Director of Public Prosecutions v Phibbs
[2022] VCC 2126
•25 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-01261
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER PHIBBS |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Phibbs | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2126 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Commonwealth Offences – Using a carriage service to make available child abuse material – Possessing or controlling child abuse material obtained or accessed using a carriage service – Guilty plea – R v De Leeuw factors – Prospects of rehabilitation –Immediate term of imprisonment not warranted – Combination of circumstances amounting to exceptional circumstances
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: R v De Leeuw [2015] NSWCCA 183; Director of Public Prosecutions v Garside [2016] VSCA 74; Worboyes v The Queen [2021] VSCA 169; DPP v Michael Winter [2022] VCC 227; R v Finch [2022] NSWDC 578; DPP v Nafarette [2022] NSWDC 225; Buckley v The Queen [2022] VSCA 138
Sentence: 15 months’ imprisonment – Recognizance release order – s 6AAA declaration – 2 years’ imprisonment with recognizance release order
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Z. Hough | Office of Public Prosecutions (Cth) |
| For the Accused | Ms L. Thies | James Dowlsey & Associates |
HIS HONOUR:
1 Peter Phibbs, you have pleaded guilty to two Commonwealth offences. The first being using a carriage service to make available child abuse material contrary to sub-section 474.22(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years’ imprisonment. Secondly, possessing or controlling child abuse material obtained or accessed using a carriage service contrary to sub-section 474.22A(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’) which also carries a maximum penalty of 15 years’ imprisonment. You are to be sentenced on the basis of the prosecution opening for plea dated 25 October 2022 which has been tendered in evidence today and is agreed summary of which I will now further summarise.
Circumstances of Offending
2 You used an application called Fastmeet to make available child abuse material. Fastmeet is a gay chat line that provides an anonymous, safe and fast way to meet other likeminded men. Fastmeet works by individuals making a call to the service and entering a chatroom. Whilst dialled into Fastmeet individuals can listen to other messages and select others they wish to connect with. Once a person is chosen they can move into a private chatroom. The private chatroom calls are not recorded or monitored. However, all messages left are recorded and kept by Fastmeet.
3 On 13 December 2020, you communicated via Fastmeet. In a conversation that lasted approximately 40 minutes, you and another adult male discussed having penetrative sex with children as young as eight in explicit and abhorrent terms. The conversation constituted child abuse material which I will not further disseminate by repeating it here. That is Charge 1.
4 In relation to Charge 2, on 12 October 2021, you had three child abuse material files, two videos and one image in your possession on a Samsung mobile phone. The material depicted the following:
(a) a pre-pubescent male child performing fellatio on an adult male;
(b) a pre-pubescent male child masturbating while another pre-pubescent male watches; and
(c) a pre‑pubescent male child being held upside down with his legs spread by an adult male exposing his genitals and about to perform fellatio.
5 On that day, you voluntarily provided to police your mobile phone, your phone number and your PIN and the associated passwords for your phone. Police seized two Samsung mobile phones of yours. You were arrested and bailed to appear at a filing hearing in the Magistrates' Court on 15 October 2021. You were interviewed by police on 12 October 2021 and informed them of the following:
(a) That there would not be child abuse material on your phone and when asked you stated the child abuse material is when it is under 18;
(b) That on that chat line there may have been talking about when they were younger being younger.
(c) That you didn't know the name Fastmeet but only used one chat line.
(d) That you called the chat line a couple of times a week.
(e) That you were the only person to use the mobile phone with the identified number. You had had the phone for a number of years and that on your phone maybe someone had sent you something that would be child abuse material. You were played an audio clip by police from one of the telephone messages and you stated that 'It must be me and that sounds like - that probably is me'.
(f) Further, that you have no prior convictions.
Sentencing Considerations
6 Turning then to the sentencing considerations in your case. Under s 16A(1) of the Crimes Act 1914 (Cth) (‘Crimes Act’), the court must impose a sentence that is of a severity appropriate in all the circumstances of the offences. The court must take into account such of the factors in s 16A(2) as are relevant and known to the court. The first of these in sub-section (2)(a), concerns the nature and circumstances of the offence or to use an expression well understood in Victoria, the objective seriousness of the offending.
7 As the maximum penalties for these offences indicate, using a carriage service to make available child abuse material and possessing child abuse material are serious criminal offences. They exist to protect children, not just in Australia, but throughout the world. Your conduct in committing the first offence to which you plead guilty is, as I have said, abhorrent. You refer to young children as sexual playthings of adult men. Your moral culpability is considerable, although I accept you are to be sentenced for the one conversation on 13 December 2020.
8
Although there were no actual children who were victims of this offending, such conversations may have the effect of desensitising those involved so as to make it more likely that they will view child pornography and possibly even offend against children, although I hasten to add there is no suggestion of that in your case. It is well established that the object seriousness of child pornography offences is to be assessed by reference to a number of factors that were identified by the New South Wales Court of Criminal Appeal in the case of R v De Leeuw [2015] NSWCCA 183. Those factors have in turn been applied in Victoria by the Court of Appeal in the case of
Director of Public Prosecutions v Garside [2016] VSCA 74.
9 The factors are as follows:
(i) The nature and content of the material, in particular, the age of the children and the gravity of the sexual activity depicted;
(ii) The number of items or images possessed;
(iii) Whether the material is for the purpose of sale or further distribution;
(iv) Whether the offender will profit from the offence;
(v) In the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) The length of time for which the pornographic material was possessed.
10 Applying these factors to your offending in relation to Charge 2, the children depicted in the three images were pre-pubescent and in two of the images, they are depicted engaging in sexual activity with adult males. Although these images are far from the worst seen in the courts in terms of both content and number, I consider that yours is serious offending. However, there is no evidence that you were to profit from the offence. Nor were you possessing the images for the purpose of sale or further distribution. You told Mr Burrows, psychologist, who is treating you that the images were sent to you.
11 Applying the factors identified in the case of De Leeuw, I accept your counsel's submission that your offending is properly categorised as towards the lower end of the spectrum of seriousness for these offences. I note that counsel for the Commonwealth DPP made a similar submission. Other matters of principle that emerge from the cases in this area are as follows. That general deterrence is the primary sentencing consideration in such cases. Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted. That less or limited weight is given to an offender’s prior good character than in other offences. That offending involving child pornography is difficult to detect on the internet and finally there is a paramount interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime. Children are sexually abused in order to supply the market.[1]
[1] See Director of Public Prosecutions v Garside [2016] VSCA 74 at [25].
12 Returning to the provisions of the Crimes Act that are applicable in this case. Paragraph 16A(2)(e) requires me to have regard to any injury, loss or damage resulting from the offending. In relation to Charge 1, there is no victim. However, the children depicted in the images that give rise to Charge 2 will have to live with the consequences of the publication and dissemination of their images for the rest of their lives. You have contributed to this and I take this into account.
13 Paragraph (g) of the sub-section concerns the timing of and effect of your guilty plea. I accept that in this case, you pleaded guilty at an early stage of the process. This has a considerable utilitarian benefit, saving witnesses the need to give evidence and saving the time of the court, prosecution and police. This is especially the case at the present time given the backlog of cases in this court.[2]
[2] See Worboyes v The Queen [2021] VSCA 169.
14 Paragraph (h) concerns the degree to which you have cooperated with law enforcement agencies. I consider that you have cooperated in this case by identifying the phone number you were using, by accepting that it is probably your voice on the recordings and by admitting that you had been sent the images. Paragraph (j) requires a consideration of the likely deterrent effect of a sentence on you and paragraph (k) requires a consideration of what is usually described as general deterrence.
15
I discuss these later in my reasons along with the need for adequate punishment, paragraph (k), your character generally, paragraph (m) and your prospects of rehabilitation, paragraph (n). Section 16A(2)(aaa) requires the court when sentencing a person in respect of a Commonwealth child sex offence to have regard to the objective of rehabilitating the person, including by imposing conditions about rehabilitation or treatment options.
Section 17A(1) provides that:
‘A court shall not pass a sentence of imprisonment on any person for a federal offence or for an offence against the law of an external territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case'
16 Finally, s 19(5) of the Crimes Act contains a presumption of cumulation where a person is being sentenced for multiple Commonwealth child sex offences. Here, I consider that the two charges involved, both discrete and different offending, that occurred at different times.
Personal Circumstances
17 I turn to a consideration of your personal circumstances. In brief summary, you are 47 years of age and you were born in country Victoria. Your childhood was unremarkable and by that, I mean generally happy and you continued to have a positive relationship with your parents. You completed secondary school, achieving above-average results and then completed a TAFE certificate in hospitality. You have worked in a number of senior positions in the hospitality industry and more recently, in a managerial role in aged care and as an area manager with Coles, a position you currently hold.
18 You have been in full-time employment for your entire adult life, a matter that I take into account later in these reasons as part of my assessment of your prospects of rehabilitation. I accept that you have lived a blameless life, you have no prior convictions, you have made a positive contribution to society. These are all relevant matters to be taken into account. Turning then to a consideration of your mental health. The court had been provided with two psychological reports on your behalf. The first is a report by Mr Geoffrey Burrows, provisional psychologist, dated 11 November 2022. The second is a report dated 17 November 2022 prepared by Dr Barth, psychologist. Both Mr Burrows and Dr Barth are very experienced in the areas of forensic psychology.
19 In the first report, Mr Burrows explains that he has been treating you since April of this year. It is to your credit that you have paid for and attended 11 sessions of the Sex Offender Treatment Program. with him. Your first session was on 21 April 2022 and your most recent session was on 18 November 2022.
20 In his report at paragraph 7, Mr Burrows says as follows:
'Mr Phibbs's limited social skills were identified as contributing to his intimacy needs not being met in a healthy manner and his subsequent offending behaviour. He reported that he had been reluctant to pursue any intimate relationships and that he found it difficult to accept his sexuality until later in life. He demonstrated a limited understanding of how to communicate his emotions effectively or to achieve meaningful intimacy in a relationship'.
21 I have taken that into account as part of the broad circumstances of your offending. Mr Burrows reports that you have engaged actively in the treatment but had initially demonstrated limited understanding of the destructive impact of accessing, soliciting and transmitting child abuse material. He states that you have expressed considerable remorse for your actions and that you are deeply upset to realise that you have supported the producers of child abuse material. He concludes as follows, at paragraph 14:
'In summary, Mr Phibbs has engaged actively in the Sex Offender Treatment Program and made some good progress. He has developed some insight into his offending behaviour and begun to address the relevant interpersonal and sexual issues. He has also successfully restructured his offence-supporting cognitions and expressed considerable remorse for his actions. Mr Phibbs would benefit from continued engagement to further reduce his risk of
re-offending. He has expressed his desire to continue engaging in the
Sex Offender Treatment Program and I can confirm that I am willing to continue consulting him'
22 Doctor Barth saw you for two hours and spoke extensively to Mr Burrows about you in preparing his report for the court. Doctor Barth reports that you express shame for your behaviour and are genuinely remorseful for your conduct. However, I note that he opines at paragraph 40 that your insight into your offending and, in particular, the dysfunctional sexual arousal patterns which underpinned your conduct is still limited.
23 This suggests that there is a role for specific deterrence in the sentence that I impose today. It is also relevant to my assessment of your prospects for rehabilitation which I will return shortly. Doctor Barth assesses your overall risk of sexual recidivism as low to moderate. Importantly, he adds that the risk relates entirely to online or non-contact offending. He also considers that risk is likely to be reduced with ongoing participation on a Sex Offender Treatment Program. At paragraph 49, Dr Barth concludes as follows:
'I would note that Mr Phibbs's experience of the criminal justice system has been very aversive and is acting as a strong motivator for him to pursue constructive personal change. Provided that this motivation can be harnessed, I consider that a reasonable degree of optimism is warranted in Mr Phibbs's case. I can confirm that this practice would be willing to provide Mr Phibbs ongoing treatment as required and we would be pleased to do so in collaboration with other agencies, such as the Department of Justice as needed'
24
Turning then to an assessment of your prospects of rehabilitation, a matter that the court is required to take into account pursuant to paragraph N of
sub-section 16A(2) of the Crimes Act. Your counsel submits that your prospects of rehabilitation are very good for the reasons set out at paragraph 47 of her submissions. Those matters are that you have actively sought specialist treatment to assist you to gain insight into your offending and learn relapse prevention techniques; that you have developed a very good ability to challenge the cognitions associated with your offending conduct; that you formed the basis for genuine remorse for your offending; that you were without prior convictions and have no subsequent or pending matters; that you are a man of otherwise good character; that you have no substance abuse problems; that you have a very good employment history and finally, that you have found the court process particularly distressing and that you have been specifically deterred.
25 With the qualification concerning your limited insight into the reasons for your offending and the commensurate risk of reoffending as identified by Dr Barth and discussed above, I accept the submission made by your counsel. The support you continue to receive from your parents and your close friend, Ms Leppard, are central to your future prospects in my view. This support is evident from the letters they have written to the court which I have read.
Comparative Sentences
26 Consistency in sentencing is an important part of the rule of law. I have had regard to the cases that the parties have referred the court to. However, it is important to note that other cases are fact specific and can offer no more than general guidance to this court. Ultimately, the court must impose the sentence appropriate to the circumstances of your case as revealed by the material before it. Having said that, I note that in a number of similar cases both here and interstate, offenders have received sentences that did not require them to serve an immediate term of imprisonment because exceptional circumstances were found to exist and I will return to this issue later.
27
I note that in most, if not all of the cases that the court has been referred to, the offending was more serious than yours. In one case in this court,
DPP v Michael Winter[2022] VCC 227, the offending was not only more serious, but the offender had relevant prior convictions.
Submissions
28 I have received detailed submissions which have been very helpful. In very brief summary, the prosecution submitted that the objective seriousness of your offending means that a sentence of imprisonment must be imposed pursuant to s 20(1)(b) of the Crimes Act. On your behalf, it was submitted that you should be released forthwith under s 20(1)(a) of the Crimes Act, upon giving a security and on the condition that you be of good behaviour.
29 In the alternative, your counsel submitted that if you are to be sentenced to imprisonment under paragraph (b), you should be immediately released. I have considered all aspects of your case and had specific regard to s 17A of the Crimes Act and I accept the submission of the prosecution. I am of the view that the objective seriousness of your offending as explained earlier is such that no sentence short of imprisonment will achieve the relevant purposes of general and specific deterrence, community protection and denunciation of your conduct that are required in this case. The question that then arises is whether you should serve an immediate term of imprisonment. Under s 20(1)(b)(ii), this can only be avoided if the court is satisfied there are exceptional circumstances, a term that is not defined in the Crimes Act.
30 My attention was drawn to the case of R v Finch [2022] NSWDC 578, a decision of the New South Wales District Court handed down earlier this week that also involved offending on Fastmeet. At paragraph 139 of the decision, the court referred with approval to a case of DPP v Nafarette [2022] NSWDC 225 at paragraph 89, where His Honour District Court Judge Buscombe stated as follows:
'In my opinion, the word exceptional in the statutory context means out of the ordinary course or unusual, or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances'
31 That interpretation of the phrase broadly accords with the approach taken in Victoria to the expression special reasons that are exceptional and rare where it appears in the Sentencing Act 1991 (Vic) (‘Sentencing Act’). See, for example, Buckley v The Queen [2022] VSCA 138. I consider that the following aspects of your case taken in combination do amount to exceptional circumstances. That the offending is at the lower end of objective seriousness; your early plea of guilty during the currency of the pandemic and your accompanying genuine remorse; the steps you have voluntarily taken to obtain sex offender treatment; your relatively low risk of recidivism that is limited to online offending; your lack of prior convictions; your stable life and supportive family and friends and finally your good prospects of rehabilitation generally.
32 I have also taken into account that serving time in custody is likely to undermine your rehabilitation and cause you to lose your current employment, and it is in both yours and the community’s interests that these do not occur. I am, therefore, prepared to order your immediate release on the conditions that I will now outline. Mr Phibbs, please stand.
Orders
33 On Charge 1, the offence under sub-section 474.22(1) of the Criminal Code, I sentence you to six months’ imprisonment.
34 On Charge 2, the offence under sub-section 474.22A of the Criminal Code, I sentence you to nine months’ imprisonment to commence immediately after the sentence in relation to Charge 1 is completed.
35 I impose an aggregate sentence of 15 months’ imprisonment having regard to s 19 of the Crimes Act. That sentence commences on 25 November 2022 and concludes on 24 February 2024. I make an order under s 20(1)(b)(ii) of the Crimes Act that you be immediately released upon the recognisance in the amount of $1,000 without surety on the following conditions:
i. That you be of good behaviour for a period of three years;
ii. That you are to be supervised by a probation officer and obey all reasonable directions of the probation officer;
iii. You are not to travel interstate or overseas without the written permission of the probation officer and you are to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, in particular, programs specifically designed for sex offenders, noting that you are currently receiving treatment from Mr Burrows who is willing to continue to provide such treatment.
36 I make the forfeiture order sought by the prosecution under s 23ZD of the Crimes Act, noting that it is not opposed.
37 Under s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have sentenced you to two years’ imprisonment with a recognisance release order releasing you after 15 months. That is to be noted in the records of the court.
38 Further, as Charges 1 and 2 are Class 2 registerable offences pursuant to the Sex Offenders Registration Act 2004 (Vic) (‘Sex Offenders Registration Act’), you will be required to comply with the reporting obligations for a period of 15 years. Mr Phibbs, you may come into the body of the court and sit behind your barrister. Rather I should say you should stand behind your barrister. Now, I need to explain to you the effect of the orders that I have made. You will be immediately released. You must pay a recognisance of $1,000 and be of good behaviour for three years. You must comply with the conditions. In other words, you must follow the directions of the probation officer. If you fail to comply with the condition of my order, you can be brought back before the court. If a judge of this court considers that you failed to comply without a reasonable excuse, they can fine you up to $1,000, they can extend the period for which you are to be of good behaviour, they can revoke the order and make a different order which may involve ordering you to be imprisoned for the term that I have indicated, or they could take no action.
39
Further, you must comply with the reporting requirements of the
Sex Offenders Registration Actfor 15 years. These obligations are onerous and you should seek advice about them as breaches of those obligations can also bring you back before the court. Do you understand the orders that I have made today, Mr Phibbs?
40 OFFENDER: I do.
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