Director of Public Prosecutions v Peddell
[2018] VCC 1546
•21 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02425
CR-15-01190
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON PEDDELL |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2018 | |
DATE OF SENTENCE: | 20 & 21 September 2018 | |
CASE MAY BE CITED AS: | DPP v Peddell | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1546 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sexual Offences
Catchwords: Use a carriage service to groom a person under 16 – Procure a child to engage in sexual activity outside Australia - Cause child pornography material to be transmitted using a carriage service – Use a carriage service to transmit an indecent communication to a person under 16 – Posses child abuse material – Fail to comply with reporting obligations
Legislation Cited:
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – HMcL v R (2000) 174 ALR 1
Sentence: TES: 7 years 7 months with a minimum of 5 years 8 months. Registered sex offender for life .
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth DPP | Mr I. Buckley for plea Mr J. Darby for sentence | CDPP |
| For the Accused | Ms R. Sleeth for plea Ms E. Ramsay for sentence | VLA |
HER HONOUR:
1. At the outset, I apologise to the parties for the delay in proceeding to sentence in this matter. I accept that the delay has probably had an impact on Mr Peddell and as it has been no fault of his, I will take the impact of the delay on him into account as a mitigating factor.
The charges
2 Jason Peddell, you have pleaded guilty to a number of Commonwealth offences involving the use of the internet to access and sexually deal with underage females between January and July 2017. I will refer to the specific charges in a moment when I outline your offending.
3 You have also pleaded guilty to State offences involving failure to report under the Sex Offenders Registration Act, and possessing child abuse material.
4 I sentenced you in December 2015 for similar offending, and part of the period in which you committed two of the offences for which you are to be sentenced today[1] breached the community correction order imposed in 2015. Through your counsel, you have pleaded guilty to a summary charge of contravening a condition of the community correction order and consented to this court dealing with it. Further, I note all of the offending breached a recognisance release order imposed in that 2015 sentence. As a result, you are also to be sentenced today for those breaches.
[1] Charges 1 and 2 up to 12 February 2017
The offending
5 After serving ten months of the term of imprisonment imposed in December 2015, with pre-sentence detention you were released into the community in February 2016. The offending you are being sentenced for today began in January 2017. You were then aged 44 years.
6 In general, your modus operandi involved:
· contacting underage girls online and befriending them;
· engaging in sexually explicit communications with them;
· requesting sexually explicit images from them (and in the case of one of them, you received such images); and
· threatening to harm yourself unless they agreed to watch you masturbate over the webcam via a video chat session.
7 I find that you in effect engaged in a course of online conduct with five females aged, or believed by you to be aged, between 13 and 15 years. You operated a Facebook account purporting to be a 19-year-old male which obviously is false. You also told the girls that you suffered from a range of mental health issues, which is true, but I find that by telling them that you sought to and did gain their support and comfort and this enabled you to manipulate their ongoing engagement with you. You offended against three of the victims within an overlapping time frame.
8 I proceed to sentence you on the basis of the Prosecution Opening and Annexure[2], which is an agreed summary.
Charge 1 – Use a carriage service to groom a person under 16 (maximum sentence of 12 years’ imprisonment) - Commonwealth
[2] Exhibit A
9 Between January and March 2017 (a period of 72 days), you communicated via Facebook Messenger with a 15 year old female from Western Australia who I will refer to as SJ. It is accepted on your behalf that she is a real person. You told SJ that you had been raped, and that two ways of coping with the PTSD[3], depression, anxiety and multiple personality disorder that you suffered, were to harm yourself, and to masturbate with females watching via webcam. This led to SJ revealing that she too had been raped and had resulting mental health issues, and she became upset with the emotions and memories the discussion brought up.
[3] Post Traumatic Stress Disorder
10 Very early in your communication with her, you suggested that you were thinking about her being naked, and having her watch you masturbate via webcam, but she initially declined. Later, SJ offered to watch you masturbate, which offer you said you would not accept. I find that you manipulated her into feeling she had to apologise for making that offer. Your discussions led to SJ sending to you a number of photos of herself, albeit fully clothed.
11 It is apparent from the Chat Log Summary[4] that the discussions were intense, personal and sexual in nature and that you were grooming SJ for sexual activity. By your plea of guilty you have accepted that.
Charge 3 – Procure a child to engage in sexual activity outside Australia (maximum sentence of 15 years’ imprisonment) - Commonwealth
[4] Part of Exhibit A pp15-19
12 Between March and July 2017 ( a period of 116 days), you communicated via Facebook Messenger with a 13-14 year old female from the United States who I will refer to as ELS. It is accepted on your behalf that she is a real person. It seems that you had previously communicated with - sorry, is there any problem?
13 OFFENDER VIA VIDEOLINK: Someone's coming in.
14 HER HONOUR: I see, thank you.
15 OFFENDER: That's all.
16 HER HONOUR: It seems that you had previously communicated with each other and you knew that she had a boyfriend. You pretended to have a girlfriend.
17 Over that period of three months, on a number of occasions, you requested ELS to watch you masturbate during a video chat session, encouraged her to masturbate, and discussed her relationship with her boyfriend, including suggesting that she have sex with him.
18 ELS sent you photos of her arms showing that she was harming herself and on one of these occasions, I find you took advantage of her vulnerability to suggest you masturbate during a video chat session with her, and this in fact took place. Thereafter, you pestered her if she did not respond to your messages, and throughout May and June, attempted to engage her in further sexual activity. You asked her to send you a topless photo of herself for your birthday, and ELS sent you a number of images, showing herself in clothing, a bra, a towel, and underwear. When she was slow to respond to your messages, and when she stopped responding, you attempted to manipulate her by saying you had a brain tumour which was to be removed in two weeks, so she only had that period of time to respond.
Charge 4 – Procure a child to engage in sexual activity outside Australia (maximum sentence of 15 years’ imprisonment) - Commonwealth
19 Between April and July 2017, (a period of 91 days) you communicated via Facebook Messenger with a person believed by you to be a 15 year old female from the United States who I will refer to as EMS. It is conceded by the prosecution that it cannot be established that she is a real person.
20 At the outset, you told EMS that you suffered from PTSD, depression, anxiety and borderline personality disorder. You also told EMS that you had been raped four years earlier, and that as a result you liked girls to watch you masturbate via webcam. It seems you understood EMS to have a boyfriend, and when she said she would watch you, you at first declined her offer. However, you quickly returned to the topic and tried to video call her the next day, without success, but within three days of the first communication, it is apparent from the Chat Log summary[5] that you had masturbated in her presence over a video call.
[5] Part of Exhibit A
21 You began discussing with EMS another female, K, who it appears from the communications was a friend of EMS, and with whom you had previously communicated online. At the end of April, discussion took place about EMS having a sexual bet with a friend. You picked up on this and developed the concept between the two of you, ultimately demanding that EMS convince K and her sister to send you nude photos, and if not, EMS lost the ‘bet’ and would have to video chat with you for two minutes whilst she was naked. You returned to the topic of the ‘bet’ throughout May, and ultimately EMS sent you images of K, albeit clothed. In June, you said you had won the ‘bet’, and referred to travelling to the United States and engaging in sexual activity with EMS and K at the same time.
Charge 6 – Cause child pornography material to be transmitted using a carriage service (maximum sentence of 15 years’ imprisonment) - Commonwealth
22 At the end of April, you requested to see EMS’s body and she sent you a photograph purporting to be of her, with her breasts and genital area exposed. You sent her a photo of your penis. Two days later, when EMS first mentioned the bet with a friend, you asked to see more of her body and she sent you another image, this time a close-up of an ano-genital area, purporting to be of her. The pornographic images were classified as categories 1 and 2[6] respectively.
Charge 7 – Use a carriage service to transmit an indecent communication to a person under 16 (maximum sentence of 7 years’ imprisonment) - Commonwealth
[6] Categorisation Model for child exploitation material of the Australian National Victim Image Library.
23 Over 5 days in late June 2017, you communicated via Facebook Messenger with a person believed by you to be a 15 year old female from the United States who I will refer to as LF. It is conceded by the prosecution that it cannot be established that she is a real person.
24 The communications outlined in the materials[7] are clearly indecent, being very similar to the discussions to which I have already referred in respect of the other girls.
Charge 5 – Use a carriage service to procure a person under 16 for sexual activity (maximum sentence of 15 years’ imprisonment) - Commonwealth
[7] Exhibit A
25 For a period in April and May 2017, you were communicating with a person you believed to be a 15 year old female living in Melbourne. “Cassie” was in fact an undercover police operative.
26 You told Cassie that you were aged 19, although when challenged by her about this after an exchange of photos, you said you were 20. You also told her that you suffered from the same mental health conditions as previously described by you to other people whom you believed to be underage females. Your communication with her was highly sexual, despite you expressing some fear that she might be a police officer.
27 There was no relevant online contact between you in June, but Cassie re-established contact in July, and you proposed a meeting at a cinema the following week. During the days leading up to the meeting, your messages continued to be very sexual, including what you could do to each other during the movie.
28 You attended the meeting place on 14 July 2017 and were arrested. You have been in custody ever since.
Charge 8 – Possess child abuse material (maximum sentence of 10 years’ imprisonment) - State
29 On your arrest, your mobile phone was seized and on analysis was found to have five images of a female aged about 12 -13 years. These were classified[8] as three category 1 and two category 2 images, the latter involving penetration.
[8] Categorisation Model for child exploitation material of the Australian National Victim Image Library.
30 You are to be sentenced on this charge on the basis that you knowingly saved or retained these images. You told police when interviewed that you had been sent these images a ‘couple of weeks earlier’ from someone you believed to be aged 13 or 14, in response to you sending that person a photograph of yourself naked.
Charge 2 – Fail to comply with reporting obligations under Sex Offenders Registration Act (maximum sentence of 5 years’ imprisonment) - State
31 As a result of earlier offending, in 2004 you were registered under the Sex Offenders Registration Act (SORA) for life. Your reporting obligations included reporting any unsupervised contact with any child, and you were aware that included online contact.
32 Your failure to report the contact with SJ, ELS, EMS and LF, all females who were, or you believed to be, under 16 years, constituted a breach of your reporting obligations.
33 As I said earlier, the offending which took place up to 12 February 2017 occurred while you were on the community correction order to which I ordered you be subject on 18 December 2015. Committing an offence while on such an order is itself an offence, with a maximum of 3 months’ imprisonment. Further, as I have also already said, all of the offending occurred while you were on a recognisance release order imposed in December 2015, and there are consequences for you having committed offences while on such an order.
Harm to the victims
34 There were no Victim Impact Statements in this matter. However, for charges 1 and 3 where the victims are known or conceded to be real people aged under 16, there is a presumption of harm. When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[9], and which includes future harm[10].
[9]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[10]Adamson v R [2015] VSCA 194, [56]
35 There is nothing before me to rebut the presumption of harm in respect of SJ and ELS (charges 1 and 3 respectively).
Seriousness of the offences
36 The prosecution submitted that each offence was serious and that the overall offending showed a course of conduct engaged in by you over a seven month period.
37 Counsel on your behalf submitted while some of the aggravating features were objectively present, the situation was not one of a person deliberately setting out to harm the victims, but involved you having psychiatric disorders with no impulse control.
38 I am satisfied that there are a number of factors that are aggravating for all the online offending:
· First, although you did not try to hide your identity, with the Facebook account being in your name, and in some instances photographs of yourself being provided to the victims, you did falsely claim to be aged 19 or 20, knowing that your target group of girls under 16 would not talk to you if you were older;
· Next, an age and power imbalance existed between you and the real victims and you deliberately took advantage of vulnerable underage girls, knowing or believing their ages[11] to be less than 16 years;
[11] In the case of LF, the offender seems to have ceased contact from when he understood her to have turned 16.
· Next, even if the overall period in which you offended was relatively short, it was not occasional and isolated contact with each victim, and there was considerable persistence in your communications in each instance, including threatening to harm yourself if the girls did not respond quickly enough to your messages;
· Next, the sexual activity you proposed was always for the girls to watch you masturbate in a video chat session;
· Next, your offending extended to victims residing overseas, demonstrating that use of the internet means that geographical distance affords no protection; and
· Lastly, I am satisfied that you did deliberately use your mental health issues and history of being raped to manipulate the emotions of the known victims, leading them to want to ‘help you’ and in some cases, to submit to your demands for them to watch you masturbate.
39 It is an aggravating feature for part of charges 1 and 2 that the offending occurred during the time you were on two community correction orders[12] and an aggravating feature for all of the charges that the offending occurred while you were on a recognisance release order.
Charge 1 – SJ Grooming
[12] One from the Magistrates’ Court imposed February 2015, and one imposed in the sentence of 18 December 2015.
40 I take into account the following matters in assessing the objective seriousness of this offence:
· SJ is a real victim;
· She was aged 15;
· I find it likely that she suffered from more than the presumptive impact from your grooming in the discussions about rape that brought up upsetting memories for her;
· you attempted to take advantage of her vulnerability, when she said she ‘gets pressured by guys and finds it hard to say no’ in the intense period of 13 days in which you engaged in persistent sexual talk;
· after a period of no communication, the sexual talk resumed; and
· when SJ responded to your communications less often, you threatened to harm yourself, and she responded by sending you images of her arms with burns and cuts.
Charge 3 – ELS Procuring
41 I take into account the following matters in assessing the objective seriousness of this offence:
· ELS is a real victim;
· she was aged 13;
· you took advantage of her vulnerability, in that you were aware that she was harming herself, and used that knowledge to procure her engagement in sexual activity with you online;
· the communications occurred over a period of four months and you were persistent in seeking her to engage in online sexual activity with you;
· the sexual activity of you masturbating in her presence did take place; and
· you offered her money; suggested you would come to the United States and meet her; requested her several times to send photos of herself and she did; and when she did not respond to your persistent requests to engage in sexual activity again, you told her you had a tumour in your head and she had only two weeks left to watch you.
Charge 4 – EMS Procuring
42 I take into account the following matters in assessing the objective seriousness of this offence:
· you believed you were communicating with a person aged 15;
· the communications occurred over a period of three months and you were persistent in seeking her to engage in online sexual activity with you;
· the sexual activity of you masturbating in her presence did take place; and
· you used the concept of the ‘bet’ to entice her to engage in further online sexual activity; you sent her indecent images and at your request, she sent you indecent images; and you suggested you would come to the United States and meet her to engage in sexual activity.
Charge 5 – Cassie Procuring
43 I take into account the following matters in assessing the objective seriousness of this offence:
· you believed you were communicating with a person aged 15;
· the communications occurred over a period of three months, although there was a break of a month in the middle;
· on resumption of contact, you were persistent in discussing meeting her to engage in contact sexual activity with you; and
· you proposed a meeting at which you anticipated some sexual activity would occur, and in fact went through with the arrangements, turning up at the appointed place and time, despite expressing some concern that she might be a police officer, as indeed she was.
44 I find that charge 5 against ‘Cassie’ is the most serious of the offences, as it involved you arranging and attending a meeting with someone you believed was aged 15, for sexual purposes involving personal contact. Next in level of seriousness are charges 3 and 4 against ELS and EMS respectively, where you engaged in online sexual activity with someone you believed was aged under 16, and who, for charge 3, was in fact a 13 year old girl. Further, associated with charge 4 is charge 6, involving child pornography material being sent to you by EMS. Next is charge 1, where you groomed a 15 year old for sexual activity over a period of months. Next is charge 8, the possession of the child abuse material found on your phone, which you had saved, and had looked at. Next is charge 7, where you engaged in a short period of indecent communication with a person until you believed they turned 16. Finally, charge 2 and the contravention of the community correction order are the least serious of all your offending charges, but of themselves are serious offences, because all or some of the offending occurred while you were under the obligations of these court orders, which were intended to reduce your risk of reoffending, and allow you to show a commitment to your rehabilitation.
45 I am satisfied that the offending in 2017 represents an escalation in the level of seriousness from your offending for which you were sentenced in 2015 because:
· the 2017 offending involves multiple victims;
· you attempted to meet with a ‘local’ victim;
46 Sorry - we have just lost sound. Can you hear me again Mr Peddell?
47 OFFENDER: I can hear you now, yes.
48 HER HONOUR: Thank you. Returning to what I was saying in my sentencing remarks, I will just repeat that paragraph.
49 I am satisfied that the offending in 2017 represents an escalation in the level of seriousness of your offending from 2015 because:
· the 2017 offending involves multiple victims;
· you attempted to meet with a ‘local’ victim;
· you moved ‘offshore’ to overseas victims; and
· you used the webcam to further your depraved sexual deviancy.
50 The offending in 2015 involved only one victim, a 14 year old girl, whom you procured to engage in sexual activity using various forms of carriage service. Over a period of 12 days, under a false profile, including the use of a false picture, you engaged in sexual talk, sent her a picture of your erect penis, and spoke of meeting on two occasions. A second charge related to failure to comply with your reporting obligations as a registrable sex offender. It is clear that these are highly relevant to my sentencing of you for the offences committed in 2017, and also highly relevant that the 2015 sentence was for offences committed only three weeks after you were released on a community correction order for a charge of wilful and obscene exposure.
51 Your criminal history goes beyond these matters. I will outline this history as I turn to your personal circumstances.
52 You are now aged 46 years. You were born in Melbourne but grew up in regional NSW. You did not, then, have a good relationship with your father, and struggled socially at school, were isolated, and subjected to bullying, although academically, you completed Year 12. References written by your mother, on behalf of your father, and by your maternal aunts[13], indicate that they all observed your mental health to deteriorate from your early teenage years and they noticed that you became more withdrawn.
[13] Exhibit 2
53 You left home at 17, and lived an itinerant life, finding yourself in most States of Australia. You begged to obtain money, including to abuse alcohol, and were also gambling heavily. On occasion, you prostituted yourself. You report being raped at the age of 17 or 18 by three males and ending up in hospital with severe injuries. The reference from your mother refers to this event as the most serious of the bad situations with which you were confronted while living on the streets. You were homeless for periods of time, interspersed with periods of employment in good jobs. I noted in my sentencing remarks in 2015 that in recent years in Victoria, you had some work, but found employment difficult to obtain because of your criminal history, and your status as a registered sex offender. That difficulty continued on your release from custody in February 2016.
54 Your criminal record reflects your personal circumstances. From the ages of 18-21, in 1991-1993, you were dealt with in NSW courts for what could be described as ‘street’, dishonesty and public transport offences. Your parents had returned to live in Victoria and you later came here too, but remained living on the streets, with charges of begging dealt with in Victoria in 1996 and 1997. In 1997 and 1998, you were dealt with in the Northern Territory and South Australia respectively, for dishonesty offences. In 1998-99, you were dealt with in Queensland for multiple ‘street’ offences committed within days of each other, followed by breaches of various court orders made in respect of those offences.
55 One of your aunts refers in her reference to you doing well from ages 30-40, that at age 30 (2002) you seemed to ‘get it together’, and began a traineeship in 2004, and she said the family attended your engagement in Queensland[14], which seems to be during this period of no offending taking place, although the timing is not clear on the material before me. Your aunt also says you returned to Melbourne and continued to work for the same company, lived with your parents, and with your grandmother for a time, and then moved into a share house. With the exception of a fare evasion in 2001 in Queensland, there are no recorded offences in any State or Territory between 1999 and 2004.
[14] Part of Exhibit 2
56 However in Victoria in 2004, you received your first gaol term of 6 months’ imprisonment, 5 months of which was suspended. If I have the timing correct, it seems this arose out of threatening letters you sent to a woman, and you lost your job as a result.
57 In 2004 you were also dealt with for a minor offence in Western Australia, and then there is another three year gap in your offending, until the first of your sexual offences is dealt with in Victoria – being two charges of indecent act with a child under 16, and one charge of stalking. You received a wholly suspended sentence of 18 months’ imprisonment, and were placed for the first time on the Sex Offender Register. Again, there is a three year gap until 2010, when you were dealt with in Victoria for failing to report as a sex offender, and it seems also dealt with that year in NSW for failing to report as a sex offender, as well as for being a child sex offender found loitering. Another two years passed with no recorded offending before you were dealt with in Queensland in 2012, again for failing to report as a sex offender.
58 You were aged 30-40 between 2002 and 2012, and while the frequency of your offending was much lower than earlier in your life, the offences themselves were more serious, and involved sexual offending and related offences for the first time at age 35.
59 In 2013, you were dealt with in Queensland for giving false or misleading information, and after another two year gap in offending, in early 2015 you were dealt with in Victoria for wilful and obscene exposure and were released on a community correction order for 18 months, to expire in August 2016. That offence involved you masturbating in your house, but in view of teenaged school girls outside.
60 In December 2015, you were sentenced by me for your most serious offending to that point – using a carriage service to procure a child under 16 for sexual activity, and, for the fourth time, failing to report as a sex offender. You received 2 years’ imprisonment on the procuring charge, to be released on a recognisance after 10 months, and a community correction order for 12 months on the second charge, to run concurrently with the community correction order you were already undertaking from the Magistrates’ Court. That order was breached by the offending for which I sentenced you.
61 On 12 February 2016, under the terms of the sentence I imposed, you were released from custody on a recognisance and on the community correction order, both of which had conditions that you not commit an offence. In May that year, you were dealt with for the breach of the earlier community correction order of the Magistrates’ Court, and it seems it was confirmed. After another period in the community during which you did not offend (February 2016 – January 2017), you began committing the offences for which I am to sentence you today.
62 On release, you found it difficult, firstly to find stable housing where your criminal history was not discovered; secondly, to find employment. You eventually did secure stable housing. You consider these difficulties are related to your status as a registered sex offender, and also find the impact of registration ‘devastating’ in other ways, as it affects your ability to form age-appropriate relationships, and your ability to mix freely with your family on social occasions when children will be present, without notifying the authorities. This has led to you missing family events, and becoming even more isolated. That is, of course, all a consequence of your own actions and inability to always control your deviant impulses.
63 In my sentence of 2015, on the basis of material I then received, including reports from mental health professionals, I made findings about your mental health and how it affected the sentence I was to impose[15]. I received a second report from psychiatrist Dr Zimmerman for the plea this year[16], as well as notes from your attendance at Casey Psychology Centre as part of your community correction order[17]. I also received reports from Corrections Victoria[18] which contain material relevant to a consideration of your mental health leading up to and during the offending.
[15] See DPP v Peddell [2015] VCC 1923; Exhibit D on this plea is a folder containing material relating to the 2015 prosecution.
[16] Exhibit 4
[17] Exhibit 3
[18] Exhibit C
64 From all of those documents, I accept that your mental health was of concern to your Corrections officer immediately on your release from custody in February 2016. The Area Mental Health team was contacted and you were referred to your doctor for an assessment. Suicidal ideation was noted on that first Corrections appointment, and noted again in March, May, July and December 2016. The Area Mental Health team was contacted numerous times. You attended a psychologist from July 2016 until May 2017, and the notes reveal that you were admitted to hospital the month before your first appointment with them, following an overdose of your prescribed medication, and also that you reported to the psychologist low mood, moderate anxiety, ongoing self-harm, and difficulty sleeping. You also reported that you did not think that the medication prescribed by the psychiatrist was working, and that you did not receive any counselling from that psychiatrist as part of that treatment.
65 In her 2018 report, Dr Zimmerman confirmed her previous diagnoses of paraphilic disorder, antisocial/borderline personality disorder, and depression. She expressed the opinion that there was a deterioration in your mental state from when she last saw you in 2015. She found it likely that you had episodes of depressed mood over the period of the offending in 2017, and that as at February this year, you presented as significantly depressed, despite taking prescribed medication, and were actively harming yourself by cutting. She formed the view that a custodial sentence would impact more significantly on you as a result of your depression and personality structure.
66 In my sentence of December 2015, I accepted that you then had severe symptoms of a mood disorder with depression, anxiety and stress; had psychiatric diagnoses of hebephilia, depression and antisocial/borderline personality; and that your cognitive profile then showed difficulties which were entirely consistent with extremely severe depression and anxiety.
67 At that time, I said that it was not clear to me that you were suffering from depression to a degree that impaired your mental functioning at the time of the offences, or if you were, unclear as to the nature and severity of that impairment. I decided that even if you were suffering from depression in March 2015, that it did not impair your abilities in any relevant way, nor obscure your intent to commit the offences and if it did contribute causally, it was inextricably bound up with the main cause of the offending, your paraphilic disorder. As a result of that finding, your moral culpability was not reduced, and the need for general and specific deterrence was not moderated.
68 There were no submissions made on the plea in 2018 that challenged these findings for your current situation.
69 On the material before me in 2018, I still find that the main cause of your offending is your paraphilic disorder. However, I note that you were able to resist your impulses for almost 12 months after your release from prison, despite your depressive state, and the negative factors impacting on you, and despite your access to a computer and the internet.
70 I accept the opinion of Dr Zimmerman[19] that:
“Individuals with paraphilia often relapse into acting on their desires in the context of stressful situations and [in her opinion] there is no doubt that since [your] release from February in 2016, [you were] struggling with [your] unstable housing, the impact of others finding out about [your] offending history, [your] increasing isolation from [your] family, and [your] sense of having no meaningful future ahead of [you].”
[19] Exhibit 4
71 I find that these factors did place you at increased risk of offending, borne out by the fact that you began re-offending in January 2017, although you then had the supervision and support of your Corrections officer, of a psychologist, and a psychiatrist, and by then had finally commenced the Sex Offender Program for the first time, even though this had been ordered by a court back in February 2015. You consistently reported to those supervising your correction order that you were doing well, even though you were by then offending against multiple victims.
72 I therefore sentence you today on the basis that the main cause of your offending is your paraphilic disorder, but I accept that your depression has worsened, and that provides in part an explanation for your re-offending. I also take into account that use of alcohol has been a longstanding issue for you, and note your report to Dr Zimmerman that you were “bingeing” once a week before your arrest, and that some of the offending occurred while you were drinking alcohol. She considers that you minimise your alcohol issues.
73 Your risk of future offending is inextricably linked to your need for psychiatric treatment. Dr Zimmerman also said:
“Paraphilias tend to be enduring but, with successful interventions, the behaviour associated with the distressing or illegal interest can be curtailed.”
74 As to your personality disorder, while noting that you did not appear to have benefitted from the psychological work in the community, she considered that your explanation that you were feeling disengaged because of your low mood is quite feasible and said:
“Long-term psychological interventions can assist…to manage intense emotions more constructively”.
75 Dr Zimmerman concluded that in order to work with you effectively on your sex offending and personality difficulties, it is vital to treat your depression more effectively. I said much the same thing in my sentencing remarks in 2015. She suggested review by a psychiatrist for potential adjustment to your antidepressant medication, and for review of the need for antipsychotic medication, as she thought there is no evidence of psychosis. She also recommended early engagement for intensive work on your sex offending as well as regular work with a counsellor, and that once you are released, that intensive case management is crucial for the reasons she outlines, not the least to reduce your considerable risk. I fully endorse all of the comments in that last paragraph of her report.
76 I find your risk of reoffending remains high without such treatment, and your prospects for rehabilitation, even with treatment, are guarded because of the combination of your longstanding and entrenched psychiatric and personality issues.
77 Turning to other matters that I take into account, firstly, I recognise that your plea of guilty has avoided the need for a trial, and where underage victims may have been saved from giving evidence in a sexual offences case, that is of considerable importance. You have shown your willingness to facilitate the course of justice, even though the case against you is a strong one.
78 Next, I take into account that with your deteriorating depression, the delay between the plea date and the passing of sentence today will have impacted on you, and as that delay was no fault of yours, I treat it as a factor mitigating your sentence.
79 Next, I take into account that you have had bad experiences in prison, particularly in metropolitan prisons where you have been assaulted while on remand. It is for that reason that you are receiving this sentence over a video link to avoid you having to be transported to court and pass through the Metropolitan Remand Centre or Port Phillip Prison. Fortunately, you have spent most of your time at Hopkins Correctional Facility, where you have had work. Your aunts visit you there when they can, but unfortunately your mother has not been well, and the distance means that she cannot visit you often.
80 Next, I take into account that while not condoning your depraved behaviour, your family continues to support you, and your father and both aunts were in court to support you on the plea date, your mother not being able to attend. Their love and support is vital for your chances of rehabilitation, such as those chances may be.
81 Next, I find that you have shown little insight into your offending, as can be seen from Dr Zimmerman’s remarks[20], including that while you appeared to take on board messages learned from the sex offender program, you demonstrated that your regret largely centred around your ‘gullibility’ at arranging to meet with an undercover police operative which lead to your arrest. On the other hand, your family report that you do feel remorseful for your actions[21].
[20] Exhibit 4
[21] Exhibit 2
82 I received a letter from you expressing your remorse[22], as I did in 2015. On that last occasion, I accepted that the letter showed “true remorse for your actions and their impact on the victim and some insight into your offending, with an expression of a desire not to commit such offences again”[23].
[22] Exhibit 6
[23] Sentence of 18 December 2015. [2015] VCC 1923
83 The prosecutor submitted that I should not accept the 2018 letter as going to genuine remorse, insight or as relevant to your prospects for rehabilitation. Your counsel submitted that the fact that this is a second letter does not preclude it from being received as evidence of remorse for your offending and the impact on your victims, or affect its weight.
84 I find that there is some room to consider remorse is still genuinely felt by you, despite the fact that you re-offended within months of expressing remorse previously, but it is very limited, and does not demonstrate any insight.
85 For all the offences, deterrence is of great importance: both general deterrence, by which perpetrators of online sexual offences against children should be made aware that, if detected, they will face very lengthy terms of imprisonment; and specific deterrence, which means that there is a high need for my sentence to deter you from re-offending, given that you have a relevant criminal history, your offending has escalated from previous sexual offending, and that you have committed these offences while still undergoing sentence for that earlier similar offending. Further, the fact that you have life-long reporting obligations under the SORA did not deter you, and you have failed to comply with these reporting conditions on multiple occasions.
86 It is also necessary for the sentences I impose today to reflect the community’s denunciation of such abhorrent offences, and to render just and adequate punishment in all the circumstances. I am satisfied for the Commonwealth offences that no other sentence than imprisonment is appropriate, and for the State offences, that there is no alternative to imprisonment.
87 I note that on charge 8, you are to be sentenced as a serious sex offender if you are imprisoned on any of charges 1, 5 or 6, which will happen. As a result of your status as a serious sex offender for charge 8, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed on that charge. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. However, the prosecution do not seek that, and I do not intend to do that.
88 It is also necessary for the sentence I impose on charge 8 to be wholly cumulative on the other charges unless I order otherwise, because of your status as a serious sex offender. I have had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[24] for sentencing on charge 8.
[24]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
Sentencing principles
89 This is a most complicated sentencing exercise. I have weighed the objective seriousness of the offending, your criminal and personal history, and the matters in your favour, and considered the written[25] and oral submissions of counsel as to sentence. I have had regard to the authorities from intermediate appellate courts to which I was referred.
[25] Exhibits B, E, 1 and 5
90 I have taken into account that the totality and proportionality principles apply, by which I must consider the whole of your offending, including that for which you were sentenced in 2015, and the sentence there passed, as well as the sentence remaining from then which you must serve beginning today by virtue of your breach of the recognisance order.
91 However, for charge 8, the totality principle is potentially modified by the serious sex offender provisions of the Sentencing Act (Vic)[26]. As I have said, that sentence must be wholly cumulative unless otherwise directed. I have decided to modify the effect of accumulation for charge 8, in order to give some effect to the principle of totality.
[26] Section 6E
92 To make it clear, I have imposed sentences on each charge that I consider are appropriate in all the circumstances that I have referred to, and have addressed totality by modifying the accumulation between the charges, while recognising that there should be some accumulation between all charges to recognise the different offences but also the overlap between some of them; and by having regard to the remaining sentence you must serve, to the whole period of imprisonment that you will have to serve arising from the previous sentence in 2015 and from today’s sentence, and to the whole of the offending committed by you for which those sentences were imposed.
93 Yes, I am just pausing there, Mr Peddell, because I have, as I said, provided the proposed sentence to counsel and I just need to check with them, because it is so difficult, where there may be an error. Yes, Mr Darby.
94 MR DARBY: It is difficult. We've gone over it a couple of times probably. And on my calculations the Federal sentence, when all the start dates are taken into account, ends up at eight years, head sentence, rather than six years, nine months.
95 HER HONOUR: Just pardon me a moment. Yes, thank you.
96 MR DARBY: And then effectively 12 months of the 14 months on the State sentence is cumulative. So, it would be a global effective sentence of nine years.
97 HER HONOUR: Yes, I see.
98 MR DARBY: And the final thing I'd add is because the State sentence starts two months before the expiration of the Federal sentence, the State non-parole period would start then. So, the global non-parole period would be effectively five years and six months.
99 HER HONOUR: I have a different copy in front of me. So, the document that you've got, did that include what my intention was as to cumulation?
100 MR DARBY: Yes, by way of the start dates.
101 HER HONOUR: Yes.
102 MR DARBY: Yes.
103 HER HONOUR: No, just in terms of putting it in the usual terms.
104 MR DARBY: No, I don't think we've got that yet.
105 HER HONOUR: Well, I'm just wondering whether - yes, it should be the first paragraph of the document that you have.
106 MR DARBY: Yes.
107 HER HONOUR: So, I'm not sure whether you've worked out whether that - - -
108 MR DARBY: I must say I effectively skipped that and just worked from the start dates.
109 HER HONOUR: Well, I was just wondering whether in fact what we should be doing is attempting to ensure that the sentence I impose - - -
110 MR DARBY: Yes, reflects - - -
111 HER HONOUR: - - - is correctly structured to fulfil that intention.
112 MR DARBY: To reflect paragraph 1, yes.
113 HER HONOUR: Yes.
114 MR DARBY: That - we just may need a minute to work that out.
115 HER HONOUR: Yes, of course. Well, this is always difficult - - -
116 MR DARBY: Yes.
117
HER HONOUR: - - - so, I'm just trying to think about the most efficient way to do this. Mr Peddell obviously wants to know what his sentence is going to
be - - -
118 MR DARBY: Yes.
119 HER HONOUR: - - - but I'm reluctant to fully go through the rest of the material until I know this for sure. But I also don't want counsel to rush into making this - giving me this assistance.
120 MR DARBY: Yes.
121 HER HONOUR: So, perhaps I'll allow counsel some time to look at this now and see if we can come to the final conclusion.
122 MR DARBY: Yes.
123 HER HONOUR: Otherwise, it might be a matter of having to return to this subsequently.
124 MR DARBY: Yes, perhaps if we could have 10 or 15 minutes now and then see how we go.
125 HER HONOUR: Yes, all right, thank you. Thank you, Mr Darby. Ms Ramsay, just on a much more minor matter than what we've just been discussing, the forfeiture of the $800 or the estreatment of the $800, did you want to find out whilst you have Mr Peddell on the video link or whether you want to just nominate a period of time for that to be paid?
126 MS RAMSAY: Yes, perhaps I'll seek some instructions from him when we stand down.
127 HER HONOUR: Thank you. And I note that also Mr Peddell will need to eventually sign the document of consent to retention and destruction of the mobile phone - - -
128 MS RAMSAY: Yes.
129 HER HONOUR: - - - and so perhaps you might discuss that with him and with Mr Darby how that might be provided to him in order for him to sign that.
130 MS RAMSAY: Yes, thank you, Your Honour.
131 HER HONOUR: Thank you. So, Mr Peddell, I'm going to leave the Bench and allow counsel to discuss the mechanics of the sentence before I finally pass it. And there are a couple of things for Ms Ramsay to check with you, so if you can just remain there on the video link - - -
132 OFFENDER: Yes.
133 HER HONOUR: - - - we'll get back to you as soon as we can. Thank you.
(Short adjournment.)
134 HER HONOUR: Thank you.
135 MR DARBY: Thank you, Your Honour. We've checked or I guess done a separate check on the figures mentioned in Charge - in paragraph 1. They seem to add up to around seven years and 11 - 10 or 11 months.
136 HER HONOUR: Yes, I realise that I had made an error there too, that - yes.
137 MR DARBY: Yes.
138 HER HONOUR: So, it's seven years, 11 months is what I came to.
139 MR DARBY: Yes. So, I guess we're not - so in light of that - well, I guess is the intended total effective Commonwealth sentence, that's mentioned, as six years and nine months.
140 HER HONOUR: Well, that was what I had thought that I was getting to.
141 MR DARBY: Yes. And we think - yes.
142 HER HONOUR: So, yes, I certainly wasn't intending it to be eight years.
143 MR DARBY: Yes.
144 HER HONOUR: So, that's the important thing.
145 MR DARBY: So, I guess we're certainly happy to assist in getting there but we just think we'll need more time.
146 HER HONOUR: I understand that. Well, thank you Mr Darby. Ms Ramsay, have you discussed with Mr Peddell the - because of the difficulty of these things, the need perhaps - - -
147 MS RAMSAY: Yes.
148 HER HONOUR: - - - to come back tomorrow to get it right.
149 MS RAMSAY: Yes, yes.
150 HER HONOUR: Yes.
151 MS RAMSAY: I did, Your Honour, and one more day in that context is not too significant. So, he understands that and I think, yes, now that we know what we're working to I'm sure that we can reach an agreement as to how to facilitate that. If it could be listed tomorrow afternoon, I could attend, Your Honour. If it has to be in the morning, someone else from Legal Aid can probably attend.
152 HER HONOUR: No, no, I think I'd rather have you stay in it, Ms Ramsay, so, 2.15, will be fine for me.
153 MS RAMSAY: Thank you, Your Honour.
154 HER HONOUR: And in terms of the other matters, the - were you able to discuss those with Mr Peddell?
155 MS RAMSAY: Yes, Your Honour. He believes that he's already signed the disposal order and that's certainly a possibility and the Commonwealth is going to confirm that.
156 HER HONOUR: We can check that tomorrow as well, yes.
157 MS RAMSAY: In relation to the $800, Your Honour, obviously he's not going to be in a position to pay that until his release from custody. And so if that is the time period that Your Honour's going to sentence him to in this order, sorry, Your Honour, I just can't remember what the total - - -
158 HER HONOUR: Well, that's all right. So, basically the release date - - -
159 MS RAMSAY: In any event - - -
160 HER HONOUR: - - - within - - -
161 MS RAMSAY: - - - within say three months of his release - - -
162 HER HONOUR: Yes.
163 MS RAMSAY: - - - from custody.
164 HER HONOUR: Mr Darby, any issue with that.
165 MR DARBY: No issue with that. There's an order to be signed but I can perhaps hand that up tomorrow?
166 HER HONOUR: I do have that actually, so we can - - -
167 MR DARBY: Yes.
168 HER HONOUR: - - - do that tomorrow once we know - - -
169 MR DARBY: But, no, no issue with that.
170 HER HONOUR: I see, I've got a stamped one but, yes, we can't really fill in the time - - -
171 MR DARBY: No, that's - - -
172 HER HONOUR: - - - unless I just related to the release date.
173 MR DARBY: Yes, that's - yes.
174 HER HONOUR: But anyway, I'll have a look at that, we'll do that tomorrow as well. So, Mr Peddell, I'm sorry for the further delay and the potential confusion. I have to say, I'm not the only judge that finds these particular types of sentences difficult. That's because of the different sentencing regimes between Commonwealth and State offences. I will be assisted by counsel looking at this and as you've heard, this isn't an auction but I have been talking about the figures of thinking that the overall sentence would be somewhere around seven years, seven months. It might be a bit less, it might be a bit more but it was looking at being, on the way that I had worded it, up to nine years and that was not my intention. So, I will be assisted by counsel clarifying how to word the order so that we get to the result that I intend and then I will formally announce those orders tomorrow and you will know exactly what your sentence is going to be.
175 OFFENDER: Yes.
176 HER HONOUR: So, we will have you back on the video link at 2.15 tomorrow, Mr Peddell and we will finalise the orders then. So, yes, Ms Ramsay.
177 MS RAMSAY: Could you just clarify Your Honour's - for our calculation purposes, in relation to the State sentence, currently if the Commonwealth sentence is six years and nine months and the total is seven years and seven months that would be ten months cumulation - - -
178 HER HONOUR: Rather than 11.
179 MS RAMSAY: - - - and I think that we thought it was 12 at the moment. And in the first paragraph, Your Honour's intention there, is it four months of the 14, which might be supposed to be ten with four being the - - -
180 HER HONOUR: Yes, yes.
181 MS RAMSAY: - - - four months being cumulative.
182 HER HONOUR: Yes.
183 MS RAMSAY: No, sorry, that's right, I'm confusing myself. Anyway - - -
184 HER HONOUR: It is four months and of course that's not even - - -
185 MS RAMSAY: - - - did you want - - -
186 HER HONOUR: - - - worrying about the fact that the serious sex offender legislation has it in the reverse as well - - -
187 MS RAMSAY: Yes.
188 HER HONOUR: - - - but we're just not going to go there.
189 MS RAMSAY: No, so - - -
190 HER HONOUR: That's too hard.
191 MS RAMSAY: - - - should we word it to make that give effect to the seven years, seven months on top of six and nine months which would be ten months of the State sentence - - -
192 HER HONOUR: Yes.
193 MS RAMSAY: - - - rather than 12?
194 HER HONOUR: Yes, thank you. Yes, that's - that is correct. Well, I'll obviously hear if there's any other queries that need to be dealt with tomorrow but otherwise we will hope to have a resolution and I'm grateful for the assistance of counsel. At 2.15, or shortly thereafter tomorrow.
195 MR DARBY: Thank you.
196 MS RAMSAY: As Your Honour pleases.
197 HER HONOUR: And thank you also for shifting it from this morning as that was also necessary. Thank you. So, 2.15 tomorrow.
ADJOURNED UNTIL FRIDAY 21 SEPTEMBER 2018
HER HONOUR RESUMED SENTENCING ON FRIDAY 21 SEPTMBER 2018
HER HONOUR:
198 My intention is to make the sentence on charge 5 the base sentence, and to cumulate 12 months of the sentences on charges 3 and 4, 6 months of the sentence imposed on charge 1, 4 months of the 14 months owing on the sentence imposed on 18 December 2015, 2 months of the sentences imposed on charges 2 and 6, and 1 month of the sentence imposed on charge 7 on the sentence imposed on charge 5. The sentence imposed on the summary charge is intended to be wholly concurrent.
Sentence
199 You are convicted and sentenced as follows:
200 On charge 5 (Commonwealth), use carriage service to procure – 4 years 8 months’ imprisonment. That sentence starts today.
201 On charge 3 (Commonwealth), Procure sexual activity outside Australia – 4 years 6 months’ imprisonment. That sentence starts 3 years and 6 months before the expiration of the sentence imposed on charge 5;
202 On charge 4 (Commonwealth), Procure sexual activity outside Australia – 4 years 4 months’ imprisonment. That sentence starts 3 years and 5 months before the expiration of the sentence imposed on charge 3;
203 On charge 1 (Commonwealth), Use carriage service to groom – 3 years 6 months’ imprisonment. That sentence starts 3 years 1 month before the expiration of the sentence imposed on charge 4;
204 On charge 6 (Commonwealth), Cause child pornography to be transmitted – 2 years’ imprisonment. That sentence starts 1 year and 10 months before the expiration of the sentence imposed on charge 1;
205 Under s20A(5)(c)(i) Crimes Act (C’th), I revoke the recognisance release order made 18 December 2015 and order that you be imprisoned for that part of the sentence of imprisonment fixed under s20(1)(b) of that Act that you had not served at the time of your release on 12 February 2016. That sentence starts 10 months before the expiration of the sentence imposed on charge 6;
206 On charge 7 (Commonwealth), Transmit indecent communication – 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence imposed under s20A(5)(c)(i) Crimes Act (C’th).
207 The effective Commonwealth sentence is 7 years and 7 months’ imprisonment.
208 I direct that you serve 5 years of the federal sentence before becoming eligible for federal parole. If you are released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and you may be ordered to serve the balance of the sentence in prison. The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community, if you are considered to be suitable.
209 I order that the recognisance of $800 entered into by you on 18 December 2015 be estreated and that you pay that amount to the proper officer of the County Court of Victoria at Melbourne within three months of your release from custody.
210 Turning to the State offences:
211 On charge 8 (State), Possess child abuse material – 12 months’ imprisonment, that is the base State sentence;
212 On charge 2 (State), Fail to comply with reporting obligations under the Sex Offenders Registration Act - 8 months’ imprisonment;
213 On the summary charge, (State) contravene a condition of a community correction order – 1 month’s imprisonment;
214 The community correction order made on 18 December 2015 is cancelled and I make no further order as to the original offence for which that sentence was imposed.
215 I direct that two months of the sentence imposed on State charge 2 be served cumulatively on the sentence imposed on State charge 8. All other State sentences are concurrent. That makes an effective State sentence of 14 months’ imprisonment.
216 I direct that you serve 8 months of the State sentence before becoming eligible for State parole.
217 The effect of the orders for commencement of the federal sentences and cumulation of State sentences is a total global sentence on the indictment and the summary charge of 7 years 7 months’ imprisonment and a global non-parole period of 5 years 8 months.
218 I declare that the period of time you have already spent in custody is 435 days including today. Pursuant to section 16E Crimes Act (Commonwealth) and section 18(4) Sentencing Act (Vic), these days are to be deducted administratively from your sentence.
219 I declare that you have been sentenced as a serious sex offender on charge 8, and direct that this be noted in the records of the court.
220 As a result of my sentence today, you continue as a registrable sex offender under the Sex Offenders Registration Act 2004. Charges 3 and 4 are class one offences, and charges 1, 5, 6, 7 and 8 are class two offences, and as you were previously convicted of registrable offences[27], you will be required within 7 days of release from custody to report your personal details and continue a regime of annual reporting required by the Act and be otherwise subject to the Act for the remainder of your life. You have previously been provided with a form which notifies you of your reporting obligations, but a form referrable to today’s sentence will be provided to your counsel. I do not require you to sign a form to again acknowledge your understanding of the reporting obligations. You have now failed to comply multiply times, but that is not because you do not understand your obligations.
[27] 2015 convictions for an offence against s474.26 Criminal Code (C’th) and for offences against s46(1) Crimes Act (Vic)
221 Lastly, if you had not pleaded guilty to the State charges, but had been found guilty of those charges after a trial, the sentence I would have imposed on those offences alone is 3 years’ imprisonment with a non-parole period of 2 years.
222 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required.
223 And those are my orders.
224 MS RAMSAY: As Your Honour pleases.
225 MR DARBY: Just one matter. I may have just missed it. But a directions required in relation to the commencement of the State sentence.
226 HER HONOUR: Yes, thank you. I didn't say that, quite correct. So, that should be before I announce the global effective sentence.
227 MR DARBY: Yes.
228 HER HONOUR: So, I'll just add in that I direct that the State sentence of 14 years, total effective sentence of 14 years - - -
229 MR DARBY: (Indistinct words).
230 HER HONOUR: Pardon, 14 months. I'll start that again. I direct that the total State sentence of 14 months and the non-parole period of eight months commence upon the expiration of the non-parole period in relation to the Federal sentence.
231 MR DARBY: Yes, thank you.
232 HER HONOUR: And just checking that I did have the charges correct for the - because I had a mistake in my written outline - - -
233 MR DARBY: Yes.
234 HER HONOUR: - - - for the sex offender registration. It is 1, 5, 6, 7 and 8.
235 MR DARBY: Yes, yes, I've just checked it.
236 HER HONOUR: Thank you. All right, so Mr Peddell, what all of that means is, as I've said, seven years, seven months with a non-parole period of five years, eight months. I'm now going to sign the reporting obligations form and that is the form that I will provide to your counsel. Thank you. And I have signed the estreatment order as well. All right, well I thank you once again for your assistance, Mr Darby and Ms Ramsay, and your instructor as well, Mr Darby. And I thank you for your patience, Mr Peddell, and having to come back today.
237 MR DARBY: Thank you, Your Honour.
238 HER HONOUR: So, we will now adjourn the court sine die.
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