Director of Public Prosecutions v Sloan (a pseudonym)
[2019] VCC 1292
•16 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS SLOAN (A PSEUDONYM) |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 June 2019 and 13 August 2019 |
| DATE OF SENTENCE: | 16 August 2019 |
| CASE MAY BE CITED AS: | DPP v Sloan (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1292 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under 12 – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), ss 49A(1), 49D(1), 49F(1), 49H(1), 51G(1)
Sentence: Total effective sentence of 6 years and 3 months’ imprisonment with a
non-parole period of 4 years
Section 6AAA declaration: 8 years and 6 months’ imprisonment with a
non-parole period of 6 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Brown | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms T Bolton | Taits Legal |
HIS HONOUR:
1Nicholas Sloan[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 12 (Charge 1) for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to one charge of forcing a child under 16 to be present during sexual activity (Charge 2); three charges of sexual activity in the presence of a child under 16 (Charges 3, 5 and 6); one charge of sexual assault of a child under the age of 16 (Charge 4); and one charge of knowingly possess child abuse material (Charge 7). The respective maximum penalty for each of Charges 2, 3, 4, 5, 6 and 7 is a term of imprisonment of 10 years.
[1] Nicholas Sloan is a pseudonym
2The full circumstances of your offending were set out in the summary of prosecution opening which was tendered on the plea as exhibit 1. I sentence you on the basis of the agreed facts contained in that document.
3Briefly stated, your victim was Jackson[2], born in August 2008, the son of Catherine[3], your brother James'[4] partner, who all lived interstate. In December, the family came to Victoria for Catherine and James’ wedding, which took place in December 2017. The following day, James and Catherine left on their four-day honeymoon, leaving Jackson and his two younger sisters in the care of you and your parents at your family home in south-west Victoria. This is where your offending took place.
[2] Jackson is a pseudonym
[3] Catherine is a pseudonym
[4] James is a pseudonym
4A man called Lyndon[5], whom you had met online, was also staying at your home and had been for some few months. On one occasion, you, Lyndon and Jackson were all in your bedroom with the door locked. You asked Jackson if you could suck his penis and you then placed his penis in your mouth. You sucked on it for approximately three minutes. This is Charge 1, sexual penetration of a child under 16.
[5] Lyndon is a pseudonym
5You then asked Lyndon to perform oral sex on you whilst Jackson was still present in the room. This is Charge 2, causing a child under 16 to be present during sexual activity.
6On another occasion when you, Lyndon and your victim were in your bedroom, you showed a pornographic video to Jackson. The images depicted a male and female performing various penetrative sexual acts. This is Charge 3, sexual activity in the presence of a child.
7On another occasion, you and Jackson were in your bedroom with the door locked. You placed a vibrating dildo firstly on your own stomach and then on your victim's stomach. This is Charge 4, sexual assault of a child under 16.
8On 20 December 2017, when you and your victim were both on the couch in the front lounge room, you said to Jackson “I can make white stuff come out of my penis”. And you then took your victim to your bedroom. You lay on the bed and you masturbated in the presence of Jackson instructing Jackson to look at you as you ejaculated. You then tasted your own semen in front of Jackson stating, “It tastes different to everything else”. This is Charge 5, sexual activity in the presence of a child under 16.
9On the following day, 21 December, Jackson, his sisters and your parents travelled to your sister's home where he was reunited with his parents. The family, including yourself, had gathered at your sister's home to celebrate Christmas. On Christmas Day, after lunch, you and Jackson were sharing headphones and watching videos on your device. You brought up the same pornographic video that you previously watched with Jackson. The film included shots of male ejaculation. This is Charge 6, sexual activity in the presence of a child under 16.
10After Christmas, your victim and his family returned to their home interstate. In mid-January 2018, Jackson was observed displaying overtly sexualised behaviour with an eight-year-old friend. When questioned by his mother and his friend's mother, Jackson disclosed the acts performed upon him by his 'Uncle Nicholas’.
11On 10 July 2018, a search warrant was executed at your home address where you were arrested and various items were seized. Analysis of your various devices revealed stored stories and ideas depicting children from toddler age to the age of 10 being, variously, raped and/or abducted and being subjected to penetrative assault by adult males, in addition to stories of familial incest.
These writings had either been created by you or downloaded by you from the internet.12In addition to adult pornography, which is of course not the subject of any charge on this Indictment, there were found 244 images of anime depictions of children engaged in sexual activity and six images classified as Level 1 on the Child Exploitation Tracking System (CETS). This is Charge 7, possession of child abuse material.
13Police also found four pictures of a child believed to be your victim, Jackson, in his underwear. These images are not the subject of any charge. There was no evidence that any of the child abuse material on any of the devices had been uploaded to sites, therefore there was no publishing or distribution of the material.
14You told police during the record of interview that you had discovered the victim watching a pornographic site. Your brother had contacted your parents and informed them that Jackson had made allegations against you and that he, your brother, was going to the police. Thereafter, it seems, you and your parents had a conversation about the allegations and in consequence, the sex toy was put in the trash. You confirmed that Lyndon had been staying with you although you gave scant detail as to his identity or his whereabouts. I note that in July 2019, you provided a statement which gave some details of Lyndon.
15In relation to the child abuse material, you admitted to police writing 'a lot of garbage', and intending to put some of them online but you never got around to it. You confirmed that you had written some of the stories yourself but that others had been co-authored by you and ‘online’ friends, while others still had been downloaded. You informed police that they would find the anime images.
16Neither Jackson nor his parents provided a Victim Impact Statement. There is however a presumption of harm to your victim.
17I turn now to your personal circumstances. You were born in June 1989 and were 28 at the time of this offending and are now 30 years of age.
You have no prior convictions. You have two older siblings, one of whom, James, is Jackson's parent. You were raised in south-west Victoria and achieved all your normal developmental milestones. Your memory of school is of constant bullying due to your obesity and your communication style. After finishing your VCE, you began a diploma in multimedia studies but gave up the course and qualified as a licensed security guard. You had casual employment in this and other fields over the intervening years. You lost that employment upon being charged with these offences.18Exhibit 5 on the plea was a Forensicare report, dated 13 August 2019, prepared by Dr Prashant Pandurangi. That report notes that you had a ‘strange childhood’, you did not have many friends and most of your acquaintances were via sexual encounters. Your first sexual encounter was at the age of seven with a next door female neighbour. You then had sexual encounters with boys of your own age. From the age of 13, you were having sexual encounters, including penetrative sex with boys. These sexual encounters appear to have been motivated more by a desire to belong than a desire for physical intimacy.
19You told Dr Pandurangi that your most recent sexual relationships had been with men that you meet online via pornography based websites. It was not clear to me if these sexual encounters were contact encounters or were encounters conducted in the virtual world. You told Dr Pandurangi that you would watch adult pornography although your main interest was in writing pornographic stories.
20As to the index offending, you told Dr Pandurangi that Jackson had liked to hang out with you and that it was Lyndon who had suggested that you should do something sexual with your victim. Lyndon encouraged you to fellate your victim whilst he, Lyndon, took photos which were later deleted by the victim.
You painted a picture of Jackson as being proactive and, in Charge 5, that it was him wanting to see the “white stuff”, a reference to your ejaculate.
Whilst the prosecutor pointed to this apparent offence minimisation, I make no adverse finding in this respect.21You told Dr Pandurangi that you now regret what you did and acknowledge how your actions will have impacted the victim. At the time, you said that you had no intention to hurt your victim, but you acknowledged that you had never thought of the psychological consequences upon him, although you now do. You confirmed that you have no plans to do something like this ever again, and your proposed strategies include not looking at child pornography, putting a block on your computer and participating in ongoing treatment.
22In Dr Pandurangi's opinion, there is some indication of personality deviation. There is limited evidence to suggest any underlying cognitive disorder.
There is no evidence to suggest that you suffer from an enduring mental illness or a serious mood disorder. As such, there is no current indication to suggest that you warrant treatment with psychotropic medication.23You meet the criteria for a diagnosis of paedophilia disorder which indicates that you experience recurrent and intense sexual arousing fantasies, urges or behaviour involving sexual activity with children.
24The configuration of risk factors that emerged from application of the Response to Sexual Violent Protocol (RSVP) risk assessment tool indicates that you currently represent a moderate risk of similar reoffending. This risk is not based on any single risk factor but on a myriad of factors relating to your chronic history of similar problems, psychological adjustment, mental disorder and social factors.
25Dr Pandurangi's conclusion was that your formative years were characterised by severe bullying at school, which mirrored the environment at home.
‘He has been a socially isolated and an odd child who struggled to form relationships throughout his childhood and in later life. He also had difficulties in establishing normal intimate relationships, with those of his age and believed that having inappropriate sexual contact with others would be a form of bonding experience. The social ostracism he faced at school probably pushed him towards this fantasy world of writing stories, which have become increasingly sexually explicit. As he grew older as an adult, his social contact with others was through the internet, which he terms as 'like-minded individuals’.
It is of concern that he has progressed from a fantasy world for non-contact behaviour to contact offending, which in this case was opportunistic. He does not minimise or deny his motivations behind the offending and in fact is quite candid about it. There is motivation to change and openness to seek assistance. The relevant risk factors for the future are the deviant sexual arousal, ability to deal with stressors, inability to establish stable relationships and any problems with engaging in treatment.’
26Dr Pandurangi clearly recommends that you need to be engaged in specialised sex offender treatment to address not only the deviant arousal but also, in his words,
‘the chronic underlying personality deviations which underpin his difficulties with relationships and coping with stress and which have indirect links to his offending’.
27Mr Brown, learned counsel for the prosecution, submitted rightly that this was very serious offending, committed over a period of days with a nine-year-old boy who was a close family member and who was in your care. The offending represented a gross breach of trust. The sentencing purposes of general and specific deterrence and denunciation and protection of the community were to the fore. Mr Brown reminded me that you will fall to be sentenced as a serious sexual offender but did not ask for a disproportionate sentence. He submitted that the only appropriate disposition was a substantial term of imprisonment.
28On your behalf, Ms Bolton conceded the gravity of the offending and the primary sentencing purposes of general and specific deterrence, denunciation and protection of the community. In mitigation of your sentence, she urged the following upon the Court: your early plea of guilty, which saves the community the time and the cost of a trial, but also saves your victim and your family from the trauma of having to give evidence against a close family member. Further, she submitted that your plea should be viewed as an indication of your genuine remorse. She relied upon your age, stressed that this is your first time in custody, noted your candid acceptance of your criminal behaviour and your developing insight into its wrongfulness and the impact upon your victim.
29The absence of any prior criminal history and the continued support of your family, which I note significantly includes your brother James, who wrote a letter to the Court in support of you as part of exhibit 4BCP. Ms Bolton submitted, this boded well for your prospects of rehabilitation. In my view, those prospects are most guarded at best.
30Your expressed a genuine willingness to engage in treatment and to address your sexual psychopathology. Ms Bolton submitted that the statement which you provided in relation to Lyndon's online identity indicated a willingness to assist police. I give such weight as I can to that submission, although I note that the statement came very late, and lacked any meaningful detail.
31Ms Bolton recognised that you fell to be sentenced as a serious sexual offender but urged the Court not to pass a sentence that was crushing upon you and to pass one which will allow for a parole period appropriate in all of the circumstances.
32Mr Sloan, the charges to which you have pleaded guilty represent serious offending as is clear by the maximum respective penalties imposed by Parliament.
33Sexual offending against children will always be viewed as serious offending. The courts are becoming more and more aware of the, at times, incalculable and lasting damage that such offending causes its victims. Your victim began to display sexualised behaviour and to act out within weeks, if not days, of your offending against him. The courts have stated time and time again that they will do everything within their power to protect children from those who would offend against them in satisfaction of their own deviant desire.
34The courts have a duty to send a very clear message to anyone who is minded to offend against children, that if they are caught and come before the court, they will be sternly punished.
35You may have struggled with your sexual identity. You may have feared rejection by your old-fashioned parents. I accept that your social life was a story of isolation, mainly staying at home and developing what can only be described as a most unhealthy and toxic relationship with your computer and the fetid and perverted virtual world to which it gave you access. In that world there was of course no one to tease you. In that world, there was no one to bully you and in that world, you flourished and in so doing, you lost your moral compass.
You began to write sexually explicit stories and share them online with
'like-minded people' that you had met on the internet. Those stories included characters who were children and who were raped and abused by adults.36Finding others who shared your deviant interest, you came to feel sufficiently validated so you could act upon those deviant desires.
37Your victim was aged nine. He was the young son of your brother's family.
He had been left in your care whilst his parents were on their honeymoon.
You were in your late 20s at the time of your offending and although socially maladapted, were an adult with sufficient experience of life to clearly know the difference between right and wrong. Your victim was placed in your care; a trust and responsibility which you then, quite simply, betrayed. After having performed oral sex on the boy, you asked Lyndon to perform oral sex upon you in your victim's presence. Twice you showed your victim a pornographic video. You placed a vibrating dildo upon his person. You masturbated in front of him, stating that semen 'tastes different to everything else'.38Your offending against your nephew may be described as opportunistic and situational but it was certainly not spontaneous. Rather, in my view, it revealed a protracted and sustained attempt to corrupt him. This is the only possible conclusion to be drawn from your actions and I find your moral culpability for your acts to be high indeed.
39Now, Mr Sloan, the sentencing process is not about revenge, nor is it about retribution. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of general deterrence, that is, to deter others from behaving as you did, and specific deterrence, that is, the need to deter you from any repeat of such behaviour. I must express the community's denunciation of your conduct and have regard to the need to protect the community from you. I must take into account the effect of your crimes upon your victims. I must have regard to current sentencing practices. I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty. In short, I must try to balance your personal circumstances with the circumstances of your offending and I am required by law to pass no longer sentence than is necessary in all the circumstances of the case
40Clearly, in your case, principles of general and specific deterrence, denunciation and protection of the community are the relevant sentencing considerations. Primacy must be given to the protection of the community. In this regard, much will depend upon your future ability to engage in treatment, which is yet unknown. Only such successful engagement will thereby reduce the risk that you now represent.
41I am required to sentence you as a serious sex offender on Charges 3 to 7 and ordinarily, that means I would be required to impose a sentence that is cumulative upon the other sentences and with each other. Mr Brown for the prosecution has not sought to persuade me that I should impose a disproportionate sentence and I do not propose a sentence that involves total cumulation. It seems to me that justice can be done in this matter and the public be adequately protected by a measure of currency that sufficiently addresses all the relevant sentencing considerations.
42I have had regard to all of the matters urged upon me in mitigation. For the avoidance of doubt, I have had regard to: your plea of guilty; to your willingness to engage in treatment; to your apparent developing insight as to the impact of your offending upon your victim; to the fact that this will be your first time in custody; your absence of prior convictions; and your continued family support.
43However, as your counsel recognised, the gravity of your offending is such that it can only be met by a substantial term of imprisonment. If you would please stand.
44On Charge 1, sexual penetration of a child under the age of 12, you are sentenced to a term of imprisonment of four (4) years and six (6) months.
45On charge 2, causing a child under 16 to be present during sexual activity, you are sentenced to a term of imprisonment of eighteen (18) months.
46On Charge 3, sexual activity in the presence of a child under the age of 16, you are sentenced to a term of imprisonment of ten (10) months.
47On Charge 4, sexual assault of a child under the age of 16, you are sentenced to a term of imprisonment of nine (9) months.
48On Charge 5, sexual activity in the presence of a child under the age of 16, you are sentenced to a term of imprisonment of twenty-two (22) months.
49On Charge 6, sexual activity in the presence of a child under 16, you are sentenced to a term of imprisonment of ten (10) months.
50On Charge 7, possession of child abuse material, you are sentenced to a term of imprisonment of eight (8) months.
51I order that five (5) months of the sentence on Charge 2, three (3) months of the sentence on Charge 3, eight (8) months of the sentence on Charge 5, three (3) months of the sentence on Charge 6 and two (2) months of the sentence on Charge 7 run cumulative to each other and cumulative to the sentence on Charge 1.
52This makes a total effective sentence of six (6) years and three (3) months. I direct that you must serve four (4) years before you are to be eligible for parole.
53On Charges 3, 4, 5, 6 and 7, you are sentenced as a serious sexual offender and I direct that this be entered into the records of the Court.
54Pursuant to s6AAA Sentencing Act 1991 (Vic), had you not pleaded guilty, you would have been sentenced to a total effective sentence of eight (8) years and six (6) months with a non-parole period of six (6) years.
55Pursuant to s18(4) Sentencing Act, I declare that you have served 134 days of the sentence that I have passed upon you and direct that this be entered into the records of the Court.
56Pursuant to the provisions of the Sex Offender Registration Act 2004 (Vic), you are now a registrable offender and the period of registration is for the rest of your life.
57At the appropriate time, Mr Sloan, you will need to present to your local police station and you will need to provide your identity, your place of residence, your vehicle registration, your address, but perhaps more importantly in the modern world, you will need to provide every online identity and virtual identity that you have. Failure to comply with those obligations is a criminal offence. They almost inevitably lead to prosecution and the Court views such non-compliance most seriously.
58Alright, I will sign that and Ms Bolton I am sure you will have an opportunity to explain that. I would be grateful to you if you will.
59I will deal with the other ancillary orders.
60MR BROWN: Your Honour, there is application for a disposal order and forfeiture order.
61Mr Sloan, I am sure Ms Bolton will come down and see you in the cells afterwards to explain again those conditions. So please take a seat.
62Mr Brown, I will sign the orders that have been filed. I will do that in chambers.
63MR BROWN: Yes.
64HIS HONOUR: And there is no application for a section 464ZF. The sample was already taken and that will be retained.
65Now, Ms Bolton, are there any custody management issues?
66MS BOLTON: No there are not.
67Mr Sloan, for the future, you must bear in mind that when you go online, you have to take your moral compass with you. It is a dangerous world, online.
But hopefully, you can turn your life around. Alright, thank you, you can take him down.(Prisoner removed.)
68I hope counsel will excuse that homily but it is something that the Court encounters again and again and again.
69MR BROWN: Yes.
70HIS HONOUR: Thank you Mr Brown for your assistance. Ms Bolton, to Mr Sloan's parents, I have noted the dignity in which they have conducted themselves in what can only be a most difficult time.
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