Director of Public Prosecutions v Sanderson

[2021] VCC 1153

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01665

CR-20-01106

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANNY SANDERSON

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 August 2021
CASE MAY BE CITED AS:	DPP v Sanderson
MEDIUM NEUTRAL CITATION:	[2021] VCC 1153

REASONS FOR SENTENCE

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Subject:

Catchwords:          Plea to use a carriage service to groom a person under 16 years

of age for sexual activity – possess a drug of dependence – undercover

police operative- no prior criminal history - moderate risk of recidivism

related to online sexual offending – no threats or aggression - reasonable

prospects of rehabilitation.

Legislation Cited:

Cases Cited:

Sentence:Total effective sentence of twelve months imprisonment and to be

released after serving six months on a recognisance release order to be

of good behaviour for two years. Fine of $500.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Breckweg	Katherine Holdsworth
For the Accused	Ms D. Lamovie	Naomi Newbound

HIS HONOUR:

1Danny Spence Sanderson, you pleaded guilty to using a carriage service to groom a person believed to be under 16 years of age for sexual activity contrary to s474.27(1) of the Criminal Code (Cth). This offence took place between 13 October 2019 and 16 April 2020.

2The circumstances of your offending were outlined in a prosecution document for the plea and these facts were agreed without qualification and tendered as an exhibit.  I will briefly summarise them in a moment.

3You also pleaded guilty to a separate indictment which alleged that on 18 June 2020, you possessed a drug of dependence namely cannabis without being authorised or licenced to do so.  My summary will incorporate the matters which pertain to this charge as outlined by the prosecution.

4On 1 October 2019, you sent a message on an instant messenger application to a username 'siennarose'.  You believed she was a 15-year-old girl.  You were using the name 'jackforsale' for yourself.  You were then 48 years old. The particular phone application allows users to transmit and receive messages, photographs, videos and other content, it provides users an account without submitting a mobile phone number thus securing some measure of anonymity.

5On 3 October, Sienna responded to your message and made clear she was 15 and when asked if her age bothered you, you replied, 'Not at all, I think you're gorgeous'.

6Over the following three weeks, you and Sienna spoke intermittently.  You asked to see her picture and asked if she had a boyfriend.  On 30 October 2019, you told her, 'I want to meet you and if we hit it off, I want to have a sexual relationship with you'.  You proposed meeting later that week and gave her your mobile number. You told her you were prepared to meet her and pick her up and asked her to text you when she was ready.  Unbeknown to you, Sienna Rose was an undercover police operative posing as a 15-year-old girl.

7On 1 November, you commenced using Google Hangouts, another application, in order to communicate with Sienna.  Your moniker was 'jackawesome'.  Over the next few days, you exchanged conversations of a salacious sexual and inviting nature in which you sought to reassure Sienna, told her what you would like to do to her, called her flattering names, asked if she had watched porn and played with herself.

8She again asked if you were okay with her age.  When she indicated nervousness about meeting you, you reassured her by promising to send her your licence and registration and admitting that you would be 'in a big shit' if others found out showing you were aware of the wrongfulness of your conduct.

9You requested a photo and Sienna obliged by sending you a photo of a young blond female for which you again profusely complimented her.  This was sexually focused grooming on your part while asserting that you were a sensitive sexual partner 'gentle and responsive' to feelings.  These matters are outlined in paragraph 7 to 12 of the prosecution opening.

10The following days, you contacted Sienna numerous times on Google Hangouts and the previous app Kik using the moniker 'foundnirvana'.  You also used SMS messaging.  You asked for more pictures of her.

11On 5 November, a police officer posing as Sienna called you on your phone and had a conversation with you.  You told her you should not be talking to her agreeing that discovery would land you into trouble.  That evening, you told her by messaging her that you were hanging out to meet her.  You again suggested meeting after you ascertained the suburb where she lived.  You again acknowledged the risk of discovery by police or members of her family while reassuring her that you would not force yourself upon her and ensuring her safety.  You asked to meet her and asked for images of her topless and 'naughty pics'.

12On 8 November, you professed to her to feeling sorry and guilty.  You also said that if you were to meet her, you would want to kiss her and want more.  During 10 November and 31 December 2019, you attempted to contact her a number of times.  You asserted you felt guilty and asked for forgiveness; then told her she was gorgeous, that you regretted not chatting anymore and asked her to give you another chance.

13You repeated this pattern on more than one occasion and then asked for more pictures.  Sienna reiterated her age to you; you replied, 'Most people would think that it wasn't good but that you really wanted to'.  You asked Sienna to be selective with respect to who knows about your exchange and between 10 January and 16 April 2020, you then communicated infrequently about inconsequential matters.  You told her you had previously closed your accounts because you had freaked out about her age and what you said to her but then you asked for more pictures.

14On 18 June, police executed a warrant at your home, they seized digital devices and found the images sent to you by Sienna.  A small bag of cannabis with 5,5 grams of the substance was also found.

15When interviewed, you told police that Sienna was '16 or something like that' but that after speaking on the phone once, you realised that this might actually be an underage girl.  You disavowed any intention to actually meet.

16You were cooperative in providing police with information as to which application you used and which usernames and email. You told police in disingenuous answers that the exchanges were merely fantasy banter that you had thought Sienna may have been a fake profile of an older woman or a man although you were not sure and you told them the cannabis was for insomnia, backpain and recreational reasons.

17You were charged in mid-June 2020 and at committal mention in September, you pleaded not guilty and committed to stand trial.

18At a first directions hearing in March 2021, you entered pleas of guilty.  You have served no days by way of pre-sentence detention.

19I take your plea into account although it was not made at first opportunity which will reduce that benefit somewhat. I consider that it should be afforded significant weight, however, for a number of reasons.  It is an acceptance of responsibility and it amounts to a facilitation of the courts of justice by this assistance.  It has a utilitarian value of having avoided a criminal trial and its delay and expense.  It is also made at a time when the criminal justice system and the rest of the society is significantly impacted upon by the pandemic which has made the delivery of justice outcomes very difficult in practice and in a timely fashion.

20The plea is some evidence of remorse.  This is often a difficult sentiment to evaluate.  The plea itself is an indicator.  It may well be that this a growing and ongoing realisation of acceptance of wrongdoing but, in my view, it is not yet complete as is reflected in some material in Dr Barth's report which I will mention in a moment.  Nevertheless, your plea will reduce your sentence.

21I take your personal circumstances into account.  You are 49 years old with no prior criminal history.  You are the older of two children and have several half siblings.  Your father was a plumber and raised greyhounds from time to time.  Your mother was predominantly a homemaker with some casual paid employment.  Your family moved on several occasions due to financial constraints and your parents' relationship was volatile.  Your father drank alcohol heavily and they separated on two occasions before reconciling.

22You left the family home aged about 15 due primarily to conflicts with your mother and this further deteriorated when your half-brother was killed.  You then went to live with an older sister in Coburg, Melbourne.  Your mother died in May 2019 and you were saddened greatly by the death.  Your relationship with your father had started as a close one but your rebellious teenage behaviour as well as drug and alcohol use on your part changed that.  You maintained irregular contact with your father after that time.

23You reported several experiences of sexual assault which occurred during your childhood to Dr Mathew Barth who assessed you in June of this year on two occasions and he prepared a report which was tendered to the court dated 9 July 2021.  You told him about this abuse, that it involved a teacher fondling you at a camp and the other incidents later when you would regularly hitchhike around Shepparton and that area and you asserted that a number of men touched you when traveling in their car.

24Your schooling was in Shepparton, then Kyabram.  In secondary school, your conduct deteriorated.  You began socialising with a negative peer group.  You smoked cannabis, engaged in fights and you were ultimately expelled in Year 9.  Your father helped you get an apprenticeship as a plumber which you did not complete. Thereafter, you worked as a labourer, a fork-lift driver and you reportedly trained greyhounds for a while yourself.  You have had difficulties maintaining a long-term employment due to the monotony of work which you experienced and a propensity for getting into conflicts.  As a result of a back injury, you have been unemployed for some two years now.

25You were in a relationship when aged 18.  A daughter was born from it.  She is now 29 years old and she was present during your plea and she is present during this sentencing this morning.

26When you were 25, your partner left you and went to Queensland with her.  You also followed them and re-established a relationship with them.  You then moved to Melbourne at some point together, however, you relapsed into drug and alcohol abuse which had been the cause of the earlier separation and so your partner again left you.  You were 37 years old.

27You have had minimal contact with your ex-partner but you see your daughter frequently and she remains supportive of you at this stage.

28You had two other relationships, one with a woman you met online and you subsequently lived with her in the United States.  She is a Puerto Rico woman.  This relationship was turbulent and you returned to Australia.

29You are currently in a relationship with an Indonesian woman you also met online.  You had previously travelled to Indonesia for some four months to be with her.  You told Mr Barth that she also remains supportive of you.

30You commenced drinking aged 13 which progressed to binge drinking particularly on weekends and then heavy drinking regularly in your 20s and 30s.  Periods of sobrieties would be short-lived.  While you have managed to reduce your alcohol intake, your drug use has increased in the last two years and you began using cannabis at 14 years.  By 16, you used daily, a pattern which went on for some 12 years.  You continued to smoke regularly thereafter and only about four months ago, this abated but it has not turned into abstention.

31You have experimented with illicit substances including ice and LSD.  Your ice use culminated in daily abuse but you say that you have been abstinent for months and intend to avoid a relapse.

32In his report, Dr Barth writes of your self-report of increasing oppositional behaviour and aggression and drug abuse in response to your childhood abuse.  Your relationship with your parents floundered in conflict and you experienced bullying during your apprenticeship.  You report that you cope with dissatisfaction with life and distress by drug use and heavy drinking particularly after separation leading to low self-esteem, suicidal ideation and in fact an attempt.

33With time and psychological therapy, your mood has improved.  You presented to the evaluation as a 'rather garrulous and flamboyant individual', very talkative and with elevated moods.  Interestingly, Mr Barth notes at paragraph 11 that because of this presentation, your test results were invalid based on your level of attention in particular.  In May 2019, your mother's death caused an intense emotional reaction.  You ceased work, began using ice heavily and you used much time on the internet.

34When you were charged with these offences, you consulted a psychologist but found the therapy not beneficial.  You told Mr Barth this had been a wake-up call and you were wanting to set positive goals for yourself.  The support of your daughter has been an important source of inspiration for you.  Your current mental health's main feature is one of anxiety but you do not meet criteria for mood disorders anxiety-related or adjustment disorders and your thoughts did not demonstrate psychosis or thought disorders with no intellectual impairment.  Dr Barth identifies your management of interpersonal issues as the key issue describing you as insecure, sensitive to criticism and self-doubt and failure.

35Rather than address them, you have sought external stimulation and validation.  Dr Barth opines that the current charge raise issues with your sexual adjustment.  You were unable or unwilling to discuss your motivation for your offending with him and Dr Barth is of the opinion that your conduct represents a gross violation of personal boundaries, self-supporting cognitions about the sexual promiscuity of a 15-year-old girl and it is behaviour that should be comprehensively addressed in a specialist sex offender treatment program.

36Your use of pornography increased in 2019 together with online sex chat.  You asserted that you ceased this as a result of the charge.

37Dr Barth also conducted a risk assessment for recidivism for sexual offending.  That is outlined at paragraphs 8 and 9 of his report.  You presented with some relevant risk factors tied to your offending in particular your grooming efforts (paragraph 49).  You continued to minimise your offending and so you confirmed a propensity for impulsive decision-making which is focused on
short-term gratification when faced with personal challenges.

38However, you do not exhibit a psychopathic personality and have no history of sexual deviance which mitigates risk.  You remain a moderate risk of recidivism related to online sexual offending.  He concludes you require sex offender treatment which can be focused on the impact of sexualised communication with adolescents enhancing empathy and challenging inherent wrong knowledge and planning relapse prevention.  Cognitive behavioural therapy and counselling would also assist you with emotional issues.  High intensity closely supervised detoxification to enforce prolonged abstinence would also be useful with clear consequences for non-compliance as well as meaningful employment.

39I am hopeful that today's disposition will assist you to achieve all if not most of those goals.

40In a comprehensive plea, your counsel conceded that this charge is and will be inevitably dealt with by a term of imprisonment.  She urged that these remedial interventions just mentioned should not be delayed to ensure your rehabilitation and the protection of the community and should proceed as soon as possible.  It was acknowledged that the offending was serious but that the most effective way of ensuring ongoing community protection and your rehabilitation was to allow a reasonably early return to the community with the supporting scaffolding of a tailored program of rehabilitation.  Provided you fully engage with such a program, the prospects of your rehabilitation as reasonable.

41In terms of the offence, the maximum penalty is 12 years.  By this maximum, the legislation gives a clear indication of the seriousness with which the community views such conduct.  As was fairly acknowledged, the chat contents, the duration of the engagement, the period of offending, the use of multiple devices and pseudonyms and platforms, the age disparity between you, the opportunity that you had to retreat which was not taken and the purported grooming are all features of what is, in my view, serious offending.  It is true that you stopped communicating with Siena prior to your arrest of your own accord and it is true there were no explicit threats or aggression used by you.  These are not mitigatory features, just as the absence of a real person as an actual victim is not a mitigatory feature.

42In sentencing you, I have regarded the matters set out in Part 1B of the Crimes Act, in particular s16A (2) factors to be taken into account in order to impose an appropriate sentence pursuant to the relevant principles of punishment, denunciation, deterrence both general and specific, community protection and rehabilitation.

43In my view, given the objective seriousness of the grooming offending, the penalty which I have mentioned and indicate a term of reclusion is appropriate.  I do intend to impose a period greater than three years so the point of imprisonment will be followed by a recognisance release order which will outline a number of conditions which aim to ensure that you are assessed and treated.

44In my view, when I review the sentencing considerations and principles applicable to an online child exploitation offence which were helpfully outlined and summarised in the submissions prepared by the learned prosecutor which I will not set out but with which I agree and to which I have had detailed reference, this approach is appropriate.

45I have reviewed a large number of authorities mentioned therein and also reviewed the comparative cases provided to the court which demonstrate the application of relevant principles in these cases and provided guidance and perhaps a range rather an approach of how the sentencing discretion is to be exercised.  I refer specifically to the table which was tendered.

46Charge 1 on the indictment is a Class 2 registrable offence under the Sex Offenders Registration Act (2004); accordingly, upon your conviction, you will be required to comply with the reporting obligations under the Act for eight years.

47Mr Sanderson, on Charge 1, you are convicted and sentenced to 12 months' imprisonment. You are to be released after serving six months on a recognisance release order to be of good behaviour for two years.

48Ms Breckweg, I can make the length of the order longer than the period of the sentence, that is correct?

49MS BRECKWEG:  That is right.  Up to five years, Your Honour.

50HIS HONOUR:  Yes.  Thank you.

51During that period, you are to comply with the conditions of that order which will be outlined on the face of the order but primarily you are to be of good behaviour.

52You will give security by recognisance of $2,000 to comply with those conditions.  You will be under the supervision of the Deputy Commissioner and Community Correctional Services and Sex Offender Management for that period of time and you will attend to assessment and if assessed as suitable treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner will proceed.

53There are also other conditions about reporting and notifications and not leaving Victoria without permission of the officer at the Community Correctional Centre.  You are to obey all lawful instructions and directions of those officers.

54I will sign such an order when it is ready and I will have it delivered to you for signature there where you are.

55Are there any other ancillary orders, Ms Breckweg?

56MS BRECKWEG:  No, there is not, Your Honour.

57HIS HONOUR:  Right.

58MS BRECKWEG:  Your Honour, is it intended that my instructing solicitor complete the RRO and email it through or is your associate attending to that?

59HIS HONOUR:  I think that my associate is happy to do that and as soon as that is done, it can be probably taken to the court and Mr Sanderson can sign such an order and I will countersign it or the other way around.

60MS BRECKWEG:  Thank you, Your Honour.

61HIS HONOUR:  All right.

62I should say something about 6AAA and be clear that but for Mr Sanderson's plea, I would have sentenced him to 12 months' imprisonment.

63So having done that, I will just impose on you, Ms Lamovie, to wait in court until that document is ready and then before being removed, Mr Sanderson can sign that recognisance order.

64MS LAMOVIE:  Yes, of course, Your Honour.

65HIS HONOUR:  Thank you.  Thank you all for making yourself in this way.  Thank you.  I will adjourn.

66MS BRECKWEG:  Thank you, Your Honour.

(Short adjournment.)

67HIS HONOUR:  I am sorry.  I should have included what I have had intended to include and that is a fine on the second indictment which is the cannabis possession charge and that is a fine of $500 and I will order a stay of one month.

68MS LAMOVIE:  As Your Honour pleases.  Thank you.

69MS BRECKWEG:  Thank you, Your Honour.  Your Honour, that is with conviction, I assume?

70HIS HONOUR:  Yes, that is with conviction.

71MS BRECKWEG:  Thank you, Your Honour.

72HIS HONOUR:  Thank you very much to both.  Thank you.

73MS BRECKWEG:  Thank you.

74MS LAMOVIE:  As Your Honour pleases.

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