Director of Public Prosecutions v Thomas (a pseudonym)

[2017] VCC 722

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM THOMAS (a pseudonym)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2017
DATE OF SENTENCE:	1 June 2017
CASE MAY BE CITED AS:	DPP v Thomas (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 722

REASONS FOR SENTENCE
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Subject:   Criminal law
Catchwords:  Sentencing – soliciting child pornography material using a carriage service
Legislation Cited: Section 474.19(1) Criminal Code (Cth)
Sentence:  Community Correction Order imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Portelli	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr J. McQuillan	James Dowsley and Associates

HER HONOUR:

1Graham Thomas,[1] you have pleaded guilty to soliciting child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code (Cth).  The maximum penalty for the offence is 15 years' imprisonment.

[1]Graham Thomas is a pseudonym.

2Objectively, this is very serious offending.  Although during the course of the plea hearing I have had a discussion with both counsel and I have confirmed my view, that I consider that this offending rests at the lowest end of the spectrum for this type of serious offending.

3I will proceed to sentence you on the basis of the opening that was read by the prosecutor at the plea hearing.

4The context to the offending was that you were the coach an under 14s basketball team.  You had a Working With Children's Check at the time.  The victim joined your team in March or April 2015, was aged 15 and has a mild intellectual disability.

5Subsequent to her joining the team, there was some contact via Facebook Messenger commencing on 13 April 2015.  Primarily you discussed matters relating to the basketball team such as training.

6The offending relates to a single occasion that occurred on Sunday
27 December 2015. At about 11.46 pm, you initiated a conversation with the victim which was of some length during which you encouraged the victim to post three photos of herself.  Those photos are depicted in the depositional material and of themselves are not pornographic in nature, however when one has regard to the text of the conversations, it was obvious that you were encouraging her to send “sexy photos” and ultimately, you requested that she send a photograph without her clothes on and that constitutes the gravamen of the offending for which you are before the court.  That is what you are being punished for.

7On 19 January 2016, the victim and her father reported the matter to the police and on 29 February 2016, you were arrested.

8A lengthy and comprehensive record of interview was conducted.  There were in total 1214 questions and answers.  From the text of the interview, I am satisfied that you were open and co-operative with the police and made full admissions.

9The impact of the offending is set out in the Victim Impact Statement that has been filed by the young woman's father and he describes her as being depressed and frightened, concerned, hot tempered, and no longer having trust in anyone. She has also had to stop playing basketball as she is afraid of participating in basketball or in any similar activities following this event. That means that she has not made contact with her former basketball players.  She has also developed a dislike for older men and he says that she no longer loves her father as she used to. As a consequence of the incident, everything has been turned upside down and he describes his daughter as suffering a loss of self-confidence and being unfriendly.  The impact of the offending has been marked and that is noted.

10Insofar as the history of the matter is concerned, you were charged on
4 November 2016.  There was a delay between the time you were interviewed and that date and that would have meant that the prospect of being charged was hanging over your head for some time.

11You entered a plea of guilty on 12 April 2017.  No witnesses were cross-examined.  It is accepted that the plea was entered at an early stage and that you are entitled to a discount for your plea of guilty.  It is one of real utility and you have also facilitated justice, your sentence will be discounted accordingly.

12I do consider that there are some aggravating features of the offending.  You were a basketball coach who developed a relationship with the victim in that context, so therefore you were in a position of trust which you did abuse on this one occasion.

13Further, you are a person who had been in the role as a coach for about six years and you had a Working With Children Check so you ought to have had some appreciation about not engaging in a conversation of this nature with one of your players.

14There is a large age discrepancy such that you were in a position of power and authority over the young victim at the time of the offending.  These types of charges are based on there being a presumption of harm. When people introduce sexuality to young victims who do not have the maturity or the ability to be able to properly understand the situation there is a real consequence that they will suffer harm.  In this case that has been demonstrated through the father's reporting in his Victim Impact Statement.  But nonetheless I have had regard to the fact that it was a single incident of relative short duration and it involved you making an attempt to solicit a naked photograph from the victim which did not transpire.

15I have had regard to your personal history as outlined in your counsel's submissions.  You are now 45.  You are married.  You have two children who are teenagers.  Your wife remains supportive of you, notwithstanding the very real difficulties that this offending has caused in terms of the strain that is placed on your marriage.  You are currently unemployed.

16You have had an excellent work history since leaving school at Year 12 and then doing two years of a Bachelor of Engineering course.  Since that time you have been in regular employment but lost your job because you were suffering from depression related to the laying of these charges and you have now been out of work for some 12 months.

17Your depression is undiagnosed and untreated but I am satisfied currently you are a person who is psychologically very fragile.  Four suicide attempts were documented in the course of the plea hearing and I do not propose to go through them but it appears that you have only really been to Sunshine Hospital for a psychiatric assessment on two occasions.

18MR McQUILLAN:  One, Your Honour.

19HER HONOUR:  On one occasion, but there does not seem to be any adequate and proper follow up.  It is necessary now in terms of your future that you be more open and honest with your psychologist who will be responsible for assisting you during the currency of the Community Correction Order so that you get the most benefit from the order but also so as to provide for the protection of the community in the future.

20It is the case that you do not have any prior criminal history.  It is often said that whilst that is relevant, that is of less weight, as a mitigating factor in offences of this type. Nonetheless, you are a man who is in his 40s and who comes before the court without prior criminal history, so that is still relevant and I have taken that into account in your favour.

21General deterrence is of paramount consideration in sentences for offences of this nature and that has been spelt out by the superior courts around the nation for these sorts of offences.  There is a significant public interest in protecting children from harm as a consequence of conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or are not able to respond appropriately or in their own interests.

22The Crown submitted, given the nature and circumstances of the offence, a term of imprisonment is the only appropriate disposition.  However it is the case that the court may only impose a sentence of imprisonment if it is satisfied that imprisonment is the only appropriate sentence.

23Having regard to the mitigating factors that I have highlighted and also the other factors that are known to me that I must take into consideration pursuant to s.16(A2) of the Crimes Act (Cth), I do not consider that such a sentence is appropriate in all the circumstances. 

24As was discussed in the plea hearing, this offence does present a broad spectrum of offending and having regard to the particular circumstances of this case, my assessment is that it does fall at the lowest level of seriousness for this type of offence and therefore I consider that imprisonment is not warranted.

25Ultimately, I have formed the view that a Community Correction Order ought be imposed and on the one charge on the indictment, you will be convicted and placed on a Community Correction Order of 12 months commencing today's date, subject to the mandatory terms that apply to all Community Correction Order and special conditions of supervision and treatment and rehabilitation as I have already outlined.

26I have to make an order pursuant to s.6AAA of the Sentencing Act 1991 (Vic). But for your plea of guilty I would have convicted you and placed you on a Community Correction Order for two years on the same terms.

27Finally, you have pleaded guilty to one class 2 registrable offence as defined in schedule 2 of the Sex Offenders Registration Act 2004 (Victoria).  Pursuant to s.34(1A) of that Act, you are now required to comply with reporting obligations for a period of eight years.  My associate will approach you with your counsel with notification of your reporting obligations as well as the Community Correction Order.

28Mr Thomas, I am obliged to tell you in the event that you breach the Community Correction Order by non-compliance or by further offending, you would then be the subject of another charge being contravention of a Community Correction Order.  The maximum penalty that can be imposed for such a charge is three months' imprisonment.  In addition you would fall to be re-sentenced in respect to this offence and you would be subject to punishment in respect to any further offending.  So you need to be aware of that as well.

29I think that covers everything.  Yes, all right.

30MR PORTELLI:  I believe so, Your Honour.

31HER HONOUR:  Yes, all right. 

32MR McQUILLAN:  Can I approach Mr Thomas while that is being done, Your Honour?

33HER HONOUR:  Yes.  I am not sure whether an appointment was made, Mr McQuillan, but the report says he has to report to Sunshine Community Correction Office, 10 Foundry Road Sunshine before 4 pm on 5 June 2017.  Has he got an appointment?

34MR McQUILLAN:  He is instructing that he believes that an appointment was made.

35HER HONOUR:  Yes.  Mr Thomas can be let out of the dock now. 
Mr Thomas, I do urge you to take up this opportunity of seeing somebody.  I think you have been avoiding taking on responsibility for your actions through not getting proper professional help.  You really do need it.  You have been fortunate that you are being supported by, as Mr McQuillan said, a very supportive informant.  It is not usual that people would go to the extent and length for which he did to try and help you. I really do urge you to follow through and be really open with the psychologist who hopefully will be able to assist you with the future and provide for the best outcome for everybody because you are a person who otherwise was, you know, functioning well in the community but has the real potential to undo everything, all the good work you have done over many years.  You can deal with this.  You have been dealt with by the court and you can deal with this and hopefully the order will help you do deal with it effectively but you cannot run away from it.  You have just got to deal with the issues.  All right?

36OFFENDER:  Yes.

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