Director of Public Prosecutions v Rosen

[2014] VCC 2252

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR x

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY MATTHEW ROSEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	3 December 2014
CASE MAY BE CITED AS:	DPP v Rosen
MEDIUM NEUTRAL CITATION:	[2014] VCC 2252

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Office of Public Prosecutions
For the Offender	Mr D. Georgiou	Malasecca Kelly & Zayler

HIS HONOUR:

1Timothy Rosen, you commenced communicating via Facebook with the complainant in this matter in February of 2011.  She was 14 years old and told you this immediately.  You were 22 although you lied and told her you were 20.

2You continued to communicate over various social media until about November 2012.  It was from February 2012 that your communications became indecent and involved, what has become known as, sexting.  You sent the victim pictures of your erect penis and engaged in explicit text messages and phone calls.  These exchanges were frequent especially between March and August 2012.

3I have read a number of the exchanges.  It is shameful that you engaged in the level of indecency that you did with a child.

4You requested that she send you indecent photos of herself, and sadly, she did send 28 such photos.  This procuring of a child to send, what are child pornography photographs  of herself, is particularly concerning behaviour on your part. 

5Children have to be protected, often, from themselves.  The benefits of the internet have also the risks that, when indecent communications are involved, a child is left with, perhaps, a life-long curse that immature things done when they were a child, can and often remain available for others to use for, perhaps, many years.

6At least there is a spectre of this hanging over a child, that the things that they did or sent over the internet while immature, and goaded on or procured by an adult, will remain.  It causes them anxiety and often for a long time.  It is behaviour that causes distressed parents.

7When police came and searched your premises in January 2013 a significant amount of child pornography was located on a large number of devices and digital storage equipment.  A total of 326 files containing child pornography was found, many of them with Class 4, or even higher classes than that, within the well-known categorisation system.  All child pornography at all levels is degrading and perverted.  I accept that these items were not viewed by you in recent times or for some time.

8On any measure your offending is concerning.  The victim and her family have been adversely affected and I have read her father's Victim Impact Statement.  She required psychological counselling and conditions that she suffered from were exacerbated. 

9These crimes have ongoing detrimental effects on children as they move on into early adulthood. 

10A matter that is all important in my sentencing task is that on 13 November 2013 I sentenced you to a long Community Corrections Order for sexual offences with a child.  Whether you were imprisoned or placed on a Community Corrections Order was very finely balanced.  In the end, and mainly because of your unusual personal circumstances, I was persuaded to make the non-custodial order that I made. 

11It was hoped that you would benefit from targeted rehabilitation directed at you gaining insight into the fact that, notwithstanding your own subjective commitment to a girlfriend, if that young woman was under age, under the age of consent, then you must desist. 

12Your long-standing and entrenched autism made many aspects of ordinary social life a problem for you.  I do not intend to detail every aspect of your autism or your personal circumstances.  I refer to my remarks made in the early sentencing reasons published in November 2013.

13What is important to note is you still have very significant family support.  You have, it seems, done what is required, or has been required of you, in the Community Corrections Order that I placed you on, save for a problem created by your treating psychologist who took it on herself to advise you not to participate in the Sex Offenders Program that I ordered that you do.  That problem was not of your making and has now been remedied and you are willing and able to do the Sex Offenders course.

14The progress report I read about your efforts on the Community Corrections Order indicates your satisfactory performance.  At that point you had already done 215 hours of the 250 hours of unpaid work that I ordered that you do.  This morning your counsel has informed me that you have now completed the whole 250 hours. 

15You have attended and are working well with your psychologist who specialises in treating autism.  The focus has been on social integration and ensuring you have strategies to eliminate risks of sexual offending.  This is a basis to be confident that your treatment will make re-offending by you unlikely.

16Progress reports from your psychologist that I read were positive save for the already mentioned issue of participation in the Sex Offenders Program. 

17The key is that you continue to rehabilitate, Mr Rosen, and do not re-offend against young women.  You have had a forced abstinence from the internet by reason of bail conditions imposed upon you by a magistrate.  This was a significant impediment to you engaging in ordinary social life.  Now that you have had that impediment lifted it is hoped that you deal with others, that you may meet on the internet, in an entirely proper way. 

18Also you must maintain your avoidance of child pornography.  Your old collection is shameful.  The possession of child pornography adds to that degrading industry. 

19Should you falter again in that manner, or any like manner, or at all, you will not receive the leniency that has been afforded to you by me now twice.

20I say that you are afforded leniency because I am persuaded by the submissions, of both your counsel and the prosecution, that in all the circumstances, I could and should impose a further or another Community Corrections Order.  There is a sense in that because the treatment and rehabilitation programs will be re-emphasised, but in doing that, I do not lose sight of the need to deter others and you, as well as the need to denounce your appalling indecent communications, and your involvement in procuring child pornography and possession of child pornography.

21As I said, when sentencing you on the last occasion, Community Corrections Orders are no soft options.  The one that I imposed was particularly long and onerous. 

22You will be under supervision until you are 28 or 29 years old.  You are now 27, as I understand it – 26, I am sorry, just in October turned 26.

23While this is a long time for you to be under supervision, I keep in mind of course, that in saying it is a long time, your offences for which I have dealt with you, occurred when you were 22 or just 23.

24The prosecution urged that any Community Corrections Order be cumulative upon the current order.  Your counsel urged total concurrency. 

25I have weighed up those matters carefully.  In the end the offences before me now are not of a kind or severity that warrants a Community Corrections Order beyond the current one which was three and a half years from November 2013.

26Even if I do not adjust this sentence by reason of principles in totality it still could not be a Community Corrections Order that adds to the current one.  That said, I will apply the principles of totality to a limited extent, which is appropriate given the differences in timeframes of this offending, but also the similarities in the offending and the fact that you are still, by reason of your personal circumstances, immature and young and you still have the enduring difficulties of autism. 

27I will, however, require that you do perform some more unpaid work.  I take into account what was said on your behalf by your counsel just now as to the concurrency of unpaid work should that order have been made while you still had some outstanding. 

28I require you to do some unpaid work for the offences that you committed because you did the wrong thing and there is a requirement for punishment.  That is what the unpaid work is. 

29I will require that you do the Sex Offenders Program under this Community Corrections Order.  It may well be that that is still planned under the other one, but it is to occur, as I emphasised on the last occasion. 

30You are under supervision and there is no requirement that there be further supervision under this Community Corrections Order.

31In my view, a Community Corrections Order does meet all sentencing considerations including your, hopefully, complete rehabilitation and reform. 

32What I propose to do is convict you and place you on a Community Corrections Order for all three offences that you faced.  The length of the Community Corrections Order is 18 months.  It will operate concurrently with the Community Corrections Order that you are currently undergoing as imposed by me in November 2013 for a period of 42 months. 

33I require that you perform 75 hours of unpaid work.  Those hours are in addition to any still remaining from your earlier Community Corrections Order, although I have been told, there is none. 

34Those hours are in addition to any treatment or offender programs that you are required to do. 

35I order that you do programs as directed by the Office of Corrections to reduce your risk of re-offending.   The program that I wish for you to do is the Sex Offenders Program. 

36Had you pleaded not guilty to these offences and been found guilty of them I would have imposed an aggregate sentence of nine months imprisonment. 

37There is the issue of the Sex Offenders Register, and for these offences, someone who commits them, is liable to be placed on the Sex Offenders Register for life.

38Mr Livitsanos, I do not know where we got up to on the last occasion, to be frank.  Is it required that I make an order that he be registered under the Sex Offenders Register for life for these matters.

39MR LIVITSANOS:  Yes, Your Honour.

40HIS HONOUR:  Thank you. 

41I make the order that, by reason of committing these offences, you have to register on the Sex Offenders Register, and the period of time is mandatory; I have no choice in the matter.  It is for life.  There will be documentation provided to you about that shortly. 

42There was an application that there be forfeiture of the computer equipment and the like and I intend to grant that order and sign it. 

43I will return to the police informant the photographs provided to me to assess the gravity of the offence.  I have not brought them with me but I will shortly do that. 

44There will be a document produced shortly and we will go through the mandatory requirements for the Community Corrections Order and the ones that apply just for you.  Just bear with me for a moment.  The photographs are here and they will be returned to the informant in an envelope. 

45Again, I meet the technical difficulties of the combination of Commonwealth offences and State offences, so to have a conglomerate or an aggregate Community Corrections Order seems to cause some problems. 

46For the State offences there is a Community Corrections Order of 18 months concurrent with the current Community Corrections Order. 

47For the first offence there is a like Community Corrections Order, 18 months, under the Commonwealth.

48It is clunky, Mr Georgiou, but it brings about the same result.  Do you see any difficulty with it?

49MR GEORGIOU:  Not at all, Your Honour.

50HIS HONOUR:  Thank you.  There is documents here, Mr Rosen, that your lawyer will bring to you shortly.  In the circumstances can Mr Rosen come out of the dock and come up to his barrister. 

51What I might, Mr Georgiou, is talk to Mr Rosen.  Thank you.  There is a document in here, Mr Rosen, that you have to sign to say that, essentially, I have given you documents.  I sign it to say I have and you sign it to say you have got them.  The key thing is, as I have told you before, the substance of the documents themselves which require you to register under the Sex Offenders Register.  You have to do it all again.  Hopefully it will be the same police officer whose time is taken up after you.

52You remember what I said about every single internet identity.  It has to be notified.  If you sign that document and keep those documents.; that is the first part of it.  We will get to the next part, hopefully, when the computer says yes. 

53(Documents signed and acknowledged.)

54What has been returned to me is a signed document signed by Mr Rosen saying that he is being a registrable offender within the meaning of the Sex Offenders Registration Act.  Acknowledge having received the notification and reporting obligations which he has kept and this document will be forwarded to the Chief Commissioner of Police. 

55MR LIVITSANOS:  Your Honour, just for absolute clarity, because I note at this point and I was just speaking about it with my instructor, the interplay between Commonwealth and State.  I know that Your Honour's remarks indicate like disposition under Commonwealth.  Your Honour, we all appreciate, and just for the record, that that's obviously concurrent.

56HIS HONOUR:  Concurrent, absolutely.

57MR LIVITSANOS:  Yes, Your Honour. 

58HIS HONOUR:  Mr Rosen, these Community Corrections Orders that I have just made and apply to you are to be for 18 months commencing today and concluding on 2 June 2016.  They run concurrently with the ones that you currently have so they are absorbed within the period of time.

59You must attend at the Moorabbin Community Corrections Service in Nepean Highway, Highett – and you know where that is – within two clear working days after the commencement of this order.  Go and see them to get process re-started. 

60You must not commit any offence for which you could be imprisoned during the time that the order is enforced.  You have understood that.  Do not commit any offence of any kind whatsoever.  If you do within the next 18 months it will breach this order.  It will, of course, breach the earlier order as well. 

61You must comply with the obligations under the Sentencing Regulations.  That relates to your photograph being taken and various other things. 

62You must report to and have visits from the Office of Corrections.  You must let the Community Corrections Officers know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so.  That is small trips across the border.  You must obey all lawful instructions and directions from them.  All their orders will be lawful and that includes doing the courses; each and every hour of each course.  Just work with them. 

63You must do 75 hours more of unpaid community work over the 18 months as directed by the Regional Manager; just keep doing it.  There is no indication that you have not been anything other than completely co-operative with him in that regard. 

64You must undergo programs and courses - this is specific to you – addressing factors relating to your offending and that will be a sex offenders course.  If you sign these two documents; one relates to the knowingly possess pornography and procure a minor for child pornography are State offences and the other is using the phone system/carriage service to transmit the indecent communications.  Sign both of them and that will conclude the matter. 

65(Documents signed and acknowledged by Offender)

66Thank you, I will sign those documents and you will get a copy. 

67(Documents signed by His Honour.)

68Mr Rosen, you well appreciate this process in which there was agreement between the parties, and ultimately be me, that we are just going through the motions.  We are not.  These are serious offences involving a young child who was the victim of your offences. 

69I do not want to see you again.  Should I do so then, it seems to me, that other offences or the like have breached these orders that I have made and have just made it crystal clear to me that I am naïve and I should have imposed serious penalties involving incarceration from the start.  Do not come back. 

70Is there anything further?

71MR LIVITSANOS:  No, as Your Honour pleases.

72MR GEORGIOU:  Thank you, Your Honour. 

73HIS HONOUR:  Thank you.  Mr Rosen, when he gets the documents is free to go. 

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