Director of Public Prosecutions v Nelson
[2013] VCC 1130
•6 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01757
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE NELSON |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 August 2013 | |
CASE MAY BE CITED AS: | DPP v Nelson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1130 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Stevens | Office of Public Prosecutions |
| For the Accused | Ms J. Kennedy |
HER HONOUR:
1 Leslie Nelson, you have pleaded guilty to two charges of using a carriage service to transmit indecent communications to a person believed to be under 16 years of age, one charge of soliciting child pornography material using a carriage service, two charges of knowingly possessing child pornography, two charges of transmitting child pornography material using a carriage service, one charge of causing child pornography material to be transmitted to yourself, two charges of using a carriage service in a way that would menace, harass or cause offence, one charge of accessing child pornography material using a carriage service, one charge of using a carriage service to groom a service believed to be under 16 years of age, and four charges of using a carriage service to procure a person believed to be under 16 years of age.
2 The maximum penalty in relation to the charges of using a carriage service in a way that would menace, harass or cause offence is three years imprisonment. The maximum penalty in respect of charges of knowingly possessing child pornography is five years imprisonment. The maximum penalty in respect of charges of using a carriage service to transmit indecent communications to a person believed to be under 16 years of age is seven years imprisonment. The maximum penalty for using a carriage service to groom a person believed to be under 16 years of age is 12 years' imprisonment. The maximum penalty in respect of soliciting child pornography material using a carriage service, transmitting child pornography material using a carriage service, accessing child pornography material using a carriage service, using a carriage service to procure a person believed to be under 16 years of age, is 15 years' imprisonment. I have taken those maximum penalties into account in sentencing you.
3 The prosecution made an application for forfeiture of certain equipment and items. There was no objection to that order being made.
4 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening, which was tendered as Exhibit A. There is considerable offending and I have attempted to summarise the circumstances of your offending as follows.
5 Charges 1, 2 and 5 are rolled up charges based on chat log communications you had with five recipients who were under 16 years of age. In the course of those communications, you transmitted indecent communications, including sexually explicit texts, web camera masturbation footage and images of your erect penis. You solicited two images of children's penises and caused to be transmitted to yourself an image of a young boy. You also transmitted child pornography material, including text, images and video files.
6 Charge 3 relates to your viewing and accessing child pornography images from stored files on the internet in the period 23 July 2010 to 23 October 2010. You had in your possession 3456 images, 18 videos and six other accessible files. Child pornography material is classified according to a scale of one to five, with category five being the most serious. When your material was analysed, there were 1785 images and seven movies in category one, 712 images and three movies in category two, 294 images in category three, 661 images and 8 movies in category four and four images in category five.
7 The offending covered by Charges 1 to 5 came to the attention of police on 24 October 2010. You had left the premises where you were living, leaving your laptop behind. Another member of the household took the laptop to the police after he discovered offensive material. You were not interviewed by police about this offending until 23 September 2011. I was advised that this was the result of the matter being dealt with by police in country Victoria and Melbourne and a backlog in the computer forensics unit. You were not charged with these offences until 27 November 2012.
8 Charge 13 relates to communications you had with a 13 year old boy in online chats and by text message. You told the boy you were 24 and suggested you meet up for sex. You sent further explicit text messages, to which the boy did not reply. The boy and his mother went to the police after the boy's mother found text messages from you on the boy's phone. As a result, police executed a search warrant at your residence on 11 January 2012. In the course of the search, a laptop and external hard drive were seized. Charges 6 to 12 and 14 to 16 relate to material found on that computer and other equipment.
9 You were arrested and charged in respect of Charges 6 to 16 on 11 January 2012.
10 Charge 6 is a rolled up charge and covers your use of the MSN Messenger service between 20 March 2011 and 23 December 2011. In that period, you had 15 chat conversations with 13 persons. You did that in a way that would cause offence because in these conversations you made explicit reference in very crude terms to sexual activities you would like to engage in or had engaged in with young boys, including baby boys.
11 Charge 7 relates to your transmission of child pornography material to four people between 22 March 2011 and 14 September 2011 using the MSN Messenger service. That material included three images, four videos and two text-based conversations.
12 Charge 8 covers your use of the MSN Messenger service to access child pornography material between 22 March 2011 and 28 October 2011. You accessed four such images from two people.
13 Charge 9 concerns a conversation you had through the MSN Messenger service with someone you believed to be under 16 years of age on 22 March 2011. In that conversation you were grooming that person. You made sexually explicit comments and asked when the recipient would like to meet.
14 Charges 10, 12 and 15 relate to conversations you had via the MSN Messenger service to procure persons you believed to be under the age of 16 between 23 March 2011 and 7 April 2011. In that period, you had a number of conversations of a sexually explicit nature, especially in relation to young boys and discussed meeting up for six with one person. On 4 April 2011, you had a similar conversation with another person. On 16 September you had a similar conversation with another person. You gave this person your mobile number.
15 Charge 11 is a rolled up charge. That charge relates to your use of the MSN Messenger service between 30 April 2011 and 31 December 2011 to transmit indecent material to 14 people you believe were under 16. Again you engaged in sexually explicit conversation and use of crude language in relation to sexual activities with young boys.
16 Charge 14 concerns your use of the MSN Messenger service in a conversation with a person who said he was Ben and was 15 years old. You expressed interest in meeting up and asked if he knew any young boys that would be interested in meeting for sex, including boys as young as ten. When Ben said that was disgusting and would not meet you, you began threatening him, saying that you had his IP address and would be there within 48 hour to get him.
17 Charge 16 concerns the child pornography material saved on your computer and hard drive between 18 February 2011 and your arrest. That material includes images showing male children from newborn to about 14 years old in a range of various sexual acts. There were 46 images in category one, four images in category two, 16 images and three videos in category three and 23 images in category four.
18 I have taken into account in sentencing you your personal circumstances. I derive those circumstances from what counsel said on your behalf and from the reports tendered on your behalf.
19 You are now 26 years old. You are mildly intellectually disabled and had a very difficult childhood. You are the fourth of six children. The Department of Human Services removed you from your home when you were eight years old, following substantiated allegations of abuse and neglect. There were also allegations of sexual abuse. You lived in numerous placements. You have now no contact with your family as I understand it. You had behavioural and learning difficulties at school. You started abusing substances when you were 14 and 15. You have used alcohol and cannabis and also engaged in chroming over a long period.
20 You were diagnosed during your developmental years with autistic spectrum disorder, post-traumatic stress disorder and adjustment disorder. In 2004, you were declared eligible to receive services from disability client services. Since you were 18, you have lived in private rental accommodation, but have often been living with associates or have been homeless. You have an extensive criminal history which mainly involves dishonesty offending with some offending involving violence. You have no prior sexual offending.
21 Workers at various times have tried to engage you in counselling or treatment with very little success. In later years, you have often been difficult to contact and when contact has made you have refused assistance from services. That approach is consistent with you not wanting to talk to your counsel or psychologists about your offending. In more recent times, you have been in some more regular contact with your case manager from Disability Justice, who was in court to support you.
22 In sentencing submissions, your counsel relied particularly on your background, your intellectual disability and the diagnoses of autism spectrum disorder and post-traumatic stress disorder. She also relied on the assessment of you as being cognitively and emotionally immature. Your counsel; submitted that those matters were relevant to your moral culpability and to the potential hardship for you in custody.
23 Your counsel also relied on your lack of any prior sexual offending. She submitted that at 26, you are relatively young and that your rehabilitation should play a role in your sentence, although she conceded it was difficult to assess your prospects for rehabilitation.
24 Your counsel also referred to this being the first time that you have been in adult custody. She submitted that you were already socially isolated and being in custody would increase the risk that you would become even more isolated.
25 Your counsel said you have acknowledged what you did was wrong but will not discuss your offending any further with her.
26 Mr Nelson, your offending is very serious. I have viewed some of the images stored by you. Those images include very disturbing and disgusting material. Male children from a very young age are shown being exploited by adults for the adult's sexual gratification. In some cases, in extremely gross or violent ways. If you look at and keep that material, you are encouraging the people who make the material and are further insulting the children involved. You transmitted some of this type of material to others.
27 You did not stop at that but went on to have conversations with young males or people who you thought were young males. What you describe in those conversations is absolutely disgusting and horrifying. I will sentence you on the basis that your descriptions of what you had done were based on fantasy and bragging, rather than reality. I hope that is the case. I am very concerned that what you were describing is a true reflection of what you would like to do.
28 What you were talking about and the material you had stored involved activities were very bad, very wrong and very illegal. Children are entitled to protection and must be protected from the sorts of activities that were on the images you stored or that you talked about in your conversations. I accept that the material varied in terms of seriousness, but as I have said, it included material which was extremely depraved.
29 You do not seem to understand how bad these things are. When Ben told you that what you said was disgusting and called you a paedophile, you threatened him and continued to try to get a boy to meet up with you. You had conversations with boys or people you thought were boys in attempting to seduce them into having sex with you. These are the offences of grooming and procuring. These are very serious offences. You did not care that they were under 16 and only children.
30 Your offending progressed from looking at child pornography material to having conversations with boys and then trying to meet up with them for sex. You have been engaged in this sort of behaviour over a considerable period of time. It is a very great pity that police did not act more quickly after the first offending was detected. Perhaps then your offending would not have continued.
31 I have taken into account that fortunately you had no physical contact with any victims. You did not try to disguise yourself or pretend to be younger, you did not offer bribes or inducements. These things would have made your offending more serious.
32 You are entitled to a significant discount for your plea of guilty. That plea has had considerable value in saving the time, expense and trauma of a trial. It is difficult to assess to what degree your plea of guilty might be said to be an expression of remorse. I accept that there was a strong prosecution case but consider that your plea of guilty is at least some reflection that you understand that your behaviour was wrong. To that extent, it does signify remorse. It is not possible to say more than that in respect of your remorse because you will not talk about your offending.
33 I note that the two psychologists who assessed you said that they could not assess your risk of re-offending with any degree of accuracy because of your unwillingness to talk about the offending. Accordingly, it is very difficult to make an assessment of your prospects of rehabilitation. You are relatively young and have an intellectual disability. Your rehabilitation is an important sentencing consideration. At present, I consider your prospects for rehabilitation to be poor. You persisted over time in pursuing your sexual interest in young boys. There is nothing at all wrong or illegal about being homosexual. It is very wrong and absolutely illegal to act on a sexual interest in boys under 16 years old. Unless you can understand that and get assistance to change your behaviour, then you are likely, in my opinion, to continue to re-offend given the opportunity.
34 You do have intellectual and communication difficulties, but your intellectual disability is mild. When looking at the content of the texts and communications you sent and what you did, I consider that you do have considerable ability to communicate and to understand what you are communicating. If these abilities were used by you to engage with an talk to people who could support you and assist you to change, then in time and with greater maturity you may be able to change your behaviour.
35 I consider that your intellectual difficulties and mental health problems do reduce your moral culpability but only to a small degree. I am satisfied on the material that I have seen that your mental health difficulties and intellectual difficulties do adversely affect your capacity to make appropriate judgements.
36 Those matters also impact on the weight to be given to general deterrence, which is a very significant sentencing consideration. I consider that the application of general deterrence ought to be moderated, but only to a moderate degree, because of your intellectual difficulties and mental state.
37 You appear to manage well in prison, but I consider that over time your difficulties will make imprisonment more difficult for you than would be otherwise the case.
38 There was a considerable delay in charging you in respect of Charges 1 to 5 but that is not in my view a significant sentencing matter. You did not have those charges hanging over your head. You continued to offend.
39 I consider that specific deterrence must be given weight in your sentence. You must try to understand that if you do this again, you will go to prison again for an even longer period.
40 Sentences of imprisonment are warranted for the purposes of denunciation, punishment, specific deterrence and general deterrence, albeit moderated. I consider that community protection must also be a significant sentencing consideration, in view of my assessment that your prospects for rehabilitation are low.
41 I will be convicting you and sentencing you to imprisonment on each charge. You will become a registrable offender for the purposes of the Sex Offender's Registration Act 2004. Charge 2, 3, 4, 5, 6, 7, 8 and 16 are Class 2 offences and therefore you will be required to comply with reporting requirements for the period of your life.
42 In respect of Charges 3 and 16, you will sentenced as a serious sex offender. I note and apply s.6(d), 6(e) and 6(f) of the Sentencing Act 1991. I note that community protection is required to be the principle purpose of sentencing in respect of those charges. I do not intend to impose a disproportionate sentence for that reason. I have taken s.6(e) into account when considering cumulation, but have decided to make the state sentences concurrent with the federal sentences.
43 In fixing the individual sentences and in determining the appropriate head sentence, I have considered and applied the principles of totality and proportionality. I have considered the nature of your offending, what victims were involved and the risk of harm to the degree that I am able, taking into account the various requirements of the sentencing legislation.
44 In fixing the non-parole period, I have taken into account that this is your first term of adult imprisonment. You are relatively young. I consider that you will need support, should you be released on parole. I also consider that it is important to provide you with an incentive to engage in rehabilitation.
45 Leslie Nelson, could you stand please?
46 In respect of Charge 1, you are convicted and sentenced to two months' imprisonment.
47 On Charge 2, you are convicted and sentenced to four months' imprisonment.
48 On Charge 3, you are convicted and sentenced to 12 months' imprisonment.
49 On Charge 4, you are convicted and sentenced to 12 months' imprisonment. Six months of that sentence will be served cumulatively.
50 On Charge 5, you are convicted and sentenced to three months' imprisonment.
51 On Charge 6, you are convicted and sentenced to six months' imprisonment and three months of that sentence will be served cumulatively.
52 On Charge 7, you are convicted and sentenced to nine months' imprisonment and three months of that sentence will be served cumulatively.
53 On Charge 8, you are convicted and sentenced to eight months' imprisonment and three months of that sentence will be served cumulatively.
54 On Charge 9, you are convicted and sentenced to six months' imprisonment.
55 On Charge 10, you are convicted and sentenced to ten months' imprisonment and five months of that sentence will be served cumulatively.
56 On Charge 11, you are convicted and sentenced to 12 months' imprisonment and six months of that sentence will be served cumulatively.
57 On Charge 12, you are convicted and sentenced to six months' imprisonment.
58 On Charge 13, you are convicted and sentenced to 12 months' imprisonment and that is the base sentence.
59 On Charge 14, you are convicted and sentenced to three months' imprisonment.
60 On Charge 15, you are convicted and sentenced to six months' imprisonment.
61 On Charge 16, you are convicted and sentenced to four months' imprisonment.
62 In respect of the federal sentences, the sentence on Charge 13 commences today, 6 August 2013. The sentences on Charges 1, 2, 5, 9,12, 14 and 15 also commence today, 6 August 2013. The sentence on Charge 4 commences on 6 February 2014. The sentence on Charge 11 commences on 6 August 2014. The sentence on Charge 10 commences on 6 March 2015. The sentence on Charges 6 and 7 commence on 6 October 2015. The sentence on Charge 8 commences on 6 February 2016.
63 The total effective sentence is 38 months' imprisonment. I fix 20 months as the period you are required to serve before you are eligible for release on parole. I declare that you have served 88 days by way of pre-sentence detention, to be deducted administratively.
64 In respect of the state sentences on Charges 3 and 16, of 12 months and four months respectively, they are to be served concurrently with each other and with the federal sentences imposed this day.
65 In respect of sentences on Charges 3 and 16, you are sentenced as a serious sexual offender. In respect of that sentence, I declare that you have served 88 days by way of pre-sentence detention, to be deducted administratively. I have made the orders for forfeiture that were sought.
66 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 51 months, with a non-parole period of 33 months.
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