Director of Public Prosecutions v Rogers
[2017] VCC 1567
•23 October 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-01056
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ANTHONY ROGERS |
---
| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 October 2017 |
| DATE OF SENTENCE: | 23 October 2017 |
| CASE MAY BE CITED AS: | DPP v Rogers |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1567 |
REASONS FOR SENTENCE
---Subject:
Catchwords: Use of carriage service in an offensive manner, stalking, Facebook, social media
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McWilliams | OPP |
| For the Offender | Mr D. Galbally QC | Weir & Strempel Pty |
1HER HONOUR: David Rogers you have pleaded guilty to 73 charges of using a carriage service in an offensive way, which is a Commonwealth offence, and 18 charges of stalking which is a State offence. You have also agreed to have dealt with by me and pleaded guilty to four related summary offences relevant to your bail.
2The maximum penalties for these offences, the stalking; 10 years, using a carriage service to offend; three years; and the summary offences is three months.
3The full details of your offending is set out in the summary prosecution opening dated 11 September 2017, Exhibit A. You created Facebook profiles in at least 13 names changing the profiles of these names on several occasions during the course of your offending, which spans from August 2011 until January 17. As to the circumstances of your offending on 12 October 2015 Ms Ruby Sanchez[1] went to the police, and reported she had been receiving sexually explicit word, audio, picture and video messages via the Facebook application, Messenger from a person named Brandon Marshall, and that she did not know this person. She also told police that her mother, Virginia Murphy,[2] had been receiving the same type of messages. Ms Sanchez gave police access to her Facebook account to assist in identifying you as the person sending the messages. On 24 November 2016 police executed a search warrant at your home in Camberwell, and seized various items, including an iPhone, iPad, PlayStation 3, USB sticks, laptop and two hard disks.
[1] A pseudonym
[2] A pseudonym
4You were arrested and participated in a recorded interview. During this interview you admitted to knowing both Ms Sanchez and her mother, the latter knowing your mother through their work. You admitted that over the past few years you had sent Ms Sanchez crude messages which included sexually explicit voice, and video messages. You admitted that there were other women who you had sent such material to conceding there were so many that you could not count them.
5You said in relation to some of them that you had been attracted to them in the past, or had had a crush on them. Others were chosen because they were friends, or linked to some of your Facebook friends. You told police that you were addicted to ice, and that this offending all took place whilst you were under the influence of this drug. During your interview with police you were served with an order directing you to disclose your user names, and passwords for all your social and email accounts, computers and other seized items.
6You were at that time charged with offences relating to Ms Sanchez, and had a bail condition which included that you did not use social media, nor access and use Facebook accounts. When police interrogated various of your online devices, including your Facebook profiles they identified a large number of female users as the victims of the dissemination of sexually explicit and offensive messages from you. Your conduct was of a broadly similar nature, though the frequency or duration, the method of sending a message and the amount of messages varied between recipients.
7All of the material comprised of unsolicited contact from you with female users of online chat forms, and were of an offensive and aggressive sexual nature. When contacting them you often referred to them by their individual name, and included that detail in the typed voice and/or video messages that you sent. Police were limited in the information that they could obtain about the recipients due to Facebook privacy issues.
8The majority of your victims were discovered by virtue of analysis of your own Facebook accounts. Other recipients when contacted either declined, or did not follow up in making a statement to police. The recipients received one, or all of the following, images of your penis, typed messages, iPad emoticons, sexually explicit voice messages, phone calls, personal photos of themselves that they had posted and videos of you masturbating. To some of the recipients you typed obscene messages on their own, or in combination with a photo of your penis. For details see paragraph 15 of the opening.
9In the voice recordings you are heard in a low voice with an aggressive tone. You can be heard breathing loudly, and making sounds and statements consistent with you masturbating whilst making the message. The vast majority of the messages sent by you begin with the opening statement, "Fuck, I want to stick my dick in your fucking arse." Whilst referring the recipient by person, or person by their name. During the remainder of the recording you can be heard making further sexual comments expressing similar obscene, or sexually in an explicit manner. See paragraphs 18 for example.
10The video messages sent by you depict an image of an individual complainant shown on your television which is attached to your bedroom wall, and in front of you. You have videoed yourself masturbating to that image and whilst masturbating you can be heard making sexual remarks in keeping with those described above. During this activity you have referred to the person by their name, and you would record close up videos of your penis as you ejaculated.
11As to photograph messages you browsed the complainants Facebook pages, and saved some of their personal photographs which you sent back to them, or to other complainants the subject of this offending. Some of these photos depicted the individual with their children, or relatives.
12Review of your online conduct revealed offending of the type described above that was directed towards approximately 90 women during a time span period between August 2011 and your arrest in 24 November 2016. As well as Facebook and Messenger you have also used other Apps such as WeChat, WhatsApp and Snapchat. Later reports generated as a result of the police analysis revealed you had many of the complainants contact details stored within your own devices, including their phone numbers and email addresses.
13Each of your victims and the duration of the offending relating to each individual is set out in the prosecution opening in paragraph 27. On 3 December 2016 nine days after being charged you breached your bail conditions by accessing your Facebook account. You posted to your timeline and removed your cover, and profile pictures. That is summary Charge 164.
14You created another Facebook profile on 28 December 2016. Summary Charge 166. On 2 December 2016 and on 6 January 2017 you again breached your bail conditions by sending sexually explicit voice messages via the social media at WeChat to complainants Ngan Hong[3] and Gala Hong[4]. The following day Ms Hong made a complaint regarding this offending to police. This conduct constituted stalking an indictable offence committed by you whilst you were on bail. That therefore is the conduct in respect of summary Charges 165 and 167.
[3] A pseudonym
[4] A pseudonym
15The total amount of the messages sent by you is as follows, images of your penis, 397. Sexually explicit typed messages, 682. Sexually explicit voice messages, 1,290. Personal photos of complainants sent to the complainants 211. Videos of the accused masturbating to 476. Sexually explicit phone calls 190. Therefore the total amount of messages sent by you was 3,245 with a total amount of complainants of 91. See paragraph 36 of the opening.
16The description of the type, or kind of messages sent. The period of time over which messages were sent to a particular individual, the number of each type, or kind of message and the total number of messages sent to each individual is included in addendum to Exhibit A. It is of note that your offending in respect of some of these individuals span anywhere from a single to months to three years. And (2) that the volume of communications in those different forms described range from under 20 where there were 62 victims, to between 20 and 100 where there were 17 victims to well over 100. One of your victims received 137 communications in the one day.
17I was informed that the stalking charges are constituted by the same conduct, but was in circumstances where police had been able to make contact with the individual concerned, and they have made a statement. As indicated above, many of the recipients were unable to be contacted by police, because of privacy issues with Facebook. Your most serious offending in terms of duration, and volume of communications relates to Charge 36 where there are 642 communications over a period of a year and nine months relating to Ms Sanchez. And Charge 23 where there are 347 communications over a period of two years six months relating to Miss Walker.[5]
[5] A pseudonym
18No victim impact statements have been provided. It is, however, apparent from the nature of the communication in whatever form that the material was aptly described as obscene and offensive. A particularly troubling aspect of the communications is your identification of the victim whether by name, or other detail, or photo which makes your conduct arguably more directed, or focused towards them personally.
19However, I note that such information is readily available on an individual’s social media site, or account. Although there was of course no actual contact with any of the recipients, the use of popular social media sites provides easy, and accessible contact with people at the option of the recipient. That is not to suggest that the recipient has invited your communications. Rather it illustrates the simplicity or ease with which such communications can be received. It also shows the ease by which you are able to use this medium to provide material for your own sexual gratification.
20I received the following material tendered on your plea hearing, and I take it all into account. Report of Dr Lester Walton, consultant psychiatrist dated 4 August 2017, and reports of Dr Kaylene Evers, psychologist, dated 26 January and 15 September 2017 respectively. Dr Evers also gave evidence on your behalf.
21You are currently aged 34 and prior to be being remanded for these matters in January this year lived with your parents Camberwell, you have one brother. Your family remains supportive of you, and family members attended in court. You left school midway through Year 11 though you ultimately completed your VCE in your early 20s. You undertook tertiary studies in commerce and science though you have not completed your studies. You worked for a short period in an accounting firm during 2010, and I was informed that leaving that employment coincided with the increasing use of methyl amphetamine, or ice use.
22You worked in your father's medical practice as a book-keeper from 2013 up until you were incarcerated. Consistent with what you told police you informed Dr Walton that your offending occurred in the context of you using methamphetamine, and that you would become sexually aroused and was seeking gratification. Your drug use is not, however, an excuse or a factor of mitigation, though it does provide an explanation for this behaviour which you yourself described as weird.
23Dr Walton considered that one of the more striking features is your psychological immaturity with you possessing a personality characterised by shyness and lack of sexual self-confidence. He is of the view that you turned to drug use to overcome your psychological problems. Dr Walton described your offending as modern exhibitionist having used social media to expose yourself to victims.
24Dr Evers performed relevant psychological testing. On results of that testing she is of the view “…that your social interaction and emotional intelligence (that is your capacity to be aware or control and express emotions, and to handle interpersonal relationships judiciously and emphatically) is most probably well below your chronological age and life stage...” As to your offending she was of the view that it represented impeded emotional intelligence, and misunderstanding and misinterpretation of social cues and communication. She was of the opinion that these personality traits explained or were consistent with your use of ice. She was of the view that your psychological condition was entrenched, and not likely to be altered by your incarceration. She described your conduct in breaching bail conditions as a passive flouting of the law, and considered that you were less likely to engage in overt activity against rules, or the law. She highlighted your lack of emotional attachment, and disordered attachment to your parents. She thought you required engagement one on one rather than any group therapy given these issues.
25On inquiry from me your counsel did not rely on any principles enunciated in Verdins.
26I take into account your plea of guilty. It was at an early stage in the proceedings. There is a significant utilitarian benefit in your plea saving the community the cost and inconvenience of a trial. Your plea is also indicative of your acceptance of responsibility for your actions, and shows a willingness to facilitate the cause of justice. I note that a great deal of your offending was revealed by virtue of your cooperation with police, and access to your devices and to your Facebook accounts. You are entitled to a significant discount by virtue of your plea, and level of cooperation with the police.
27I accept you are remorseful for your actions. This is consistent with your plea of guilty, the attitude you expressed in your record of interview, and your statements with professionals regarding your shame, and that you regret your actions. You recognised yourself the material was horrible and that you were disgusted. You said,
"I'm shamed and I really wish - I realised how horrible it must have been for them people, but I just was fucked in the head when I'm smoking ice. I'm not right in the head when I'm using ice, and I do stupid things because it gives me some kind of weird pleasure. I regret and I'm apologetic for my actions."
See Question 434 in the record of interview.
28It is of concern you continued to offend in the same way after you were initially interviewed, however, again this was in the context of you using ice. I understand you have not used since you have been in custody since January this year.
29As to rehabilitation, you have no prior convictions. Corrections have assessed you as being a low risk of reoffending. It was submitted that if you remain drug fee, and you receive intensive one on one or individual therapy that you have good rehabilitation prospects. As previously noted, you have a supportive family.
30Ms Evers indicated that you would benefit from “…intense psychotherapy to address your understandings, and to develop good relapse protection techniques, and to teach you the skills of a mature level of emotional intelligence.”
31I note that you have indicated that a previous attempt by you with the assistance, or treatment to give up drugs was unsuccessful.
32Given the volume and duration of your offending, your issues with ice and the continuation of your conduct after police initially became involved are more guarded in assessing your rehabilitation prospects- they can be described as somewhere in between fair to good.
33There are some aggravating features of your offending. It could be described as prolific with a large number of victims, the duration of your offending occurring over a five year period. Although the majority of your victims received between two to 20 communications, eight of them received over 100 messages.
34Neither counsel were able to provide any authorities regarding the same kind of offending. Cases of a similar nature were provided though. It was conceded that these involved more serious offences involving children and child pornography, or the use of social media to threaten exposure of the person by the provision of sexually explicit material, that had been initially provided as consensual sexual contact, or encounter.
35Your counsel submitted I should consider placing you on a Community Correction Order, that this was your first time in custody and that you are now and had been for this year drug free. I had you assessed for the purposes of determining your suitability to such an order, and received a favourable report from Corrections dated 4 October 2017.
36The prosecution submitted that the only appropriate sentence was a term of imprisonment. I have considered all sentencing options, and considered all matters raised in the plea, but have determined that the objective seriousness of your offending warrants a term of imprisonment.
37This offending is very unusual, though with the proliferation of social media, and its use as a means of communicating that may unfortunately soon no longer be the case. This offending allowed you to seek sexual gratification by your exploitation of virtually free, and unfettered access to females which the Facebook platform so readily provides to its users. This kind of online offending is difficult to detect. Principles of general deterrence just punishment and denunciation are applicable in the sentencing exercise. As to specific deterrence I accept that as long as you remain off ice that you are unlikely to reoffend, though your volume duration and continued similar offending whilst on bail are of concern. Considerations of specific deterrence should be moderated. All of these sentencing considerations must be balanced with all the matters in mitigation, particularly your plea and assistance that you gave to authorities.
38Principles of totality and proportionality are important sentencing considerations given the amount of charges that you face.
39All of the commonwealth charges although occurring over a significant period of time are of exactly the same character. They form a series of offences of the same, or similar character. In those circumstances I intend to impose an aggregate sentence in respect of the commonwealth offending. I am empowered to do so by virtue of s.9(1) of the Sentencing Act.
40Given the amount or number of victims, the similarity in the conduct directed towards them, and the continuing nature of the conduct over an extensive period of time it would be an artificial exercise to impose individual sentences on each charge with extremely modest accumulation for each victim, and then to arrive at a total effective sentence that is proportional to the whole of this criminal offending. See Frewstal (2015) 47 VR 660.
41For the commonwealth offending or charges I propose to impose an aggregate sentence of five months, that is the commonwealth's offences which are numbered as follows, one, two, three, eight, nine, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 53, 56, 57, 58, 61, 62, 63, 64, 66, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 88, 89, 90 and 91.
42As I have indicated in respect of all of that offending I impose an aggregate sentence of five months.
43In respect of Charge 4 I convict and sentence you to a period of imprisonment of one month.
44In respect of Charge 5 a period of imprisonment of one month.
45In respect of Charge 6 a period of imprisonment of one month.
46In respect of Charge 7 a imprisonment of one month.
47In respect of Charge 11 a period of imprisonment of one month.
48In respect of Charge 22 a imprisonment of six months.
49In respect of Charge 36 a period of imprisonment of 12 months.
50In respect of Charge 43 a period of imprisonment of one month.
51In respect of Charge 51 a period imprisonment of one month.
52In respect of Charge 52 a period of one month.
53In respect of Charge 54 a period of imprisonment of one month.
54In respect of Charge 55 a period of imprisonment of one month.
55In respect of Charge 59 a period of imprisonment of nine months.
56In respect of Charge 60 a period of imprisonment of nine months.
57In respect of Charge 65 a period of imprisonment of one month.
58In respect of Charge 67 a period of imprisonment of nine months. I
59n respect of Charge 83 a period of imprisonment of one month.
60And in respect of Charge 87 a period of imprisonment of one month.
61In respect of the summary offences I oppose an aggregate sentence of one month, that is for Charges 164, 165, 166 and 167.
62In respect of the State charges then the base sentence is Charge 36 which is for a period of 12 months. Two weeks of the following sentences will be accumulative in relation to that 12 months. Charge 4, Charge 5, Charge 6, Charge 7, Charge 11, Charge 43, Charge 51, Charge 52, Charge 54, Charge 55, Charge 65, Charge 83 and Charge 87. One month of the following will be accumulative, Charge 23. And two months of the following will be accumulative, Charges 59, 60 and 67. Now, that should give a total effective sentence in respect of the State matters of 26 months.
63The State sentence will commence after the expiration of the commonwealth sentence of five months, which gives a total effective sentence of 31 months and I impose a non-parole period of 18 months. So onto s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters I would have imposed a sentence of imprisonment of five years with a minimum term of three years.
64Are there any other orders I need to make, Mr McWilliams? Sorry, I must have them here.
65MR McWILLIAMS: Yes Your Honour.
66HER HONOUR: All right. The forfeiture order and the 464, all right, I will sign those now. Can you check the figures though please, whilst I am doing that.
67MR McWILLIAMS: I will.
68HER HONOUR: Thank you.
69MR McWILLIAMS: There's a pre-sentence detention declaration as well ‑ ‑ ‑
70HER HONOUR: Sure, that's right, yes.
71MR McWILLIAMS: ‑ ‑ ‑ s.18. It was 272 days at the day of plea, not including the date. There's been a further 19 days elapsed which gives 291 days in total PSD.
72HER HONOUR: I declare 291 days PSD.
73MR McWILLIAMS: There's an application for a discretionary sex offender registration order which was left in abeyance on the last occasion.
74HER HONOUR: That's right, yes, I will make that order, yes. Do I need to provide reasons in relation to that? If I do it is because of the volume of offending. Do I need to make an order though as to duration?
75MR McWILLIAMS: Yes Your Honour would. There's a s.11 ‑ ‑ ‑
76HER HONOUR: Yes.
77MR McWILLIAMS: ‑ ‑ ‑ as it's neither a Class 1, 2, 3, 4 offence but the prisoner in line with Your Honour's finding poses a risk to the sexual safety of the community.
78HER HONOUR: Yes.
79MR McWILLIAMS: Having found such Your Honour's elected to make the order, and the duration then is found in s.34(4)B ‑ ‑ ‑
80HER HONOUR: Yes.
81MR McWILLIAMS: ‑ ‑ ‑ where it reads, "For the purposes of this division a person subject to a sex offender registration order who is found guilty of a Class 4 offence, or any other offence other than a Class 3 offence is deemed to have been found guilty of a Class 2 offence." So that is ‑ ‑ ‑
82HER HONOUR: Right, and so then what does that make the duration?
83MR McWILLIAMS: Yes. So Your Honour's now sentenced the prisoner for multiple Class 22 offences which means it's subject to sub-section - sorry, I'll start again. Section 34.1C(ii) reporting period is life.
84HER HONOUR: All right. I hadn't remembered that and my Associate will now have to prepare that order.
85MR McWILLIAMS: Yes.
86HER HONOUR: So it's a life reporting lesson. I might stand down while she does that. Mr Rogers, I had a discretion to impose a sex offender registration order in relation to you. I have been minded to given the seriousness of this offending in terms of it number of victims in that period of time over which it occurred. I'm satisfied that you do pose a risk to the community, sub-s.11 of the Sex Offender Registration Act, and you'll be required to report for life in relation to those provisions.
87Additionally I have made a s.464 Order which is for you to provide a sample and the police can use reasonable force for you to give a sample. Otherwise you should understand - I'm sure Mr Galbally will explain to you the sentence - what is effectively means is that you'll have a term of imprisonment of 31 months with a non-parole period of 18 months, but you've got your PSD which was 291 - was that right, 291, Mr McWilliams?
88MR McWILLIAMS: 291 yes, thank you Your Honour.
89HER HONOUR: Yes, 291 days PSD. All right, thank you. I'll just stand down. Thank you.
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