Director of Public Prosecutions v O'Connor

[2015] VCC 792

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02045
CR 14-02093

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK WILLIAM O'CONNOR

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2015, 21 May 2015
DATE OF SENTENCE:	21 May 2015
CASE MAY BE CITED AS:	DPP v O'Connor
MEDIUM NEUTRAL CITATION:	[2015] VCC 792

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Dr N. Rogers SC	Office of Public Prosecutions
For the Offender	Mr S. Moglia	Littleton Hackford D'Alessandro

HIS HONOUR: 

1Patrick William O'Connor, you have pleaded guilty to one charge of failing to comply with sexual offender reporting obligations, two charges of procurement of a minor for child pornography, four Commonwealth charges of use a carriage service to groom a person under 16, one charge of indecent act with a child under 16, five charges of attempting to procure for child pornography and one charge of knowingly possess child pornography.  Those crimes carry maximum penalties of five years, ten years, 12 years, ten years, five years and five years respectively.

2You have also admitted, and I find proven, a breach of a suspended sentence.  Insofar as that charge of breach is concerned, you are convicted and discharged.  I will be restoring a portion of that suspended sentence and I will refer to that shortly.

3You are 25 years of age.  You pleaded guilty at the earliest reasonable opportunity and made full admissions to police.  Indeed, as I understand it, without those admissions, the severity and number of charges against you would have been less.  You clearly have to get a benefit for that.  Of some concern to me is that on a previous occasions, you had made full admissions as well, but in any event, you get that.  I also accept that for these purposes, there is appropriate remorse insofar as the offending is concerned and clearly you get the utilitarian benefit of those pleas of guilty insofar as furthering the course of justice.

4You have now been in custody for some 358 days and I sentence on the basis that any further sentence that you undergo will be carried out in protection.

5On the state charges before me, because of your previous offending, you are to be sentenced as a serious sex offender.  That means that sentences are to be cumulative unless otherwise ordered, that community protection becomes the principle sentencing purpose and that a disproportionate sentence can be given.  The Crown do not seek a disproportionate sentence and I would not have given one in any event.

6The suspended sentence was of nine months, and as I indicated to counsel already, there were clearly no exceptional circumstances and accordingly, that will be restored.  I will be ordering partial cumulation in respect of that later in this sentencing process.

7In your particular, the overall circumstances need to be gone through chronologically.  Back in September 2011, you were convicted of a number of charges of sexual penetration of a child under the age of 16 years.  You were given a total of one year and six months' sentence suspended for two years.  On 9 May 2013, you were again given a suspended sentence by me of nine months for two charges of indecent act with a child under the age of 16.  There is some overlap as to how this offending occurred but the offending that I am to sentence for you now breaches the suspended sentence that I put in place, but misses out by, as I calculate it, some two months on the sentence imposed back in 2011, by Her Honour Judge Lawson.

8

The situation with Judge Lawson's matter was that the victim then was

13 years of age and alcohol was involved.  You, insofar as those penetrations were concerned, included digital, oral in both directions, penis into vagina and penis into vagina on a separate occasion.  They all occurred within a short timeframe and obviously Her Honour, in my view, imposed a relatively lenient sentence.  She, at that stage, pointed out to you very clearly how a suspended sentence worked, what the purposes of it were and what the consequences of the breach would be.  Clearly you did not breach it, but not by a long way.  Her Honour said to you at that time that she hoped that the process had been a wakeup call to you insofar as appropriate sexual behaviour was concerned.

9The matters which I gave a suspended sentence involved a girl of 14 years of age, who had met you on Facebook in the middle of July 2011.  There was, again, a situation where you met the, as she was, complainant and then indecent acts took place, including her hand touching your penis and giving what you described as a hand job.  You touched her vagina, but there was no penetration.

10When sentencing you on that matter, I pointed out again the consequences of a suspended sentence and said to you that you already knew what a suspended sentence was about and I said if you were to breach it by any offending that involves gaol, certainly anything of this nature, you would go in.  I said that you had to be very careful and pointed out to you that you would not enjoy gaol if it ever came to that.

11That then brings us to the offending for which you are to be sentenced.  The Crown opening has been annexed.  I think, in the circumstances, there is no need for me to go into great detail.  It is not a situation where there are victim impact statements before me other than the very understandable one of the father of one of the complainants and I just simply need to describe what occurred.

12The charge of failing to comply with reporting obligations, bearing in mind that you are on the register for life, involved having contact with children without having told your manager that you were doing so.

13The actual offending in regard to the other charges involved, effectively, in each of them the same sort of conduct, other than in some, you actually met the complainant.  There is also contained within the reporting obligations offending in relation to a 13 year old whom you were having Facebook conversations with.  The charge of possess child pornography, as I understand it, involves you having obtained photographs and retaining them from some of the complainants in these matters.  I note that it is certainly not the highest end of child pornography, though in your particular situation, requires a custodial sentence.

14Charge 2, involved a 14 year old complainant.  You were messaging her and procuring child pornography.  The messages included, as was outlined, "I'll finger you when you then leave you cum can I put your pussy ones in then you suck it."  That sort of thing continued on for some period of time until in December 2013.  The complainant took several sexually explicit photographs of herself, including a photograph of her vagina and sent them to you.  She asked you later to delete them and you refused.

15Charge 3 was one of using a carriage service to groom.  The complainant in that matter was 15.  You were asking for photographs to be sent, what has been described, as a sex quiz with fairly graphic terms.  You were clearly aware that she was only 15 years of age and mentioned that in a couple of messages that you sent.  She was a complainant that you actually met and picked up.  You kissed her and drove her to her family home in Morwell and you met up with her on a further two occasions.

16Charge 4, again the same type of offending with a 14 year old.  You invited her to Lakes Entrance for New Year's and said that she could stay with you if she wanted.  The sex quiz was given again and you invited her at one stage around to your house for a drink.

17Charge 5, same type of charge, 15 year old complainant.  Same sort of modis operandi.  You did meet her and put your hand down her shirt, inside her bra, and touched her breast.  That gives rise to Charge 6 of indecent act with a child under the age of 16.

18Charge 7 of using carriage service to groom a person again, same sort of modis operandi.  Fourteen year old complainant and the same sex quiz and sexualised discussion.

19Charge 8 was attempting the same type of conduct for child pornography with a 16 year old victim.  I do not need to go through all the detail of these.

20Charge 9 was a 16 year old victim.  Charge 10 was a 15 year old victim and Charge 11, a 16 year old victim.  They were attempts.

21Charge 12 of procuring was a 13 year old victim and she took sexually explicit photographs and sent them to you, including photographs of her vagina.  Those photographs, as I have indicated, were later found by police and form part of Charge 14 of child pornography.

22Charge 13, again attempt to procure a minor.  She was 15 years of age and the same types of correspondence.  You did meet her.  She stayed the night with you and in that situation, there was some sexual physical contact.  That relates only to the reporting obligations in this particular situation and the possess child pornography I have already been through.

23The offending, Mr O'Connor, is serious enough in itself that I have, having read all the material, serious concerns as to whether you fully understand the gravity of what you have now engaged in on a relatively regular basis.  You have done it before, you were warned twice about sexual contact with young girls and here you are, having now been in custody for almost a year.  Obviously, it calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  The victim impact statement from the father of one of these girls shows the concern and psychological difficulties that causes not only for the complainant, but when it comes to light, to their parents who frequently in such matters have dreadful feelings of guilt and the like.

24Clearly an active custodial sentence is the only available disposition, so I then turn to matters personal to you.

25I have before me two reports from psychologists, one from Dr Lechner and one from Mr Bruce who saw you back a few years ago.  Their reports, in general terms, describe you as socially and emotionally immature.  They go through your student history.  You have clearly been able to work.  You got in a bit of trouble at school, but did reasonably well.  The risk aspects of their assessments is a bit hard to judge.  I have always worked on the basis that the first question when assessing risk is going to be has the person done it before and you clearly have.  You are of average intelligence.  You have described yourself as an addict insofar as cannabis was concerned, or at least a synthetic version of it.

26You told the people who had you assessed or a community corrections order that you used a bit during the offending.  I do not know what the truth of all that is.  The original offending with Judge Lawson involved alcohol and I have the strong impression overall, as was pointed out in my view by each of the reports, that you struggle to understand why the behaviour is wrong.  It is described in those reports, that socially and emotionally you seem to be functioning at the age of the complainants, thought I am told that there was also similar conduct with adults.  You have not learned from, it would seem, previous experience to any great length.  It can only be hoped that the lengthy period of time you have now spent in custody will be a salutary one for you.

27Mr Bruce said way back when he saw you in 2011 that he gained the impression that you did not quite grasp the seriousness of your situation.  I can only hope that you now do.  To say this is just a Facebook addiction I do not think is quite accurate.  You have met too many of these complainants for that to be generally regarded as the case.  You are still only young and there are prospects for your rehabilitation if you can come to grips with what has occurred, should be good.  The risk of you reoffending as described by Corrections as moderate.  I find that hard to accept.  I think the only way the community can get any guarantee or any confidence that you will rehabilitate is to do a sex offenders program.

28You have been able to provide references, which other than for this offending show that you are regarded by people very highly.  You have very strong family support and luckily for you, they have stuck with you throughout this whole period of time.  You have used your time in gaol well and you have undergone a number of programs and certificates which were handed up to me.  I take all those matters into account.

29The principles of totality apply very much in your particular situation.  The original submission was that you had done enough, but as I have indicated to counsel, there has to be an added period of imprisonment for the breach of suspended sentence and the seriousness of not complying with the Sex Offenders Register has to be brought home as well.  So I take all those matters into account and sentence as follows.

30Charge 1, three months.  Charge 2, 12 months.  Charge 3, a Commonwealth matter, 12 months.  Charge 4, a Commonwealth matter, 12 months.  Charge 5, a Commonwealth matter, 12 months.  Charge 6, six months.  Charge 7, a Commonwealth matter, 12 months.  I direct that the sentence imposed on each of those Commonwealth charges commence today.

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Charge 8, six months.  Charge 9, six months.  Charge 10, six months.  Charge 11, six months.  Charge 12, 12 months.  Charge 13, six months, and Charge 14, three months.  I direct that two months of the sentence imposed on Charge 1 be served concurrently with the sentence imposed on Charge 2.  That gives an effective head sentence on this indictment of 13 months. 

I direct that the sentences imposed on Charges 6, 8, 9, 10, 11, 12, 13 and 14 be served wholly concurrently with the sentence imposed on Charge 12.  My understanding is that I do not need to direct concurrency for the Commonwealth matters, but I do so entirely as a matter of caution.

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The other matter of the suspended sentence, as I have indicated, that I find the breach proven and you are convicted and discharged.  The sentence is fully restored and I direct that three months of that sentence be served cumulatively upon the 13 months resulting from the other indictment.  That means that there is an effective head sentence of 16 months.  I direct that

358 days be reckoned as having been served under that sentence.

33I direct that the indictment relating to the suspended sentence be read in conjunction with the other indictment and it is my intention that you have approximately four months to serve from this day.

34If you agree, upon the State charges, and upon your release, you will enter into a community corrections order.  That community corrections order will be with conviction and having had you assessed and having found that you are approved, you will be with the drug treatment condition, the offending programs condition and supervision.  The offending programs condition is to include the sex offenders program.

35In this sentencing process, as was pointed out to me very clearly by your counsel, at no time would you have appeared or have had enforced treatment for the difficulties that you have.  I am hopeful that that scenario can be achieved this way and that you will then no longer be a danger to young people within this community.  If that is not the case, then this sort of occurrence will reoccur and you will do a lot of time in gaol, Mr O'Connor.

36The community corrections order, if you will sign that.  Mr Moglia, if you do not mind going down with my associate?

37MR MOGLIA:  Yes.

38HIS HONOUR:  I have spoken to you before about this.  I cannot do much for you, it is up to yourself.  I will just say this to you, you are very fortunate that your family have stuck with you through this.  It must be just humiliating for them.  If you are tempted to offend in this way again, do not worry about yourself, whether you understand the effect it has on the complainants or not, I have got no idea.  But to put parents who are obviously so supportive of you through this again will just be an utter disgrace.

39If you breach this community corrections order by this sort of offending, you get brought back before me and on that four year CCO, if you have breached by this sort of offending, I will tell you now, I will give you years.  Do you understand that?

40OFFENDER:  Yes.

41HIS HONOUR:  This is transcribed and if it happens again, I will read it back to you.  Thank you Mr Moglia.

42MR MOGLIA:  As Your Honour pleases.

43DR ROGERS:  As Your Honour pleases.

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