Director of Public Prosecutions v RK
[2023] VCC 1357
•4 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RK |
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JUDGE: | HER HONOUR JUDGE TODD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 August 2023 |
DATE OF SENTENCE: | 4 August 2023 |
CASE MAY BE CITED AS: | DPP v RK |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1357 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW |
Catchwords: | Plea of guilty following sentence indication – two charges of breach of sex offender registration obligations – one rolled up charge of breaching a supervision order – creating an email account without disclosing it – creating a Facebook account without disclosing it – accessing pornographic materials online – repetitive offending – significant intellectual disability – profound childhood deprivation – receding prospects of rehabilitation – circumstances of COVID-19 pandemic |
Legislation Cited: | Sex Offenders Registration Act2004 (Vic); Serious Offenders Act2018 (Vic); Sentencing Act 1991 (Vic) |
Cases Cited: | Worboyes v The Queen [2021] VSCA 169 |
Sentence: | 3 months’ imprisonment |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Rutherford | Office of Public Prosecutions |
For the Accused | Mr B. Overend | Victoria Legal Aid |
HER HONOUR:
Introduction
1RK, you have pleaded guilty to an indictment containing two charges of breaches of your obligations under your registration pursuant to the Sex Offenders Registration Act2004 (‘SORA’). Each charge carries a maximum penalty of five years' imprisonment.
2You have also agreed to have determined summarily, and pleaded guilty to, one rolled up charge of breaching a supervision order pursuant to s 169 of the Serious Offenders Act2018 (‘the Act’), by knowingly accessing and knowingly possessing pornography when a condition of your order prohibits you from doing so.
3Ordinarily this offence carries a maximum term of five years' imprisonment. However, pursuant to s 174 of the Act, this court can hear and determine this charge summarily. In those circumstances, the maximum term of imprisonment I may impose is two years.
Factual Background
4A summary of the facts giving rise to your offending was provided initially for the purpose of the sentence indication. It then became a summary of facts on your plea. It is attached to, and forms part of these reasons and I will set out just parts of it in summary form here.
5I will commence by briefly setting out the background to your original offending.
6On 27 June 2014 you were sentenced by his Honour Judge Meredith in this court for a range of offences including rape, blackmail and indecent assault. The offending involved your violent rape of a woman who was taking a walk along a public path when you dragged her into the bushes. After you raped her you made a demand for money from her friend and from a family member in exchange for her release. This was unsuccessful, in part because your victim had already fled.
7You were sentenced to a period of imprisonment of seven years with a non-parole period of five years. Towards the end of that sentence, on 2 March 2021 I made an order that you be supervised pursuant to the Act.
8That order, which I will call the supervision order, has a range of core and additional conditions, the duration being five years.
9Upon application for that order a report authored by Professor Ogloff was provided and I will return to some of its contents later in these reasons. One of the conditions in the order, condition 6.12, stipulates that you:
'Must not knowingly access or possess pornographic images or material except in accordance with the written directions of the Post Sentence Authority'.
10No written directions allowing you to have possession of pornographic images have been given.
11Another condition of your supervision order requires you to produce electronic devices for analysis if demanded. Further, as a result of this sentence imposed by His Honour Judge Meredith, you became liable to 15 years' registration pursuant to the Sex Offenders Registration Act, which I will call the SORA order.
12Your reporting obligations under that Act require you among other things to report any mobile numbers, email addresses, internet user names, instant messaging user names, chat room user names, or similar online identities within seven days of their creation.
13Each year you are subjected to an interview, during which you are provided with information about, and an explanation of, your reporting obligations. Your last interview was on 19 December 2022 and on that day you signed an acknowledgement of receipt of that information confirming that you understood your obligations.
Offending Conduct
14I will now turn to the facts giving rise to the new offending.
15Prior to April 2023 one of the conditions of your supervision order required you to reside in Corella Place and to wear an electronic monitoring device.
16In April 2023 though, there was a direction made that would allow you to live at Step House in Armadale on specific days in April and May 2023. I understand that this was the commencement of a process of your transition into the community and stepping down from full time residence at the Corella Place facility.
17As part of this process you were granted permission to get an internet-capable mobile phone and on 19 April 2023 you purchased that device and this was noted in the records of your supervision.
18On 11 May 2023 that phone was seized for analysis pursuant to condition 6.13 of your supervision order, which authorises the seizure of devices for analysis without notice. The device was later analysed and showed that almost immediately after buying the phone on 20 April 2023, while you still resided at Corella Place, you started viewing pornography using your internet-enabled mobile phone.
19The number of searches and timing of access of this material are set out in Appendix B of the prosecution opening. Over a total of 22 days, while you were both at Corella Place and at Step House, you viewed a total of 4,568 pornographic videos. Some of this pornography included the following themes:
a)Group sex;
b)Petite/teen pornography;
c)Cartoon/TV characters or fantasy themes;
d)Bestiality/animal pornography;
e)Rape pornography/brutal gang rape/teen rape/rape tube;
f)Kidnap/home invasion rape; and
g)Gang bang/extreme rough gang bang.
20This conduct gives rise to the offence of breach of a supervision order.
21Further, and as a result of the same analysis, it was discovered that you had made an email account and not provided this email address in accordance with your obligations under the SORA order. This gives rise to indictable Charge 1.
22Further, the analysis also found that you had made a Facebook account using your own name between 27 April 2023 and 18 May 2023, and you had not reported this as required by your SORA obligations. This gives rise to Charge 2 on the indictment.
23You were interviewed and made a range of admissions and denials. About the pornography, you said that someone else had put the pornography on your phone to ‘set you up’ so that you could not move into the Step House accommodation.
Criminal History
24Turning next to your criminal history. You have a relevant criminal history. The index offending was committed on 10 December 2013 and since the imposition of the supervision order you have pleaded guilty on two previous occasions to breaches of it: the first in June 2021 and the second on 7 June 2022. This is therefore the third breach of your obligations under the supervision order. Both previous breaches relate to your accessing of pornography. On one occasion 15 adult pornographic videos and on the other, 32 adult pornographic videos.
Nature and Gravity of Offending
25Turning to my analysis of the nature and gravity of your offending. Insofar as I can discern from the titles of the pornographic material, nothing that you did was in itself unlawful, but for the orders to which you are subject. Ordinarily, adults are at liberty to view any material that is not otherwise unlawful, however, you are in a different category because of the history of your intense use of internet pornography in the days leading up to your original offending.
26Further, in the report of Dr Ogloff, it was his opinion that there is a high risk of a similar form of sexual offending to that which you perpetrated in 2013, being a violent and degrading rape of a stranger in a public place.
27It is of concern that despite being prosecuted on two earlier occasions for breaching your supervision order, you have returned again to Court within a similar timeframe but this time having accessed a very wide range and very large quantity of adult pornographic material, some of it with themes that appear to be congruent with your index offending.
28Again, the current offending suggests that despite knowing that you could get into trouble for doing what you are prohibited from doing, when you have the opportunity you embark on a very immediate and broad program of accessing pornography.
29Again, this would be of no moment were it not for your history and the expert opinion which to some degree notes that the chronology of your offending and the pornography use are linked.
30I regard this further breach as being an escalation in your offending. Your previous breaches illuminate your moral culpability for the new offence and this elevates the need for specific deterrence.
Personal Circumstances
31I have had regard to your personal circumstances. You were born in May 1985 and you are now 38 years old. Your background is summarised more fully in His Honour Judge Meredith's sentence of 27 June 2014. Your early childhood was marked by developmental delays and you experienced learning difficulties detected from Grade 1.
32Child protection became involved with your family when you were four years old, your mother being unable to provide adequate care for her children. Both neglect and emotional harm were identified at this stage, when you were still a very small child. Your mother endured physical and emotional abuse from your father, and she needed to hide from him on several occasions.
33Your existence, even as a child, was transient. You changed schools often. Your father passed away from a drug overdose or suicide when you were only seven. Your early life was characterised by violence and by chaos. Your childhood was marked by abusive relationships, dire poverty and what has been described as frightful and unsanitary living conditions. Your childhood was characterised by profound instability and deprivation.
34As a young person and no doubt consequently as a young person, you displayed issues with impulsive behaviour, and you were expelled from your school for acting violently. You spent time in foster homes and in residential care and you lived on the streets.
35You have been diagnosed with attention deficit hyperactivity disorder and have been assessed as having a full-scale IQ of 67.
36In 2005 you sustained an acquired brain injury in a car accident and to this you added alcohol and drug abuse.
Mitigating Factors
37Turning now to matters in mitigation.
Early Plea of Guilty
38You have pleaded guilty at the earliest possible opportunity, guided by the sentence indication process, and that is a very important matter for me to take into account. Your plea is especially important at the moment when there are still a lot of cases waiting to be heard in this court, so you have an additional discount for that.
Intellectual Disability
39I note that you have been diagnosed with having a mild intellectual disability and more specifically that you have problems with executive functioning and impulse control, so it is harder for you than for someone else, to think about what will happen after you do something.
Childhood Deprivation
40As I have previously done, I also take into account your background of profound childhood deprivation. This represents the Court's acceptance that the lifelong damage imposed on you by the adult world is likely to have permanently damaged and distorted your view of the world, and your understanding of what is acceptable.
41The effects on you of your difficult background endure. Your offending is to some degree connected, I find, to your mild intellectual disability, which I find reduces your moral culpability for the offending to a degree.
Prospects of Rehabilitation
42I have had regard to your prospects of rehabilitation, which I consider to be receding. Your breaching of your obligations under both schemes suggest that you may have a long-term inability to control your desire to view this material which, for now at least, is to be denied to you.
Comparable Sentences
43I have had regard to a range of similar sentences. No case is particularly like yours, but I sentence you in that context. In this case, the prosecution submitted that immediate imprisonment was the only option available to the Court and I did not hear defence to submit otherwise.
Totality
44I have had regard to the totality of the sentence for each of the three charges. While the offences do not overlap, they do arise out of one search and analysis of your mobile phone and occurred within the same period.
Worboyes
45I also note that you have entered your plea at a time when the backlog of cases in the County Court persists, despite the worst aspects of the pandemic receding, and you get an additional and palpable benefit as a result.[1]
[1]Worboyes v The Queen [2021] VSCA 169.
Sentencing Principles
46Turning to the sentencing principles. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. It must also serve to deter other people from breaching their orders, and you must also personally learn that if you continue to do this, you will continue to be caught, and continue to be sentenced and it is likely that those sentences will mean that you go to gaol for longer and longer until you stop.
47This sentence must also serve to protect the community and I, in this case, find that that has to have an aspect of specific deterrence attached to it.
Disposition
48On Charges 1 and 2, breaching the SORA, you are convicted and sentenced to an aggregate sentence of two months' imprisonment.
49RK, I am joining up the sentences on Charges 1 and 2 to make the sentence simpler.
50On the charge of breaching a supervision order, you are convicted and sentenced to two months' imprisonment. One month of the sentence on this charge is to be served cumulatively on the aggregate sentence on Charges 1 and 2, resulting in a total effective sentence of three months' imprisonment.
51Pursuant to s 6AAA of the Sentencing Act1991,[2] I declare that but for your plea of guilty, I would have imposed a maximum penalty of seven months' imprisonment.
[2] (Vic) (‘Sentencing Act’).
52Pursuant to s 18 of the Sentencing Act I declare that you have already served a total of 63 days by way of pre-sentence detention to be calculated as already served pursuant to this sentence.
Ancillary Orders
53An application for forfeiture of the subject mobile phone made by the prosecution is unopposed, and I make that order.
54I note for completeness that on the supervision order application, an order restricting publication of your identity pursuant to s 279 of the Act was made, and I note remains in force.
55[To a member of the public] Sir, just so that you know, any publication of this man's name in any form in any place, is prohibited. Do you understand?
56Thank you.
57Have I missed any orders, Ms Rutherford?
58MS RUTHERFORD: No, Your Honour.
59HER HONOUR: All right, thank you.
60MS RUTHERFORD: Thank you, Your Honour.
61HER HONOUR: Thank you, that concludes this case.
62MS RUTHERFORD: As the court pleases.
63MR OVEREND: As the court pleases.
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