Director of Public Prosecutions v Peddell
[2015] VCC 1923
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01190
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON PEDDELL |
---
| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 December 2015 |
| DATE OF SENTENCE: | 18 December 2015 |
| CASE MAY BE CITED AS: | DPP v Peddell |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1923 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr B Kerlin | CDPP |
| For the Offender | Ms D McCann | Victorian Legal Aid |
HER HONOUR:
1Jason Peddell you have pleaded guilty to a charge of using a carriage service to procure a person under 16 years to engage in sexual activity, which is an offence against the law of the Commonwealth with a maximum sentence of 15 years' imprisonment. You have also pleaded guilty to a charge of failing to comply with the reporting obligations of the Sex Offenders’ Registration Act 2004, which is an offence against the law of Victoria, with a maximum sentence of five years' imprisonment or a fine of 60 penalty units.
2I proceed to sentence you on the basis of the Prosecution Opening which was read out on your plea[1]. In brief, between 7 and 19 March 2015, you communicated with a 14-year-old girl using instant messaging applications, email and telephone. You were aged 42. You created a false profile, claiming to be a 14-year-old boy and used a picture of a boy of that age. Initially the conversations were not sexual, but very quickly that changed. The communications became highly sexual from your direction, including you sending her a picture of your erect penis and asking her to send you a picture of her in her underwear. You talked of meeting on two occasions, but neither meeting eventuated as you were found out by the girl and her family not to be who you purported to be and, when your phone number was reported by them to the police, it was confirmed to be linked to you. That is Charge 1.
[1] Exhibit A – Summary of Prosecution Opening.
3Charge 2 rises out of the existence of an email address and an instant messaging user name which you had not reported to police in accordance with your obligations under the Sex Offenders’ Registration Act as a result of your status as a registrable sex offender. It is a rolled-up charge containing two instances of failing to comply when, at your annual Sex Offender Registration Review, you did not reveal your Hotmail account and when you began using the user name for instant messaging without notifying police.
4These are serious offences. For Charge 2, the scheme of registration cannot work effectively if registered sex offenders do not report all personal details as required under the Act. You were aware of this obligation. You used one of your user names to commit the offence in Charge 1. The offending in Charge 2 is aggravated by the fact that it is not the first time you have failed to comply with your obligations.
5Your communication in Charge 1 was with a real victim, Jane Kennedy[2] and considerable harm has been done to her as a result. I received Victim Impact Statements from her, her twin sister and their mother. I want to emphasise to Jane that this was not her fault. Although she has learned the hard way that, online, not everyone is who they say they are, you were the predatory older male who committed the crime and she is in no way responsible for being involved in the communications. In fact, Jane is to be commended for resisting you when you tried to get her to send you sexual photos and she has shown that she is resilient by her positive remarks about the future in her Victim Impact Statement. Jane is to be acknowledged as the victim, not blamed in any way for the offending and is to be encouraged to resume living as normal a life as possible. I feel sure that with that sort of attitude she will recover from this bad experience. I wish her well for the future.
[2] A pseudonym.
6Your offending for Charge 1 is made more serious by the following factors:
7First, the use of a false identity to lure Jane into communication with you and the continuation of this deception to keep her in communication with you;
8Next, the age difference between you, as you are 28 years her senior;
9Next, although the communication only occurred over 12 days, it was persistent, commencing early in the morning and ending late at night, and involved hundreds of messages and dozens of emails over that period;
10Next, you sending her a pornographic image;
11Next, your manipulation of her by giving her personal details, such as asserting you were the victim of sexual assault in a church when aged 11, that you were depressed and wanted to commit suicide, telling her that you loved her, and twice providing her with phone credit, so that she could continue the communication; and
12Last, you committed these offences three weeks after being released on a community correction order, a condition of which is that you do not commit further offences, and that order was made on a charge of wilful and obscene exposure.
13In your interview with police, you said that you never planned to actually meet with Jane. The prosecution submitted that you must be sentenced on the basis that you intended, as a real possibility, to engage in sexual activity with her. I propose to sentence you on that basis given that, by your plea of guilty, you have admitted that your intention was to procure or encourage Jane to engage in sexual activity with you. It is not necessary for me to find whether you intended to meet.
14I note that evidence of intention to engage in sexual activity with her could be found on the occasion on which you apparently masturbated while chatting "dirty" to her and instructed her to masturbate, having regard to the definitions of “sexual activity” and “engage in sexual activity” contained in the dictionary to the Criminal Code (Cth). As this evidence was not addressed on the plea, however, I make no finding about that.
15I take into account, in your favour, that you pleaded guilty, although it must be said that the case against you was strong. I accept that you pleaded guilty at the earliest possible time and that this reflects some contrition, an acceptance of responsibility and a willingness to facilitate the course of justice by avoiding the need for both a committal and trial. This is particularly important, as this has saved Jane from having to give evidence. This morning I received a letter from you[3]. I have read that and I accept that it shows true remorse for your actions and their impact on Jane and also shows some insight into your offending with the expression of a desire not to commit such offences again.
[3] Exhibit 5 – Letter from Mr Peddell.
16I have been told something of your personal history and your circumstances. You are now aged 43 years. You were born in Melbourne but grew up in regional New South Wales. You did not, then, have a good relationship with your father and struggled socially at school, although academically, you completed Year 12. You left home at 17 and lived an itinerant life, finding yourself in most States and Territories of Australia. You report being raped at the age of 17 or 18 by three males and ending up in hospital with severe injuries but, according to you, there was no police investigation. You were homeless for periods of time, interspersed with periods of employment in good jobs. In recent years in Victoria, you have had some work in hospitality but have found employment difficult to obtain because of your criminal history and your status as a registered sex offender.
17Your criminal record reflects this life history. Between 1996 and 1997 you were fined on four occasions for begging. In 2004 you received your first prison sentence for resisting police, threatening to kill and damaging property. In 2007 you were convicted of two charges of committing an indecent act and a charge of stalking and received a sentence of 18 months' imprisonment, wholly suspended for two years. You were registered as a sex offender. That offending involved following a group of school girls on a train and masturbating within their view.
18In 2010 you received an adjourned undertaking to be of good behaviour for failing to comply with reporting obligations. According to the Victorian record, you appear to have complied with the conditions of the suspended sentence and the undertaking. Then, nearly four years later on 13 February 2015, you received an 18-month community correction order for wilful and obscene exposure. The conditions of that order included mental health assessment and treatment, a sex offender program, supervision and unpaid community work. You were confirmed as a registered sex offender. Three weeks later you committed these offences. Clearly there had been no time for anything other than an initial appointment under the community correction order.
19I was not provided with any interstate criminal records[4], but I note that you told Mr Jackson, a neuropsychologist who provided a report to the court[5], that you had spent a month in prison for sending abusive messages to a female co-worker, which does not appear on your Victorian record, and a report of your 2007 hearing referred to by Mr Jackson and supplied to me, indicates that you do have a criminal history in other States and Territories, mainly for street offences. If that is right, that means that the gaps in your Victorian history are not necessarily because you were not offending in any way.
[4]
[5] Exhibit 3 – Neuropsychological report of Mr Martin Jackson at page 4.
20Although you have had a number of age appropriate relationships, you told Dr Zimmerman, a psychiatrist who provided a report to the court[6], that you have always been attracted to girls aged 14 to 18, and continue to be. At the time of this offending you had been in a relationship for four-and-a-half years, but you report that it was not a sexual relationship. Your partner ended that relationship after you were arrested and charged with these offences. You have been in custody since 14 April 2015.
[6] Exhibit 3 – Neuropsychological report of Mr Martin Jackson at page
21Apart from the reports of Mr Jackson and Dr Zimmerman, I was supplied with a 2007 psychological report from Forensicare and a 2007 draft report from Mr Wall, a sexual trauma counsellor. None of these practitioners were called to give evidence. Your counsel relied on the opinions of Mr Jackson and Dr Zimmerman to submit in summary that, because of cognitive difficulties arising from severe depression, your moral culpability should be reduced, the sentence to be imposed should be one that involves no further time in custody, the requirements for general or specific deterrence should be moderated, to impose a sentence with more gaol time would weigh more heavily on you than a person without your mental ill health and there is a serious risk that further gaol time would have a significant adverse effect on your mental health[7].
[7]
22The prosecutor conceded that the last two factors apply, but submitted that the first four do not.
23A relevant case on this issue was handed down by the Court of Appeal on the day of your plea hearing[8]. Counsel were invited to make further submissions if they wished, but they did not seek to do so. I have had regard to the submissions already made and to that case, as well as to the earlier case of Verdins.
[8]DPP v O’Neill [2015] VSCA 325.
24From the material provided to me, I make the following findings and observations.
25First, there seem to be some inconsistencies in accounts given by you in the reports and, as all accounts are based on what you told the report writers, I have some concern as to the accuracy or reliability of the opinions arising from those accounts;
26Next, I accept that you currently have severe symptoms of a mood disorder with depression, anxiety and stress;
27Next, I accept that you currently have the psychiatric diagnoses of hebephilia, depression and Anti-social/Borderline Personality;
28Next, I accept that your cognitive profile shows current difficulties which are entirely consistent with extremely severe depression and anxiety;
29Next, your current cognitive difficulties constitute an impairment and these would have a significant impact on your current ability to think clearly and make rational judgements;
30As a result, there would be a strong tendency for you, if currently faced with anything out of the norm, to revert back to past learned behaviour, whether appropriate or not;
31Next, it is not possible to accurately determine how you were functioning at the time of the offences; and
32Last, while you told Jane in your communications that you felt like killing yourself, I do not accept that that statement or your accounts to Mr Jackson and Dr Zimmerman constitute “ample” evidence that, at the time of your offending, you were suffering a relapse in your depression.
33The diagnosis of depression is the only disorder of the three you suffer from that can operate to mitigate the seriousness of your offending. Having a disorder that attracts you to underage females, hebephilia, cannot result in a reduction in your moral culpability in committing an offence involving an underage female, nor affect the need for deterrence. Your personality disorder is not to be considered a mental impairment for these purposes. These other diagnoses are not irrelevant, however, as they provide explanations for your offending.
34Dr Zimmerman expressed the opinion that there was a direct relationship between your offending and your mental illness. She said that you sought out the adolescent female because of your Paraphilic Disorder, and individuals with such a disorder often relapse into acting on their desires in the context of stressful situations, depression or substance abuse. Put bluntly and in combination with Mr Jackson's opinion, it is said that while you might otherwise have resisted acting on your paraphilic impulses, being severely depressed impaired your cognitive capacity to avoid engaging in such behaviour.
35Your counsel submitted that I could be satisfied that you were suffering from depression at the time of committing these offences based on the consistency of your reports that you were depressed; vis, you told the victim and later, Mr Jackson and Dr Zimmerman, that you were depressed at the time, your four-and-a-half year relationship with your partner was in decline, you were isolated and under pressure due to your reporting obligations under the Sex Offenders’ Registration Act and you had just appeared in court for offending which occurred in 2014 and received a community correction order. I have also had regard to your recorded interview with police in April 2015 about these offences.
36It is 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, the nature and severity of that impairment. In the end, I have decided that even if you were suffering from depression in March 2015, it did not impair your abilities in any relevant way, nor obscure your intent to commit the offences and, if it did contribute causally to the offending, it was inextricably bound up with the main cause of the offending, your Paraphilic Disorder. As a result of my finding, your moral culpability is not reduced and the need for general and specific deterrence is not moderated.
37However, I will sentence you on the basis that you have impaired mental functioning now, arising from your severe depression and I take into account that, to impose a sentence with more gaol time, will weigh more heavily on you than a person without your mental ill health and there is a serious risk that further gaol time will have a significant adverse effect on your mental health. I also note that you report that you have been assaulted while in custody and have been in protection, and that your reduced cognitive abilities may leave you vulnerable in the prison system.
38However, these factors have to be weighed against the need for general deterrence, which means that the sentence I impose on you must seek to deter others from committing these sorts of offences and the need for specific deterrence, which means that my sentence must seek to deter you from reoffending.
39Although there may be some hope that you do not reoffend because of your developing insight, I find that you are still a high risk of reoffending in a sexual way and that your prospects for rehabilitation will only be enhanced and the community protected from you if you receive treatment for your depression, which should improve your cognitive abilities so that you may successfully complete a sex offenders program, which is also essential for your rehabilitation. You have not undertaken such a program before, although it was ordered by the sentencing court in February 2015.
40I do take into account that you have reconnected with your parents and they have been visiting you in prison, together with other extended family members, and provided support in court. You are on medication again while in prison and you have completed a seven-week program on mental health at the Metropolitan Remand Centre.
41The prosecutor submitted that the only appropriate sentence was a term of imprisonment and the time you had been in custody, about eight months, was not a sufficient sentence. Application was made, this morning, to include other conditions on any sentence, do not contact Jane Kennedy or her family and to not approach within 300 metres of the complainant’s school. Your counsel submitted that a sentence which would allow for your release to commence rehabilitation in the community was an appropriate option. You were assessed and found suitable for a community correction order. I was told you have no intention of contacting the family or going to the school, and so you do not oppose the conditions that have been proposed.
42MR KERLIN Your Honour, if I may just briefly interject ‑ ‑ ‑
43HER HONOUR: Yes.
44MR KERLIN ‑ ‑ ‑ before Your Honour continues. Your Honour mentioned previously - I don't think it's a matter of moment, but just for the record - Your Honour mentioned that there were only Victorian priors that were handed up. There were, actually some interstate priors, Your Honour, as well.
45HER HONOUR: I do beg your pardon.
46MR KERLIN I have got an extra copy if Your Honour would be assisted.
47HER HONOUR: Yes, thank you.
48MR KERLIN However, in my submission, Your Honour, the Victorian priors were the more serious priors.
49MS MCCANN: Your Honour, on that point of the priors and, I think you referred to Mr Jackson's report in relation to Mr Peddell reporting he had spent a month in prison in respect of a threat, that is, on my reading of the prior matters, referrable to the entry on 20 September 2007, because whilst the sentence itself, is a suspended sentence, there was a period of time that was spent ‑ ‑ ‑
50HER HONOUR: I see.
51MS MCCANN: ‑ ‑ ‑ in custody ‑ ‑ ‑
52HER HONOUR: All right.
53MS MCCANN: ‑ ‑ ‑ in respect of that.
54HER HONOUR: Thank you. I'm grateful for both counsel correcting me on that and I apologise for not having picked that up. The exhibited copy does not seem to be in this record and so I think that's the reason why I missed that.
55MR KERLIN If I can indicate, Your Honour, to assist just on that point. Initially there were only Victorian priors that were filed with the court. That was at a previous plea date, before Your Honour became associated with the matter. Arising from those reports, further searches were conducted in relation to national priors, which is when these matters arose.
56HER HONOUR: Yes, and clearly ‑ ‑ ‑
57MR KERLIN And this was a subsequent document that was following on ‑ ‑ ‑
58HER HONOUR: And clearly this was filed with the court and I have, for some reason, not had regard to it.
59MS MCCANN: And I need to correct myself correcting you, Your Honour, because the entry that I was thinking of was actually the one on 30 March 2004; make threat to kill, resist police and, in fact, there is a period of - it's a partially suspended sentence that was imposed at that stage.
60HER HONOUR: All right, thank you. Well when these sentencing reasons are published I will make the correction in respect of the prior criminal record.
61MS MCCANN: May it please the court.
62MR KERLIN May it please the Court.
63HER HONOUR: Yes, my apologies. I just have to readjust matters as a result of this morning's applications. Ms McCann, could I just ask, this may have some bearing on what I'm doing here. In respect of the community correction order that was imposed in February?
64MS MCCANN: Yes.
65HER HONOUR: Have there been any non-compliance or breach proceedings undertaken for that?
66MS MCCANN: I don't know that there have. Obviously, there will be, in respect of the matters that are before Your Honour.
67HER HONOUR: But you are certainly not instructed that they've already been undertaken.
68MS MCCANN: No.
69HER HONOUR: All right. Thank you. Yes. Returning to my sentencing remarks.
70Mr Peddell, I have decided that you should receive a longer sentence than eight months and serve some further time in custody, but you will be released within two months of today on a Recognizance Release Order on a number of conditions that I will go through in a moment, with the rest of that term of imprisonment suspended. Also, if you agree, I propose to release you on a community correction order for Charge 2, which will commence after you have been released from custody. Now these have been explained to you on previous occasions, but I must tell you, again, that a community correction order has the conditions attached to it that you must not commit another offence; you must comply with any obligations; report to and receive visits from a community corrections officer; report within two clear days of the order coming into force, which will be within two days of your release from custody; notify the community corrections officer of any change of address or employment within two days and not leave Victoria without permission. That is proposed to be for a period of 12 months. There will be special conditions attached to that community correction order: that you do not contact Jane Kennedy or her family and that you do not approach within 300 metres of the Mt Eliza Secondary College. A further condition will be that you undergo assessment and, if necessary, treatment for your mental health as directed.
71So, if you could stand up please Mr Peddell. Do you understand those conditions of the community correction order?
72OFFENDER: Yes.
73HER HONOUR: Do you agree to those conditions?
74OFFENDER: Yes.
75HER HONOUR: Well, you are convicted and sentenced as follows:
76On Commonwealth Charge 1, you are convicted and sentenced to two years' imprisonment. That sentence starts today. I direct that you be released under s20 of the Commonwealth Crimes Act 1914 after serving 10 months on a Recognizance Release Order on the condition that you give security by recognizance of $800 to be of good behaviour for two years and complete the sex offender program.
77On State Charge 2, you are convicted, and after your release from imprisonment on Charge 1, you are ordered to commence a community correction order for 12 months with the conditions that I previously outlined. I declare that the period of time you have already spent in custody is 248 days, not including today, and that these are to be deducted administratively from your sentence.
78To make it clear, you will be released after serving 10 months, taking into account that you have already served over eight months, but will have 14 months' imprisonment effectively suspended for the following two years. If you do not reoffend and fulfil all conditions, you will not serve any more time. If you do offend and do not fulfil a condition, you will forfeit $800 and be returned to gaol to complete the sentence. On the community correction order, that may be varied or discharged if your circumstances change on application to the court.
79As a result of my sentencing you today, you continue as a registrable sex offender under the Sex Offenders’ Registration Act. Charge 1 is a Class 2 offence, and as you were previously convicted of two Class 2 offences, you will be required within seven days of your release from custody to, again, report your personal details and continue a regime of annual reporting required by the Act and be subject to the Act for the remainder of your life.
80Just take a seat Mr Peddell, we will need to prepare some other documents. I'm sorry Ms McCann you need to be somewhere else.
81MS MCCANN: Sorry, a number of people wanted to sentence people today.
82HER HONOUR: Yes, of course.
83MS MCCANN: So I have another one at 10.30. But I've been in touch with the associate, so hopefully they're all waiting for me.
84HER HONOUR: Yes, thank you very much.
85MS MCCANN: And it won't be too [indistinct words].
86HER HONOUR: Well I do apologise. I should have added that there will be a supervision condition on the corrections order. I take it that you do not have any trouble with that as a condition of the order, Mr Peddell?
87OFFENDER: No
88HER HONOUR: Thank you. And we might need, Ms McCann, an address.
89MS MCCANN: Sorry I have an address, but I need to just check. It might be different.
90HER HONOUR: Yes, thank you. That's why I checked.
91MS MCCANN: The address is not necessarily clear at the moment. The family's dealing with a couple of issues at the moment. But they all live within the Frankston area, so it would be the ‑ ‑ ‑
92HER HONOUR: So we'll make it the Frankston Community Corrections Centre.
93MS MCCANN: The Frankston office.
94HER HONOUR: Yes. And I think with orders that commence after release from custody that's always confirmed at the date of release.
95MS MCCANN: Yes.
96HER HONOUR: So, if it changes, it can change at that point.
97MS MCCANN: Well, we'll work out what that actual date is and the family will work on the actual address Your Honour.
98HER HONOUR: Thank you. Yes, all right. Well, Mr Peddell, my associate will now provide you with three documents that you will need to sign. One is to indicate that you will abide by the conditions on your release for Charge 1, that is undertake the sex offender program and be of good behaviour for the following two years. The second is the community correction order, that you will agree to abide by that, over the period of time after your release, for 12 months. And the third is your acknowledgement that you have, again, received the sex offender registration reporting obligations. Yes, thank you and Ms McCann, if you wouldn't mind accompanying my associate.
99MS MCCANN: Certainly.
100(Community-based order signed and acknowledged.)
101HER HONOUR: I have now signed those orders and I remind you that if you do not fulfil any of the conditions of those orders you will be coming back before me and you will be spending more time in gaol.
102Finally, if you had not pleaded guilty to the State charge but had been found guilty after a trial, the sentence I would have imposed on that offence alone is four months' imprisonment. I will not indicate what my sentence would have been for Charge 1, but for the plea of guilty, until legislation specifically requires it for Federal offences or an authority binding on the State that it is required. I thank counsel for their assistance. Mr Peddell may now be taken out and we will adjourn until 9.30 on Monday.
---