Director of Public Prosecutions v Stelter

[2012] VCC 1569

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

AT LA TROBE VALLEY

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS	CR-12-01138
v
RAYMOND STELTER

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	28 September 2012
DATE OF SENTENCE:	5 October 2012
CASE MAY BE CITED AS:	DPP v Stelter
MEDIUM NEUTRAL CITATION:	[2012] VCC 1569

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K. Doyle
For the Accused	Mr N. Hutton

HIS HONOUR:

1       Raymond Stelter, you have pleaded guilty to six charges. 

2       Charges 1, 2, 3 and 4 are charges of sexual penetration of a child under 16 years.  The penalty for each of those charges has a maximum term of imprisonment of ten years. 

3 Charge 5 is a charge of failing to comply with the reporting conditions under the Sex Offenders Registration Act. The order in relation to that was imposed on you on 14 December 2010, the penalty for that charge is a maximum of five years imprisonment.

4       Charge 6 on the indictment is a charge of possessing child pornography.  The penalty for that charge is five years imprisonment. 

5       The offending took place over a period from 1 February 2012 until 22 March 2012.  At the time of your offending, your victim in these offences was 15 years old.  I will refer to her as PK in these reasons for sentence.  The circumstances of the offences; the background of these offences is unusual for this type of criminality.  PK at age 14 years registered herself on an adult dating site called cupid.com.  She used a false name and a false date of birth.  You contacted PK through the website, and ultimately met her.  At the outset, PK maintained that she was 18 years old.  In October and November of 2011, you engaged in sexual intercourse with PK.  These acts were consensual.  A plain reading of PK's statement of interview clearly sets out that both she and you had a genuine emotional feeling for one and other.

6 In December 2010, you had been placed on a community-based order for 18 months. The charges on that occasion were related to online child pornography offences. At that court hearing, you were placed on an order under the Sex Offenders Registration Act. The relevance of this background is that as a result of these orders, you were under the supervision of the Office of Corrections and Sex Offenders Act Registry at the time you offended in these cases. Initially, you were "suss" about the age of PK in the early part of your relationship. You followed your instinct, and you made some investigations of your own once PK gave you access to her facebook page. In your search, you discovered PK was 14 years old when you had first met her. You immediately ended the relationship and cut of all contact with her in December 2011. This is a clear indicator that you fully appreciated the legal position you were in at that time. In January to February, you initiated contact with PK. In your record of interview, you say that you contacted PK because “I just wanted to see how she was”.

7       When you made contact with PK, she indicated that she wanted to see you.  You were so keen to meet PK that you rode your push bike out to Tyres.  The two of you resumed your sexual relationship on that occasion.  This was the beginning of your offending because you knew for certain that PK was 15 years old at that time, and you were offending.  Charge 1 is a charge of sexual penetration under 16 years.  As I say on this occasion, you rode your bike to Tyres.  You met PK as arranged between the two of you and then went to the local football ground and had sexual intercourse at the scoreboard at that football ground. 

8       Charge 2, it is another charge of sexual penetration of a child under 16 years.  On this occasion, you drove out to Tyres, met PK and then drove to a park in the area.  The two of you had sexual intercourse in the car.  You then took PK home. 

9       Charge 3, another charge of sexual penetration of a child under 16 years.  On this occasion, PK had come to your home in Morwell.  You engaged in sexual intercourse with PK at your home.

10      Charge 4, on another charge of sexual penetration of a child under 16 years on this occasion, you again picked up PK in your vehicle and drove to a pine plantation out at Tyres township.  You had sexual intercourse in the back of a vehicle with PK.  The sexual activity between you and PK was consensual.  In your record of interview, you expressed what I accept was genuine emotional feelings for PK.  I accept that your sexual activities were not by disproportionate haste or exercise of power by you over PK.  PK says in her interview to the police that she had strong feelings for you and that you were sensitive to her in your relationship, as you both saw it.

11      Charge 5, in December 2011 - I have got 2011, I hope that is right - you were placed - I just want to check that, is that correct?  The order for being placed on the sex offenders register.  It should be 2010, I think.  Just bear with me.

12      MR DOYLE:  14 December 2010.

13      HIS HONOUR:  Yes, sorry.  Thank you.  Yes, in December of 2010, you were placed on the Sexual Offenders' Register.  You well knew your obligations to report any contact with underage people.  The record of interview clearly shows that you were fully aware of your obligations.  At one stage you corrected the interviewer about how the age appropriate person for you had to be over 18 years, not 16 years as was being put to you during the interview.  An order such as this was put in place to protect vulnerable underage person from contact with you.  If you had complied with the terms of the Sex Offenders' Registration Order, it would have protected you from this prosecution.

14      Charge 6; possessing child pornography.  You had a prior conviction for this same type of offending.  You were on a community-based order at the time of this offence for the same offence; or the same category of offending.  The pornography in this case was three images of PK that you kept on your mobile phone.  The images were of PK at various stages of undress, and PK had posed for the photographs and was fully aware of them.  The photos were not published, or circulated. 

VICTIM IMPACT STATEMENT

15      In this case, PK did not make a victim impact statement.  No doubt she was given the opportunity to do so.  In the statement of interview with police, PK states she set up a false identity on the dating site for adults.  She went on the site looking for someone, and wanted to feel loved.  She stated that she had strong feelings for you.  She stated you and she did not always have sex.  You would talk, cry, cuddle, and she described the sex as a bonus.  She described the relationship as, "We acted like a normal mature couple.  She described you as sensitive."  PK was concerned about you getting into trouble for your relationship with her.  The mother of PK did file a victim impact statement.  In that statement, PK's mother attributes poor schoolwork, sleepless nights, depression, and being bullied at school to these offences.  It is clear from PK's statement to police that these issues were all alive, and affecting PK well before any connection with you. 

16      As I understand PK's evidence, she was searching for some support and love when she went on the dating site.  I do accept, however, that the discovery of the relationship between you and PK has created trust issues between PK and her parents.  PK's mother refers to the guilt that PK carries because of your crimes.  PK has received therapy from a psychologist, which has had a positive outcome according to her mother.  On balance, the victim PK is on the road to recovery and your crimes are a part of some sadness and depression that PK was experiencing prior to your involvement with her.

PERSONAL CIRCUMSTANCES

17      Your personal circumstances.  You are now 25 years old.  You had an older sister who died from complications of a disease, cystic fibrosis.  You were then ten years of age.  It was submitted that you were blamed for the death of your sister because you would eat the unfinished portions of her food that she had refused to eat.  That was when you were a very young person.  After your sister's death, your mother suffered depression.  Your parents have either separated when you were three years old, or nine years old.  It depends on which history is accepted.  In Dr Sidoni's report, Exhibit 1, or Mr David Ball in Exhibit 2.  In either case, your parents separated at a very young age for you and you remained with your mother and your very ill sister.  Both of your parents are deceased.  Your mother died in 2006, your father died in 2008.  As I stated, your sister died 15 years ago.  You are the sole survivor of your immediate family.  You are alone and socially isolated.

18      At age 10, you started chroming.  By 13 years old, you were using cannabis.  Your mother was unable to care for you.  You were placed in care at the age of 13 and were fostered to your uncle, Ray Shingles.  You lived with Mr and Mrs Shingles on their dairy farm and worked there as a labourer and farm hand and after leaving school at Year 8.

19      MR HUTTON:  I'm sorry to interrupt Your Honour, but Mr Shingles is present in court and it's a same sex partnership, I'm not - that doesn't change anything but I should have indicated at the outset they're both present in court to support him.

20      HIS HONOUR:  Thank you.  You lived with Mr Shingles.  Your education has been limited to - you attended Sale Catholic College until Year 8.  You were a poor student, but achieved numeracy and literacy levels equivalent to similar aged peers.  You were the subject of bullying at school, being called "Stinky" and "Gay Ray".  In this regard, you have a common experience of bullying with PK.  After leaving school, you maintained employment as a farm hand, cleaner and truck driver.  It was only in the last year that you have become and remained unemployed.  It was put on your behalf that upon your release from prison, you have the prospect of returning to Shingles farm as a farm hand.  I trust that opportunity, if you take it up, will give you a chance to reactivate your work life and continue to rehabilitate you to a useful and enjoyable life in the community.

21      I have had regard to Dr Sidoni's report dated 2 December 2010.  This report was prepared prior to your last court appearance.  Dr Sidoni has not reported on the effect, if any, that these current charges would have had on his opinion expressed in Exhibit 1.  Mr David Ball, forensic psychologist, prepared a report dated 27 September 2012.  This was Exhibit 2 on the plea.  In his opinion, you were a low functioning, immature and dull individual, lacking in appropriate social and coping skills.  Life is a real challenge for you when it comes to friendships and appropriate relationships.  This in part goes to explain how you and PK started your relationship in the first place.

22      Mr Ball has assessed that you are a moderate to high risk of recidivism for sexual offending.  This finding raises the need for consideration of specific deterrence in your case.  Your present situation is that you have no immediate family to support you.  You have been in custody since you were arrested in March 2012.  You have the prospect of going to live with your uncle upon your release from prison. 

23      Your plea of guilty; you have been interviewed by police within two hours of the completion of the VARE recording of PK's evidence.  In your record of interview, you have fully cooperated with the investigating officers.  You have given a full and frank description of your offending in this case.  You express your concern, and feelings for PK during the interview.  You have pleaded guilty to these offences at the earliest time.  The plea of guilt has a utilitarian benefit to the course of justice.  Firstly your plea gives certainty of outcome to these charges.  Secondly the resources of investigators, courts and other court services are not expended either in the committal hearing or the trial.  Thirdly, the victim in this case, and other witnesses have been spared the stress and tension of reliving the events, and giving evidence about the offending behaviour.  This also gives the victim, particularly, some closure of what may have been a very upsetting time in her life. 

24      The plea of guilty is also evidence of your remorse for this offending.  You have pleaded guilty to the offences that occurred when you were young and immature as described by Mr Ball.  The indication of a plea of guilty, and the fact of a plea of guilty at an early stage is a true indication of your remorse, and to some degree a display of empathy for your victim PK.  Mr Ball, in his report states that you express genuine, and what he described as, simplistic remorse.  I accept that you are truly and genuinely remorseful for your conduct. 

SENTENCING CONSIDERATIONS

25      I now turn to sentencing considerations.  In sentencing you on charges of sexual offending against a child, the protection of children is a paramount consideration.  In your case, you had been recently before the courts in December 2010 for charges of child pornography and related charges. The court placed you on supervisory orders, a community-based order and a Sex Offenders Registration Order.  You have breached both of these orders by these offences. 

26      It is important to note that Mr Ball states that you fail to satisfy the DSM4-TR diagnostic criterion for paedophilia.  However, he notes, due to your immaturity, social isolation, poor judgement, dull IQ and personality functioning, you represent a moderate to high risk of recidivism.  I have decided to deal with this aspect by giving you a relatively lengthy parole period in respect of your term of imprisonment.

27      The main considerations for sentencing are just punishment, general deterrence, specific deterrence, denunciation of your conduct and protection of the community.  These considerations have been carefully balanced with your rehabilitation and reintegration into the community as a useful and contributing member of society. 

28      The just punishment and denunciation of your criminal conduct in each of the six charges can only be satisfied by a term of imprisonment.  The principles of proportionality and totality in sentencing are also to be moderating considerations on the cumulative nature of the sentences of imprisonment arising from the operation of s.6E where you are to be dealt with as a serious sexual offender for Charges 3, 4, 5 and 6.  In your case, specific deterrence does feature as a sentencing consideration.  You have offended whilst under a court order of sex-related offending.  A term of imprisonment is required to bring home a lesson to you that this offending will not be tolerated by society.

29      The principles of general deterrence also apply in this case, whilst you were assessed by Mr Ball as a low-functioning person, you have not been described as fitting any of the criteria set out in Verdins case to suggest you are not an appropriate vehicle for general deterrence.  The prosecution submit the sentencing range in this case is three to four years for a total effective sentence, with a non-parole period of two to three years.  Your counsel Mr Hutton submitted that a combination of a sentence of imprisonment, taking into account your pre-sentence detention and a community corrections order with conditions of unpaid work, supervision, would be an appropriate sentencing disposition. 

30      I have previously said a term of imprisonment for these charges is appropriate.  The fact of your imprisonment goes in some part to satisfy the requirement of sentencing for the protection of the community.  I set a relatively long parole period to allow you a chance to rehabilitate once you have left prison, but at all times having a return to prison hanging over your head if you re-offend.  If you would stand please.

31      I sentence you as follows; Charge 1, you are convicted and sentenced to 12 months imprisonment.  Charge 2, you are convicted and sentenced to six months imprisonment.  I order that three months of that sentence be served cumulatively upon Charge 1.  For the remainder of the charges, you are sentenced as a serious sexual offender. 

32      MR DOYLE:  Your Honour, I'm sorry to intervene and this is my fault.

33      HIS HONOUR:  Do.

34      MR DOYLE:  I should have made this clear the other day.  I'm not sure that the breaching of the Sex Offenders Register offences are serious offences under the Act.  I just was looking at the - - -

35      HIS HONOUR:  Charge 5?

36      MR DOYLE:  Yes.  So that may not be warranted. 

37      HIS HONOUR:  Yes, thank you.

38      MR DOYLE:  And it perhaps won't make any material difference, but - - -

39      HIS HONOUR:  It doesn't in effect. But that's right.  Thank you.

40      Other than the charge of the breach against the registration as the sex offenders register, the rest of these charges are - you are dealt with as a serious sexual offender. 

41      In respect of Charge 3, you are convicted and sentenced to six months imprisonment.  In respect of Charge 4, you are convicted and sentenced to six months imprisonment.  In respect of Charge 5, you are convicted and sentenced to three months imprisonment.  In respect of Charge 6, you are also convicted and sentenced to three months imprisonment.  The sentences in Charges 3, 4, 5 and 6 are all cumulative on each other, and cumulative on the sentences in Charge 1 and 2.  The total effective sentence is 33 months.  I order a non-parole period of 18 imprisonment.  I declare that the pre-sentence detention; I have got the calculation 196.

42      MR DOYLE:  Yes, Your Honour. 

43 HIS HONOUR: I declare that you have served 196 days pre-sentence detention. I order that you are to be registered on the Sex Offenders Register for life. I order that a sample under 464ZF be given. I order the forfeiture order that was sought, as set out in the draft order. And I will sign that. And finally, pursuant to s. 6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to a total effective sentence of four and a half years, with a three and a half year minimum.

44      COUNSEL:  As Your Honour pleases.

45      HIS HONOUR: I will sign those orders.  Just in respect of s.464ZF - the numbers will not mean anything to you.  This is the - the s.464ZF is the forensic sample.  I am just required, and I will tell you Mr Stelter that when the authorities come to take this sample, that they are allowed to use reasonable force in order to do so.  Do you understand that?

46      PRISONER:  Yes, Your Honour.

47      HIS HONOUR:  Thank you.

48      MR HUTTON:  Would Your Honour permit me to leave the Bar table for a moment.

49      HIS HONOUR:  Certainly.  Mr Stelter, you can - sorry, you are free to go down and explain to Mr Stelter, this is a Sex Offenders Registration.  I signed those forfeiture orders and the s.464ZF orders together with the Sex Offenders Registration order.  Mr Shingles, be there for him when he comes out.  Thanks.  You can take him away.

50      VOICE (from body of court):  Your Honour can I say one word please.

51      HIS HONOUR:  Yes.

52      VOICE (from body of court):  On behalf of just being a foster parent, you become a real parent. 

53      HIS HONOUR:  Yes.

54      VOICE (from body of court):  You become the feelings of a real parent. 

55      HIS HONOUR:  I understand that.

56      VOICE (from body of court):  And this is has been very distressing for us but we will be there for Raymond.

57      HIS HONOUR:  Thank you.  You can remove the prisoner. 

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