Director of Public Prosecutions v Ritchie
[2020] VCC 1766
•9 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00949
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MARK RITCHIE |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2020 |
DATE OF SENTENCE: | 9 November 2020 |
CASE MAY BE CITED AS: | DPP v Ritchie |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1766 |
REASONS FOR SENTENCE
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Subject: using a carriage service to groom a person under the age of 16 years, using a carriage service to solicit child abuse material
Sentence: 18 months community corrections order, recognizance order.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr M Keks | |
For the Accused | Mr J Lowy |
HIS HONOUR:
1Mark Ritchie, you have pleaded guilty to two Federal charges laid by the Commonwealth Director of Public Prosecutions. Charge 1 is a charge of using a carriage service to groom a person under the age of 16 years. The maximum penalty for this offence is imprisonment for 12 years. Charge 2 is a charge of using a carriage service to solicit child abuse material. The maximum penalty for this offence is imprisonment for 15 years.
2In addition, you also pleaded guilty to a related State summary offence of committing an indictable offence whilst on bail. The maximum penalty for this offence is imprisonment for three months.
3As you can see from the maximum penalties prescribed by legislation, these are very serious offences. That is because, with the exception of the related summary offence, each offence involves you dealing with children.
4The circumstances that bring you before the court are summarised in a Prosecution Opening dated 29th September 2020 which was tendered in evidence and marked as Exhibit “A” and it was read in summary form to the court by the prosecutor Mr Keks. Your counsel Mr Lowy agreed that the opening forms a proper factual basis upon which I can proceed to sentence you. In those circumstances it is not necessary that I here repeat in full all of the detail of your offending and do so only in an abbreviated way. These sentencing remarks should however be read in conjunction with what is set out in more detail in the prosecution opening.
5In sentencing you for a Federal offence I must have regard to the matters contained in Part 1B of the Crimes Act 1914 (Cth), and particularly the non-exhaustive matters set out in s.16A(2) of the Act. In passing sentence upon you I have had full regard to these matters.
6At the time of the offending you were aged 35 years and the victim was a child known to you. You knew her mother as a woman living in your locality. The victim was a 14 year old girl who was cognitively impaired. In August 2019 you began communicating with the victim via Facebook. The victim asked you not to tell her father of the communications. Your communications with the victim on the 15th December 2019 are detailed in the prosecution opening. Your communications included references to the possibility of the victim engaging in sexual activity with you. (Charge 1) In the course of your communications with the victim you made repeated requests of the victim that she provide you with sexualised images of her. (Charge 2) From the communications between the two of you, it can be inferred that the complainant in fact sent to you an image of her naked breasts. And you sent her a picture of your penis. At the time that you committed these offences you were charged and bailed for other unrelated offending. (Related Summary Offence) All of your offending is confined to communications on the one day. But you were persistent on that day and you endeavoured to secure the complainant’s confidence by reassuring her that her parents who were known to you would never find out about your communications with her. I have no doubt that given the opportunity, and right circumstances, you would have met the victim for sex.
7You messaged the victim on the 14th January 2020 and you met her that day at a local basketball stadium. When the victim was collected by her mother, her mother saw you at the basketball stadium. When the victim’s mother went home she reviewed the victim’s Facebook messages which revealed your criminal messages passed between you and the victim. She immediately messaged you and told you never to message her daughter again. The following day a complaint about you was made to police. You were soon after interviewed by police and made no comment about allegations that you had committed these charges. Soon after your mobile phone was seized and you refused to assist police to access it.
8You were arrested on the 5th February 2020 and you were remanded in custody on that date. You have served 277 days in custody on remand awaiting finalisation of these matters.
9You subsequently pleaded guilty to these charges at committal mention on
4th August 2020.10Importantly for you, and to your credit you have pleaded guilty to the charges. I treat you as having agreed to plead guilty at the first available opportunity. By your pleas of guilty you have accepted responsibility for your offending and I take your pleas of guilty as evidence of your genuine remorse for your offending. Your pleas of guilty have saved the time and costs of a trial and you have advanced the administration of justice. Importantly in this case, by pleading guilty you have saved the victim from having to give evidence explaining your vile offending. Also, having regard to the fact that all courts are operating in the midst of the Covid-19 pandemic, had you pleaded not guilty it is likely your trial would not have been reached until 2022 at the earliest. By pleading guilty you have saved this trial adding to further delays in the Court’s trial process. Because of your pleas of guilty at an early time you are entitled to a reduction in your sentence and this will be reflected in the overall sentence that I will shortly pass.
11Your offending is serious but confined to only one victim and to one day. Charge 2 occurred as part of and at the same time as charge 1. In those ways it differs from more serious cases. It is not part of the prosecution case against you that you knew the victim to be cognitively impaired. But you did know she was only 14 years of age. You were more than 20 years her senior and there was a great power imbalance. You initiated the contact and although the offending occurred on only one day the communications were lengthy, and you sought to gain the victim’s trust from what you said to her. That said, although serious, your offending falls towards the lower end for this kind of offending.
Mr Lowy conceded as much. In sentencing for these serious crimes of this kind I must especially have regard to sentencing principles of deterrence (both general and specific), denunciation, the need for the sentence to protect children as members of the public as well as matters personal to you and your prospects for rehabilitation.12When you pleaded guilty you admitted a number of prior convictions from previous court appearances commencing in 1994. None of your prior convictions is for a sexual offence of any kind. Your prior convictions are mostly for driving offences, or offences of dishonesty. In my opinion, the sentence I impose does not need to emphasise the principle of specific deterrence for this kind of offending. But it must send a firm signal that offending of this kind against children will not be tolerated, even if it is a one off offence.
13I turn to consider a number of relevant matters personal to you. Mr Lowy filed a helpful written outline of submissions which I marked as exhibit 1. He also filed a psychological report from Carla Lechner who prepared her report on the 22nd August 2020 (Exhibit 2). Ms Lechner described you as a “fairly inadequate man with a long history of mood disturbance, poor interpersonal skills and an unstable employment history. She went on to opine that you present with symptoms of Major Depressive Disorder (DSM-5) with a past history of addictions to both cannabis and Ice. When you spoke to Ms Lechner you found it hard to explain your offending and you told her that at the time you were low in mood and you were socially isolated and arguing with your partner. You acknowledged that your behaviour was both legally and morally wrong. You denied sexual attraction to younger women. Ms Lechner thought you presented as a moderate risk of re-offending in this way because of substance abuse, mental health issues and poor stress management. She recommended therapy that addresses drug rehabilitation and consistent psychological support for your depression and anxiety. Ms Lechner was of the opinion that you display no symptoms of sexual deviance or psychopathy. Ms Lechner thought your offending was linked to your pathology and that you may benefit from engagement with Specialised Offender Assessment and Treatment Services (SOATS).
14Mr Lowy did not submit that your psychological circumstances at the time of the offending mitigated your offending in anyway. He put it forward so as to explain why the offending may have occurred and to put it in context.
15You are now 36 years of age. Your parents separated when you were young. You did not meet your father again until 6 or 7 years ago. You have little contact with your parents. You have four half siblings from whom you are also estranged. You are close to your maternal grandparents both of whom are elderly and in poor health. Upon release from prison it is your intention to assist with their care.
16You have three children aged 15, 10 and 9 years from two partners. All children reside with their respective maternal grandparents. You grew up in Kerang and have remained there. You attended school locally until year 8. Ms Lechner described you as being “cognitively dull with limited capacity for reflective or consequential thinking.” You have a good work history up until a few years ago. I was told you have not worked in recent years due to a back injury causing pain for which you are medicated on Tramadol.
17You have been in a relationship with a woman for a period of about two and a half years. Your partner is bi-polar and I was told the relationship has not been stable. Your partner has four children of her own with DHHS involvement.
18Mr Lowy relied heavily upon the psychological report of Ms Lechner who also conducted intelligence testing. She concluded your overall intelligence to be in the low average range.
19In this case I accept the opinions expressed by Ms Lechner. I accept that you are a moderate risk of re-offending in this way. I accept you suffer from a Major Depressive Disorder and I have taken this into account in arriving at my overall sentence. I accept you are remorseful and you genuinely recognise the wrong in your offending. That is an important first step. In my opinion your chances of a full rehabilitation from this kind of offending are reasonable provided you receive treatment for your drug abuse and you depression. That statement is not to apply to your prospects for re-offending generally having regard to your prior history of offending.
20Mr Lowy submitted that your Major Depressive Illness and your back pain and the fact Covid 19 has impacted all prisons in the way that they are operated means that you will find a term of imprisonment more burdensome than other prisoners. In arriving at an appropriate sentence I have taken all of these matters into account.
21Mr Lowy submitted that I should impose a combination sentence of a term of imprisonment and a Community Corrections Order in order to achieve the relevant sentencing purposes applicable to this case. He submitted that such a disposition would ensure the correct measure of punitive punishment as well as therapeutic conditions to ensure your rehabilitation.
22Mr Keks who appeared on behalf of the Director also filed a helpful outline of submissions on sentence. He submitted each of the charges is a serious offence. He submitted proper application of the sentencing principle of general deterrence required a sentence of immediate imprisonment on each of charges 1 and 2 with some cumulation of sentence. He relied upon what was said by the Victorian Court of Appeal in DPP (Cth) v Watson [2016] VSCA 73 at Paragraph [89] and the New South Wales Court of Appeal in R v Asplund [2010] 216 A Crim R 48.
23Mr Keks provided a summary of relevant comparable decisions and submissions comparing the dispositions in those cases with the circumstances of this case. In passing sentence I have had regard to those decisions.
24Having considered the comparable decisions, Mr Lowy submitted an appropriate disposition for your offending was a term of imprisonment equivalent to time served and a Community Corrections Order with appropriate conditions.
25Having given this matter considerable thought since the plea I have decided that I will impose a term of imprisonment on charge 1. I have also decided that the purposes of sentencing in respect of charge 2, namely general deterrence and denunciation, protection of the community and bringing about your rehabilitation for this kind of offending can be achieved by the making of a Community Corrections Order with appropriate conditions. I have had you assessed for the making of such an order and you have been assessed as being at high risk of re-offending. I am mindful that I cannot overall impose a combination sentence of a term of imprisonment and a Community Corrections Order in respect of more than one Federal offence.
26On charge 1 using a carriage service to groom a person under the age of
16 years, you are convicted and sentenced to a term of imprisonment of
15 months commencing this day to be released on recognizance to be of good behaviour after serving ten (10) months, the recognizance will be for a period of 12 months.27On the summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to a term of imprisonment of one month.
28This makes a total overall effective sentence of 15 months' imprisonment.
29I declare that there has been 277 days pre-sentence detention relating to the sentences of imprisonment passed this day and direct that 277 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.
30On Charge 2 using a carriage service to solicit child abuse material you are convicted and I make a Community Corrections Order for a period of 18 months commencing upon your release from prison with the following conditions:
31(1) That you undergo supervision;
32(2) That you undergo treatment an programs for drugs and mental health assessment and treatment; and
33(3) That you undergo programs for to reduce your prospects of re-offending especially the Sex Offenders Program.
34For the purposes of s.6AAA of the Sentencing Act 1991, had it not been for your pleas of guilty to the charges at the earliest opportunity, I would have imposed a total effective sentence of three and a half years' imprisonment and fixed a non-parole period of two and a half years.
35The crimes in charges 1 and 2 are each category 2 offences for the purposes of the Sex Offenders Registration Act 2004. You have now been convicted of two such offences and under the provisions of that you are a registrable offender with reporting obligations for a period of 15 years. I strongly advise you to take advice about your obligations under the Sec Offenders Registration Act 2004 because a breach of it, no matter how small, can result in an offence which breaches the Community Corrections Order.
36Mr Ritchie, on charge 1 I have sentenced you to a term of imprisonment for 15 months with a recognizance to be released of good behaviour after 10 months, taking into account the 277 days pre-sentence detention you should be eligible for release within the next few weeks.
37So far as the recognizance to be of good behaviour is concerned, that will be for a period of 12 months and you must be of good behaviour, you must not commit any offence punishable by a term of imprisonment, you understand that?
38OFFENDER: Yes.
39HIS HONOUR: Now, on charge 2 I have imposed a community correction order with three conditions; that you undergo supervision and that you undergo treatment for programs for your mental health and for your drug problem and also that you undergo programs to reduce your prospects of re-offending, especially the sex offenders program. Now, whilst you are subject to that community correction order which will run for a period of 18 months, you need to understand that you must not breach the order in any way. You must not commit any offence during the period of 18 months and you must comply with all of the conditions. Do you understand that?
40OFFENDER: Yes.
41HIS HONOUR: If you do not, you need to understand that you can be brought back before me and I can resentence you on charge 2, you understand that?
42OFFENDER: Yes.
43HIS HONOUR: Now, I cannot make a community correction order unless you agree that you will enter into that order, do you agree to that?
44OFFENDER: Yes.
45HIS HONOUR: Very well, are there any questions arising out of that,
Mr Lowy?46MR LOWY: Your Honour, I in fact had 278 days pre-sentence detention not including today.
47HIS HONOUR: What do you say, Mr Keks?
48MR LOWY: He was remanded on 5 February. I'm not sure what Mr Keks has.
49HIS HONOUR: I was told on the last occasion that we were here that - I think it was paragraph 26 of the prosecution opening, 265 days not including 27 October.
50MR LOWY: I've just done the calculation now, Your Honour. From the arrest and remand date of 5 February until today, 9 November not including today, I have 278 - - -
51HIS HONOUR: Just a moment. Mr Lowy, you told me that the opening was accurate, did you now?
52MR LOWY: Yes, Your Honour.
53HIS HONOUR: The opening has 265 days.
54MR LOWY: Okay, Your Honour, yes.
55HIS HONOUR: There needs to be 12 days added to that, does there not? What is the date today?
56MR LOWY: The 9th.
57MR KEKS: Your Honour, I'm afraid I can't explain the date in the opening but I agree with Mr Lowy that according to my calculations it's 278 not including today and I apologise if the opening has misled Your Honour.
58HIS HONOUR: Well it has, that's where I did the calculations - I thought you both agreed on that but we didn't.
59MR LOWY: I double checked it this morning, Your Honour, just to be certain and it's - - -
60HIS HONOUR: But you didn't double check on the day of the plea?
61MR KEKS: According to my calculation the plea is 13 days ago, Your Honour, which might be the - - -
62HIS HONOUR: Well, it depends whether you - it depends.
63MR KEKS: Yes.
64HIS HONOUR: I'll make the declaration in relation to pre-sentence detention 278 days.
65MR KEKS: As it please the court.
66HIS HONOUR: Are there any other matters? I've got the forfeiture order that I've been asked to sign in relation to the mobile phone and SIM card within it?
67MR KEKS: Yes, Your Honour, the prosecution makes that application?
68HIS HONOUR: Is the making of that order opposed, Mr Lowy?
69MR LOWY: It is on one small ground, Your Honour, that Mr Ritchie has a number of photographs of his children on the SIM card that he wants back so there's no opposition to the phone being forfeited but currently there is that one issue with the SIM card. Mr Ritchie has told me that a PIN code isn't necessary to gain access to the SIM card, he just wants those photos back.
70HIS HONOUR: Look, what do you want me to do, Mr Lowy? You don't expect me to sort this out?
71MR LOWY: No, I don't, Your Honour. I'm just telling you what the instructions I have from Mr Ritchie, he wants the photos back.
72HIS HONOUR: Why are you telling me? The phone was used in the commission of the offence, prima facie it's forfeited.
73MR LOWY: Yes, Your Honour.
74HIS HONOUR: As I understand it your client did not give the police the PIN number?
75MR LOWY: No.
76HIS HONOUR: Well - - -
77MR LOWY: Your Honour, I can send through to the court and to my learned friend a signed forfeiture orders consented to. Mr Ritchie just wanted me to at least attempt - - -
78HIS HONOUR: It's a matter to work out with the informant, is it not?
79MR LOWY: Yes.
80HIS HONOUR: Mr Ritchie himself of you on his behalf, Mr Lowy, needs to speak with the informant.
81MR LOWY: Yes, Your Honour.
82HIS HONOUR: About getting the photographs back - - -
83MR LOWY: And then the items themselves can be forfeited.
84HIS HONOUR: I'll sign the order but Mr Keks, if you'd inform the informant that Mr Ritchie would like back - it doesn't seem to be an unreasonable request to me - family photographs and so forth of a personal nature before the phone's destroyed or whatever happens to it.
85MR KEKS: Yes, Your Honour.
86HIS HONOUR: Thank you, gentlemen.
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