Director of Public Prosecutions v Short

[2020] VCC 665

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02282

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG SHORT

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF SENTENCE:	21 May 2020
CASE MAY BE CITED AS:	DPP v Short
MEDIUM NEUTRAL CITATION:	[2020] VCC 665

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:DPP vGarside [2016] VSCA 74; DPP v Singh [2017] VSCA 146; Meadows v R (2017) VSCA 290; Rampley v R [2010] NSWCCA 293; R v Nahlous [2013] NSWCCA 90; DPP v Buhagiar [1998] 4 VR 540; R v Philpot [2015] ACTSC 96, Kovacevic v Mills (2000) 76 SASR 404; Gifford v R [2016] NSWCCA 302; Asplund (2010) 216 A Crim R 48; Western Australia v Collier (2007) 178 A Crim R 310

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Caretti	Office of Public Prosecutions
For the Accused	Mr A. Halphen	Stary Norton Halphen

HIS HONOUR: 

1Craig Short, you have pleaded guilty to one charge of using a carriage service to groom a person believed to be under the age of 16 years.  The maximum penalty for this offence is 12 years' imprisonment or 720 penalty units or both. 

2The offence is a schedule 2 offence for the purposes of the Sex Offender Registration Act.  You will now be registered and must comply with reporting conditions for a period of eight years.

3Although you have admitted prior convictions, they are not relevant to these proceedings and I take no account of them in sentencing for this matter. 

4The Crown tendered the prosecution opening for plea as Exhibit A.  The summary of your offending is as follows.

5Between 6 and 30 March 2019, you used a social media account in the name of Craig James operated by you to engage conversations with a person you believed to be a 13-year-old girl named Sarah who purportedly lived in Brisbane.  In fact, and fortunately for the community, you were communicating with an undercover federal agent. 

6In the course of your conversations on 12 March 2019 you stated, “…just wondering in case you would like to meet up”.  In the period 6 to 15 March there was sporadic conversation between you.  Between 18 and 30 March 2019, you messaged ‘Sarah’ everyday saying “hi”. 

7On 30 March 2019, you sexualised a conversation with ‘Sarah’ asking if she was keen to, “have sex with a girl or a boy” and if she “explores her own body”.  In an explicit conversation you suggested to ‘Sarah’, believing her to be 13, that she should insert her fingers into her vagina and masturbate.  It is necessary to set out the conversation so that the actual words you used can be considered in context:

Craig:hi

Sarah:hiiiiiiiiiiiiii

Craig:hi school holiday – yeh

Sarah:yep sure is so happy about it

Craig:what is planned

Sarah:just chilling, movies, maybe beach and hangin with friends

Craig:are u keen to have sex with a boy or girl

Sarah:ummmm I like boys but ive never done anything besides kiss

Craig:thats ok plenty of time do guys pressure u for sex

Sarah:not really…just like normal I guess

Not many people have had sex in my grade

Craig:I think 14 is way too young

Sarah:im 14 next month

How old were you when you u first had sex

Craig:I was a real late starter 21

Sarah:ok so I guess there is no rush im happy to wait for the rite time

Craig:yes u should and not be pressured by a guy to say yes do you explore your own body

Sarah:ok ill remember that 

What do you mean explore?

Craig:I mean touch your breasts or pussy

Sarah:hmmm not really  I mean of course I touch my boobs sometimes

but never really down there…I wouldn’t know what to do lol

Craig:ok sorry I maybe shouldnt be discussing let me know if feel uncomfortable – I guess down there just gentle play and see what feels nice

Sarah:I don’t mind if your ok? Ive never really spoken to anyone about this stuff b4

Craig: ok im ok as well u can ask me anything – just let me know if not comfortable     

I wasn’t meaning it to be creepy

Sarah:ok thank ya for being so nice to me…I mean its not like I can talk to my parents about boys n this stuff

Craig:ok my dad gave me a book at 12 lol – im happy to discuss anything you want to know

Sarah:wow that crazy haha my dad would never do that

I guess I don’t really know what to talk about haha I feel stupid lol

Craig:you shouldn’t at 14 I had kissed a girl once lol as in truth and dare – not even romantic I had no idea about sex

Sarah:ok that makes me feel not so dumb haha but I didn’t know about touching down there or anything

Craig:ok sorry maybe I shouldn’t have said that

Sarah:I think its ok. I mean I have heard people talk about that stuff at school b4 but I just didn’t really know how to I guess

Craig:I don’t think a right or wrong way – I guess just have to find a private time and explore and see what you like doing

Sarah:hmmm maybe I should try it What will it feel like?

Craig:well I guess if you touch gently it will start to get wet and then you can go as deep as feels comfortable with fingers – for a guy it feels great – when I touch myself it can sometime take a while to get aroused

Sarah:ok maybe ill try it…are you sure it wont hurt? Sorry if this is dumb but what do u mean wet?

Craig:not dumb when you gently touch u will become aroused so your privates will become moist so it will be easier to go deeper – it wont hurt cos you control how deep u go or how it feels

Sarah:ok I guess that makes sense…so I just gently rub down there and it will get wet then just put a finger in?  What should I be thinking of?

Craig:up to u can just think of nothing and concentrate on it feeling good – or think of a hot guy you like

Sarah:I don’t like any boys at my school What do you think of?

Craig:I think of my partner or some celebs I like

Sarah:ok that makes sense

Sarah:how often should I do it?

Craig:up to you if you enjoy it do it regularly – I do it about once a week

Sarah:hmm I think I want to try but still feel nervous about it

Craig:I understand that – do it when none else is home or when you go to bed

Sarah:I think mum is going out soon so maybe ill try then or tonight.

How do you know when to stop?

Craig:when you feel satisfied

Sarah:how will I know when that is?

Craig:hard to say I guess when u feel u want to stop

Sarah:okay I get it

Craig:are u ok to discuss don’t feel uncomfortable anything else u want to ask

Sarah:yeah I don’t mind do you?

Craig:im fine

Sarah:I guess I want to know more but its hard cause I don’t know much lol Does that make sense?

Craig:yes it does make sense

Sarah:BRB

Craig:ok

Sarah:sorry back now

Just had to see mum before she left

Craig:do you want to try touching yourself now

Sarah:hmmm ok

How should I start

Craig:what are u wearing

Sarah:shorts and a singlet

Craig:probably easier if removed shorts

Sarah:ok they are off

Craig:that was quick what undies are u wearing

Sarah:lol just normal bonds ones

Craig:colour

Sarah:haha just black

Craig:ok

Sarah:now what should I do

Craig:take off your undies are u teasing me

Sarah:not teasing y?

Craig:just worry as u are underage I could get in trouble if anyone found out

Sarah:ok I understand

I wont tell anyone

Will u?

Craig:no

Sarah:okay that’s good

Craig:have you taken off your undies

Sarah:not yet feel a little nervous but will now

Craig:really

Sarah:yes

Craig:ok are you shaved

Sarah:my legs are shaved

Craig:ok

Are you cold have you started touching

Sarah:no not cold its hot here

Not yet should I start now?

Craig:if you want to

Sarah: ok

How should I touch?

Craig: up to u just gently

Sarah:ok ill try now It feels a little slimy?

Craig:that was quick

Sarah:like starting to Do I keep going?

Craig:if you want

Sarah:ok still gentle?

Craig:I have to go

Sarah:ok Where r u going

Craig:shops

Sarah:ok have a good day Bye bye

Craig:enjoy

8After this conversation was terminated, you did not ever contact or communicate with Sarah again. 

9Police executed a search warrant on 7 August 2019.  You were home with your wife when it was executed.  Police found your computer and by going into the Facebook login page they found six addresses/numbers available to use.  No other incriminating material, and by that I mean material such as child exploitation material or other online content related to underage persons, was located.

10You were interviewed by police on 7 August 2019.  You admitted to the various accounts and conversations with ‘Sarah’ but you stated it was not your intention to procure her for sexual activity.  Later in the interview you reiterated that you did not want to meet up with her and you denied speaking to any other 13 year olds on social media.  You declined to make any further comment in relation to your offending. 

11You were charged on that same day. 

12The matter was listed for a filing hearing on 9 August and for committal mention on 14 November 2019.  The matter proceeded to this court by way of straight hand-up brief.  I accept that your plea of guilty was entered at the earliest opportunity and may be used to mitigate the sentence I impose. 

13I turn now to consider your personal circumstances. 

14You are 58 years of age and you were born on 21 July 1961.  You were the youngest of four siblings and you were raised in a loving family in Ringwood.  Your childhood and schooling were unremarkable.  You successfully completed HSC and commenced work in the public service, then moved to the insurance sector before commencing employment with Telstra.  You worked at that organisation for 16 years in marketing and reporting before you accepted a redundancy package in 2009.

15Since that time you have largely worked in short term contract positions in administration, purchasing and inventory management.  There have been brief periods of unemployment in between contract positions.  I was told that you have completed between 20 and 30 contracts in the last 11 years, all the time as the family’s sole earner. 

16You finally again secured a permanent position in inventory management in September 2019 and you completed your probation period in March 2020. 

17You have a long history of community involvement engaging in fundraising for Rotaract, Open Family, the Catenian Men's Group and a locally-based skills swap group. 

18You married your wife, Joanne, in 1985 and you have two children age 26 and 23.  Your marriage is described as distant and lacking in intimacy but remaining intact. Your marriage survived an affair about 10 years ago and then more recently you have engaged in online communication with other women. 

19Your wife Joanne provided a reference to me.  She speaks of the stress you were under at the time of the incident as you were about to end a contract and you were uncertain that you would ever obtain full time work again.  In addition to that your youngest son, Josh, has a long history of problems with drugs.  His girlfriend had only then just recently had a child which caused worry and concern for you both and your wife as to how your son would manage financially, bring up a child and deal with a girlfriend who has mental health issues.

20Your wife writes of the detrimental effect your conduct has had on your relationship with her.  Nevertheless, your wife still supports you, and for the fact you have had counselling.  She writes of her determination for you both to see through this period and to move forward into the future. 

21Your friend, Darren Sturre, stated that your daughter lives at home and that you and your wife do not have an easy time in that respect either.

22Other friends, Martha Turner and Graeme McKenzie, write about your otherwise solid character, work ethic and your community spirit.  I have taken their sentiments into account so far as I can. 

23You have undergone 14 sessions of The Sex Offender Treatment Program between August 2019 to 15 May 2020 through forensic counsellor Geoffrey Burrows under the supervision of Dr Mathew Barth.  This treatment explored you gaining insight into the underlying motivations for your offending behaviour.  Mr Burrows noted, “progress was limited by Mr Short's difficulty reflecting on any sexual motivation for his offending behaviour”.  Mr Burrows stated that you identified factors contributing to your behaviour as being having unmet intimacy needs, a poor understanding of female psychosexual development, feelings of inadequacy and poor coping skills.

24You have reported near lifelong feelings of anxiety and long-term feelings of loneliness.  Mr Burrows engaged in cognitive behavioural therapy in an effort to develop healthier coping mechanisms to manage your emotions and address these feelings.  Mr Burrows reported that as at early May you demonstrated a clear understanding of the destructive impact of your offending behaviour; you had expressed remorse for your actions and you had acknowledged that it is your responsibility to establish appropriate boundaries when communicating with children.  In the end, he remarked that you said you are grateful that you had not communicated with an actual child.

25Mr Burrows concludes that you have made relatively slow progress and that your treatment remains incomplete to date. 

26In addition, you were assessed by forensic psychologist Patrick Newton.  Mr Newton examined your anxiety and divided it into reactive concerns deriving from your fear of these proceedings, and then your more chronic anxiety. 

27You feel anxiety at the outcome of these proceedings, the effect that they will have on your family relationships, the strain it has added to your marital problems, the financial concerns it has caused and the prospect that publicity will alienate and isolate you even further.

28Mr Newton concludes that your chronic anxiety relates to interpersonal, social and sexual matters.  Mr Newton concludes that there is a deal of miscommunication and misunderstanding in your social interactions with others.  In your marriage, you suffer from difficulties in intimacy with your wife, and difficulties with your children. 

29Mr Newton concludes that you meet the criteria for a generalised anxiety disorder made worse by the prominent traits of avoidant personality.

30Mr Newton had some difficulty determining your sexual adjustment.  He stated you were either unwilling or unable to discuss the sexual components of your offending in any detail.  You denied any sexual contact with underage partners and further denied any interest in such activities but you were unable to account for the sexualised content of your conversations with the purported 13 year old female.

31Mr Newton states:

More generally, Mr Short could demonstrate a clear understanding of the laws governing the age of consent with regard to physical intimacy.  He remains unclear about how these apply to online interactions and tended to downplay the significance of his conduct.

Mr Short's offending points to significant gaps in his understanding of the psychosexual development of young women, with the tendency to attribute precocious readiness to engage in sexual conduct with adults.  While there is no clear indication of paraphilia in his case, there is sufficient continuing concern to suggest that he requires ongoing offence specific treatment (with a prominent educational focus) to address these deficits.

32Mr Newton assesses that you pose a low to moderate risk of recidivism to sexual offending.  That is, somewhat lower than that of a typical sex offender in the community.  Mr Newton could only undertake a partial risk assessment because your treatment was not yet complete.

33The law requires me to take into account the nature and seriousness of your offending. 

34The seriousness of this offence can be gauged for the fact that it carries a maximum period of imprisonment of 12 years. 

35Thereafter, the cases stress that the evil to be addressed in sentencing for this type of offending is the great damage it can do to children.  Consequently, general deterrence is of particular significance.  The case of Nahlous, which was referred to at your plea hearing, in turn refers to the case of Asplund and also to Collier.  Essentially, these cases address the two-step process of online contact – that is the building of trust and then the procuring of children for sexual activity.  Collier makes it clear that such offending calls for immediate imprisonment where the offender uses the internet to make contact with children to procure those children for sexual activity.

36The CDPP submits that the following factors should help determine the view I take of the objective gravity of and your moral culpability for your offending:

·First, the fact that you participated in conversations and maintained contact for a duration of 24 days;

·Second, it was you who sexualised the conversation on 30 March 2019;

·Third, from about the second communication you were told and you believed the age of the person you were communicating with to be 13 years of age;

·Fourth, on 12 March you made reference to, that is made an enquiry about, meeting up one day in the terms I have already set out;

·Fifth, you made specific reference on 30 March to being aware of the consequences of speaking in such a way to a purportedly young person;

·Sixth, your offending is no less reprehensible for the fact that you were actually speaking to an undercover police operative.  The fortunate flipside to that is that there was no actual harm caused to a real victim; and

·Seventh, to your credit, you stopped your offending of your own accord some four months before your apprehension.

37In her submissions, Ms Caretti for the CDPP emphasised that criminality of this offending lies in the sexual communication itself.  The offending is therefore no less serious or dependent upon the occurrence of a meeting between you and the purported 13 year old:  see Gifford v R. 

38Taking account of all these factors, the Commonwealth submits that I should consider your offending to be a moderate example of this type of offending.

39Mr Halphen submits that an assessment of the seriousness of your offending must also take account of the following:

·First, your grooming and then sexualised conversation was not accompanied by a promise of entitlement, making threats or manipulation;

·Second, you made no request for images or video links to watch;

·Third, although you made one enquiry about a meeting up in the conversation of 12 March, there was no encouragement to meet for sexual activity.  Moreover, in this respect, there is a gap of 12 days between this comment and the sexualised conversation and it was not raised again; and

·Fourth, as the Crown conceded, you stopped your offending of your own volition after the conversation on 30 March 2019.  You terminated the conversation and it ended somewhat abruptly on that day.

40In such cases in addition to principles of deterrence your offending must attract the principles of denunciation, just punishment and a measure of protection of the community. 

41I am prepared to accept that the factors relied upon by the CDPP enabled your conduct to be appropriately characterised as a moderate example of this type of offending. 

42Mr Halphen readily agrees that deterrence is of particular significance in these types of cases, but he submits that deterrence and the other sentencing principles can be met without the imposition of a period of immediate imprisonment.

43In this respect, Mr Halphen submits that when the following are considered, namely:

·the gravity of the offending;

·the offending was out of character by reference to your past history and psychological assessment; and

·that you have good prospects for your rehabilitation,

(to which I add your early plea of guilty, and Mr Halphen's COVID submission as to the effect of the COVID-19 pandemic) the requirements of general deterrence can be met without requiring an immediate custodial sentence to be served.

44Your progress towards your rehabilitation has been slow.  Nevertheless, it cannot be denied that you are making progress.  Moreover, with the support of family and friends, you are willing to continue with health professionals.  It has been recognised in numerous cases Australia wide that your successful rehabilitation affords greater protection to the community: see Buhagiar [1998] VSCA, Philpot [2015] (ACT) and Kovacevic [2000] (SA) as a few examples.

45Although this is not a dominant, let alone determinative factor in my sentencing consideration, it is important in the present circumstances of the COVID-19 pandemic to note that you have commenced the Sex Offenders Treatment Program privately and that you have the resources and determination to complete it.  It is apparent that the work of Corrections in the prisons and in the community is being made more difficult by the pandemic.  Moreover, when I consider the length of sentence imposed in cases such as Meadows, you would not even have the opportunity to undertake the sex offender treatment program in gaol if I were to impose a sentence of similar length.

46My point is this: your rehabilitation has not yet been perfected but the factors supporting your rehabilitation, namely, the support of your wife and friends, the availability after a long interval of full-time employment and the consequent boost to your self-esteem that that brings, and the comprehensive counselling and therapy provided by Mr Burrows, allow a finding that your prospects of rehabilitation are good.  It will take more work from you to ensure that those prospects are realised.

47Mr Halphen provided a table of sentences of this court which provide examples of instances where offenders have been sentenced to either CCOs or RROs with immediate release and no time served.  He referred to the case of Nahlous as another example of such a case.  Nahlous is perhaps also important for the fact that it was a sentence affirmed after review in the New South Wales Court of Criminal Appeal. 

48The CDPP submits that a sentence of immediate custody is appropriate in this case.  Moreover, Ms Caretti cited Garside and Singh for the proposition that an offender must ordinarily expect to receive a period of immediate imprisonment for offences of this type or grouping, that is internet-based sexual offending.

49Ms Caretti referred to Meadows (VSCA) and Rampley (NSWCCA) as comparators at appellate level which call for an immediate custodial sentence. 

50In addition to the matters which contribute to the objective gravity of the offending, the CDPP submits that matters personal to you carry less weight in the sentencing consideration for this type of offending.  As a matter of law, that is right.

51I have given careful consideration to the statement of principles and the appeal cases for this type of offending, to the submissions of the parties and to your circumstances.  I accept, as I have said, the characterisation by the CDPP that the objective gravity of your offending ought be assessed as moderate.  This of itself is not determinative but it is certainly a factor to which I have had regard in determining the appropriate sentence in this case. 

52I have also had regard to the relevant provisions of the Commonwealth Crimes Act and particularly those between ss.16 and 20.

53After considering all the relevant factors which I must take into account, I have decided that a sentence of imprisonment with an immediate release on a recognisance release order sufficiently meets the sentencing principles to which I must have regard in this case. 

54On the charge of using a carriageway to groom a person believed to be under the age of 16 years, you are convicted and sentenced to 18 months' imprisonment.  I order that you be released forthwith upon entering into a recognisance release order to be of good behaviour for a period of three years.  As a condition of the order, I order that you continue with and complete the Sex Offenders Treatment Program (SOTP) counselling with Geoffrey Burrows under the supervision of Dr Matthew Barth within two years of today’s date. Upon completion of the SOTP to the satisfaction of Mr Burrows, you must provide to the court a letter signed by Mr Burrows or his supervisor to the effect that course has been completed. Failure to reasonably complete the SOTP will be deemed a breach of the recognizance release order.

55The recognisance will be in the sum of $1,000 to be of good behaviour for three years.

56So, just to go through it again because I am required to ensure that you understand the effect of the sentence to be passed, 18 months' imprisonment but you do not walk through that door today. You are released immediately on giving a recognisance, that is a promise.  A promise to be of good behaviour for a period of three years.  That is you will not commit any further criminal offence in that period. The second way you can breach the bond is by not completing the condition, and the condition is that you must complete the sex offenders treatment program within a period of two years.

57If you reasonably fail to complete the program, that is you go, 'this is a joke, I'm not going to do it' or for some other reason, you will be breached.  If you complete it, you must provide a letter to the court which will reach my files and we will have a reminder on the computer that we must receive that letter.  Now, I say ‘reasonably’ because it might be that Mr Burrows, Dr Barth or Mr Newton; someone says two years is not enough, we need to assess this man again in six months' time.  That would be a reasonable reason why you have not completed the program.  But if of your own volition you stop turning up or you do not continue with the program or you fail to make reasonable arrangements to complete the program than the bond will be breached.

58Now, the recognisance is in the sum of $1,000 to be of good behaviour.  That is not a sum that you have to pay today.  It is a sum that you promise to pay and you will forfeit if you breach the terms of the recognisance release order.  Mr Short, do you understand the effect of the sentence I propose to
pass?

59OFFENDER:  Um, if I could just (indistinct words).

60HIS HONOUR:  I will let you speak to Mr Halphen.

61OFFENDER:  Yes, I do understand, thank you.

62HIS HONOUR:  Mr Halphen, is Mr Short prepared to enter the terms of the RRO?

63MR HALPHEN:  He is, Your Honour.

64HIS HONOUR:  Thank you.  If you can come forward please, Mr Short.  If you can just stand back from counsel, thank you.

65Mr Short, in addition to the recognisance release order, I have said to you that you will now be registered on the sex offenders registration list for a period of eight years.  There are indeed many and very onerous obligations that go with that.  I am sure Mr Halphen will have already explained them to you but I will provide you with paperwork in just a few moments.  There are a number of, as I say, very onerous conditions and obligations with which you must comply for the next eight years.  They restrict all manner of things, not only your ability to travel but also you must notify the police of things in relation to where you live, your employment.  It limits your ability to interact near schools and the like.  I will also have that passed to Mr Halphen.  There is an acknowledgement there that I am going to ask that you sign.  Ms Caretti were there any other orders sought?

66MS CARETTI:  No, Your Honour.

67HIS HONOUR:  Thank you for your assistance in this matter.  Mr Halphen, was there anything else from your perspective?

68MR HALPHEN:  No, Your Honour.

69HIS HONOUR:  Thank you very much for your assistance. 

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