Director of Public Prosecutions v Sikora
[2021] VCC 233
•10 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CT-20-00884
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN SIKORA |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2020 | |
DATE OF SENTENCE: | 10 March 2021 | |
CASE MAY BE CITED AS: | DPP v Sikora | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 233 | |
REASONS FOR SENTENCE
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Catchwords: 26 charges using a carriage service to transmit indecent communications to a person under the age of 16. 3 charges using a carriage service to transmit child pornography material. 4 charges using a carriage service to transmit child pornography material to himself.
Sentence: 4 years imprisonment with a non parole period of 2 years.
Sex Offenders Registration Act [2004] (Vic) for Life
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Brown | |
| For the Accused | Mr J. Manning |
HIS HONOUR:
1 Steven Sikora, you have pleaded guilty to 37 charges contained in indictment CR-20-00884 filed by the Commonwealth Director of Public Prosecutions. Each charge is a federal offence.
2 Twenty-six of the charges are charges of using a carriage service to transmit indecent communications to a person you knew to be under the age of 16 years (Charges 1-5, 8-11, 13, 15, 16, 18-20, 22-23, 25-30, 32, 33, and 36). The maximum penalty for each of these charges is imprisonment for seven years. I will hereafter refer to these charges as 'the indecent communication charges'.
3 Three of the Charges - 6, 7 and 14 - are charges of using a carriage service to transmit child pornography material. The maximum penalty for each of these charges is imprisonment for 15 years. A further four of the charges - 12, 17, 31 and 35 - are charges of using a carriage service to transmit child pornography material to yourself. The maximum penalty for each of these charges is also imprisonment for 15 years. I will hereafter refer to these charges as 'the transmission charges'.
4 Another three of the Charges - 21, 24 and 34 - are charges of using a carriage service to solicit child pornography material. The maximum penalty for each of these charges is also imprisonment for 15 years. I will hereafter refer to these charges as 'the soliciting child pornography charges'.
5 Finally, Charge 37 is a charge of possession of child pornography material obtained or accessed using a carriage service. The maximum penalty for this charge is also imprisonment for 15 years, hereinafter referred to as 'the possession of child pornography charge'.
6 As you can see from the maximum penalties prescribed by legislation, these are very serious offences. This is because each offence involves you dealing with children who are the ultimate victims of your crimes. Here, there were 27 such victims.
7
In sentencing you for a Federal offence, I must have regard to the matters contained in Part 1B of the Crimes Act [1914] (Cth), and particularly the
non-exhaustive matters set out in s.16A(2) of that Act. In passing sentence upon you, I have had full regard to these matters.
8 The circumstances in which you offended are described in a summary of facts agreed between your legal practitioners and the prosecutor. The summary was read in open court by the prosecutor Mr Brown and your counsel Mr Manning agreed that it was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you. In those circumstances, it is not necessary that I here repeat in detail all of the facts described in the prosecution summary, which was tendered as Exhibit A. Here, I describe your offending only in an abbreviated way.
9
The indictment covers offending by you over a protracted period of between
4 January 2017 (Charge 1) and 30 September 2019 (Charge 36). That is a period approaching three years duration. There were periods or short breaks within that timeframe during which you appear to have not offended.
10 You used a communications application known as Kik Messenger, which is a free agent instant messaging application used on mobile phones and like devices. By using the application, users are able to exchange messages, photos and videos with each party using the application. Using that application, you communicated with 27 young girls aged between eight and 15 and you engaged in indecent, sexually explicit conversation with them online. You knew that each of the young girls that you communicated with was, or purported to be, a child, because in the facts of each of the charges the party you were communicating with told you their age.
11 As well as engaging in sexually explicit and salacious conversation and communications with these young girls, you also sent pictures to them of your erect penis and videos of yourself whilst engaged in the act of masturbation. The indecent communications charges are each a serious example of what is, regrettably, a serious and prevalent offence.
12 You requested the young girls to send you naked images of themselves and some of them did. You saved screenshots of the conversations and any pictures sent during the conversations. You told police that you would later use images that had been sent to you to sexually arouse yourself.
13 In Charge 12, you asked the victim to send you pictures of her four-year-old sister in the bath. She sent to you two pictures of a naked female child in the bath. You responded, 'OMG, daddy is really hard right now.' The victim then transmitted a further eight child pornography images to you. A couple of days later, you then forwarded four of the images that you had received from the victim in Charge 12 to the victim in Charge 14. That is just a small example of how the median of the Internet can be used to transmit child pornography. In this case, via the Kik Messenger application.
14 Each of the transmission charges and the soliciting child pornography charges, are also each serious examples of what are serious and prevalent offences.
15
When arrested, you were found to be in possession of 343 images and
71 videos classified as child pornography. 321 images and 16 videos were judged to be level 1 child abuse material, which is the lowest level of seriousness. Four images and 12 videos were judged to be category 4. Having regard to the nature and extent of the child pornography possessed by you, I regard the possession of child pornography Charge 37 as being towards the lower end for this kind of offending. None of the material was distributed by you en masse.
16 As can be seen from the brief description of your offending, it is very serious. I have not fully described it here because it is not necessary that I do so, your offending having been more fully summarised in the prosecution summary. These sentencing remarks must, therefore, be read in conjunction with what is better described in the prosecution summary.
17 Offending of this kind which involves victimising young children for the sexual gratification of the offender, has always been regarded by the courts as being of the most serious kind. As I said earlier, here there were 27 child victims of your offending. None of them has filed a victim impact statement.
18 In sentencing for the crimes such as this, the courts must have proper regard to the sentencing principles of deterrence, both general & specific, denunciation and protection of children. In sentencing, I must also effect just punishment and have proper regard for your prospects of rehabilitation and also to each of the non-exhaustive factors contained in s.16A(2) of the Act.
19 Your counsel Mr Manning acknowledged that your offending was serious and that a sentence of a term of imprisonment must be imposed. He argued, inter alia, that because of your background and psychological state and the fact you have pleaded guilty to the charges at the earliest opportunity and you are remorseful and because you have taken steps to cease using drugs, that I should immediately release you on a recognisance release order with appropriate conditions. He argued, such a disposition would achieve each of the purposes of sentencing in your case.
20 The prosecution submitted that your offending was very serious and prevalent, lasting nearly three years and in all of the circumstances I should impose a head sentence of at least three years and fix a non-parole period. Mr Brown also filed a detailed outline of submissions and he provided me with copies of other cases from Courts of Appeal to assist in achieving consistency in sentencing for cases of this kind, given state courts are all hearing similar cases of Federal charges. Mr Brown submitted, and I accept, that your moral culpability for this offending is high. I note that, no doubt, conscious of the age of the victims you were communicating with, you told the victims in Charges 22 and 25 not to tell anyone.
21 At the plea hearing, I indicated that I would not be releasing you on an immediate recognisance release order and I remanded you in custody. I did this because I accepted the prosecution submissions.
22
When you were arraigned, you admitted prior convictions. You were born on
5 January 1988. You were aged 31 at the time of offending and you are now aged 33. I agree that you are still a relatively young person with many years of life ahead of you.
23 You have prior convictions for trafficking cannabis and for possession of cannabis and dealing with the proceeds of crime. You also have a prior conviction for driving under the influence of intoxicating liquor in 2010. This matter aside, you have not been before the courts since July 2010, aged 22. Before I remanded you in custody on 14 December 2020, you had not before been incarcerated. You have now served 86 days pre-sentence detention.
24 When arrested at your home on 12 December 2019 in the presence of your parents, you cooperated fully with investigating police who seized a number of electronic devices and you provided the police with the necessary passwords to access them. You co-operated fully in a record of interview and you told the police that you communicated with the victims when you were bored and affected by the use of methylamphetamine. You have told police that, when sexually aroused using methylamphetamine, you looked at sexual images of female children. You told police you turned a blind eye to the age of the victims. You told police that you stored the child exploitation images for your later personal reference and for use to satisfy you when you had a sexual urge.
25 You have pleaded guilty to each of the charges and I treat you as having indicated that you would plead guilty at the earliest possible opportunity. For that you are entitled, and will receive, a reduction in sentence. By pleading guilty you have saved the time and costs of a criminal trial. This is a valuable plea at a time when the courts face a backlog in hearing contested criminal trials caused by the coronavirus pandemic. You have also admitted responsibility for your offending and, in doing so, you have advanced the administration of justice. I also treat your pleas of guilty as an indication of some remorse for what you have done.
26 I turn to some matters personal to you and related to your background. Your counsel Mr Manning filed with the court a helpful outline of his submissions in writing. I marked that document as Exhibit 1. He submitted that the offences here occurred in the midst of a reclusive and insular lifestyle. He submitted that at all times you have struggled with low self-esteem and self-doubt and that throughout your life you have experienced difficulties developing and maintaining meaningful relationships. He submitted that at the time of the offending, you were isolated, lacked direction and you were lost. Mr Manning submitted that your offending was committed in the context of an underlying paedophilic disorder, and severe stimulant use disorder, and that your use of methylamphetamine increased your sexual drive and lowered your inhibitions.
27 The evidentiary basis for these submissions are a clinical neuropsychologist report from Susan Carey dated 9 December 2020, which I admitted into evidence as Exhibit 2. Further, your counsel relied upon a psychological report from Simon Candlish dated 16 September 2020, which I admitted into evidence as Exhibit 3. Counsel also relied upon evidence of you having attended upon a program conducted by Swinburne University relating to coping with child exploitation material. That evidence shows that you attended on seven occasions prior to the plea in order to deal with your problems (Exhibits 4 and 5). I also received in evidence a mental health treatment program prepared by your general practitioner dated 15 December 2019 (Exhibit 6), together with a letter from one Anthony Stott from Crookes Counselling and Consulting Services relating to you having attended for counselling for depression anxiety and stress (Exhibit 7). I also received a certificate of you having attended Western Health Community Residential Withdrawal Unit in December 2020 (Exhibit 8). Since the plea, I have received various other certificates of courses undertaken by you whilst you have been on remand awaiting sentence. In passing sentence, I have read and considered all of this evidence.
28 As the report of Mr Candlish shows, you were born and raised on a farm in regional Victoria, your parents having migrated from former Yugoslavia. Your parents lost the farm as a result of a failed business venture when you are aged about 10 years. You had some academic and learning difficulties at school. You have also had varied and sporadic employment. You have always lived with your parents. At age 14 you began using cannabis and this soon became a daily addiction. You ceased using cannabis in your mid-20s. I was told and accept that this occurred after a cannabis induced psychosis.
29 You began experimenting with MDMA, and soon after, amphetamines for several years in your early 20s and you began using methamphetamine at age 23. You were using this drug at the time you offended and I was told you also used it whilst on bail.
30 Mr Candlish thought your relationship with your parents was complex and that you lacked strong emotional connections and nurturing from your parents during your childhood. Throughout your 20s you lived and insular life, where you often used and abused methamphetamine and played video games. You are said to have experienced anxiety in social situations and you did not like change. You told Mr Candlish that you crave a long-term relationship but you have lacked intimate or meaningful relationships and most of your sexual encounters are described as being 'one-off'. Between the ages of 27 to 32, you told Mr Candlish that you did not engage in sexual activity with another person.
31
Mr Candlish thought you presented as being significantly underdeveloped emotionally and socially. He also thought that your entrenched methamphetamine use had contributed to your insular lifestyle. You told
Mr Candlish that between the ages of 24 to 31 a typical day involved using methamphetamine, then doing some work for your parents to get money to buy more methamphetamine, followed by going online.
32 Ms Carey said that you did not have a particularly sophisticated conversation style. She found you have lower vocabulary skills, psychological immaturity, you lack real-world experience and she thought you have lower average cognitive ability. She opined that your current cognitive functioning falls within the lower average range.
33 Mr Manning did not rely upon Verdins principles, but he argued that the expert evidence helped to explain the context in which your offending likely occurred. There is no doubt that your offending occurred in the context of methamphetamine use which increased your sexual arousal and diminished your inhibitions. I accept counsel’s submissions your communications with the victims represented fantasies to satisfy your sexual urges. I think it unlikely that you would ever have actually met any of the victims.
34 Mr Candlish was of the opinion that, in the absence of emotionally close relationships, intimacy skills and sexual experiences, you appear to have developed a greater reliance upon pornography and sexualised online communication to meet your needs. I accept that opinion. Mr Candlish also opined that your sexual interest in female children online is related to a complex interaction of factors, including low social competency arising from social and emotional immaturity. Your methamphetamine use is said to have reinforced and rationalised your behaviour in your mind. Mr Candlish found that you struggled to say why your offending was wrong. That is a concern to me. It needs to be addressed by appropriate treatment.
35 I accept all of this evidence from experts as an explanation of your behaviour. It does not excuse your behaviour but it does help to explain it.
36 Mr Manning accepted that your behaviour in offending was both protracted and serious. He also accepted that the court, by its sentence, must have proper regard for the need to apply general deterrence, denunciation and protection of children.
37 Mr Manning pointed to your pleas of guilty at the earliest opportunity. He also pointed to you having accepted responsibility for your conduct and your willingness to facilitate the course of justice. He pointed to the fact you made substantial admissions when interviewed by the police.
38 I accept that your prior convictions are of little, if any, relevance here, save that they appeared to show that you have had a long-term drug problem. In the past, you have entered programs and attended sessions for alcohol and drug counselling.
39 Mr Candlish was of the opinion that you meet criteria for a diagnosis of paedophilic disorder and stimulant use disorder (severe). Mr Manning submitted that these are matters of significance relevant to your prospects for rehabilitation. I agree. I have reached the conclusion that your prospects for rehabilitation must remain guarded until such time as you have undergone appropriate counselling and treatment relating to your paedophilic disorder and stimulant use disorder.
40 The expert evidence suggests that you are a moderate risk of reoffending in the absence of any intervention. I was told and accept that, after your arrest, you began to appreciate the seriousness of your offending and you experienced suicidal ideation. You continue to experience extreme distress and anxiety concerning the outcome of these proceedings. Whilst on bail, you did not reoffend but you apparently continued to imbibe methamphetamine. Otherwise, you complied with your bail conditions. You have attended upon your general practitioner, seeking treatment for depression and anxiety and a desire to seek help for your drug addiction. It was as a result of that that you obtained a referral to Crookes Counselling and Consulting Services in Werribee, where you participated in six sessions of counselling between February and April 2020. Through your lawyers, you obtained a reference to a Swinburne University program dealing with child exploitation material offenders, where you were involved for 10 sessions and you were willing to participate in that program. That program was ceased because of the present pandemic.
41 I accept that the restrictions of the pandemic restricted your ability to engage in programs that you desired to engage in, particularly for your drug addiction. One such program was drug and alcohol counselling at IPC Health in Deer Park. Between August and December 2020, you attended seven sessions of that program on a voluntary basis, which included a seven-day detoxification.
42 As I said, I think your prospects for rehabilitation are guarded and will depend upon you receiving proper treatment for your paedophilic disorder and for your addiction to methamphetamine. However, I accept that you have insight that your drug problem is a cause of your offending in this way against young girls. The fact that you have taken the steps that you have and the fact that you have ongoing family support and because you have never before been to gaol, points I think to you possibly benefiting from an earlier than normal release on parole. Accordingly, in framing my sentence, I have provided for your release on parole at a relatively early time. That may assist with your eventual rehabilitation, whilst the head sentence will serve to reflect the seriousness of your offending and the need for general deterrence.
43 On each of the 26 indecent communications charges, being Charges 1-5, 8-11, 13, 15, 16, 18-20, 22-23, 25-30, 32, 33, and 36, you are convicted and sentenced to a term of imprisonment of two years, commencing this day.
44 On each of the transmission charges, being Charges 6, 7, 12, 14, 17, 31, and 35, you are convicted and sentenced to a term of imprisonment of two years, to commence when one year of the sentence imposed on each of the 26 indecent communications charges has been served.
45 On each of the charges of soliciting child pornography, being Charges 21, 24 and 34, you are convicted and sentenced to a term of imprisonment of two years, to commence when one year of the sentence on each of the transmission charges (Charges 6, 7, 12, 14, 17, 31, and 35) has been served.
46 On the possession of child pornography charge, Charge 37, you are convicted and sentenced to a term of imprisonment of 12 months, to commence at the same time as the sentences imposed on the soliciting of child pornography charges (Charges 21, 24 and 34).
47 This makes a total effective sentence of four years imprisonment. I direct that you serve a minimum term of two years imprisonment before you are eligible for release on parole.
48
I declare that 86 days be reckoned as having been already served of the sentences passed this day by way of pre-sentence detention and direct that
86 days pre-sentence detention be entered into the records of the court and be deducted administratively.
49 Although a matter for the Parole Board, I recommend that you not be released on parole until you have completed the sex offender program in custody.
50 For the purposes of s.6AAA of the Sentencing Act [1991] (Vic) I state that, had it not been for your pleas of guilty to the charges at the earliest possible opportunity, I would have imposed a total effective sentence of 7 years imprisonment and a non-parole period of four-and-half years' imprisonment.
51 Because you have been convicted of these offences, you are now a registrable offender for the purposes of the Sex Offenders Registration Act [2004] (Vic) with reporting obligations for life. I strongly advise you to take legal advice as to what this means, as it will affect you for the rest of your life.
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HIS HONOUR: Are there any questions arising out of that?
MS BROWN: Just to confirm, Your Honour. With the charges as they've been grouped, is it that on each of those there are sentences of two years with the same commencement date or is it that Your Honour has imposed an aggregated sentence?
HIS HONOUR: No, I haven't imposed an aggregate sentence.
MS BROWN: I'm just wanting to clarify that, Your Honour, thank you.
HIS HONOUR: On each of the indecent communications charges I impose two years. Each of them are to commence this day.
MS BROWN: Thank you, Your Honour.
HIS HONOUR: On the transmission charges - Charges 6, 7, 12, 14, 17, 31, and 35 - I impose two years on each of those charges but they are not to commence until one year of the first lot has been served.
MS BROWN: Yes.
HIS HONOUR: So that makes it three years, does it not?
MS BROWN: It does.
HIS HONOUR: Then, as to the soliciting child pornography charges, I've imposed two years on each of those charges to commence when one year of the transmission charges has been - so it's staggered - - -
MS BROWN: Yes.
HIS HONOUR: - - - to make four years.
MS BROWN: Yes.
HIS HONOUR: The final charge, the possession charge, that I impose a term of
12 months but that's running at the same time as the soliciting child pornography charge. So it rounds out at four years according to my calculations.
MS BROWN: And mine too, Your Honour, thank you.
HIS HONOUR: Well that's good. We're all reading off the same page. Is
Mr Manning there?
MR MANNING: I'm here, Your Honour.
HIS HONOUR: Do you have - - -
MR MANNING: No issues from me.
HIS HONOUR: No questions? Thank you.
MR MANNING: Thank you, Your Honour.
HIS HONOUR: I'll have the transmission terminated. Thank you, Mr Manning.
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