Director of Public Prosecutions v Neal
[2023] VCC 1309
•27 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01256
CR 22-01257
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL NEAL |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 January 2023 and 15 June 2023 |
| DATE OF SENTENCE: | 27 July 2023 |
| CASE MAY BE CITED AS: | DPP v Neal |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1309 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of failing to comply with reporting obligations, possessing child abuse material, distributing child abuse material, trafficking in a drug of dependence and related summary offences – failure to report internet usernames to police – child abuse material located on seized devices – limited criminal history involving serious offences – diagnosis of personality disorder and complex post-traumatic stress disorder – disadvantaged childhood – all sentencing purposes engaged – previous convictions of Schedule 1 offences – sentenced as serious sexual offender – early plea of guilty – imprisonment no adverse effect on current health – Verdins considerations – Bugmy – inordinate delay – uncertain prospects of rehabilitation – parsimony – life reporting under Sex Offenders Registration Act 2004
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v R (2013) 249 CLR 571; DPP v Hermann [2021] VSCA 160
Sentence:50 months’ imprisonment. Non-parole period of 33 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Michael Neal, I propose to sentence you to a total effective sentence of 50 months’ imprisonment and set a non-parole period of 33 months’ imprisonment. I will declare the 804 days of your pre-sentence detention as time served under those sentences.
2You pleaded guilty to a charge of failing to comply with reporting obligations, a charge of possessing child abuse material, two charges of distributing child abuse material, a charge of trafficking in a drug of dependence and two related summary charges.
Circumstances
3On 19 January 2009, following your conviction for sexual offences, you were obliged to obey the reporting conditions under the Sex Offenders Registration Act 2004. One of those conditions required you to report to the police any internet usernames of yours within seven days of you acquiring one.
4On 25 March 2021, you undertook an annual interview with a police member. In that interview, you supplied your mobile phone number and email addresses.
5Between 9 and 14 April 2021, searchers found two Snapchat accounts associated with your mobile phone number. Their usernames had not been reported to the police.
6On 12 May 2021, police executed a search warrant at your flat. They seized 12 devices and five small zip lock bags containing 0.9 of a gram of methylamphetamine of 82% purity. The contents of these bags are the subject of Charge 5, trafficking in a drug of dependence. In your bedroom, they found a diary and sheets of paper. They contained written weights, dollar amounts, details of money owed and a “tick sheet”. They also found digital weight scales and numerous unused zip lock bags.
7When later interviewed, you said you were not the instigator, just the front end. You declined to name the instigator.
8Also, in your bedroom, they found a “taser”. This is the subject of Summary Charge 9, a charge of possessing a prohibited weapon.
9The police examined your mobile phone and found your active accounts and internet usernames, none of which was reported by you. The details of these accounts, their usernames and your usage are set out in paragraph 7 of “Summary of prosecution opening upon plea”.
10One of the unreported accounts was on Skout and had the username Script15[1]. It contained messages sent by you, starting on 1 September 2020, shortly after your release from prison on 29 August 2020.
[1] A pseudonym.
11You were arrested that day and later interviewed. You denied making actual drug transactions saying you had discussed purchases and sales of methylamphetamine. Despite the revelation of further emails and the existence of the “tick sheet”, you denied actually selling the drug. When asked about the potential profits, you said they were to buy food. You said you bought 14 grams for $2,000.
12You said the taser had been left at your flat by a person who had tried to assault you with it. You did not report the matter to the police.
13You were asked about each of the unreported usernames. You admitted using three of the names for five or six months. You said you could not access these accounts after your phone was stolen. You said you could not remember whether you reported the usernames to the Sex Offender Registry.
14Despite denying having a Snapchat account, you recalled talking to a female called “Lauren”[2] and this might have been on Snapchat or Hangouts.
[2] A pseudonym.
15You admitted using two other online usernames, “Jakehill”[3] and “Smith762”[4], which had not been reported to the Sex Offenders Registry. You said your failure was not deliberate.
[3] A pseudonym.
[4] A pseudonym.
16You admitted using Skout, Hangouts, Signal, Squirt, Grindr and MeWe, being social media and messaging applications. You also admitted the username “Same Glover”[5] and again did not report it.
[5] A pseudonym.
17On 13 May 2021, your phone was examined by the police who discovered two videos and five text messages. They are described in paragraph 19 of the prosecution’s opening. They constitute the circumstances of Charge 2, a charge of possessing child abuse material and Charge 3, a charge of distributing child abuse material.
18You sent messages on 19 and 29 April 2021 which were particularly objectionable. In one, you describe committing acts of incest and sexual assault on your infant children.
19The same phone contained many messages regarding drug trafficking using Signal and Skout and numerous text messages using your phone number. These circumstances relate to Charge 5, the trafficking charge. These messages were quite specific and some of which are set out in paragraph 22.
20You were arrested on 14 May 2021. The police saw you trying to conceal under your bed a plastic bag containing 11.4 grams of methylamphetamine of 85% purity and $70 in cash. These circumstances are part of Charge 5. When arrested, you made other admissions apart from those above.
21The police further examined your devices and found more child abuse material and fresh email accounts and usernames. These are detailed in paragraph 32 of the prosecution’s opening and form part of Charges 1, 2 and 3.
22Further analysis of your Galaxy phone revealed between 23 February 2021 and 18 April 2021 messages between you and a person called “Billy”[6]. These massages constitute child abuse material. Their content is summarised in paragraph 33 of the prosecution’s opening. These messages and videos form part of Charges 3 and 4.
[6] A pseudonym.
23Overall analysis revealed there was two images classified as Category 1 and 2 child abuse material and nine videos classified as either Category 1 or 2. Some of these images and videos are nasty depicting sexual abuse of young children. Some of the children appeared distressed and in pain.
Criminal history
24If you exclude your appeal, you have appeared in a criminal court on two occasions. In the first, in 2009, you were sentenced to a very long term of imprisonment. The offences were largely sexual in nature including two charges of rape. You successfully appealed that sentence although the result was still a long sentence. It appears these offences arose on or after 2001 and, up until 2001, you had been offence free.
25Then on 17 January 2011, you were sentenced to a significant term of imprisonment for four charges of reckless conduct endangering serious injury. It appears three of those charges came from your successful appeal.
Personal
26You are now 64. You are the second youngest of eight children, of which two are half-siblings. Your father died when you were two and your mother died when you were four. You went to an orphanage until you were 12. You were friendless at the orphanage and, between seven and 10, sexually abused by a gardener there.
27At 12, you went to boy’s home where you were sexually abused by two priests between the ages of 12 and 16. You gave evidence about this experience at the Royal Commission.
28After attending a school in Armidale, at 16, you were adopted by a family and moved to Tamworth. You attended a high school and did well academically. After leaving school, you have worked as a storeman, a computer operator and in various other jobs.
29You married in 1980. There were five children, two of whom died. You and your wife separated and divorced in 1989. Your separation was due to the lack of intimacy between you and your wife and your unfaithfulness to her. You have had very little contact with your former wife. You have some contact with your children.
30After your separation, you moved into a boarding house. You told the psychiatrist, Dr Pandurangi, you then drifted into the “fetish/BDSM environment”. You had a series of sexual relationships with men. You described to the psychiatrist truly unusual behaviour with other men. In 2000, you contracted HIV.
31You have struggled with your mental health. There has been an admission to a psychiatric unit of a hospital and attempts at suicide. For about five years, you received psychiatric treatment.
32While in prison this time, you received help from mental health practitioners. You are currently prescribed Olanzapine, an anti-psychotic medicine, in a low dosage.
33In the late 1990s, you started using stimulant drugs, including ecstasy, during weekend parties. In 2018, you started using methylamphetamine. You would inject about a point a day in order “to deal with life”, as you put it.
34In 2000, you were diagnosed with HIV, which is treated. You suffer from diabetes and heart disease. In 2010, you were diagnosed as suffering from Parkinson’s disease. By May 2022, its symptoms were noticeable in the form of significant tremors and involuntary movements. You use a four-wheel frame to move. You shuffle when you move and have fallen while in custody. However, this has improved since then.
35After you release from prison in 2018, you lived with your former partner. This continued until he assaulted you. You moved to Gippsland, tried to commit suicide, started using methylamphetamines, were detected and, because you were on parole, returned to prison.
36You were released on 29 August 2020 and stayed with one of your daughters. However, you left because your granddaughter lived there. You then lived in a unit and resumed using methylamphetamine to relieve the symptoms of your Parkinson’s disease.
37While in custody this time, you have heard voices. At times, you have experienced depressive episodes. You have contemplated suicide. However, you have received extensive psychological assistance in custody and I note the range of medicines which have been or are presently prescribed to you. Presumably, these symptoms, including suicidal ideation, are now controlled.
38You are undergoing counselling with a counsellor, Shaun Williams. You are in your third week of counselling.
39Despite your lengthy period of remand, I understand your unit in Richmond is still available to you. Presumably, once released from custody, you will receive benefits under the National Disability Insurance Scheme.
Psychiatrist
40Prashant Pandurangi is a forensic psychiatrist. On 16 and 28 December 2022, he interviewed you at the request of your solicitors[7]. Much of your personal details are taken from his comprehensive report.
[7] Report dated 23 January 2023.
41Dr Pandurangi sees your present state as the manifestation of your dreadful experiences when young. At paragraph 61, he says in part:
“The impact of these early life experiences meant that, as he grew older, he gradually developed a range of entrenched and somewhat inter-related deficits in his personality functioning. This include a profound lack of sense of self, poor self-worth, chronic deficits in emotional regulation or processing of his underlying distress. He has used maladaptive strategies such as using illicit drugs or sex, to cope with stress. He has developed a distorted view of the intentions of others around him, which includes a general mistrust of others and feeling that he is being exploited by others. He also has a poor sense of direction and coherent long-term goals. He has had significant difficulties in interpersonal relationships which are governed around sexual interests and preferences, with limited ability to appreciate perspective of others and manage conflicts in the relationships. He is impulsive with lack of consequential thinking and a disregard to safety of others. These difficulties have been persistent, pervasive and problematic for him in various areas of functioning, even outside of his contact with the criminal justice system.”
42Using two well-known diagnostic frameworks, Dr Pandurangi diagnosed you as suffering from a personality disorder; in one case, at the level of moderate to severe. He also diagnosed a complex post-traumatic stress disorder. At your interview, he found no symptoms of a depressive disorder. Your longstanding substance usage was in remission because you were in custody.
43Your history caused him to explore whether you have a paraphilic disorder. He did not diagnose the disorder but concedes its possibility.
44As to your risk of re-offending, Dr Pandurangi concluded you are a high risk of causing serious harm although he could not say as to what type of offences.
45You require sexual offender intervention through the Forensic Intervention service or Forensicare’s Problem Behaviour Program. You need drug and alcohol counselling, mental health monitoring including reviewing your need for psychotropic drugs. Finally, he thought neuropsychological assessment was indicated.
46As to the effect of imprisonment on you, he noted[8]:
“Given his mental health and physical health conditions, he is likely to find prison more stressful compared to others who do not suffer from those conditions. However, at the same time, he remains in a presumably drug free environment and has access to mental health treatment if his mental health deteriorates. He is monitored for his physical health in St John’s unit”.
[8] At [80].
Discussion
Section 5(1)
47Each of the purposes for which sentences may be imposed are relevant to my sentencing of you. These purposes are set out in s 5(1) of the Sentencing Act 1991. They may be described briefly as just punishment, general and specific deterrence, denunciation, community protection and rehabilitation.
48You are a serious sexual offender for you have been convicted of at least two sexual offences described in Clause 1 of Schedule 1 of the Sentencing Act. You are to be sentenced on Charges 2 to 4 as a serious sexual offender. This means the special provisions of the Sentencing Act for serious offenders applies, in particular, s 6D(a), which requires the protection of the community from you as the principal purpose for which the sentence is imposed. As to s 6D(b), the prosecution does not seek a disproportionate sentence and it would be inappropriate anyway. The purposes of sentencing can be achieved without recourse to this power. Section 6E requires the cumulation of every sentence of imprisonment for a relevant offence unless directed otherwise.
49The summary charge of committing an indictable offence on bail, where the offence is the trafficking offence, is an aggravating feature. But how the aggravation is used in sentencing is determined by s16(3C) of the Sentencing Act.
Maximum penalties
50The maximum penalties for the offences are:
(a) trafficking in a drug of dependence – 15 years’ imprisonment;
(b) failing to comply with reporting obligations – five years’ imprisonment;
(c) possession of child abuse material – 10 years’ imprisonment;
(d) distributing child abuse material – 10 years’ imprisonment;
(e) possessing a prohibited weapon – two years’ imprisonment or a fine of 30 penalty units;
(f) committing an indictable offence while on bail – three months’ imprisonment or a fine of 30 penalty units.
Nature and gravity of the offences
51Your failure to comply with the reporting conditions starts a few days after you release from prison. It encompasses the use of 12 unreported usernames across a variety of platforms. This is a rolled-up charge with each instance of not reporting the username an occasion of the offence.
52Your possession of child abuse material involves two videos described in paragraph 19(d) of the prosecution opening, four screen recordings in paragraph 32(h-k) and two multimedia messages in paragraph 33(a). This, too, is a rolled-up charge.
53The first of the two distribution charges is a rolled-up charge with six occasions of the offence in the form of text messages. Two of which discuss a plan to rape a 14-year-old girl. There are several messages discussing with a person called ‘Billy you having sexual intercourse with a 44-year-old woman and her 14-year-old daughter.
54The second of the distribution charges involves a video depicting the anal penetration of a very young boy by an adult male.
55The offence of trafficking occurs over less than a month. You possessed quantities of methylamphetamine on each of two occasions: 0.9 of a gram and 11.4 grams. The second occasion occurred two days after being interviewed for the first occasion for the same offence. From your answers in paragraph 10 and paragraph 11 of the prosecution opening and the messages in paragraph 22 of the prosecution’s opening, you were conducting a small-scale commercial trafficking enterprise, hoping to earn sufficient to repair your car.
Guilty pleas
56You pleaded guilty to these charges at the third committal mention hearing on 15 July 2022. In terms of timing, these are pleas entered at the earliest reasonable opportunity. Moreover, I do treat these pleas as evidence of your remorse.
57By pleading guilty you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system by making space for those proceedings which genuinely require a trial. This avoided the need for witnesses to give evidence, whether in this Court or the Magistrates’ Court. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
Health
58Physically, you suffer from a number of conditions, the most significant of which appears to be Parkinson’s disease. Until recently, you were in the St John’s unit at Port Phillip Prison. I have read the affidavits of Jennifer Hosking and Kyra Low. The former details your movements within the prison system. The latter details the medical and other treatment provided. It appears the overall treatment has been first rate, probably superior to that which you would have received in the community. The content of Ms Low’s affidavit amply justifies that assessment. In paragraph 30, she states:
“The Defendant’s condition is stable and his mobility has improved so that he is now mobilising freely without walking aids/walking frame. He has minimal tremor and is at low risk of falling. He is independent and
self-caring.”59The restrictive conditions of your confinement are passed. You are no longer at the St John’s unit but in a protection unit at the Metropolitan Remand Centre. Once sentenced, I daresay you will be reclassified and moved to an environment consistent with the protection unit.
60I cannot find your imprisonment has had or will have a materially adverse effect on your health. Nor can I find you are at greater risk of contracting the virus while in custody. Certainly, you cannot take your own measures to protect yourself but whatever those measures might be, I cannot find they would offer you greater protection from the virus than that which you presently receive in custody.
Verdins
61You rely on factors 5 and 6 stated in the case of R v Verdins[9] I will set out each factor and my assessment of them in relation to you:
"The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health."
[9] [2007] VSCA 102.
62Recalling that “condition” refers to your impaired mental functioning and not your physical functioning, what Dr Pandurangi says in paragraph 80 of his report does not really support its applicability to you.
"Where there was a serious risk of imprisonment at the date of sentencing having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment."
63What Dr Pandurangi says in that paragraph of his report does not establish factor 6. You are drug free. You can receive appropriate mental health treatment if the need arises.
64You have had a disadvantaged early life. Its effects are amply reflected in what you are today, which is amply described by Dr Pandurangi. It affects your moral culpability to a degree but also points to the need for specific deterrence and the protection of the community from you.
Bugmy
65More particularly, your counsel relied upon what the Court said in Bugmy v R[10] about an offender’s serious childhood deprivation and a paragraph from DPP v Hermann[11]. Certainly, your childhood was appalling. Your offending may have started after your diagnosis as HIV positive but the lifelong damage from your childhood has left you with the deficits detailed by Dr Pandurangi in the passage I quoted earlier[12]. This is a significant factor in sentencing you.
[10] (2013) 249 CLR 571.
[11] [2021] VSCA 160 at [45].
[12] [61].
Delay
66Even nowadays, 804 days of pre-sentence detention is a long period. Although charged on 12 May 2021, you did not have a filing hearing until 4 March 2022. Between 27 May 2021 and 28 February 2022, there were six mention hearings in the Magistrates’ Court before an application to uplift the charges to this Court was heard and granted. It took to 4 March 2022 for a filing hearing to occur, which is the first step in the process for your charges to reach this Court.
67804 days of pre-sentence detention is an inordinate time to await the determination of a plea in this Court. The delay was not your fault. I accept your wondering about what is to happen by way of sentence is worsened by this delay. It is an unintended form of punishment.
Prospects of rehabilitation
68The start of an offence within one of the charges started shortly after your release from prison after serving a lengthy sentence and the other offences followed. It appears that sentence had little or no deterrent effect upon you. My sentences will be lengthy. One would expect at 64 and in your state of health they will have a deterrent effect upon you.
69Your guilty pleas are evidence of remorse. There is a degree of remorse shown by you but I doubt your state of mind is one of a determination not to re-offend because of your remorse.
70You have had a long history of using methylamphetamine. I cannot say whether your time in custody has seen the end of your addiction. Dr Pandurangi assesses you as a moderate-high risk of re-offending.
71You have family support through your daughters, one of whom accommodated you until the child protection authorities insisted on your removal from her home.
72You have been an excellent prisoner. The affidavits refer to your behaviour positively. You have commenced counselling. I daresay this commenced because of your move from St John’s unit to the less restrictive environment you are now in.
73Overall, your prospects of rehabilitation are most uncertain.
Parsimony
74Your counsel reminded me of the principle of parsimony. It has been described as one of the overarching common law and statutory sentencing principles. The principle is sentencers should not impose a sentence which is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed[13].
[13] Fox & Freiberg’s Sentencing, 3rd ed., at 3.90.
75This principle remains valid in the face of the hardening of sentencing for sexual offences and other offences evident in the various recent legislative changes.
Sentence
76On Charge 1, a charge of failing to comply with reporting conditions, I will sentence you to 12 months’ imprisonment.
77On Charge 2, a charge of possessing child abuse material, I will sentence you to 18 months’ imprisonment.
78On Charge 3, a charge of distributing child abuse material, I will sentence you to 27 months’ imprisonment.
79On Charge 4, another charge of distributing child abuse material, I will sentence you to nine months’ imprisonment.
80On Charge 5, a charge of trafficking in a drug of dependence, I will sentence you to 18 months’ imprisonment.
81On Summary Charge 9, a charge of possessing a prohibited weapon, I will sentence you to one month’s imprisonment.
82On Summary Charge 11, a charge of committing an indictable offence while on bail, I will sentence you to one month’s imprisonment.
83The base sentence is the sentence on Charge 3. Three months of the sentence on Charge 1, nine months of the sentence on Charge 2, three months of the sentence on Charge 4 and eight months of the sentence on Charge 5 are to be served cumulatively upon themselves and the base sentence. The other sentences are to be served concurrently. The total effective sentence is 50 months’ imprisonment. I will set a non-parole period of 33 months’ imprisonment. I will declare the 804 days of your pre-sentence detention (excluding today) as time served under these sentences.
Serious sex offender
84You are sentenced as a serious sex offender in relation to Charges 2, 3 and 4 on the indictment. I direct that that fact be entered in the records of the Court.
Sex Offenders Registration Act
85You are a registrable offender. As a result of your convictions today, you must report under the Sex Offenders Registration Act 2004 for the rest of your life.
Section 6AAA
86If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 70 months’ imprisonment.
Disposal and forfeiture orders
87I will make the disposal and forfeiture orders in the terms of the drafts.
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