Director of Public Prosecutions v Reilly
[2013] VCC 2099
•20 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
CR-13-01379
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALASTAIR REILLY |
---
| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 December 2013 |
| DATE OF SENTENCE: | 20 December 2013 |
| CASE MAY BE CITED AS: | DPP v Reilly |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 2099 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Schubert | CDPP |
| For the Accused | Mr S Cash for plea Mr A. Zingler for sentence | Robert Stary Lawyers |
HER HONOUR:
1Alastair Cameron Reilly, you have pleaded guilty to three charges of using a carriage service to transmit indecent communications to a person under 16 years, an offence against the Commonwealth Criminal Code, which has a maximum penalty of seven years' imprisonment.
2I proceed to sentence you on the basis of the opening read by the prosecutor.[1]
[1] Exhibit A
3In brief, between the end of November 2012 and the end of February 2013 you communicated online with a person confirmed to be aged 15 years and living in Canada and included in these communications were discussions of masturbation and oral sex (Charge 1). It is conceded by the prosecution that much of the communication was not overtly indecent. When spoken to by police on 28 February 2013 you admitted contacting this girl but said you did not think the communications were that explicit and described developing a strong bond and caring for her but not in a sexual way. By your plea you have now admitted that some of these communications were indecent. I note that although there was apparently an exchange of photographs of you and the victim both in the shower, I accept that these were not explicit.
4Between December 2012 and February 2013 you communicated online with another person who has not been able to be specifically identified, but who appeared from the communications to be a school aged girl living in the United Kingdom (Charge 2). The communications were clearly indecent, containing explicit sexual discussion between you and the girl, making the content more serious than in respect of Charge 1. It seems that there was no exchange of indecent pictures or videos.
5You volunteered the information about these communications when spoken to by police and admitted talking to this person who you believed to be aged 14 or just turned 15, in a sexual manner but said it was infrequent.
6Over four days in late February 2013, you communicated online with another person who has not been able to be specifically identified but who appeared from the communications to be a 13-year-old girl living in the United States (Charge 3). There seems to have been explicit sexual activity by you and the victim, shown to each other over the web cam. You discussed pornography with the girl and she sent you links to pornographic material. Again you volunteered the information that you had communicated with people aged under 18 years, as well as the girl the subject of Charge 1, when spoken to by police, although you were not specifically asked about this girl in the United States.
7It is in your favour that by your plea you have admitted that the people communicated with in Charges 2 and 3 were aged under 16 years.
8The facts in this case are very serious indeed, although the prosecution fairly conceded that these were not the most serious examples of this type of offending. It is shocking to think that this is so but I know there are much worse cases. However, that does not mean that your behaviour towards these young people was anything other than disturbing. You were then aged 48 and the girls were aged between 13 and 15. You are now aged 49.
9I find that your offending on Charge 1 is aggravated by the fact that the communication was with an actual child victim who has been identified, although the indecency of the communications in that charge is far less serious than for Charges 2 and 3 because of the explicit content of those communications.
10I find that there was a period of time from December 2012 to early February 2013 where you were engaging in this criminal behaviour with the girls the subject of Charges 1 and 2 and another shorter period of only two days where you were engaging in this criminal behaviour with the girls the subject of Charges 2 and 3.
11I am satisfied that for all the charges the apparent purpose behind your behaviour was your own sexual gratification, albeit as a means of escape from the reality of your life.
12I find that there was never any genuine intention or attempt to meet the victims, other than what I accept was unrealistic discussion with the first victim. You also provided her with your correct name and age, although you used the name Alex while online with her.
13No victim impact statement has been tendered. The identified victim in Charge 1 declined the opportunity to do so. In her interview with police she appeared to consider you as a friend and said in effect that the sexual talk was limited and infrequent, consistent with what you said to police.
14While I acknowledge that the law against the exposure of children to indecent material is designed to protect them from conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest,[2] I note that she describes in her interview her appropriate responses in that she was able to deflect you from that sort of topic. Of course you should not have placed her in a situation where she needed to do that.
[2]R v Nahlous (2013) 273 FLR 232 at [71]
15In the end I recognise that she may later reassess the relationship with you as her age and maturity increases and suffer a psychological impact as a result of recognising that you had exploited her, at the very least on the occasions where indecent communications took place.
16In respect of the other victims, while the possibility exists that they were indeed children, there is no evidence of harm to them. I note that despite their apparent willingness to discuss highly sexualised matters, as I just stated the law applies to protect children in exactly that situation.
17There are a number of matters which are put in mitigation of the seriousness of your offending.
18The first of these is that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. By your plea the community has been spared the time and cost of a trial and your victim on Charge 1 has been spared the ordeal of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
19Next I take into account that although you did not plead guilty at the earliest opportunity there were discussions about resolving the matter from at least the time your case came into this court.
20I accept that you have demonstrated some contrition, first by your plea of guilty, and second, by recent expressions of remorse to family and friends who are naturally shocked by your offending but remain supportive of you, as shown variously by their attendance at court, their character references and their evidence, support which is vital for your rehabilitation.
21You are genuinely sorry for the effect of your offending on your family and friends, especially your wife, but that is not the same as having remorse for committing the offences.
22There is still some work to be done as, according to mental health practitioners who assessed or treated you, you still minimise the criminal nature of the relationship with the first victim and some cognitive distortions are still present. I will return to discuss this later.
23You have only one matter in your criminal history from a long time ago, which I treat as having no bearing in this case. Your good character has been attested to by friends and family[3] but I note that good character carries less weight in these types of offences.
[3] Exhibit 8
24There were two major factors relied on to mitigate your offending. The first of these is the mental health of your wife. She has longstanding treatment resistant major depressive disorder and has been hospitalised many times, including ten times this year, and is currently in hospital as a voluntary patient. I received reports from her treating psychiatrists[4] and a psychotherapist who has been working with her since 2001.[5] That practitioner described how your wife reacted to the news that you would "probably be imprisoned for these offences". Your wife has already spoken of suicide and now seems to be moving towards actual planning. I accept that you are her most important support person and carer and the only one she trusts and that if you are not available to her on her release from hospital it is likely she will not cope with that. I recognise that there is at least one other option, that she live with her parents, but I am satisfied from the evidence of her father that is not a realistic option as it is not acceptable to her, with her entrenched mental health problems.
[4] Exhibit 5 and 6
[5] Exhibit 7
25As was pointed out, the court should usually disregard the impact which a sentence of imprisonment will have upon members of the family of a sentenced person unless exceptional circumstances are demonstrated. It was submitted that in this case the circumstances are exceptional. While it was conceded on your behalf that a term of imprisonment must be imposed for your offending it was submitted that you should not be ordered to serve any part of that sentence immediately.
26The prosecutor submitted that imprisonment was the only appropriate disposition but fairly conceded that if the court was satisfied as to the existence of exceptional circumstances, in the nature of the hardship to your wife, then the court could exercise its discretion with respect to whether the imprisonment must be served immediately.
27I am satisfied on the basis of the evidence I have heard and the reports I have read that there are exceptional circumstances in this case. The impact on your wife of you serving a term of imprisonment is potentially so severe as to endanger her life. Given her psychiatric history I accept that potentiality is real. I therefore take that hardship into account.
28The second major factor relied on is your own mental health. You have been diagnosed by three mental health practitioners as suffering from an adjustment disorder associated with your wife's illness and have been suffering from that for a number of years.[6] All express the opinion that this arose as a coping strategy for or means of escape from the significant emotional distress arising from living in a relationship with a severely mentally ill wife. I heard evidence from your treating psychologist expanding on this.
[6] Exhibit 2, 3 & 4
29I am satisfied on all of that material that you are suffering from a disorder that impairs your mental functioning and that you were suffering from it at the time of the offending. I am satisfied that this disorder impacted on all of your cognitive functions and affected your ability to make wise choices and exercise appropriate judgement. I accept that there is some causal connection to your offending, as those activities grew out of a desire to avoid frequently ruminating on your situation with your wife and to engage in behaviours that were a distraction.
30However, that is not the end of it. You initially began using the internet in your early 30s and later became "addicted" to chatting online. You ceased that behaviour after your wife discovered this, although there is no evidence that it involved criminal behaviour at that time.
31However, when your wife's health deteriorated when you were aged about 40 you resumed this behaviour to avoid dealing with the problems at home. There were periods where you did not engage in this activity but there were lengthy periods when you did. At the age of 47 you began looking at other sites involving pornography and role playing. This ultimately led you at the age of 48 to chatting on a site where you used key words that linked you to incestuous role play and eventually led you to the indecent communications with the victims.
32I have carefully considered whether your impairment of mental functioning reduces the moral culpability of your offending conduct. In the end because of your history of using the internet in the way I have described, I am not persuaded that it does. I accept that your judgement was affected by your disorder but this offending came after many years of online sexual activity and the offending represents an escalation of that behaviour into criminal behaviour with children rather than a sudden commencement of online deviant sexual activity.
33For the same reasons, I am not satisfied that the impairment to your mental functioning moderates either general or specific deterrence as a sentencing consideration.
34On the other hand, your disorder is a matter of great relevance in explanation of the offending and I take it into account. I find that because of its existence at the date of sentencing it could mean that a sentence of imprisonment would weigh more heavily on you than on a person in normal health and there is the possibility of exacerbation of your condition. However, if you were imprisoned today, while I accept that you would suffer anguish because of your wife's condition, which does mitigate the offending to a certain extent, I am not persuaded that there is such a serious risk of imprisonment having a significant adverse effect on your mental health arising from your disorder alone that it should operate as a mitigating factor.
35It follows that by my sentence I must express denunciation of your criminal behaviour and impose just punishment reflecting the gravity of using the internet to offend against children. Further, by my sentence of you I must seek to deter other men who would use the internet to find sexual gratification at the expense of children, without regard to the impact on their victims.
36Two of the reports addressed your risk of re-offending. Dr Godfredson[7] was of the opinion that on balance your deviant sexual interests appeared to reflect curiosity and experimentation in the context of poor self-regulation and consequential thinking rather than a pervasive deviant sexual disorder and found that before engaging in treatment you posed a moderate risk of re-offending in the same way and you posed a low risk of progressing to a sexual offence involving actual contact with a child.
[7] Exhibit 2
37Mr Newton[8] was of the opinion that there were indications of the presence of a psychosexual pathology and that your offending behaviour was sufficiently problematic to warrant a diagnosis of unspecified paraphilic disorder. He found you to be a moderate risk of re-offending due to dynamic risk factors including the diversity of your deviant cognitions and the entrenched pathological arousal patterns intrinsic to your offending conduct.
[8] Exhibit 3
38Both psychologists were of the view that you needed treatment and had begun addressing your risk factors. Your treating psychologist, Dr McKenzie, confirmed this and indicated that while there had been some progress there was still some way to go and some difficult concepts yet to be worked through. She indicated that if you were imprisoned your work with her would have to resume after your release. It is in your favour that you have voluntarily commenced this treatment.
39In considering my own assessment of your risk of re-offending, I have taken the material from the experts into account as well as considering your background. Apart from the matters I have already referred to you have a successful career as a location manager for the film and television industry, an industry you have worked in since leaving school. You are highly regarded and will continue to have this occasion despite your offending.
40I have also taken into account the effect on you of these proceedings as well as the impact on your wife and I find that your risk has been reduced by those factors and by your ongoing treatment with Dr McKenzie, so that you are a low to moderate risk of re-offending. In the same way I find you are a low risk of what are called contact sexual offences.
41I am satisfied that the factors that have reduced your risk will operate as a considerable deterrent to your re-offending in a similar way. However, given your entrenched pattern of internet based sexual activity I find that deterrence of you by my sentence remains a sentencing consideration and, as I have said, is not moderated by your disorder.
42Ultimately your prospects for rehabilitation are, in my view, reasonable but somewhat guarded.
43The prosecutor submitted that a sentence of imprisonment should be imposed in the range of eight to 15 months with four to five months to serve unless I found exceptional circumstances with respect to the hardship that would be endured by your wife and thereby exercise my discretion not to order you to serve time in prison.
44Your counsel submitted that in imposing a term of imprisonment I should provide for substantial concurrency between the charges and order your immediate release on conditions, including that you receive supervision and undertake a sex offenders program designed to reduce your risk of re-offending.
45The prosecutor provided me with a Chart of recent cases.[9] From that, current sentencing practices can be gleaned. I note that in most, if not all, of those cases the offending involved other more serious charges and many had aggravating features which are absent in your case, such as relevant criminal history, child pornography, use of false identity and attempts to meet the victims. It seems from those cases that on a plea of guilty a term of six months' imprisonment was the lowest sentence for a charge under the same section as you are charged with, with one term of four months imposed on appeal where the Court of Appeal found the impaired mental functioning of the offender operated in mitigation of the punishment, which I have not.
[9] Exhibit B
46In summary, I am satisfied that a term of imprisonment is the only appropriate disposition, given the gravity of the offending, even when balanced against the mitigating factors as I have found them. However, because of the existence of exceptional circumstances relating to the hardship to your wife, I propose to exercise my discretion to order your immediate release on conditions: in effect, a suspended sentence.
47I will order some cumulation to recognise the existence of three victims but there will be considerable concurrency, given that the period of offending was relatively short and it was an ongoing course of conduct.
48The sentences on Charges 2 and 3 will be higher than the sentence on Charge 1, even though that had the serious aspect of an actual identified victim.
49Stand up please, Mr Reilly.
50You are convicted and sentenced as follows;
51On Charge 1, six months' imprisonment.
52On Charge 2, eight months' imprisonment.
53On Charge 3, ten months' imprisonment.
54The sentence on Charge 3 is to commence today. I intend to cumulate one month of the sentence on Charge 1 and two months of the sentence on Charge 2 on the sentence on Charge 3 and on each other to make a total effective sentence of 13 months.
55I therefore state that the sentence on Charge 2 is to commence six months before the expiry of the sentence on Charge 3. The sentence on Charge 1 is to commence three months before the expiry of the sentence on Charge 3. I will come back to counsel to check that that meets the intention.
56I order that you be released forthwith by recognisance of $1000 to comply with conditions. These conditions are that you be of good behaviour for a period of two years, that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for that period of two years, and that you attend for assessment and, if assessed as suitable, treatment for sex offender programs to reduce re-offending as directed by the Deputy Commissioner or his or her nominee.
57So Mr Reilly, just to make it clear, the sentence that I impose is a sentence of 13 months' imprisonment. I will be ordering you to be released forthwith so that there is no time to serve, if you agree to be bound by those conditions, as I outlined them, to be of good behaviour for a period of two years, to be under supervision of the Sex Offender Management Branch for a period of two years and to undertake assessment and, if found suitable, to undertake a sex offender program. Do you agree to those conditions?
58OFFENDER: Yes, I do, Your Honour.
59HER HONOUR: I need to advise you that if you fail to comply with any of the conditions of that order then you will be returned to court to appear before me where I will deal with you for breaching the conditions of that order and you may be, and almost certainly will be, re-sentenced which would involve time to be served in prison. Do you understand the consequences?
60OFFENDER: Yes, I do, Your Honour.
61HER HONOUR: I also advise you that the order may be discharged or varied on application to the court but you would need to obviously receive advice from your lawyers if you seek to do that. Yes, all right, just take a seat thank you, Mr Reilly.
62I will not state the sentence that would have been imposed if Mr Reilly had not pleaded guilty. Until the Commonwealth legislation specifically provides for this, or an authority which binds me states that the Victorian law applies in this instance to a Commonwealth sentence, I do not propose to do so.
63
Now, can I come back to counsel on the statement of the sentence?
Mr Schubert?
64MR SCHUBERT: I believe it is correct, Your Honour. The total was to be 13 months?
65HER HONOUR: That is correct.
66MR SCHUBERT: Then the base sentence is ten months.
67HER HONOUR: Base sentence is ten months commencing today.
68MR SCHUBERT: Yes that’s right. Charge 2 was eight months?
69HER HONOUR: Charge 2 is eight months commencing six months before the expiry on Charge 3.
70MR SCHUBERT: Which will leave 12 months in total. And the first charge is six months?
71HER HONOUR: Six months to commence three months before the expiry of Charge 3.
72MR SCHUBERT: I believe that is correct.
73HER HONOUR: 13 months. Thank you. Mr Zingler, you agree with that?
74MR ZINGLER: I do agree with that, Your Honour.
75HER HONOUR: All right, thank you. All right, well Mr Schubert, do you have a copy of the order or do you wish my Associate to - - -
76MR SCHUBERT: I emailed a copy of the pro forma, Your Honour.
77HER HONOUR: Yes.
78MR SCHUBERT: I also have paper copies if you - - -
79HER HONOUR: All right.
80MR SCHUBERT: - - - prefer that I fill them out.
81
HER HONOUR: That is all right. I think my Associate is on to it. Perhaps to save time, whilst that is being done I can ask counsel about the application under s.7 - I beg your pardon, s.11 of the Sex Offender Registration Act.
Mr Zingler, have you taken any further instructions in respect of that?
82MR ZINGLER: I have, Your Honour. My understanding is that Mr Reilly understands that it is likely he will be placed on that register. In light of what Your Honour has just said though, I would say that you found Mr Reilly to be a low risk - - -
83HER HONOUR: Low to moderate.
84MR ZINGLER: Low to moderate risk, I apologise, Your Honour. In that context Your Honour must of course be satisfied beyond reasonable doubt that he is an ongoing risk. I do not take it any further than that. As to the length of time required, I agree with my friend's submissions that it must be life in these circumstances and there is a Victorian Supreme Court of Appeal case of Cheetham that supports that position. I might say, Your Honour, that it is a little bit (indistinct) having read the Act. It seems to me that there might be some room to say that that position would only apply after such time as someone has already been found guilty of such an offence. However the Court of Appeal has been clear on that position - - -
85HER HONOUR: Yes well that is right, it is interpreted as being once the declaration is made - - -
86MR ZINGLER: Indeed.
87HER HONOUR: - - - they are subject to it. And I was the judge in Cheetham so I have learnt that lesson.
88MR ZINGLER: Thank you, Your Honour.
89HER HONOUR: Mr Schubert, anything else you want to say in respect of that application?
90MR SCHUBERT: No, Your Honour.
91HER HONOUR: You did provide me with your written submissions which I have read.
92MR SCHUBERT: Yes. It is really a matter for Your Honour as to whether you are satisfied that the offender poses a risk to the community.
93HER HONOUR: Yes, thank you.
94Application has been made by the prosecution under the Sex Offenders Registration Act (2004) for the registration of the offender, Mr Reilly, pursuant to s.11 of the Act. I have received written submissions on behalf of the prosecution and I have just heard from counsel representing Mr Reilly in respect of this application.
95I have just announced my sentencing reasons and included in that was a finding by me of a low to moderate risk of re-offending in the same way and a low risk of contact sexual offending.
96Before I can make an order under s.11 I have to be satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or of the community. Within that section there is not a requirement that the risk be at any particular level.
97It follows that I was satisfied to the required level for my assessment in terms of sentence as to a low to moderate risk of re-offending in the same way and a low risk, as I said, for a contact sexual offence.
98Having taken into account all of the matters in my sentencing remarks and having regard to the purpose for which the Sex Offenders Registration Act was brought into existence and also having regard to the further deterrent effect of such a registration order I am satisfied beyond reasonable doubt that the offender, Mr Reilly, does pose a risk to the sexual safety of a person or one or more persons or of the community in respect of internet sexual activity.
99I therefore propose to order that there be registration under the Sex Offender Registration Act and I confirm that the period of compliance with that Act will be for life.
100Yes, all right. Mr Reilly can be released from the dock and come to stand next to Mr Zingler please. It is necessary that you sign the recognisance release to indicate that you accept the conditions of this order. So I will just have that provided to you. Mr Zingler, you can just confirm that with Mr Reilly.
101Now in respect of the order I have just made for registration, Mr Reilly, I need to provide you with a notification of your reporting obligations and you need to sign to acknowledge that you have received this.
102It will be hard to take all that information in right at this moment but I just tell you that it does contain the information that you require.
103All right, well I thank everyone for their assistance in this matter and those who have attended court. Adjourn the court sine die.
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