Director of Public Prosecutions v Pope (a pseudonym)
[2023] VCC 352
•6 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01359
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWIN POPE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2023 | |
DATE OF SENTENCE: | 6 March 2023 | |
CASE MAY BE CITED AS: | DPP v Pope (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 352 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Possession of child abuse material – access child abuse material – serious sexual offender – plea of guilty at earliest opportunity – offending detected as a result of admissions and cooperation – burden of imprisonment
Cases Cited:R v Doran [2005] VSCA 271; DPP (Cth) v Guest; DPP (Vic) v Guest [2014] VSCA 29; Phinthong v R [2011] WASCA 192;
Sentence: Convicted and sentenced to a term of imprisonment of 12 months and 7 days, with a Community Correction Order of 3 years and 6 months, with 150 hours of unpaid community work, supervision, programs and judicial monitoring
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell | Office of Public Prosecutions |
| For the Accused | Mr G. Cooper | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Edwin Pope,[1] you have pleaded guilty to an indictment containing two charges of possession of child abuse material, being Charges 1 and 3 and one charge of accessing child abuse material, which is Charge 2. Each of which, carries the maximum penalty of 10 years' imprisonment.
[1] A pseudonym.
2 You also consented to this court hearing and pleaded guilty to a related summary offence of an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment, or 30 penalty units.
3
Each of these offences occurred in the period between 21 May 2020 and
7 September 2021. You were aged between 49 and 50 years of age at the time.
Circumstances of Offending
4 The full circumstances of the offending are set out in the succinct summary of prosecution opening dated 7 February 2023, which was tendered as Exhibit A on the plea. As identified in that summary you are a registered sex offender as a result of offending for which you were sentenced on appeal on 17 July 2008.
5 On 21 May 2021, police offices attended at your home to check your compliance with your obligations under the Sex Offenders Registration Act. You told police that you may have created an email address that had not been reported in breach of your obligations. You were unable to find the email address in your phone and so you took the police officers into your bedroom to see if you can find the address on your desktop computer. The screensaver for your computer showed a scantily clad female who looked to be about 10 years of age. This image is not alleged to be child abuse material.
6
The police officers asked you if you had any naked pictures of children on your computer. You said that you may have, and that you view child abuse material on your computer every day. You provided police with a USB device and told them that you had stored child abuse material on it. You also gave them
28 DVDs onto which you had saved child abuse material. You were arrested and transported to Mornington police station for interview.
7
During your interview you made full admissions to the offending. You further told police that you had been accessing child abuse material for about
12 months, and lately had been looking at child abuse material every day for six to eight hours. You said that you would sometime search for online images that looked like children you had seen walking around. You have also told police that you had participated in counselling, but the practitioner could not be impartial, the counsellor had referred you to someone else, but it was too expensive.
8
You were released on bail to appear at Frankston Magistrates' Court on
13 October 2021.
9
Analysis of the USB device and the 28 DVD's which you had provided to police identified 7,036 child abuse files. Police classified the files using the Interpol baseline for classification model. Of the 7,036 child abuse files, 1,464 of the files were classified as category 1 files. That is, they depicted pre-pubescent children involved in or witnessing a sex act. All the material
focussed - concentrated on the child's anus or genitals. Of those 1,464 category 1 files, 1,344 were contained on the USB device. The informant has viewed that material and advises that approximately 250 of the child depicted female children aged between 18 months and four years' old, being penetrated by adults and/or children in various orifices. The remaining images depicted children between 18 months and 10 years' old in poses exposing their genitalia, in sexualised poses, posing next to adult penises, or engaged in sole masturbation with sex toys. The other 5,572 files located on the USB device and DVD's were category 2 files. That is material which is not included in category 1, but is still deemed to be child abuse material. For example, cartoons depicting child abuse. The possession of the 7,036 child abuse files constitutes Charge 1 on the indictment.
10 Police also analysed your computer and identified that there was an electronic storage device which had previously been connected to the computer which had not been seized by the police. As a result, on 7 September 2021 police officers executed a search warrant at your home and seized a number of items including a laptop.
11 You were taken to Mornington police station and interviewed for a second time. During that interview you agreed the police had found the laptop computer under your bed where you had hidden it from them. You admitted that you had the laptop in your possession when police attended in May 2021, but had hidden it under one of your cupboards. You said that you did not tell police about it because it was under your sister's name and you thought she might get in trouble. You said you used that laptop to look at child abuse material.
12 You were released after the interview but returned to the police station later that day, whereupon you surrendered two further electronic devices that you believed contained child abuse material. The seized and surrendered items were subsequently analysed and contained a total of 509 child abuse material files. Police again classified the files using the Interpol baseline for classification model. Four files were category 1, and 505 files were category 2. The possession of this material constitutes Charge 3 on the indictment, possession of child abuse material and also founds the basis for the related summary charge of committing an indictable offence whilst on bail. I note that Charge 2 on the indictment is based on the admissions made by you in your records of interview, to accessing child abuse material from approximately May 2020, through until the second time you were arrested on 7 September 2021.
Plea of Guilty, Admissions and Cooperation
13
Your plea of guilty in this case was made at the very earliest opportunity. The charges in this matter were originally listed in the summary stream in the Magistrates' Court but were uplifted to the committal stream on 4 May 2022. You then pleaded guilty to the current charges at the first committal mention on 29 July 2022, whereupon a plea hearing was listed in this court for
21 February 2023.
14 Your plea of guilty facilitates the course of justice and has significant utilitarian value. No witnesses have been required to give evidence, and the court and the community have been saved the cost and time of the matter proceeding to a trial. Your pleas gain additional weight by reason of them having been entered at a time when the pandemic is still having a significant impact on the efficient running of the criminal justice system. I also accept that your plea of guilty reflects an acceptance by you, of responsibility for your offending, as well as remorse for your conduct. This acknowledgement of responsibility by you is also reflected in your cooperation with police, your extensive admissions and your discussions with the authors of the psychological report which was tendered on your behalf on the plea.
15 Taking each of these matters into account, I have given you a substantial discount on sentence for each of your pleas of guilty.
16
Mr Cooper submitted, that an additional mitigating factor in your case is your cooperation with police including the very fulsome admissions you made in respect of your own conduct. Mr Cooper submitted that if it was not for your cooperation and admissions, your offending may not have been detected.
Mr Cooper noted that it was you who took police to your computer and made admissions to possessing and accessing child abuse material. You voluntarily provided police with devices and DVDs containing child abuse material which were in your possession. Thirdly, you gave a fulsome and candid record of interview on 21 May 2021, which contained admissions to the offending including the devices used, the way in which the material was accessed and the way in which it was stored. Mr Cooper also identified that during your second record of interview on 7 September 2021, you answered all questions put to you, made admissions to ownership of the laptop, provided the password for that laptop and explained that you'd not provided the laptop initially as you did not want to cause any trouble for your sister. Following the interview you also surrendered additional devices which you thought might contain child abuse material. Relying on R v Doran [2005] VSCA 271, Mr Cooper submitted that you should receive a demonstrable discount on your sentence for your cooperation and admissions in this case.
17 By contrast, Ms Farrell submitted that whilst you were cooperative and made admission s to accessing and possessing child pornography, those admissions could not be considered to be fulsome, in circumstances where you deliberately concealed from police, a laptop which you were using to commit offences and where you continued to offend whilst on bail.
18 Ultimately, I agree with Mr Cooper, that without your initial cooperation and admissions, none of your offending may have come to the attention of the police. It was only through your admissions and the items that you did provide that your offending came to light. Further, your admissions as to the length of time over which you had accessed child pornography are the main foundation for Charge 2. In my view the fact that you did not provide the laptop initially does not detract from the value of the cooperation which you did give, and the admissions which you did make. They continue to be a powerful mitigating factor and I have taken them into account in your favour in sentencing you.
Prior convictions and Gravity of Offending
19 You have a prior history which dates back to 1990.
20
However, of particular relevance to this case, you were sentenced on appeal on 17 July 2008 to a total effective sentence of 11 years' imprisonment with a
non-parole period of seven years for eight charges of incest against your daughter. You served the entirety of that sentence. Whilst you report that you believe that you were never assessed for parole, although, I understand from Mr Cooper's submissions today that having discussed the matter, you may remember some aspects of possibly applying for parole. The author of the Community Correction Order suitability report, which I requested in this case, stated that you had been assessed for parole in 2017, but had been deemed unsuitable. The author went onto identify reasons for that assessment of unsuitability which I will come back to when discussing the outcome of that report.
21 As a result of that previous offending, you were placed on the Sex Offenders Register with a requirement that you comply with reporting obligations for life. As a result of not obtaining parole, at the time of commencing the current offending, you had been out of custody for approximately just under two years, and had not been the subject of any structure, treatment or supervision in the community during that time.
22 In assessing the gravity of your current offending there are a number of matters of general application which I must bear in mind. In addition to an assessment of the specific conduct constituting each of the charges.
23 First, you fall to be sentenced as a serious sexual offender, in relation to all three charges on the indictment. This means that any term of imprisonment imposed upon you by me for any of those offences must, unless otherwise directed by me, be served cumulatively on any uncompleted sentences of imprisonment imposed upon you, whether before or at the same time as that term. Further, in sentencing you for Charges 1, 2, and 3 I must regard the protection of the community from you as the principle purpose for which sentence is imposed and I may, in order to achieve that purpose, impose a sentence longer than that, which is proportionate to the gravity of the offence, considered in light of its subjective circumstances.
24 In DPP (Commonwealth) and DPP (State) v Guest 2014 VSCA 29, a case where the sentencing judge had imposed a Community Correction Order for commonwealth charges of using a carriage service to access and transmit child pornography and a state charge of possessing child pornography. The court stated at paragraph 28, that the serious offender provisions contained in part 2A of the Sentencing Act, are intended to be entirely punitive and are not concerned with protection of the community through rehabilitation. However, I note that in this case, it was not urged upon me by the prosecution, that this is a case where a disproportionate sentence is required. Further, it is important to remember that despite the tension between the serious sexual offender provisions and the principle of totality, totality does still remain an important consideration in sentencing, as does the need to consider all sentencing principles and purposes, when determining the appropriate sentence to be imposed in any given case.
25 Second, in addition to the serious sexual offender provisions when sentencing you on Charge 3 on the indictment, I must also take into account that you committed that offence whilst on bail for Charges 1 and 2, and accordingly, the presumption of concurrency does not apply.
26 Third, the use and downloading of child abuse material is not a victimless crime. Whilst you, during the period of your offending and afterwards, justified looking at child abuse material as being a strategy which assisted you to avoid having contact with real children, such conduct does impact on real children. Real children are harmed in the production of child abuse material and the repeated circulation and viewing of child abuse material, continues their victimisation.
27 Fourth, possessing and accessing child abuse material are both serious offences as was stated by Justice Mazza in the case of Phinthong v R.
Whether an offender is sentenced under state or federal law, the sentencing principles where an offender is found in possession of child pornography are the same. Ordinarily, a sentence of immediate imprisonment would be imposed. This is because such offences are not victimless crimes. Those who are prepared to possess or import it, help fuel the demand for it and in that way encourage the corruption and exploitation of children. In order to protect children, deterrence is the paramount sentencing consideration.
28 Fifth, in assessing the objective seriousness of the offending in any particular case, the following factors are of relevance.
a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.
b) the number of items or images possessed.
c) whether the material is for the purpose of sale or further distribution.
d) whether the offender will profit from the offence.
e) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised. And (f), the length of time for which the pornographic material was possessed.
29 Having regard to those factors, your offending in respect of each offence on the indictment is objectively serious.
30 Charge 1, is a single date charge, however it covers your possession of over 7,000 child abuse material files, 1,464 of which were category 1 files. Amongst those files were approximately 250 files, which depicted female children aged between 18 months and four years old being penetrated by adults and/or children in various orifices as well as many other files of very young children, either engaged in sexual activity with themselves or posed in various sexualised ways. Although it's not possible for me to know precisely how many children were depicted across those files, it is evident that a significant number of children are involved and thereby victimised.
31 Charge 2, relies on your admissions and is constituted by you accessing child abuse material, over a period of approximately 15 and a half months, a portion of which post-dates you being arrested and interviewed by police. This is a lengthy course of conduct and it is concerning that your activity did not cease after being arrested interviewed and bailed by police in respect of your initial offending.
32 Charge 3 like Charge 1, is also a single date charge. It is constituted by your possession of a further 509 child abuse material files, four of which were category 1 files and the remainder being category 2 files. Whilst this offence is objectively less serious than Charge 1, in terms of the number and gravity of images which you possessed, this offence is still a serious offence and is made more brave by the fact that you were on bail at the time of this offending.
33 There is no evidence that you paid for the images, nor was it suggested that you possessed or accessed any of the images for anything other than personal use. However, even though you only fall to be sentenced in relation to possessing and accessing child abuse material, rather than production or transmission, you continue to help make up the market, that encourages others to continue to exploit, abuse and harm children. Further you committed these offences in circumstances where you had only been out of custody for just under two years, after an 11 years' sentence for contact child sexual offending, were a registerable sex offender and in relation to part of the period of Charge 2 and the whole of Charge 3, were on bail.
34 Mr Cooper on your behalf submitted that your offending could not be considered to be at the lower end of the scale, however, he also submitted that given there was no commercial element to your offending, you did not stand to profit from it. You had no connection to any person responsible for the creation of the material, and there was no organisational sophistication to your offending. Although your offending also could not be said to be approaching the upper level of seriousness.
35 Ms Farrell by contrast submitted that your offending is towards the upper end of objective seriousness.
36 In my view, your offending in relation to Charges 1 and 2 are serious examples of possession and access of child abuse material respectively and fall in the mid to upper level of this kind of offending. Charge 1, due to the nature and volume of images possessed and Charge 2, due to the period of offending. Charge 3, is less serious but still contains a significant amount of material. In relation to all three charges, protection of the community, deterrence, both general and specific, and denunciation are prominent sentencing purposes.
37 When assessing the interplay between each of the charges, I note that whilst all three charges are discreet and distinct offence, directed at different, but related vices, there is a substantial overlap between the charges of accessing and possessing child pornography in this case. Accordingly, and despite the presumption of cumulation due to you being sentenced as a serious sexual offender on all charges, and committing Charge 3 whilst on bail, I intend to order for a substantial period of concurrency in respect of each charge.
38 Moreover, in relation to the related summary offence of committing an indictable offence whilst on bail, while you fall to be sentenced for the criminality involved in committing an offence whilst on bail, I have been careful not to doubly punish you, in circumstances where I am of the view that the fact you were on bail aggravates your offending on Charge 3, and part of the period of offending on Charge 2. In imposing sentence on this charge, I have not increased the sentence, by reason of the seriousness or kind of offence committed by you whilst on bail.
Personal Circumstances.
39 You are now 51 years of age, about to turn 52.
40 You are one of four children born to your parents. Your father Nelson Pope,[2] was born in Yugoslavia and migrated to Australia as a child. He worked in a timber yard and as an upholsterer. Your mother, Elizabeth Pope,[3] was responsible for raising you, your sister, and your two brothers.
[2] A pseudonym.
[3] A pseudonym.
41 As you were growing up, you were exposed to physical altercations between your parents, as well as being the subject of violence by your father. You were often physically disciplined and verbally abused but report that despite this you have positive memories of your father, who worked hard to provide for his family.
42 You have behavioural difficulties throughout your early schooling, which included physical altercations with other students. You struggled with the more academic classes and attended alternative classes for literacy because of your difficulties with reading and writing. You also struggled with the social aspects of school, finding yourself the subject of bullying on occasion. Ultimately, you left school before completing Year 10. You then experienced a period of unemployment for approximately 18 months, before managing to secure some part-time work in a factory. From that point until you were remanded in August 2007, you had consistent employment. You worked variously in collecting trollies as an arborist labourer and in car detailing during that time.
43 You have had a number of short romantic relationships as well as a more significant relationship with a woman named Meagan[4]. You and Meagan had a daughter together who is now 23 years of age. That daughter was the subject of your offending in 2005 to 2007 and understandably you have no ongoing contact with her.
[4] A pseudonym.
44 Whilst in custody between 2007 and 2018, you completed some educational, vocational course which assisted you to obtain employment upon release. I am told that you also participated in offence specific treatment which was conducted in a group environment at Langi Kal Kal on a weekly or fortnightly basis for approximately six months.
Context of Offending
45 Following your release from prison in 2018, you lived with your sister, Rochelle[5] and her two adult sons and managed to obtain employment in screen printing. You continued to work in that field except for when that work was disrupted due to COVID-19. In terms of your family, your mother had passed away from ovarian cancer, whilst you were in custody. Your brothers had cut contact with you after your offending with your daughter and you had minimal contact with your father. You had no social network or hobbies outside of your employment and no interaction with family and friends aside from your sister Rochelle. As a result, you spent a large amount of your spare time on the computer.
[5] A pseudonym.
46 Although there was no requirement upon you to do so, you did seek out counselling whilst you were in the community, to assist with sexual dysfunction. However, you struggled to find appropriate supports in that the counsellors who you'd linked in with, usually worked with victims and the counsellors to whom are referred by them as being more appropriate, were not entirely covered by a mental healthcare plan and therefore were unaffordable for you. As a result you received very minimal support and treatment for your issues in the community between being released from custody and committing the current offences.
47 It was in the context of all of the above and the restrictions imposed by COVID, that your current offending occurred.
Cognitive Functioning, Risk of Re-Offending and Prospects of Rehabilitation
48
You were assessed by Pamela Mathews, Forensic Psychologist and
Daria Sizenko, (provisional psychologist) for the purposes of the plea.
Ms Matthews and Ms Sizenko, authored a report dated 8 July 2022, which was tendered as Exhibit 2.
49 You told Ms Matthews and Ms Sizenko that whilst you have engaged with print and video adult pornography since you were 13 or 14 years of age, you only started to engage with internet pornography after your release from custody. You told them that you came across child abuse material, whilst downloading adult pornography and developed an interest in it. Your engagement with child abuse material became more prevalent during the COVID-19 pandemic, when you had more time to yourself due to layoffs from work. You said that you often spent up to 12 hours looking at and downloading child abuse material, often favouring doing this over having sleep. Ms Matthews and Ms Sizenko note that you frankly admitted that you have an attraction to younger female children, primarily between five and seven years of age, and that you justified your engagement with child abuse material, on the basis that it allowed you to explore your fantasies and achieve sexual satisfaction, whilst avoiding any temptations for contact offending.
50 Having assessed you Ms Matthews and Ms Sizenko are of the opinion, that you present as a moderate to high risk of re-offending in a similar manner. They state that based on your history and presentation in interview you meet the DSM-5 criteria for paedophilic disorder of a non-exclusive type. In their view, apart from paedophilia, no other mental health or developmental factors would have played a role in your offending. I note that in coming to this conclusion, Ms Matthews and Ms Sizenko had identified your cognitive function as being low average to average and did not proffer an opinion that your level of intellect would have contributed to the offending. Whilst materials before the Court of Appeal in respect to your previous matter, suggested that you are of low intellect, having been assessed at one point as having a full scale IQ of 84, I do not have any material before me which would allow me to come to a conclusion that your moral culpability in respect of this offending, is reduced in any way by reason of your intellect.
51 Ms Matthews and Ms Sizenko noted that you currently present with some insight into your offending behaviour which is represented in your ability to admit attraction to pre-pubescent children, however your judgement is limited. Whilst you are able to recognise your behaviour as being problematic at the same time, you attempt to justify your engagement with child abuse material.
52 Ms Matthews and Ms Sizenko also noted, that although you report some stress and low mood, such are likely to be reflective of your current legal studies, rather than a standalone disorder. They concluded by saying the following,
'Although paedophilia is a life-long condition, it can be managed through the development of risk minimisation and coping strategies. Mr [Pope's] insight into his problematic behaviours is limited by ongoing minimisation of issues surrounding CEM. In particular he continues to hold the sentiment. The CEM is an appropriate coping strategy for managing risks for contact offending. In actuality, his continuous consumption of CEM is likely further re-affirming his attraction to pre-pubescent girls. It would be recommended for
Mr [Pope] to engage in treatment focused on relapse prevention, impulse control, management of sexual thoughts and desires and elimination of maladaptive thought patterns and coping strategies. Such engagement would be essential for Mr Pope to avoid further re-offending in the future.'
53 It is clear in my view, that your prospects of rehabilitation are, as submitted by Mr Cooper, tied to your need for offence specific treatment and the implementation of risk mitigation strategies. You have stable accommodation, a consistent employment history, the support of your sister, and a level of insight which is still somewhat limited into your offending. Further in my view, your attempts to obtain treatment for yourself in the community, whilst under no obligation to do so, although unsuccessful, shows that you do have some desire to address your issues. Accordingly, whilst I have some concerns about your prospects for rehabilitation, given your prior history, the manner in which the current offending came about and your assessment as being a moderate to high risk of re-offending, if you were to be linked in with the correct treatment and engaged in that treatment, then your prospects of rehabilitation would be considerably enhanced.
Burden of Imprisonment
54 Mr Cooper submitted on your behalf that the burden of imprisonment will be greater upon you due to the impact of COVID-19. Both due to ongoing restrictions in custody, and the ever present concern of contracting the virus in prison conditions.
55 Ms Farrell for the prosecution submitted that there is limited evidence that you will experience imprisonment as more burdensome due to COVID-19. She submitted there are currently no active cases of COVID-19 in Victorian prisons, prisoners are no longer required to spend 14 days in isolation on entry into the prison system, and in-person visits have resumed. Accordingly, she argues that whilst there is some future uncertainty, the court cannot be satisfied to the requisite standard that your sentence will be served under more onerous conditions.
56 I agree with Ms Farrell that the current situation in relation to COVID-19 restrictions in custody, is very different to that which was in place during the last two years. Quarantine at the time of remand is limited to one to two days, the time it takes to return a negative COVID test, rather than the one to two week isolation period previously in place. In-person visits from family and friends have largely resumed and lockdowns as a result of COVID-19 are less common. Further, there has been a resumption of education, rehabilitation and work opportunities albeit in a more limited capacity that pre-COVID. I also agree that the current restrictions facing prisoners could not accurately be described as substantial at this current period of time.
57 However, I do accept that the concern or anxiety of the person in custody as to their own health in respect to COVID, may still be present due to a prisoner's inability to control their own environment. I also accept that there may be some limited impact on a person in custody, due to the limitations which still remain over education and rehabilitation opportunities.
58 Overall, I am of the view that these factors will add to a very limited extent to the burden of your imprisonment. I have taken this added burden of imprisonment into account in your favour.
Submissions on sentence
59
Mr Cooper on your behalf submitted that you acknowledge the seriousness of your offending and accept that an immediate term of imprisonment is appropriate. However, he submitted that your extensive admissions and co-operation with police. Your early plea of guilty in a period when the pandemic is still affecting the justice system, your personal circumstances and the increased burden of imprisonment due to COVID-19 restrictions are all important sentencing considerations in this case. Mr Cooper submitted then the particular circumstances of your case, a combination of a term of imprisonment and a Community Correction Order would be an appropriate sentence.
Mr Cooper expressly relied upon the case of Boulton v The Queen, where the Court of Appeal said, amongst other things, that
even in cases of objectively grave criminal conduct, the Court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of offending.
60 In Mr Cooper's submission, whilst community protection must be the foremost sentencing purpose in this case, due to the serious sexual offender provisions, those provisions do not preclude taking rehabilitation into account more broadly. He submitted that a combination of a term of imprisonment and a Community Correction Order would protect the community, denounce your conduct and deter you and others from offending in this way, by placing you in custody and imposing a longer period of supervision and restriction upon you in the community. However, such a sentence would also foster your rehabilitation by allowing for an extended period of supervised offence specific treatment in the community, something which you have been lacking to date.
61 Ms Farrell submitted on behalf of the prosecution, that in sentencing you proper weight must be given to the sentencing objections of deterrence, denunciation, just punishment, rehabilitation and protection of the community. She submitted that given the gravity of your offending, even taking into account all of the mitigating circumstances, the only appropriate sentence is a term of imprisonment with a non-parole period.
Comparable Cases and Current Sentencing Practice
62 Both counsel brought my attention to previous cases which have some similarities to yours, however as each counsel conceded none of the cases referred to were directly comparable. Each of the cases provided, turn on their own factual circumstances and are distinguishable from each other and your case. They do however, provide examples of how the various sentencing principles have been replied in cases involving these types of charges and provide yardsticks which demonstrate, although do not define the range of sentences which have been imposed by the court in the past for these kinds of offences. I have taken these cases and current sentencing practice more broadly into account, whilst recognising they are but just one factor which must be considered in the sentencing synthesis. Ultimately, I have sentenced you applying all of the appliable sentencing principles to the facts of you and your case.
Availability of, and Suitability for, a Community Correction Order
63 At the conclusion of the plea I made an order for you to be assessed for a Community Correction Order, whilst noting that I had not determined at that stage, whether in my view it was open to sentence you to a sentence, which combined a term of imprisonment with a Community Correction Order. A suitability assessment report was prepared, and you were deemed as unsuitable for such an order. The author of the report confirmed - the author of the report confirmed that you had indicated your willingness to engage in offence specific treatment and had consented to an order, performed the view that you were unsuitable for such an order for the following reasons:
a) your previous non-compliance with treatment specific to sexual offending in a custodial environment;
b) a previous non-compliance for treatment in the community;
c) the potential inability of community corrections to adequately mitigate your risk of sexual recidivism, given your previous non-compliance with treatment; and
d) a lack of protective factors which would aid in the completion of Community Correction Order, that is whilst you have accommodation and a sister with whom you have a positive relationship, the current offending occurred in the home to which you would be returning, whilst your sister was also residing in that home.
64 In relation to the first factor, the author of the report, appears to have accessed material held by Corrections in relation to an assessment of youth for suitability for a parole order in 2017, only a year prior to your release. The author's summary of that material was that you had been assessed as unsuitable for a parole order due to lack of accommodation, continuing to engage in sexually deviant behaviour whilst in custody, associated dishonesty regarding such behaviour and an unwillingness to appropriately engage in sexual offence related treatment. I do not have access to any original documents upon which such conclusions were drawn in 2017. However, I do note that you reported to Ms Mathews and Ms Sizenko, that you had been given some one-on-one counselling in custody, when you'd been caught with images of children. However, even if I accept the hearsay material provided by Corrections at its highest, my assessment must be based on your current situation. Whilst past performance can be an indicator as to potential difficulties, I am now dealing with you five years later, in circumstances where you did independently attempt to get treatment for yourself in the community, albeit that attempt was unsuccessful. You have cooperated fully with police and made full admissions to your conduct, and you have been psychologically assessed as having some level of insight, but a requiring of treatment to adjust your maladaptive thinking.
65 Insofar as the final factor is concerned, the fact you have stable accommodation and the support of your sister, who is now aware of your current offending, are not factors which I view as being problematic for your completion of an order.
66 Accordingly, whilst I respect the position taken by Corrections, and take into account the fact that you have been assessed as unsuitable, I do not consider that assessment to be a barrier to placing you on a Community Correction Order. The bigger issue for me is whether a sentence of imprisonment, combined with a Community Correction Order, can adequately protect the community which is the predominant sentencing purpose in this case, adequately deter you and others in the community from coming these kind of offences and adequately denounce your conduct bearing in mind that a Community Correction Order can be both punitive and rehabilitative.
67 Whilst as I have already noted the serious offender provisions are punitive and community protection is the predominant sentencing purpose, this does not necessarily result in the conclusion that a head sentence and non-parole period must be imposed upon you for this offending. As identified by the Court of Appeal in Dukic v The Queen [2021] VSCA 18, at paragraph 35:
the provision recognises that to achieve the requirement of protection of the community as the primary purpose, it might, not must be necessary to impose a longer sentence that is warranted by the gravity of the offending and the circumstances. Logically it follows, that in some instances it is not necessary to impose a sentence longer than that warranted by the seriousness of the offending. That is the sentence maybe of such a length as is both proportionate to the gravity of the offending and the circumstances and satisfies the primary purpose of protecting the community and all other sentencing purposes.
68 Ultimately, after much consideration, I agree with Mr Cooper that a combination of a term of imprisonment with a Community Correction Order of some length with appropriate conditions, can give sufficient weight to the sentencing purposes of community protection, denunciation and deterrence by both placing you in custody and then on your release imposing a significant period of supervision, restriction and requirements upon you in the community. Additionally, such a sentence would also foster your rehabilitation, by allowing for an extended period of supervised offence specific treatment in the community, something which you have been lacking to date.
Sentence
69 So, Mr Pope, in respect of the charges on the indictment, I sentence you as follows.
70 On Charge 1, possession of child abuse material, you are convicted and sentenced to nine months' imprisonment.
71 On Charge 2, accessing child abuse material, you are convicted and sentenced to nine months' imprisonment.
72 On Charge 3, possession of child abuse material, you are convicted and sentenced to three months' imprisonment.
73 On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 21 days' imprisonment.
74 I order that seven months of the sentence on Charge 2, and two months of the sentence on Charge 3, be served concurrently, with the sentences imposed on Charge 1, and each other. I order that seven days of the sentence imposed on the summary related offence, be served cumulatively, upon the sentences imposed on Charges 1, 2 and 3 on the indictment.
75 Therefore, the total effective sentence of imprisonment is 12 months and seven days.
76 I declare that the period of 13 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
77 In respect of Charges 1 and 2, you are additionally sentenced to a Community Correction Order for a period of three years and six months which will commence upon your release from custody. In addition to the mandatory conditions of a Community Correction Order you will be subject to the following special conditions.
i. You must report to Frankston Community Correctional Services within two clear working days of your order commencing.
ii. You must complete 150 hours of unpaid community work during the period of the order.
iii. You must be under the supervision of a Community Corrections officer throughout the entire period of the order.
iv. You must participate in programs and/or courses that address factors relating to your offending as directed, including being assessed for sex offence specific programs and treatment and engaging in any sex offence specific programs or treatment for which you are deemed to be suitable; and
v.
You must reappear at court for a review of your compliance with the order as directed by the court, also known as judicial monitoring. Your first review will be at the County Court at Melbourne at 9.30 am on
5 June 2024.
78 In respect of Charge 3, you are additionally sentenced to a Community Correction Order for a period of 18 months which will commence on your release from custody, and will run concurrently with the order imposed on Charges 1 and 2. In addition to the mandatory conditions of the Community Correction Order, you will be subject to the following special conditions:
i. You must report to Frankston Community Correctional Services within two clear working days of your order commencing.
ii. You will be under the supervision of a Community Corrections officer, throughout the entire period of the order.
iii. You must participate in programs and/or courses, that address factors relating to your offending as directed. Including being assessed for sex offence specific programs and treatment and engaging in any sex offence specific programs or treatment for which you are deemed to be suitable; and
iv.
You must re-appear at court for a review of your compliance with the orders directed by the court, also known as judicial monitoring. Your first review will be at the County Court at Melbourne at 9.30 am on
5 June 2024.
79 So, Mr Pope, the end result of all of that, is that you've got a term of imprisonment of 12 months and seven days. You have already done 13 days of that sentence. When that sentence ends, you will start on your Community Corrections Orders. You have got two orders that are going to run at the same time. You've got one that goes for 18 months, the other one goes for three years and six months. You have to report to Frankston Community Corrections within two clear working days of being released from custody. So, if you get released on a Monday, you need to report by 4 pm on the Wednesday. Does that make sense?
80 OFFENDER: Yes.
81 HER HONOUR: And you will be under judicial monitor, which means you come back before me on a regular basis so that I can see two things. The first one is that you're doing what you're required to be doing. The second one is making sure that you have got the supports in place that you need to make sure that you are not returning to offending. So, there's a dual purpose of that judicial monitoring, it's both to see what is being provided to you in terms of treatment, but also so that I can see that you're doing everything that you've been asked to do. Do you understand that?
82 OFFENDER: Yes - yes, Your Honour.
83 HER HONOUR: Now, so do you understand all of those conditions that you've got to comply with.
84 OFFENDER: Yes, yes, Your Honour.
85 HER HONOUR: Yes, good, all right. So what I have to tell you is if you don't comply with the requirements of the orders, or if you commit a further offence that's punishable by imprisonment, during the period of either of the orders, then what's likely to happen is that you will be breached by Corrections and you'll come back before me and one of the things that can occur if you breach the order, is that you may fall to be re-sentenced and if that happens then the potential is that you're going to face further gaol time on these charges. Do you understand that?
86 OFFENDER: Yes, Your Honour.
87 HER HONOUR: All right. So, given all those matters that I've told you, do you consent to undertaking both of those Community Correction Orders.
88 OFFENDER: Yes, Your Honour.
89 HER HONOUR: All right.
Serious Sexual Offender Declaration
90 I declare that on Charges 1, 2 and 3, you have been sentenced as a serious sexual offender and that will be included in the records of the court.
Section 6AAA Declaration
91 Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today, and been convicted of them, you would have received a total effective sentence of four years and two months' imprisonment, with a non-parole period of three years.
Sex Offender Registration
92 In terms of sex offender registration, I understand you are already on the register for life, however, each of Charges 1, 2 and 3, are class 2 offences for the purposes of the Sex Offender Registration Act. So, having been convicted of those three offences, your reporting period is again life. So, although you're already subject to the reporting obligations under that Act due to your prior offending, I still have to issue you with another notice of reporting obligations and a copy of that notice will be provided to you later today at the prison, given that you're not actually physically in court, all right?
93 OFFENDER: Yes, Your Honour.
Ancillary Orders
94 HER HONOUR: Pursuant to s33(1) of the Confiscation Act, I make a forfeiture order in respect of the following items of property, which were seized by police.
· That's one red 32 gig verbatim USB;
· one Lenovo computer tower and cord;
· 28 DVDs;
· one Toshiba 32 gig thumb drive;
· one white ASUS laptop computer; and
· one black verbatim 32 gig thumb drive.
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