Director of Public Prosecutions v Summer

[2014] VCC 1539

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS JAMES SUMMER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	27 June 2014
CASE MAY BE CITED AS:	DPP v Summer
MEDIUM NEUTRAL CITATION:	[2014] VCC 1539

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions
For the Accused

HIS HONOUR: 

1Nicholas Summer, you have pleaded guilty to one charge of knowingly possess child pornography, 32 charges of using a carriage service to communicate with a person under the age of 16 with the intention of procuring that person to engage in sexual activity and 16 charges of using a carriage service to access child pornography material.  Those crimes carry maximum penalties of five years', 15 years' and 15 years' respectively.  In total, there are 32 actual victims of your offending.

2You are now 21 years of age.  The offending occurred between the ages of 18 and 20.  It would appear to have started not long after your eighteenth birthday.  You are still a young offender and are to be sentenced as such.  You have pleaded guilty at the earliest reasonable opportunity.  This was a very difficult matter to negotiate.  I accept that you have intended to plead guilty to appropriate charges from the outset.  I accept that your plea of guilty is accompanied by appropriate and indeed deep remorse and shame.  You must also get the utilitarian benefit of that plea of guilty.

3You have no prior convictions in any way, shape or form relevant to this matter and I take into account that there has been a delay, though I attribute no blame for that, of some 12 months since you were interviewed.  That is not unusual in such a situation, that the effect of it is that one year in someone of your age is a long period of time.  You were interviewed by the police, made a totally confessional record of interview and I note for these purposes that Charges 21, 22, 23, 26, 27 and 28 are totally dependent upon your admissions and obviously, a very significant discount has to be given for that.

4You have served 197 days pre-sentence detention for this matter.  During the course of that, you have also served 93 days in regard to a matter which was subsequently withdrawn.  Accordingly, I take that 93 days into account as Renzella time or lost time or whatever one wants to view it as.  Firstly, because of this offending, you will be place on the sex offenders register and I advise you that the reporting condition for that register will be for life. 

5The only sentencing option open in this matter is one of an active custodial sentence and I take into account that you will do that sentence in protection.  As I have indicated, I am not going to name any of your victims.  The Crown have very sensibly provided a summary of the offending in somewhat generic terms and have also tendered an annexure which outlines the specific offending against each of your victims.  I will not be referring to that document through fear of identifying victims but I direct that it remain on the court file and is therefore available to any person with a genuine interest in viewing it.  I have read that document a number of times. 

6What has occurred is that the charges have been broken up into categories by the agreement of counsel and I will be giving aggregate sentences in relation to each of the categories other than Charge 1 obviously.  I will outline in general terms the nature of each of those categories and as to why it therefore can give rise to an aggregate sentence. 

7You are now 21 years of age.  You were residing in Leongatha at the time of your arrest on 5 June 2013.  As I have indicated, there are something in the order of 32 complainants who have been offended against by you.  At the time of your arrest, you were a coach of the Leongatha Junior Football Club under 13s side, a coach of the Leongatha Basketball Junior Boys teams, you were coaching under 12 cricket teams, both locally and on a representative level and apparently were also working casually as a babysitter and as a nanny, though I have no specific evidence of that.

8Lengthy discussion took place yesterday as to the nature, and I will be describing that in a moment, of any breach of trust.  It is, on the material, no suggestion that you have physically touched any of your victims.  You did not use your position as coach to select and groom victims and I take those matters very much into account.  You are to be sentenced for what you did not what people may be afraid that you have done or were going to do.  It is not a breach of trust in the normal sense but what it is and as I have indicated prior to these sentencing remarks, I will be reading from some impact statements, is a betrayal of your community.

9The offending was to an extent against boys whom you knew, boys who trusted you and boys whose parents trusted you as well.  The shock of their finding out that this offending had occurred in these circumstances by somebody that they trusted and had allowed into, in some cases, their family home, is grave indeed. 

10

In 2010, you created two Facebook accounts, using the pseudonyms

Emmy Jane and Taylor Jenkins.  You had obtained hundreds of friends, as they are called, on those accounts up until June of 2013.  Each of those two names included details portraying a stereotypical teenage girl.  To assist in the development of those accounts and those people, you posted images of an unknown teenage girl and also posted images of a person that you did know.  Over the next three years, you also created two Skype accounts and two Kik Messenger service accounts in the names of Emmy Jane and Taylor Jenkins.  By creating those accounts, you were able to reinforce the probability or the likelihood or the plausibility that Emmy Jane and

Taylor Jenkins were in fact real teenage girls.

11It would appear that the sole purpose of creating those Facebook, Skype, Kik accounts was so that you could communicate with young boys under the age of 16 for these purposes and to deceive them into believing they were communicating with girls of a similar age and ultimately have those boys forward pornographic images of themselves or masturbate via live stream to your laptop computer or phone.  I am not going to enter the debate of whether this was sophisticated or not, I do not understand enough about the technology.  What can be pointed out is that it was persistent over an extended period of time and it was a long time before any of these young victims were game enough to complain.

12Once you had asked to be friends with these young boys, you would then use what are described here as various grooming methods to obtain or attempt to obtain the pornographic child images or pornographic live streams.  The main aspect of all that was pretending, of course, that you were one of the two teenage girls.  You would, when boys masturbated on Skype, take images of that video stream.  You would, on occasion, also masturbate while watching the video streams live.  Police were able to locate a number of those still images and that gives rise to Charge 1.  I have viewed those images and they fit within, I think fairly, category two of the levels to which they relate.  Because those images were the product of your other offending, I will be imposing a custodial sentence but it will be wholly concurrent.

13The methods that you would use to get these young boys to send you the images and video streams, included complimenting them on their physical appearance, offering to send naked or pornographic images of Emmy Jane or Taylor Jenkins, communicating in a sexually forward manner with the friend describing past sexual experiences of both the imaginary girls, detailing how each of them was going to move to the local area and was looking for a boyfriend, communicating with the friend as if you were in a girlfriend boyfriend relationship with them and using the Emmy Jane and Taylor Jenkins Facebook accounts to communicate with each other as well as, at one point in time from what I can gather, describing how Taylor Jenkins had cancer.  They were the ways in which you obtained the images.

14There were some situations where there was suggestion of the girls shifting to the area and meeting up with the boys.  I accept that there was never any intention of physical contact or a meeting of any of these boys.  To do that, you would have had to disclose your true identity and there is no suggestion at all that that was going to occur.  I make that clear and that distinguishes this from a number of other cases of a similar type.

15Once pornographic images had been sent to you, you would often then ask for them to do the same thing again.  Some of the victims refused to do so but some would send more images or masturbate via video stream on Skype again.  On some occasions, when various victims refused to send any further images or masturbate, you would become aggressive in your communication with them and would threaten to expose their behaviour by posting the pornographic images or stills on Facebook.  You made those threats for the sole purpose of obtaining more child pornography images.  Again, there was some discussion as to the nature of those threats and it would seem to be that only one of those threats resulted in more images being sent. 

16However, as I indicated yesterday, the matter does not end there.  In the situation where the majority of these victims came from the South Gippsland area around Leongatha and Korumburra, the fear of being exposed in that way would have been a very real one to them.  I have got no doubt and the victim impact statements support that, that it caused anxiety and concern that they would be ultimately humiliated and I think that the threats were designed for that purpose, even though they may not have been carried out or had the desired effect.

17You were known personally to many of the victims as you had coached a lot of them in football, cricket, basketball, or coached against them.  You were also friendly with some of the parents of the victims, as I have already indicated, and had been trusted enough to join in on family dinners, go on holidays and take their children on excursions to Melbourne. 

18In February of 2013, the investigators became aware of the offending when a 12 year old boy from Korumburra reported to his mother that he twice masturbated on Skype after being requested to by Emmy Jane and that he was being blackmailed into doing it again.  That victim's mother then reported the matter to police and the investigation commenced.  On 5 June 2013, as I have indicated, investigators attended at your home and executed a search warrant.  The child pornography was obtained from your computer and you were taken to the police station and interviewed.  During that record of interview, you made full and frank admissions and said that you had tried to stop the offending but that you could not. 

19As I have indicated previously, I have no intention of listing the names of the victims.  Their ages would appear to have ranged from around about 11 to around about 14 or 15.  There is psychological material tended on your behalf in respect of two reports and one of them being psychiatric, and each of those say that you do not have paedophilic tendencies and I have to take that, I think, at face value.

20What your offending has created is described in the victim impact statements.  A significant number of victim impact statements were read out yesterday and I do not propose to read all them again.  Obviously, I take them all into account in this sentencing process.  I simply select from a short number of them to indicate the effect that your offending had. 

21One of the boys talks about the imaginary girls asking him, "Emmy Jane asked me to masturbate which I didn't want to do.  They managed to talk me into it, they were nagging so many times, saying things like, go on, do it.  I had my top off and my jocks pulled down.  After a while, when I wanted to stop, Emmy Jane said, keep going, cum if you want.  Emmy Jane convinced me to do this twice more and the third time when I said no, Emmy Jane said that she would send out the pictures and that she has screenshots while I was masturbating.  When I said please don't, she said well just do it then, and I continued to say no. 

22This made me feel worried, scared and embarrassed.  The thought of my pictures being sent out to everyone really scared me and I didn't know what to do.  I stopped talking to her and later that night, I got very upset and I ended up telling my mum.  She then contacted the police who came and spoke to me.  I was angry, scared, frustrated and upset, thinking I was going to be in trouble for what I'd done.  It took me a while to realise I'd done nothing wrong.  I felt sick when I found out who it was.  For a while I was worried that he was going to come to my house and do something to me because of what I did."  There has never been a suggestion of that occurring but I am referring to that as the effect that this has on the victims and the fear that clearly a number of them felt. 

23Another victim said, "Since the incident, I felt betrayed by Nick.  I've been many places alone with him and trusted him to look out for me.  I feel sad that I don't have someone to hang out with who liked doing things I like.  When it all happened, I got scared at night that he was going to come to my house like he used to, but that bad things would happen.  I'm angry I put so much trust in him and he let me down.  I spent the first few weeks worrying about if there were others I couldn't trust.  I had trouble sleeping for a long time as I was worrying about what if I saw him again and worrying about what if something worse happened to me or my family or my friends."

24One of the mothers of the victims in her victim impact statement, eloquently described the effect that offending such as this has on parents and the guilt that they feel for not having protected their own children.  That, of course, is a very unreal view to take but it is common and one of the reasons why offending such as this is treated so seriously by the courts.  "Nick would take my children places when I was unable to due to work commitments.  He would spend time kicking the footy or shooting hoops with them.  I allowed my children to use technology and social media to communicate with Nick and only Nick.  He was the only person other than their friends of their own age that I allowed them to use their media devices to talk to.  They developed a strong bond with him.  I allowed that bond to occur.. 

25I'm angry that I believed that Nick was spending so much time with my children and the children's close friends and contributing to many junior sporting communities, as he felt it was his way of making his dad feel proud of him.  I left my children alone with him for varying lengths of time and trusted my children to someone who not only betrayed my trust, but has shattered my children's trust in others, especially men.  That's something I feel will be difficult for me to repair.

26Looking in my two oldest children's eyes and explaining that their friend, their confidant, would not be around anymore and the reasons for this was one of the most difficult things I've had to do as a parent, something I never want to do again.  The hours spend in counselling sessions with my boys and in particular my middle son, has taken an emotional toll on them and myself.  Listening as a parent as your child tells of their fears and pain as the result of someone you allowed into their life, makes you question how good a mother you really are to have allowed this to happen."

27She went on to say, "I spent hours blaming myself for all that has happened.  I am, after all, the mother and wife.  Why I hadn't I protected my children?  Why, why, why?  I should not be doing this.  I did not do anything wrong.  I am the victim, my children, husband, our friends and families are the victim.  We, however, are the ones left picking up the pieces.  I will live with this guilt, an overwhelming feeling of failure for many years to come.  I don't think it will ever truly go away. 

28I just hope that when my boys are old enough to truly understand what has occurred, that at no time do they turn around and blame me.  No matter how heartbroken I am at Nick's actions, nothing will compare to my children failing to see who the real victims are and who should be taking responsibility."  That feeling would be common amongst the parents in this situation, I have no doubt.

29As I have indicated, I will take into account two other what are described as victim impact statements but only in the sense of describing what occurred within the community as a result of the discovery of this offending.  These people are not victims and accordingly it will be clear who they are but that is not a difficulty in this situation. 

30"As president of the Leongatha Basketball Association, I can see the effects of Nick's arrest reaching far and wide to affect parents, players, committee and volunteers.  Parents of children playing representative basketball have demanded that no male coach ever be alone with the squads and requested that all teams have a female team manager.  We, as an association, have had many upset and angry parents.  Some have questioned if they should allow their children to play community volunteer run sport. 

31We struggle to recruit new coaches or volunteers, for fear of scrutiny, of being labelled or the motives questioned.  The hardest thing I've had to do as a president, is to counsel a room full of angry and upset parents, to try and remain strong and in contact, while inside feeling horror and anguish and guilt."  As I have said, that is the effect that it has had on the basketball association.

32Another person who is a senior constable of police in the area describes the circumstances of Leongatha and says, "I have witnessed firsthand the devastating effect that this matter has had on our community.  It has created pressure on our junior sporting clubs, football, cricket and basketball, all of whom Nick was involved in, and the volunteers, almost solely parents like myself, who run these clubs, to reassure families that an incident like this won't happen again and that their kids will be safe.  That that community involvement in sport is beneficial to all kids. 

33I, like so many parents, supported and assisted Nick in his various coaching roles, all of which my son was involved in.  This matter has made all of us question ourselves and our judgment as parents.  For me, I've also questioned my skills and ability as a police officer and can't help but think many people in the community will have done the same, as I failed to identify the issue." 

34He went on to say that this offending, "It tears at the very fabric of the community and I've seen firsthand the ripple effect this matter has had on the wider community.  Whilst the community is moving forward, it's going to be a slow and long recovery for the trust to be restored."  That is what your offending did.

35The situation here is that I have accepted that you have now expressed appropriate remorse and you have indicated to a psychologist or psychiatrist that your time in prison has made you realise what the effect of your offending has been.  What I have described is the effect of that offending and I would be very surprised if you, not believing, I suspect, that you would ever be caught, had envisioned that that would occur.  You were, after all, 18, when it started. 

36But in a situation such as this, general deterrence where the social media is being used, has to play a very significant part.  I go through the process that I have just been through, not to hammer home some sort of message to you, Mr Summer, but to make it very clear to likeminded people that this is the effect that offending of this nature does have.  You are saved to a certain extent by your youth and the fact that you have no prior convictions.  I make it very clear that had you been in your thirties, the consequences of this would have been even greater than what they are going to be.

37I think in your particular situation, that the risk of you reoffending is low as is indicated by the medical people.  I think the need for specific deterrence in your case will be amply covered by a custodial sentence with a lengthy parole period.  The crime or the nature of the offending clearly has to attract denunciation and appropriate punishment.  At your age, a gaol term is unfortunately the only form of punishment that is open and again unfortunately, has to be of significant proportions.  But as I have indicated, your youth and lack of prior convictions, I have taken very much into account.

38What has occurred is that counsel have agreed and it is impossible to treat this as some sort of science but that there are realistically four categories of the offending.  The possess child pornography I have already dealt with, but the other four are these, what is described as category one.  That is situations where you have asked victims to masturbate on Skype and on some of these, asked the victims to masturbate again.  When they have refused, you have threatened to publish the stills of them masturbating that you have saved on the internet and I have seen those stills.  This category also includes photographs taken whilst masturbating.  Category one, which is clearly the most serious of these, relates to Charges 33, 34, 27, 26, 28 and 17 and I note that a couple of those were confessional.

39Category two relates to occasions when you have asked victims to send nude photographs of themselves and those photographs have been sent.  On occasion, within this group, you have asked for further photos from certain victims.  When those victims have refused, you have threatened to post images already in your possession.  That relates to Charges 19, 20, 38, 39, 24, 25, 13, 14, 29, 30, 31, 32, 4 and 16.  That is a total of nine victims, there are a total of five victims for category one.

40Category three relates to you requesting photographs of the victims and requesting photographs and or masturbation.  In some cases photographs were sent.  In all these cases involving requests to masturbate, the victims declined.  There are also some Facebook conversations of a sexual nature, included within these.  They are Charges 35, 36, 42, 47, 45, 12, 10, 21, 22, 23, 5, 18, 15 and 7.  That is a total of 13 victims.

41Category four are simply ones where photos were requested but no photographs were sent.  There were conversations about meeting up but as I have already indicated, I am satisfied that there was no intention of that ever happening.  These categories relate to Charges 9, 3, 44, 6, 8, 11, 40, 41, 43, 46, 48 and 49, involving 12 victims.

42You are to be sentenced for an overall course of conduct and it is a very difficult sentencing process.  For example, with category four, at your age with no prior convictions, were that to stand by itself, I would not, I suspect, have incarcerated you at all.  It would be more in the order of a community corrections order, but I am not going to be imposing different sentences in different forms, in your particular situation.  It would make a nonsense of it. 

43Accordingly, I will be imposing a custodial sentence for each of the categories, but the degree of cumulation, and there must be some because there are different victims, for categories three and four will be small.  There is no other way of going around it.  One of the principal concerns in your situation, that you are a young offender, that prospects of rehabilitation in your case would appear to be good and have to be very much aware of totality and the need not to impose a crushing sentence. 

44I then turn to the matters personal to you.  Tendered on your behalf were reports of psychiatrist, Dr Carroll and psychologist, Mr Ball.  I have read those reports a number of times.  I have heard psychiatric and psychological evidence about this sort of offending on many occasions.  I think this is one where it is different.  I am unaware and enquiries have been made of a similar matter being sentenced in this court.  The sheer volume of victims and the fact that you knew a significant number of them and have everyday contact with them, is unusual to say the least. 

45It is referred to in the report of Dr Carroll, who is well known to me, as to your remorse and I accept that.  That you have preoccupations of guilt around the offending and I accept that.  He says you are a low risk of reoffending, if you do a sex offenders course and I accept that.  You will be in protection but you do not appear to be doing gaol any harder than any other prisoner would be other than for that aspect of it.  He goes through your history and there are a number of matters which are of significance but it is pretty difficult to work out how all this came about.

46He describes you as having depressive problems since around about the age of 16.  At around the age of 14, you were sexually abused yourself by two older teenagers and that involved penetrative sex.  The exact effect that that has had on you is, I think, anybody's guess.  It certainly would appear to have caused you to have a degree of ambiguity in terms of your sexual leanings and you seem to regard yourself as bisexual and you have indicated that you have had sex with women of an appropriate age. 

47Mr Carroll says that you have symptoms consistent with chronic post-traumatic stress disorder as a result of that abuse that caused you at around about that age.  He said that the symptoms include distressing dreams, feeling jumpy when people touched you, intense feelings of hatred when you saw one of the perpetrators years later, guilt feelings that you had failed your father as a son because as I understand it, he discovered it and difficulties with intimacy and friendships and sexual relationships with females.

48You left school in Year 12 to look after your father who was terminally ill and he ultimately died.  It would appear, on material before me, that that grieving process has never been properly dealt with.  You would also appear to have suffered to a degree from bullying during your time at school and from the time of your father's death onwards, you have had limited work experience, though you have worked in supermarkets as I understand it. 

49In describing the offending, you said that it became an addiction that you could not control.  You told him that when you were doing it, you became the girl and even used to get emotional if things were not going the way you wanted.  At one period of time, you stopped for about four months because you realised it was wrong but subsequently relapsed into the behaviour.

50It is put to me and I understand the argument and again, the situation where I heard evidence about this that there is a sense of unreality about this sort of conduct in front of a screen and I accept that that is frequently the case.  What does not appear to be dealt with in the report of Dr Carroll as far as I can ascertain, is the fact that you knew a lot of these young people.  This was not the situation, as I said the other day, of some social isolate in a rural country area sitting in a single room looking at a screen.  You would promote this activity from children that you knew and you would then walk around within the community with the knowledge of them and they thinking that what they had done was with a girl of an appropriate age.

51You clearly, whilst this offending was going on over such an extended period of time, maintained relationships with the parents of these children that you were inducing to perform these acts and again, from what I can gather from this material, were the subject of their hospitality and support.  I can understand or try to understand anyway, how this sort of offending can occur in people such as I have described a few minutes ago, but you knew that your actions were wrong.  You are described by the medical experts as intelligent and I have no reason to suspect anything else.  You may not have fully appreciated what the consequences to your victims would be as you do now, but nevertheless you, as I have indicated, knew that it was wrong and I do not accept that your depressive symptoms had an effect in your capacity to think clearly or make calm, reasoned decisions and appropriate judgments.

52Were this an isolated incident, I would have no difficulty accepting that sort of proposition or even two or three isolated instances.  But this is systematic conduct over an extended period of time against not only the individual victims but against your own community.  I accept that your interest in the sporting clubs and that your coaching has been genuine.  I do not take the view that that was in any way, shape or form, an attempt to groom for specific sexual contact or to gain access to the victims.  Ultimately, it may have assisted because of your knowledge of their names and some of them you communicated with on Skype under your own name but be that as it may.

53He goes on to say, this is Mr Carroll, "He was profoundly remorseful with respect to his offending and appeared to show good insight into the impact of this on his victims.  The response to his offences is now essentially one of horror and shame."  Similar views are expressed by Mr Ball in his psychological report and I do not know that there is any need for me to go through that as well.  Both those reports will remain on the court file.  He repeats the situation of you being sexually abused yourself at around about the age of 14 and your struggling with that concept.  He repeats that at no stage did you intend to touch anyone as a result of this offending.  As I have indicated, I accept that.

54You do not have any diagnostic criteria for mental illness, personality disorders, substance abuse disorders or any other problems.  He said you were a somewhat immature young man of usually sound judgment and confirms what I have already said, that you present as being at low risk of reoffending.  It is also reported in that material, that your attitude after being charged was essentially one of poor me, but there has been a great turnaround in that.  Because of those matters, I think the prospects of your rehabilitation, if you do the sex offenders course, should be good.  I think the risk of you reoffending in the ultimate should be low.  But at the end of the day, despite your age and despite your lack of prior convictions or findings of guilt in any way, shape or form, it does remain grievous offending which you knew to be wrong.

55Accordingly, I am doing the best I can, you are sentenced as follows.  If we could ask counsel to keep a track of this in case I have got it wrong.  On Charge 1, six months'.  On category one, an aggregate sentence of four years'.  On category two, an aggregate sentence of three years'.  On category three, an aggregate sentence of nine months'.  On category four, an aggregate sentence of three months'.  I direct that the sentence imposed upon aggregate one commence today.  The sentence imposed on Charge 1, though this is probably gratuitous, commence today and is otherwise concurrent with the Commonwealth sentences.  I direct that the sentence on aggregate two or category two, commence two years and six months before the completion of the sentence on aggregate one.  That the aggregate three commence seven months before the expiration of the aggregate sentence two.  That the sentence on aggregate four commence two months before the expiration of the aggregate sentence three.

56That should give rise to an effective head sentence of four years' and nine months'.  Because of your age, because of your remorse, because of your plea of guilty, because of the confessional nature of the conversations that you had with police, I think it is a situation where I propose to give a minimum term that will be less than what might otherwise have been the case.  Accordingly, I direct that you serve a period of two years' and four months' before becoming eligible for parole and I direct that 197 days be reckoned as having been served under this sentence.

57I do not know whether s.6AAA is pertinent or not, but I propose to do it any event so there is a clear understanding of the benefit, even at his age, of pleading guilty.  But for your plea of guilty in relation to these matters, you would have been sentenced to be imprisoned for a period of seven years with a minimum term of four.

58All right, are there any other ‑ ‑ ‑ 

59COUNSEL:  No, Your Honour.  No other orders.

60HIS HONOUR:  You follow all that?

61COUNSEL:  Yes, Your Honour.

62COUNSEL:  Yes, Your Honour.

63HIS HONOUR:  All right, there are no other orders I have to make?

64COUNSEL:  Your Honour made the disposal order I think yesterday.

65HIS HONOUR:  Yes, that will be in the document.

66COUNSEL:  No further orders.

67HIS HONOUR:  Just stand down.

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