reoffending is moderate to low, perhaps low, and that the offending occurred in circumstances where you were at a low end and had withdrawn in many respects from your social life.  None of that is put forward as an excuse for your conduct.  None of that has been put forward by your counsel as reducing your moral culpability for the offending but it is put forward as part of the context in which the offending occurred.

24I have to balance the various competing sentencing considerations.  I need to impose a punishment that adequately punishes you for your offending conduct, that denounces your conduct adequately, that has the effect of deterring you from further offending.  I might say, as your counsel has submitted that having engaged as you have in the extensive treatment from Dr Godfredson.  I accept the need for individual deterrence is reduced proportionately and I regard that as being significantly less than it might otherwise have been if you had not engaged in that kind of treatment.

25However, I must give significant consideration to the need for general deterrence, that is deterring others from committing offending of this kind.  The young people of our community must be protected and unless the courts impose adequate punishment capable of deterring others, then the courts do not offer an adequate degree of protection for young persons and I have to regard that as a significant factor in sentencing you.

26Having said that, I must also ensure that I impose a sentence that promotes your rehabilitation as much as I reasonably can. Although there is some need, in my view, for cumulation of sentence as between these sentences that I must impose for the individual charges, I need to have regard to the totality principle and to ensure that I do not impose a sentence that is unduly severe or crushing upon you and I intend to give proper effect to that principle.

27I am required to sentence you as a serious sex offender on Charges 3 and 4 and ordinarily that means that I would be required to impose a sentence that is cumulative upon the other sentences and with each other.  The prosecution has not sought to persuade me that I should impose a disproportionate sentence and I do not propose to impose a sentence that involves total cumulation.  It seems to me that justice can be done in this matter and the public be adequately protected by a measure of concurrency that I think adequately deals with all of the sentencing considerations.

28On Charge 1 of sexual penetration of a child under the age of 16, I convict you and sentence you to imprisonment for a period of two years and six months.  On Charge 2 of committing an indecent act with or in the presence of a child under the age of 16, I convict you and sentenced you to a period of imprisonment for a period of two years.  On Charge 3, I convict you and sentence you, that is for sexual penetration of a child under 16, to imprisonment for a period of two years and six months.  On Charge 4, possession of child pornography, I convict you and sentence you to imprisonment to a period of three months.

29I sentence you on Charges 3 and 4 as a serious sex offender.  The sentence of two years and six months on Charge 1 is to be regarded as the base sentence.  I order that six months of the sentence of Charge 3 be served cumulatively upon the sentence of two and a half years, making a total effective sentence of three years' imprisonment.  I order that you serve a period of 20 months before you become eligible for parole.

30I might mention that that is a relatively short non-parole period.  I impose that taking into account the hardship that you will suffer as a result of your back injury and the difficulties that it will cause you whilst serving your sentence.  That is to reflect that fact substantially.  It will be up to the parole board to determine whether you should be released on parole at the end of that period.

31But for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of 30 months.  I make the orders for the provision of a forensic sample and for the disposal of property, namely your mobile phones and all child exploitation material retrieved from those phones in accordance with the drafts, which I have been provided.  So far as the provision of a forensic sample is concerned, you will be approached whilst you are serving your sentence by an authorised officer to provide a saliva sample, scraping from the inside of your mouth.  If you provide the sample in that way, that's the end of the matter.  If however you fail or refuse when requested to provide the sample in that way, the officer will be authorised to take blood and may use reasonable force to enable that blood to be taken.  I am sure you will not put them to that trouble.

32As a result of your pleas of guilty and the sentences that I have imposed, you will be the subject of the reporting restrictions under the Sex Offenders Registration Act for the rest of your life.  You will be provided with some material which identifies the obligations under those provisions and that will be done quite shortly.

33Are there any other orders I need to make?

34MS HOGAN:  PSD, Your Honour.  Five days.

35HIS HONOUR:  Yes.  I declare five days' pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the time you actually have to serve.  I order that that be noted in the records.

36Mr Taaffe, would you accompany my associate to make sure that he understands what he has been given?

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