Director of Public Prosecutions v Rodriguez
[2012] VCC 1216
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02234
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAVIER RODRIGUEZ |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2012 | |
DATE OF SENTENCE: | 24 August 2012 | |
CASE MAY BE CITED AS: | DPP v Rodriguez | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1216 | |
REASONS FOR SENTENCE
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CATCHWORDS - CRIMINAL LAW – Plea of guilty to using a carriage service to cause offence – 42 year old offender with good background – engaging in explicit sexual communication and sending offensive images via Facebook or email to a person he believed to be a 14 year old girl – recipient in fact undercover police officer – importance of general deterrence – sentence of 6 months’ imprisonment, 3 months suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms G Coghlan | Solicitor for Office Public Prosecutions |
| For the Offender | Mr L Hartnett with Ms A Burchill (Plea) Ms A Burchill (Sentence) | Revill & Papa |
HIS HONOUR:
1 Javier Rodriguez, you have pleaded guilty to using a carriage service to cause offence, for which the maximum penalty is three years' imprisonment.[1]
[1]Contrary to s474.17(1) of the Criminal Code (Cth).
Circumstances of offending
2 The circumstances of your offending are set out in an agreed prosecution opening which was read out at the hearing. A brief summary will suffice. Between 18 December 2009 and 23 April 2010, mostly in Victoria, but on one occasion from Malaysia when you were travelling, you sent via Facebook or email, offensive communications and images to a person whom you believed to be a fourteen year old girl, certainly at least a teenager under 16. In fact, you were unknowingly communicating with an undercover police operative.
3 You had set up a Facebook profile under a false name. Police were showing interest in your activity. Using a covert profile on Facebook, they sent a “friend request” to you which had attached to it a photograph of a young teenage girl who was obviously not 21, as had been suggested by the date of birth given on the profile. You accepted the request the following day and commenced communications with the “girl”. There were a total of twelve Facebook messages and thirty-seven emails between you.
4 In your first message, sent on 8 December 2009, you told the “girl” you were attracted to her and queried whether she was interested in getting to know an “older and mature guy”. You said you were from Los Angeles. Two days later you told her you worked in the “glamorous world of Television production”. Eight days later, you noted that you were 29 and asked her if she had ever been with an “older guy, like in a sexual way”.
5 On 18 December, the “girl” asked you to send her some photos of yourself. You replied by asking whether she preferred “to be licked out” or whether she would rather “give a head job” and to email you something which you would match with one of your own, and not to be shy about it. On 21 December, the “girl” told you she was fourteen and had lied on Facebook about her age, and she sent the same picture on her profile. You made repeated requests for her to send a “special” picture of herself. She asked you what kind you were after and, on 26 December, you sent her an image of a male wearing boxer shorts with an erect penis. The subject header read “like this”. The “girl” replied the following day commenting on how big the man’s penis was, asking whether it was really you in the picture and whether you had any more pictures. She reiterated that she was only fourteen.
6 The next day you told her to get a camera and send a picture of herself, just like the one you had sent to her. Over the next two weeks you made the same persistent and repeated request. Clearly, you were asking her to send a sexually explicit photograph of herself. But she did not do that. Her last communication was on 13 January 2010 when she told you she thought you looked “real hot”, presumably referring to the penis photo.
7 Thereafter, you sent a number of emails which were ignored. On 27 January and 27 February 2010, you twice sent her an image of a male defecating onto the face of another person who looked like a female. The text of the emails read: “When I think of you” and “What I think of you”. The overwhelming inference is that you were upset and demonstrating your dislike or distain for the “girl” because she had failed to reply to you.
8 On 23 April 2010, you sent her an image of a male in a pair of jeans with his erect penis exposed. The text read: “What do you think of my new jeans?” I accept the prosecution submission that, at this time, you were wanting to initiate further communication with the “girl”, particularly as there had been such a positive response from her when in late December 2009 you sent her the other photo of the erect penis.
Police inquiries and court process
9 Police inquiries continued. In June 2010, police seized a laptop and USB stick from your house under a search warrant which was later found to have been invalid. You were arrested on 14 October 2010 and, apart from conceding that you had an internet connection and account and a laptop, you made no comment to any of the allegations put to you. Charges were not laid until March 2011 as apparently you had been overseas and police required further time to analyse the equipment seized from you.
10 In June 2011, you offered to plead guilty to the present matter but were unable to reach a settlement with the prosecution which wished to pursue other charges. You conducted a contested committal in December that year at which time you pleaded not guilty to all charges. In a defence response filed in June this year, you denied all offending and it was not until the matter was about to commence as a trial on 15 August last, that the prosecution accepted your plea to a rolled up between dates count and agreed not to pursue a charge of incitement. You have remained on bail until today.
Background and personal circumstances
11 I will turn to your background and personal circumstances. You are now forty‑two and were thirty-nine at the time of offending. I have received a psychological report from Bernard Healey dated 9 August 2012, which helpfully sets out some background matters.
12 You were born in Uruguay, and came to Australia with your family in 1974 when you were four. You are the youngest of four children. You come from a good, close, happy family background. After you completed Year 12, you went to university and obtained a Bachelor of Education in Secondary Teaching and a Post Graduate Diploma in Computer Education. Thereafter you taught at prestigious private schools for about fourteen years before ultimately securing your present job at a university in an administrative capacity. I received a character reference from a teacher at one of those early schools which indicated that in the 1990s you were a well respected and liked teacher who was always eager to help others.
13 You had a positive relationship with a lady between 2000 and 2007. You travelled together, purchased a home and described normal sexual intimacy. Unfortunately the relationship broke down and you were forced to sell the house. Then you lost your job in student administration. You returned to live with your parents and suffered a loss of self-esteem. You became depressed, unhappy and socially isolated. Obviously you were not coping well but did not seek any assistance. It was in this context that you committed the offence.
14 The psychological assessment revealed you as having an average intellectual capacity and no alcohol or drug problems. Significantly, personality testing was not indicative of major psychological or emotional disturbance. No Verdins issues were raised. You have received continuing family support.
15 You voluntarily sought psychological assistance in mid 2011 and have had seven consultations with Mr Healey. He says you have benefited from the counselling process, developed better insight and the need to be more circumspect in your communications with others. Regrettably, the psychologist provided scant assessment or analysis of the particularity and nature of your offending. However, he notes that you are remorseful and ashamed and is of the view that there is nothing to suggest you would pose a danger to anyone in the community, children in particular. He feels there is no significant impediment to your future normal adjustment within the community.
Mitigating circumstances
16 There are a number of mitigating circumstances. You come from a close and loving family which is supporting you in your present predicament. You have achieved well academically and as a teacher. You have now lost that occupation and certainly in the short term would not be considered suitable to work with children.
17 Significantly, you are a mature offender who has never been in trouble previously and not since your arrest. You indicated a willingness to plead guilty at the earliest time, although curiously you conducted a contested committal and denied the offending right up to the door of the court when the matter was finally resolved. The prosecution should have settled the matter with you when the offer was first made and it concedes that had that happened, it would have agreed to a summary hearing which, if agreed to by the court, would have resolved the matter much sooner than has been the case. I accept that by you plea you have saved considerable time, cost and inconvenience to the community. It has been of utilitarian benefit and you have thereby served the ends of justice. For that reason alone there should be a significant discount of sentence. I also accept that your plea is associated with genuine remorse and regret for your offending.
18 Obviously, you were at a low point in your life and not coping well with the long term effects of your relationship break up and the corrosive influence of being unemployed and socially isolated.
19 To all these matters must be added the fact that there has been a significant delay in the resolution of the matter, which is associated with rehabilitation in the meantime. You have responded well to therapeutic intervention, you have much more stability in your life and you seem to be moving in the right direction. I think your prospects for rehabilitation are good.
Other sentencing considerations
20 There are, of course, other important sentencing considerations. It is significant that you were not actually communicating with a real child who may have been confused, disturbed and corrupted by your behaviour. However, that does not mean an actual term of imprisonment should be excluded.[2] I am conscious you do not face the more serious charges of grooming or procuring a child via the internet, for which there are significantly greater maximum terms of imprisonment. You did not try to make arrangements to meet with the “girl” and I do not sentence you on the basis that you ever intended to meet with her. It is also relevant that in the course of the police undercover activity - which is both lawful and widely used and for which there could be no criticism - the response to you sending the first penis photo was one of significant enthusiasm with a request for further such images. However, although you were in fact communicating with police, you were not an “unwary innocent” and did not do anything which you would not otherwise have done. It is clear you wanted the “girl” to send you a sexually explicit image of herself and you persisted with that request over a substantial time. Had you been communicating with a real child and not a police officer, you may have achieved that aim.
[2]The Queen v Gajjar [2008] VSCA 268, [45].
21 Whilst the particular offence is not one specifically directed to children, it is significant that you were dealing with a person whom you believed to be a child. When it must have become clear to you that the “girl” was no longer interested in the correspondence, you persisted in twice sending the disgusting and disturbing defecation image and then, some months later, sought to re-establish contact with her by sending the second penis photo.
22 Offences of this kind are pernicious and difficult to detect and the principle of general deterrence looms large because it is necessary to protect children, often from themselves, in their use of the internet.
23 The prosecution submitted that the only appropriate sentence was one of imprisonment with a range of three to six months, indicating it was open to the Court to either wholly or partially suspend the sentence by way of a recognisance release order. Your counsel ultimately submitted that in all the circumstances it was appropriate to impose a term of imprisonment but that it ought to be wholly suspended.
24 I have taken account of the various relevant matters set out in s.16A of the Commonwealth Crimes Act 1914 (Cth) and the particular sections referred to in the prosecution submission. It is unnecessary for me to refer to them now. I am satisfied that in all the circumstances no sentence other than one involving imprisonment is appropriate. The essential question is whether that sentence should be wholly or partially suspended. I have considered a number of the cases referred to by the parties. It would seem that periods of actual imprisonment were certainly imposed where there were offences of grooming or procuring children on the internet. The Queensland cases of R v Hays [3] to which I was referred and R v Campbell [4] involved somewhat similar conduct as here, where actual terms of imprisonment were upheld on appeal. I note there was a higher maximum of 5 years applicable in those cases. As your counsel correctly noted, comparatively, the maximum of three years is a low one.
[3](2006) 160 A Crim R 45
[4][2004] QCA 342.
25 But in the end, each case must turn on its own facts and circumstances. After anxious consideration, I have concluded that the sentence of imprisonment should not be wholly suspended. Given the nature, persistence and length of offending, I consider yours a serious example of the offence. It was calculated conduct, you knew exactly what you were doing, and you repeatedly engaged in sexually explicit communication and sent images which, in context, were clearly offensive by community standards. Others who commit this type of offence should know that they may well face a term of immediate imprisonment for acting in a similar way.
26 On behalf of the community, I strongly denounce your offending.
Sentence
27 Mr Rodriguez, please stand up. On the charge of using a carriage service to cause offence, you are convicted and sentenced to six months' imprisonment.
28 That sentence will commence today. Pursuant to s.20(1)(b) of the Crimes Act I order that after serving 3 months’ imprisonment you be released having entered a recognisance release order in the sum of $5,000 on condition that you will be of good behaviour for a period of eighteen months. The purpose and effect of this order is to enable your release into the community after serving three months’ imprisonment. There will be no parole order. You must be of good behaviour for eighteen months from today.
29 The recognisance release order may be, in certain circumstances, discharged or varied on application by you or others. If, without reasonable cause or excuse, you fail to comply with this order, you will be brought back to this Court to be resentenced. The $5,000 may have to be paid by you. The Court may also impose a further monetary penalty of up to $1,000 and it may revoke the order and direct you to serve the balance of the sentence, which is 3 months’ imprisonment. Be under no mistake, the likelihood of you going back to gaol in those circumstances would be very high indeed.
30 Mr Rodriguez, do you understand everything I have said about the recognisance release order?
31 OFFENDER: Yes, your Honour.
32 HIS HONOUR: Do you agree to comply with such order and be bound by it?
33 OFFENDER: Yes, your Honour.
34 HIS HONOUR: I will have you sign the order. [Discussion, order signed]
35 Mr Rodriguez, but for your plea of guilty, I would have imposed a sentence of twelve months' imprisonment with a minimum of six months to be served immediately.
36 [Defence application pursuant to s.309(2) CPA refused]
37 Mr Rodriguez, you need to go with the prison officers now thank you. Please remove the offender. [Offender removed]