Director of Public Prosecutions v Triantaffilou
[2017] VCC 200
•6 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02038
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| LUKE ANTHONY TRIANTAFFILOU |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2017 | |
DATE OF SENTENCE: | 6 March 2017 | |
CASE MAY BE CITED AS: | DPP v Triantaffilou | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 200 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T Crouch | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J Hannebery | Portelli & Co |
HER HONOUR:
1 You, LUKE TRIANTAFILLOU, are to be sentenced in respect of one charge of using a carriage service to groom a person under 16 years of age, contrary to section 474.27(1) of the Criminal Code (Cth) 1995.
2 The maximum applicable penalty is 12 years’ imprisonment.
3 You pleaded guilty when arraigned before me on 24 February 2017, the date the current indictment was filed.
Circumstances of offending
4 The circumstances of offending are well set out in the summary of prosecution opening tendered as exhibit A. Rather than repeat the contents of that summary now, I shall attach a copy of exhibit A as annexure A to these reasons for sentence.
5 Suffice it to say for present purposes that the charge arises from a 10 day period, between 9 July and 19 July 2013, during which you participated in online communications with a girl whom you believed to be 13 years of age. Initially, you posed as a 16-year-old but later represented to the recipient that you were 23 years of age. The contents of the conversations were explicit and were designed by you to create a rapport with the other party so that you could form a trusting relationship with a view to making it easier to procure the recipient to engage in sexual activity with you.
6 In one of those conversations, the recipient indicated that she had been the victim of a sexual assault.[1] You attempted to reassure her that you would not take advantage of her or force her to engage in sexual acts with you against her will.
[1]Depositions page 62
7 It is not known whether the recipient was in fact a 13 year old girl or someone posing as a 13 year old child. Similarly, it is not known whether the representations made by the recipient are true. The offence is charged on the basis that you believed the recipient to be under the age of 16 years.
Circumstances of apprehension
8 On 7 August 2013 Australian Federal Police were notified by the National Centre for Missing and Exploited Children of these communications. On 30 October 2013 police executed a search warrant at your home. You were present during the search, during which you told police:
a) You used the offending application on your mobile phone;
b) You believed that your account represented you as a 16 year old user;
c) You chose to use a false age as a means of making young girls feel more comfortable in communicating with you; and
d) The conversations were nothing more than talk because you had no intention of acting on them. You took no steps to meet any recipient.
9 When police examined your mobile or computer devices, they could find no chat logs, so with the benefit of a Mutual Assistance Request, they were able to obtain the relevant records from the USA. These arrived in late September 2014.
Arrest and Interview
10 On 17 December 2014 you participated in a record of interview, during which you made full and frank admissions to police. You agreed that you had engaged in the relevant communications and that you did so because you felt inadequate talking to girls of your own age. You knew it is wrong and illegal to engage in sexual acts with an underage child.
11 Despite your candour, no charges were preferred until 29 June 2016, when you were charged on summons. After that, the matter progressed to a filing hearing and soon thereafter you indicated your intention to plead guilty. The matter proceeded by way of hand-up brief.
Gravity of offending
12 The offence to which you have pleaded guilty is a serious one.
13 As the authorities show -
“The legislation is designed to prevent persons with a sexual interest in children using the internet to gain access to them and to groom them for future sexual activity.”[2]
[2]Cooper v R [2012] VSCA 32 at paragraph [32]. See also R v Gajjar [2008] VSCA 268; R v Fuller [2-10] NSWCCA 192.
14 Ordinarily, in cases such as these a term of imprisonment must be expected.
Plea in Mitigation
15 Your counsel, Mr Hannebery, made a comprehensive plea in mitigation on your behalf. He conceded the gravity of your offending but submitted in view of the mitigating circumstances either a community correction order should be made, or, in the alternative, you should be sentenced to a term of imprisonment but released forthwith on a recognizance release order.
Personal circumstances
16 You are now aged 26 years. You live with your parents. Your mother was in court to support you.
17 As I understand it, you come from a good home.
18 You were educated to VCE level. After leaving school in 2007 you worked solidly and consistently obtaining qualifications as you went along.[3]
[3]See exhibits 5, 6, 7 and 8
19 Initially you worked in the hospitality industry but later, in 2011 you obtained a certificate in automotive electronics.
20 In 2014 you obtained certificates two and three in security, and later that year obtained your security licence. Since then, you have worked in the security industry first at Monash University and then at Armaguard.[4] You earn approximately $60,000 per annum. You were progressing well at work.
[4]Exhibit 3
21 Your employer is aware of these proceedings and has not yet determined whether your employment will be continued. That depends on the outcome of today’s hearing. It is unclear what impact these proceedings will have more generally on your future employment prospects elsewhere.
22 You have a six-year-old daughter the result of a relationship that has since broken down. Even so and despite her mother’s knowledge about these proceedings, you have ongoing regular contact with your daughter. You have been a good father, providing financial support for your daughter ever since she was born.
23 The Department of Human Services has been informed about this matter. A full investigation was conducted, but no protective action was taken. Since then the Department has had no further involvement in your case. Nor have your child contact arrangements been altered.
Character and antecedents
24 You have no prior or subsequent convictions and there are no pending matters.
25 A character reference was tendered attesting to your prior good character and the unlikelihood of your reoffending. You have taken the matter very seriously, you are ashamed of what you have done, and you appreciate the gravity of your conduct.[5]
[5]Cf: Mr Patrick Newton suggests some degree of lack of insight, exhibit 2.
Pleaded guilty
26 In line with your full and frank admissions to police, you pleaded guilty at the earliest opportunity.
27 In determining the weight to be given to your plea of guilty, I take into account the following factors:
(i) the timing of your plea;
(ii) you are entitled to a statutory discount because of your plea;
(iii) I accept that your plea is indicative of your true remorse;
(iv) you have avoided the cost and inconvenience of a trial;
(v) your plea is consistent with your co-operation with the police evidenced in the police interview; and
(vi) there is enormous social utility involved in your guilty plea.
Delay
28 As your counsel has pointed out, and as is accepted by the Prosecution, there has been considerable delay between the commission of the offence and the preferring of any charges against you. None of the delay is attributable to you. Not only have you had the stress of these proceedings hanging over your head in the time since your arrest, but in that time you have committed no further offences.
29 In the period between initial police interview and final charge, you remained at liberty unconditionally. Thereafter, in June 2016 you were bailed on your own undertaking with no onerous special conditions.
30 In my view, your ongoing good behaviour in the period of delay supports the submission that your prospects of rehabilitation are good.
Cooperation with authorities
31 I mentioned that you cooperated fully with police in the investigation. You had retained none of the conversation threads but nevertheless told police what you had done.
Circumstances of offending
32 Your offending was confined to 10 days. Your offending ceased before your apprehension. There is one charge only and there is no suggestion of anything yet more sinister being found on any of your computer or mobile devices. You were not found in possession of any pornographic images or videos.
Remorse
33 I accept that you are remorseful and that you appreciate the gravity of your offending.[6]
[6]Compare Exhibit 2, paragraph 42.7)
Prospects for rehabilitation
34 I am satisfied that your prospects for rehabilitation are good notwithstanding the assessment made by Mr Patrick Newton, clinical and forensic psychologist dated 20 February 2017[7] that you pose a moderate-low risk of reoffending.[8]
[7]Exhibit 2
[8]Paragraphs 41 - 42
35 You do not suffer from any mental or behavioural disturbance or disorder and it appears that you are well-adjusted[9] although Mr Newton recommended that you participate in treatment with a mental health professional to address offence specific treatment as soon as possible. That said, your cognitive functioning is normal, and your decision-making and reality testing are both unimpaired.
[9]Exhibit 2, paragraph 42
36 The reason why I am optimistic about your prospects for rehabilitation include not only the matters just mentioned, but also the fact your offending was limited in time and that you ceased it without intervention. Ever since, you have stayed out of trouble, you have held down a steady job in a trusted position and you have family supports. You have no prior convictions and I am confident you have learnt a salutary lesson as a result of these proceedings. You have demonstrated a willingness to engage with appropriate professional assistance.
Prosecution submissions
37 Mr Crouch, who appeared on behalf of the prosecution, acknowledged the significance of delay in your case and that you are in no way responsible for it. He also conceded your prior good character and that you have remained out of trouble while the charge has been hanging over your head and even before.
38 He did not dispute the matters raised in mitigation, however he submitted that given the seriousness of the offence, the only appropriate disposition is one involving a term of imprisonment. He agreed that it would be open to release you forthwith on a recognizance release order. He noted that it is possible to impose a special condition on the order that you participate in a sex offender program.
39 Mr Crouch tendered a written summary of his submissions as exhibit B.
Analysis
40 In determining the sentence to be passed or the order to be made I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence[10].
[10]s16A(1) Crimes Act 1914 (Cth)
41 There are many factors that I must take account of when sentencing you, including:
1. Principles of general deterrence;
2. The nature and circumstances of the offence including your moral culpability;
3.
The maximum applicable penalty;
4. Any injury, loss or damage resulting from the offence;
5. The degree to which you have shown contrition for the offence;
6. The fact that you have pleaded guilty to the charge;
7. The social utility inherent in your guilty plea;
8. The degree to which you have cooperated with law enforcement agencies in the investigation of the offence;
9. The deterrent effect that any sentence or order under consideration may have on you;
10. The need to ensure that you are adequately punished for the offence;
11. Your character, antecedents, age, means and physical or mental condition;
12. Your prospects of rehabilitation;
13. Delay; and
14. Principles of parsimony.
42 I further note that in determining whether a sentence or order under section 20(1) of the Crimes Act is the appropriate sentence or order to be passed or made, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to you under that sentence or order. That you are prepared to undergo a sex offender program is a matter I take into account.
43 In all the circumstances I consider the only appropriate penalty in your case is the imposition of a term of imprisonment.
44 On charge 1, using a carriage service to groom a person under the age of 16 years, you are convicted and sentenced to six months’ imprisonment.
45 I propose that you be released on a two year recognizance release order forthwith subject to the usual conditions but with an additional special condition that you participate in a sex offender program as directed.
- - -
HER HONOUR: I shall discuss with counsel the terms of the order.
Mr Crouch, you forwarded a draft of such an order.
MR CROUCH: Yes Your Honour.
HER HONOUR: It contains all of the relevant conditions.
MR CROUCH: It does Your Honour, and my submission would be that really those conditions are the ones that should be made.
HER HONOUR: The term of the good behaviour period will be two years.
MR CROUCH: Two years yes Your Honour.
HER HONOUR: And which community correction centre?
MR CROUCH: I'm actually not sure Your Honour, maybe if I could ask my friend. Do you know which community corrections centre - - -
HER HONOUR: Is closest to the accused.
MR CROUCH: I'm hearing Dandenong - - -
HER HONOUR: Sorry?
MR CROUCH: Dandenong Your Honour.
HER HONOUR: Dandenong.
MR CROUCH: Yes.
HER HONOUR: Security or surety?
MR CROUCH: It's not often order any surety Your Honour, probably not necessary in this case is my submission.
HER HONOUR: Sorry not necessary?
MR CROUCH: Not necessary Your Honour.
HER HONOUR: All right. So no security and no surety.
MR CROUCH: Yes. Actually sorry there should be a security but not a surety and a security, a standard one might be about $500.'
HER HONOUR: All right, so upon giving security of $500.
MR CROUCH: Yes Your Honour.
HER HONOUR: No surety. Good behaviour for two years.
MR CROUCH: Yes.
HER HONOUR: To be under the supervision of the Deputy Commissioner Community Corrections Services and Sex Offender Management or his or her nominee for two years.
MR CROUCH: Yes Your Honour.
HER HONOUR: To attend for assessment and if assessed as suitable treatment for sex offender program or programs to reduce reoffending as directed by the Deputy Commissioner Community Corrections Services and Sex Offender Management or his or her nominee. Defendant is to report to the Dandenong Community Corrections Centre by 4 pm - - -
MR CROUCH: It might be easier just to say something like within three - - -
HER HONOUR: Isn't it usually within two days.
MR CROUCH: Within two days yes.
HER HONOUR: So 4 pm on Wednesday, 8 March. Defendant is to report to and receive visits from a Community Corrections officer or officers. And the defendant is to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change. The defendant is not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre. And the defendant is to obey all lawful instructions and directions of Community Corrections officers. Anything else in the recognizance release order?
MR CROUCH: No Your Honour.
HER HONOUR: All right. Anything to say Mr Hannebery?
MR HANNEBERY: No Your Honour.
HER HONOUR: All right, having discussed the matter with counsel, I do propose that you be released forthwith on a recognizance release order under paragraph 20(1)(b) of the Crimes Act 1914. I order that you be released forthwith upon giving security in the sum of $500 to comply with the following conditions.
46 (a) You are to be of good behaviour for a period of two years;
47 (b) You are to be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee for two years;, and you are to attend for assessment and if assessed as suitable treatment for sex offender programs or programs to reduce reoffending as directed by Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee.
48 You are to report to the Dandenong Community Corrections Centre by 4 pm on Wednesday, 8 March. The address of the Dandenong Community Corrections Centre please.
MR HANNEBERY: I don't know.
MR CROUCH: I also don't know, I can look it up.
HER HONOUR: Yes would you mind doing that. Thank you.
49 You are to report to and receive visits from a Community Corrections officer or officers and you are to notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days after the change. And you must not leave Victoria except with the permission of an officer at the specified Community Correction Centre. And you are to obey all lawful instructions and directions of Community Correction officers.
50 I am required to explain the nature of the order I propose to make: The total effective sentence I have just imposed is six months’ imprisonment. I have ordered that you be released forthwith. You are not required to serve any part of that sentence of imprisonment within the walls of a prison. The total term will be served in the community. You must be of good behaviour for the period that the order is in force, and you must comply with all of its conditions. The recognizance release order is subject to the conditions I have just outlined. If you fail without reasonable excuse to fulfil those conditions you may be brought back before the court and be dealt with. In that situation you could be fined and you could be ordered to serve the whole of the term of imprisonment that that you had not served at the time of your release. In effect, you could be ordered to serve the whole of the six months' term behind prison walls. Do you understand that?
OFFENDER: Yes Your Honour.
HER HONOUR: The purpose of making this order is to ensure on the one hand that you are adequately punished but on the other to ensure that you are also given the opportunity to redeem yourself, rehabilitate yourself, and become a fully functioning law-abiding member of the community. Knowing all of the consequences of the order I have just made, are you prepared to enter it?
OFFENDER: Yes.
HER HONOUR: Thank you, the order may now be signed if it is ready.
MR CROUCH: And that address Your Honour.
HER HONOUR: Yes.
MR CROUCH: For Corrections Victoria was 46/48 Walker Street, Dandenong.
HER HONOUR: Thank you.
MR CROUCH: And 3175 is the postcode.
HER HONOUR: 3175?
MR CROUCH: Yes Your Honour.
HER HONOUR: While the paperwork is being prepared I will turn to the Sex Offenders Registration Act matters, you may be seated for the moment.
Registration Under the Sex Offenders Registration Act 2004
51 As a result of your conviction on charge 1 you have become a Registrable Sex offender pursuant to the Sex Offenders Registration Act 2004. You are required to comply with the provisions of that Act. The delegate of the Secretary of the Department of Justice, in these circumstances my Associate, will now give you notice of your obligations under the Act. I note that in accordance with section 34(1)(a) of that Act, the length of the reporting period is eight years.
HER HONOUR: That is correct Mr Crouch?
MR CROUCH: Yes Your Honour.
….
(Order signed and acknowledged.)
52 LUKE TRIANTAFILLOU, you have signed an acknowledgment in receipt of the paperwork that I have just referred to, that is the notice of your obligations under the Sex Offenders Registration Act; do you agree that that's your signature?
MR CROUCH: Your Honour, it's probably it may be the way I've said it is a little bit confusing. On the form there are two sections.
HER HONOUR: Yes.
MR CROUCH: One says paying an amount by security of surety or something like that.
HER HONOUR: Yes.
MR CROUCH: And the second one is by recognizance of.
HER HONOUR: Yes.
MR CROUCH: When I said it should be a security not a surety, what I meant is that on the form it should be by recognizance of $500 which is essentially a security not a surety.
HER HONOUR: All right, the recognizance of $500.
MR CROUCH: Yes.
HER HONOUR: All right. Would counsel please double-check that the order is prepared in the terms that I indicated. Mr Hannebery, do you want to look on with Mr Crouch just to make sure.
….
HER HONOUR: …. Turning first to the recognizance release order. Do you acknowledge that you have signed the document understanding its terms and the consequences of breaching it?
OFFENDER: Yes.
HER HONOUR: As to the obligations under the Sex offenders Registration Act, you have signed an acknowledgement in receipt of the paperwork I have just referred to, that is your notice of the obligations under the Act. Do you agree that is your signature?
OFFENDER: Yes.
HER HONOUR: Thank you.
Statement under section 6AAA Sentencing Act1991 (Vic)
53 Under section 6AAA of the Sentencing Act, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea I would have imposed a total effective sentence of nine months’ imprisonment. I would have ordered that you serve all of that term before being released on a recognizance release order.
54 I direct that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
55 Is there any reason why Mr Triantaffilou cannot step out of the dock?
MR CROUCH: No Your Honour.
HER HONOUR: Thank you. Is there anything else?
MR HANNEBERY: No Your Honour.
HER HONOUR: Thank you for your assistance.
- - -
ANNEXURE “A”
SUMMARY OF PROSECUTION OPENING
CHARGE ON INDICTMENT
Charge 1:Using a carriage service to groom person under 16 years of age contrary to section 474.27 Criminal Code (Cth)
MAXIMUM PENALTY
§ The maximum penalty for the charged offence is imprisonment for 12 years
SUMMARY OF FACTS
[deleted as not suitable for publication]
Search Warrant Execution:
On 7 August 2013 the Australian Federal Police received a report from the National Centre for Missing and Exploited Children (NCMEC) relating to online communications on Tagged where a 23 year old male was engaging in sexual chats with a 13 year old girl. On Wednesday 30 October 2013 police attended at the Offenders home of 6 Goulburn Place, Clayton South, Victoria to execute a search warrant pursuant to Section 3E of the Crimes Act 1914 (Cth). The Offender was present for the duration of the search warrant.
The Offender stated that
a)He used Tagged on his mobile phone,
b)He believed his Tagged account identified him as 16 years of age,[11]
[11] BOE 35
c)He used a false age because it would encourage young girls to talk to him more, [12]
[12] BOE 35
d)He did not intend to act on the things he said online “It’s all conversation”[13]
[13] BOE 43
No relevant chat logs were located on the Accused’s devices. Accordingly, AFP obtained the material which was held by Tagged in San Francisco, USA through a Mutual Assistance Request. The material was received on 24 September 2014.
Arrest and Interview
On 17 December 2014 the Accused participated in a digital record of interview and stated the following:
a)He used the tagged accounts [email protected] and ‘[email protected]’[14]
[14] BOE 83
b)He engaged in chat with the victim and brought up sexual chat,[15]
[15] BOE 83
c)He became interested in chatting to young girls he felt inadequate talking to girls his own age[16]
[16] BOE 84
d)He does not know why he never tried to meet up with the victim,[17]
[17] BOE 85
e)To engage in sex with an underage girl would be wrong and illegal,[18]
[18] BOE 85
HISTORY OF PROCEEDINGS
19) The Offender was charged on summons on 29 June 2016 and a filing hearing was conducted on 23 August 2016. The Offender was committed for plea on 18 November 2016. The matter proceeded by way of straight hand-up brief and the offender entered a plea of guilty to the charges which have been incorporated into the present indictment.
20) The Offender was born on 1 April 1990 and is 26 years of age. He has no prior convictions.
SEX OFFENDER REGISTRATION
21) The offender has pleaded guilty to one registrable Class 2 offence as identified in Schedule 2 of the Sex Offender Registration Act 2004 (Vic).[19]
[19]Sex Offender Registration Act 2004 (Vic), Schedule 2, Item 28A(vi) and Item 18.
22) Pursuant to section 34(1)(a) of the Act, the offender is required to comply with the reporting obligations for 8 years.
Commonwealth Director of Public Prosecutions - Melbourne Office
22 February 2017
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