Director of Public Prosecutions v Truscott (a pseudonym)

[2018] VCC 652

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02030

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTON TRUSCOTT (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2018; 20 April 2018
DATE OF SENTENCE:	7 May 2018
CASE MAY BE CITED AS:	DPP v Truscott (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 652

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – access child pornography material using a carriage service – procure a person under 16 for sexual activity using a carriage service – knowingly possess child pornography – fail to comply with sex offender reporting obligations – relevant prior convictions – entrenched attraction to young males – serious sexual offender – moderate risk of reoffending – general deterrence – specific deterrence

Legislation Cited:     Criminal Code (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:

Sentence:Total effective sentence of five years’ imprisonment with a non-parole period of three years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr M Keks (Plea) Ms J Mackay (Sentence)	Office of the Commonwealth Director of Public Prosecutions
For the Accused	Mr J Toal	Paul Vale Criminal Law

HIS HONOUR: 

1Anton Truscott,[1] you have pleaded guilty to one charge of accessing child pornography material using a carriage service, one charge of procuring a person under 16 years of age for sexual activity using a carriage service, one charge of knowingly possessing child pornography, and one charge of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004.

[1] ‘Anton Truscott’ is a pseudonym.

2The maximum penalty for the charges of accessing child pornography using a carriage service and procuring a person under 16 for sexual activity using a carriage service is a term of imprisonment of 15 years. The maximum penalty for knowingly possessing child pornography is a term of imprisonment of ten years, and for failing to comply with reporting obligations, the maximum penalty is a term of imprisonment of five years.

3The circumstances of the offending are as follows. 

4On 3 November 2016 a police officer attached to the Joint Anti-Child Exploitation Team navigated to a website, an adult gay image website, following two posts that you had made on 27 July 2016 and 3 October 2016.  In those posts you graphically described your desire to have sex with a boy whose image was online and, providing your email address, you invited correspondence from anyone who shared your deviant interest.

5On 6 November 2016 you were contacted by user “SL_AI1” (who I shall now call "SL"), an undercover police officer who was purporting to be a 14 year old boy.  You provided your Facebook contact details to this virtual boy.

6Between 6 February 2017 and 6 March 2017 you communicated with SL, both via Facebook Messenger and by telephone, with the intention of procuring the child that you believed SL to be to engage in sexual activity with you.  In the course of those communications you transmitted a total of seven images that constituted child pornography material and arranged to meet him at a McDonald's restaurant on Glenferrie Road, Hawthorn, for the purpose of sexual activity. 

7SL told you that he was 14 years of age during your first substantial conversation with him on 6 February 2017.  In that same conversation you expressed your desire to meet with SL in person.  You described your prior convictions for possessing child pornography.  You told SL that protective measures would need to be taken if you were to meet in person, such as meeting in a public place and getting SL to wear a hood to conceal his face, so as to ensure that your activity was not detected by police or your neighbours.  Some of your neighbours, you explained, were aware of your prior convictions.  You asked SL about his penis.  You described sexual acts in explicit detail and you offered to teach SL about sex.  You sent 28 images of male children to SL throughout the conversation: these images did not, however, constitute child pornography material.  At the conclusion of the conversation on 6 February 2017, you asked SL to delete the conversation with you from his computer. 

8SL contacted you again on 15 February 2017 and you arranged to meet him at Hawthorn Aquatic Centre on Glenferrie Road.  You provided your phone number to SL and you offered to give him your old mobile phone.  You told SL that you were on the Sex Offender Register and you sent 30 images in the course of the conversations, of which 28 were of young males posing naked or engaging in sexual activity, and two constituted child pornography material.  You asked SL whether he was circumcised, whether he had ever had gay sex with an adult male and the size of his erect penis.  You told SL what the two of you would do when you met, including that you would masturbate him.

9In a conversation on the following day, 16 February 2017, you suggested that SL meet you at the Glenferrie pool on 24 February 2017.  During this conversation you sent 26 images, of which 23 were sexually explicit images of adult young men, and five constituted child pornography material. 

10You communicated with SL via Messenger on 17 February 2017 using a new Facebook account.  You told SL that Facebook had disabled your previous account because you "sent all those gay nude pics."  You stated your concern that you were being set up by the police, and asked SL to send you a picture of himself, which SL did.  You sent a picture of yourself to SL in response and told SL that you had a Samsung mobile phone to give to him.  You made arrangements to meet SL on 3 March 2017 when SL told you that he could not meet on the original meeting date. 

11On 28 February 2017 you communicated with SL via Messenger and arranged to meet SL at the McDonald's restaurant on Glenferrie Road, Hawthorn at 11.30 am on 6 March 2017.  You provided SL with a description of what you would be wearing.  You sent messages to SL in the four days prior to your arranged meeting, but SL did not reply until the meeting date, 6 March 2017.  On that morning you sent a message to SL asking him to call you, and you provided your telephone number.  Shortly after, you received a call from an undercover police officer purporting to be SL.  During this telephone conversation you asked whether the police were involved and you were told they were not.  You then confirmed the meeting on that day at the McDonald's restaurant.

12These conversations via Messenger and telephone with SL over a one month period between 6 February 2017 and 6 March 2017 are the facts that underpin Charge 2, procuring a person under 16 years of age for sexual activity using a carriage service.

13On 6 March 2017 you attended at the McDonald's restaurant at the arranged time wearing the very clothing that you had identified to SL that you would be wearing.  You were arrested upon arrival.  When executing search warrants on your vehicle and residence, police located your Nokia mobile phone, towels and bathers, two computer towers and a Samsung mobile phone.  The Nokia mobile phone contained a record of the phone calls from the police officer and the phone number was saved under "SL, Mum's number." 

14Forensic analysis of the Nokia mobile phone and each of the two computer towers seized found a total of 411 files that constituted child pornography across the three devices. 

15The Australian National Victim Image Library (ANVIL) categorisation model for child exploitation material was included in the prosecution summary, Exhibit 1 on the plea, as Annexure A.  Whilst a majority of the images fell into Category 1, that is to say, depicting no sexual activity, there were over 80 images of solo or mutual sex acts between children, 13 images of adult-child non-penetrative sexual contact, 12 images of adult-child penetration and three images in Category 5, sadism, bestiality, child abuse.  These facts forms the basis of Charge 3, knowingly possess child pornography.

16Further analysis of those three devices showed that 406 of these 411 files had been online accessed by you between 13 August 2016 and 5 March 2017, which forms the basis of Charge 1, accessing child pornography material using a carriage service.  There is thus a clear and almost complete overlap between the offending in Charge 1 and Charge 3, nonetheless they are two discrete offences.

17At the time of this offending you were a registered sex offender required to comply with reporting obligations under the provisions of the Sex Offenders Registration Act 2004. In your most recent compliance interview with Victoria Police on 9 August 2016 you declared seven email addresses and ten usernames including one Facebook username. It is your failure to notify the Victoria Police Sex Offender Registry of your second Facebook account and the two email addresses that, significantly, included the email address you used to communicate with SL that underpins Charge 4, failure to comply with your reporting obligations under the Sex Offenders Registration Act 2004.

18I turn now to your personal circumstances. 

19You were born on 2 November 1952 and are now aged 65 and were aged between 63 and 64 at the time of this offending.  You grew up in Ararat and completed fourth form at Ararat High School, having repeated that year.  Your father was a pastry cook and a baker.  He and your mother led isolated lives, having little contact with others in the community.  You were an only child and had a particularly close relationship with your mother, who doted upon you and whom you adored. 

20During the 1970s your mother descended into severe clinical depression and tragically she suicided in 1980.  You had what can be described as a difficult relationship with your father.  You describe him as both critical and a bully, demanding and, at times, physically violent towards you.  He came to abuse alcohol, which only fuelled his outbursts, both against you and against the world.  As with many bullies, he sought to isolate you from the world.  You were not allowed friends at home nor allowed to stay over at other people's houses, and it seems that your involvement with the outside world consisted in being at school and nothing more.  I have no doubt, Mr Truscott, that such an upbringing was difficult to endure and that it has left an enduring mark upon you and upon your personality.

21After you left school you worked as a baker's apprentice for your father.  You were involved in a motorbike accident in 1989 which left you with fractures in both legs.  You worked in a variety of jobs relating to electrical engineering before ceasing work in 1995 after undergoing knee surgery.  Since 1995 your main source of income has been the disability support pension.  During these years, you returned to live at the family home in Ararat from time to time, but your relationship with your father made it impossible for you to remain. 

22I am instructed that in 2003 you returned to Ararat permanently as your father was then gravely ill and needed someone to look after him.  From then until his death in 2008, you were your father's sole carer, a role which you found to be both challenging and difficult due to your enhanced sense of isolation and the fact that your father's attitude towards you remained hostile, exacerbated by his declining health and his entrenched alcoholism. Nonetheless, Mr Truscott, you stayed and looked after your father until his passing.

23I am told that you have never been in an intimate relationship and, indeed, that you have had few contact sexual experiences in the course of your life.  Having few significant friendships during your formative years, other than your parents and their associates, it is clear that the isolation in which you grew up has had a lasting adverse effect upon you.  Quite simply, your upbringing did not equip you to construct and to maintain personal relationships. 

24A report by Dr Leon Turnbull, forensic psychologist dated 18 December 2017, was tendered on the plea as Exhibit 6.  Dr Turnbull conducted a limited assessment of you on 8 December 2017 and suggested that you may have an intellectual disability.  In consequence, I ordered a further assessment, and a report from Dr Rajan Darjee, forensic psychologist dated 17 April 2018 was tendered on the plea as Exhibit 3.  Dr Darjee met with you via video link on 4 April 2018. 

25You reported to Dr Darjee that you had never taken illegal drugs but that you have consumed alcohol to excess at times, including in the aftermath of your father's death in 2008, which I note is when your prior child pornography offending took place. 

26You reported that when you were 12 years of age a doctor fondled and masturbated your penis.  You reported to Dr Darjee that in your mid-teens you identified your attraction to boys slightly younger than you.  You reported that you had some, albeit limited, sexual experiences with other boys at high school and that you were aroused by their feet and the idea of tickling their feet and rubbing their stomachs.  As you grew up, you believed you were bisexual, as you were also attracted to older women.  You visited a psychiatrist in the 1990s in relation to your sexual attraction to young boys, but you have had no recent engagement with mental health or psychiatric services.

27In May 2009 you were sentenced for offences of online grooming and possession of child pornography committed in 2008.  You reported to Dr Darjee that since 2008 you have remained primarily sexually attracted to boys over the age of 12 and you continued to be aroused by feet.  Dr Darjee's report notes that you have expressed a desire to undergo pharmacological treatment to stop your sexual urges towards adolescent boys. 

28Dr Darjee opined that there was no evidence that you had been suffering from anxiety or depression at the time of the assessment nor at the time of the offending.  He did not find that you were mentally ill at the time of the offences.  He noted that you have had long-term problems with interpersonal, emotional and behavioural functioning, exhibiting traits of isolation, shyness, social anxiety and an inability to form intimate relationships, which supports the diagnosis of avoidant anxious personality disorder. 

29Dr Darjee concluded that your attraction to boys aged 12 and older does "not clearly meet the criteria for a diagnosis of paedophilia", but that nonetheless you have a strong sexual fixation on male teenagers which has occurred in the context of your inability to form intimate relationships with adults of your own age and of your early sexual experiences and arousal in relation to teenage boys.  He described your interest in feet as not a fetish, but merely as an aspect of your sexual attraction to young males.

30Dr Darjee stated that whilst your depression, anxiety and alcohol played a role in your offending in 2008, they did not appear to have played a role in the offending currently before the court.  He noted that SL initiated contact with you, and that it is unclear whether you would have been proactive in seeking out contact with a teenage boy, and further, that caution should be exercised before assuming that you would have committed a contact sexual offence had SL been a real teenage boy.

31I regard that aspect of Dr Darjee's opinion with some caution.  However, given that the offence of procuring a person under 16 for sexual activity using a carriage service is a preparatory offence, there is no need for me to make a finding as to what may have occurred had you met your putative victim in person.

32As to the risk of future offending, Dr Darjee noted that your ongoing personality issues and strong sexual attraction to teenage boys perpetuates the risk of similar behaviour.  He administered the Risk for Sexual Violence Protocol to assess your risk of further sexual offending.  You were deemed to have a moderate number of risk factors for future sexual offending, but none that were of high concern, and Dr Darjee's opinion was that any future offending was likely to be similar to your current and past offending and not to escalate to more serious offending. 

33Dr Darjee concluded that there is a possibility that you would try to commit a contact sexual offence but that you would be unlikely to use force or coercion and that you would desist if your actions were met with resistance.  You may benefit from a sex offender treatment program and from treatment targeted at your low self-esteem, your difficulties with intimacy, your isolation and your sexual urges toward teenage boys.

34You have a number of relevant prior convictions.  In May 2009 you were sentenced to a total term of 30 months' imprisonment for procuring a person under 16 years of age for sexual activity and for one charge of knowingly possess child pornography.  Upon conviction for those offences in 2009 you became a registrable offender as defined in the Sex Offenders Registration Act 2004 for a period of 15 years. You were convicted of a further offence of knowingly possess child pornography on 18 December 2013 and your sex offender registration period was extended to the remainder of your life. The current proceedings include your fifth conviction for failing to comply with reporting obligations, with court appearances in February 2012, December 2013, February 2015 and December 2016. For completeness, I note that in 1973, in Queensland, you were convicted of aggravated assault upon a male child under the age of 14 years for which you were convicted and discharged.

35I turn to the submissions of counsel. 

36Mr Keks, counsel for the Commonwealth Director of Public Prosecutions, submitted that the offending subject to Charge 2 is a serious example of the offence.  In support of this submission he pointed to:

i.Your efforts from the outset to persuade SL to meet you in person for the purposes of sexual activity;

ii.Your offer to provide SL with a mobile phone so that your correspondence could continue;

iii.Your persistence after SL cancelled the first meeting;

iv.Your frequent references to SL's age and sexual inexperience;

v.Your explicit and graphic descriptions of the sexual acts that you would perform upon meeting in person, telling SL that you would teach him about sex; and

vi.The sending of a number of images of male children to SL including seven which constituted child pornography material. 

37Mr Keks submitted that your moral culpability, that is, the degree to which you would bear personal responsibility for your acts and their consequences, in relation to the offending in Charge 2 is high. 

38He pointed to your apparent awareness that your conduct constituted a breach of criminal law in that throughout your interactions with SL, you were concerned that SL may be a police officer or that the police may find out about your interactions, to the point where you instructed SL to delete your online conversations from his computer and requested that SL contact you by telephone to assure you that he was not a police officer.

39Mr Keks correctly submitted that whilst there was not a child victim in this case, the absence of a victim does not mitigate the offending.  He urged upon me the Court of Appeal’s statement in relation to the offence of procuring a person under the age of 16 for sexual activity using a carriage service, that the seriousness of this offence "is not to be underestimated" and "the conduct which it prohibits is insidious and often highly damaging.”

40Mr Keks reminded me that child pornography offences are not victimless crimes and that those who access and possess child pornography contribute to the continued exploitation of children in order to supply that market. 

41Mr Keks submitted that the circumstances of Charges 1 and 3 were also serious examples of these offences, and that there should be some cumulation in respect of these two distinct offences notwithstanding the degree of factual overlap. 

42In relation to Charge 4, Mr Keks submitted that it was an aggravating feature that you had failed to disclose the very usernames you used to engage in the online correspondence with SL and to send child exploitation material.

43As to sentencing purposes, Mr Keks submitted that general and specific deterrence are the paramount sentencing considerations in respect of the offence of procuring a person under 16 for sexual activity using a carriage service, specific deterrence being given significant weight in the light of your prior convictions. 

44He submitted that a substantial term of imprisonment is required for Charge 2 and an immediate term is required for each of Charges 1 and 3 with a non-parole period being set for Charges 1 and 2.

45Mr Toal, counsel on your behalf, realistically conceded that a custodial sentence was the inevitable disposition in your case.  

46He submitted that the term of any such sentence should not be crushing, but rather that it should be of such a length as to still permit for your rehabilitation upon your release back into the community. 

47He correctly reminded me of the principle of totality. 

48He spoke to the reports, to your personal circumstances, your personal history, your advancing years and your physical ailments, including the need for more surgery upon your knee. 

49He rightly submitted that the primary mitigating factor was your plea of guilty at the earliest opportunity of which there is a utilitarian benefit, that is to say, saving to the community in terms of time and expense of a trial, but which also demonstrated effective remorse for your offending.

50As to your sexual attraction to adolescent male children, Mr Toal accepted that these desires appear now to be entrenched, having regard to the report of Dr Darjee.  Mr Toal instructed me that you were willing and desirous of taking libido-suppressing medication in an attempt to address those deviant desires.

51In the course of the plea, Mr Toal accepted that the real challenge for you upon you release was to direct your desires towards age appropriate sexual partners and to keep you away from the online world where temptation lies, particularly for one as emotionally isolated as you. 

52Mr Toal accepted that your prospects for rehabilitation at this stage must be viewed with caution.

53The charges to which you have pleaded guilty represent, in my view, serious offending.  That much is clear by regard to the maximum penalty imposed by Parliament.

54In my view, the factual basis of Charge 2 does represent a serious example of a serious offence.  There was no ambiguity as to the age of your correspondent.  You acted in the full belief that you were communicating with a 14 year old male child.  You sought to persuade the boy to meet you with a view to having him engage in sexual activity with you.  You were persistent, explicit and persuasive and were driven by your deviant sexual desires.  You knew full well that your conduct was criminal, as is clear from the content of your correspondence.  Your moral culpability for this offending is, in my view, high. 

55The virtual world can be navigated by men such as yourself to persuade and cajole adolescents into meetings in the real world for the purposes of sexual activity.  It has rightly been described as insidious, for it takes place away from the sight and physical presence of parents and carers who can protect and guide children and adolescents such as your intended victim.

56I accept, Mr Truscott, that you have led an isolated life.  I accept that you have not been able to share that life with an intimate partner and have not known love in that regard.  Nonetheless, you must understand that when caught, those who use the online world for their own deviant desires and as a vehicle to entice children can expect substantial terms of imprisonment.

57You accessed child pornography over a seven month period, downloading and saving files.  The courts have stated time and time again that those who access and possess such material, when caught, will almost inevitably be met with an immediate term of imprisonment, and this is for the simple reason that those who consume this material feed the market.  Without customers there would be no market, and that market is based upon a fundamental betrayal of our common humanity by the degrading and traumatising exploitation of children for the sexual gratification of others. 

58I accept the volume of material was not as extensive as is often encountered in these courts, and I have regard to the respective ANVIL categorisation of the material, with the majority being in Category 1.  Nonetheless, you possessed some images of the utmost gravity and degradation.  I accept that there was no suggestion of personal profit nor any suggestion of publication apart from sending of images to your correspondent.  However, the offending in Charges 1 and 3, in my view, can only be met by an immediate term of imprisonment. 

59In my view, the circumstances of Charge 4 represent a serious example of such offending.  The obligations that are placed upon you under the Sex Offenders Registration Act 2004 are imposed to protect children. It is clear, Mr Truscott, that you have a facility with technology, thus enabling you to have a virtual presence. At your last reported meeting you did not declare the username and email addresses that were later used by you to communicate with SL. This non-disclosure was, I find, deliberate, although I do not find that it was intended at that time to enable the subsequent offending by you. Such a breach of your reporting obligation can only be met by a term of imprisonment.

60In sentencing you, I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence. 
I must deter others from behaving like you did and I must deter you from any further repeat of such behaviour.  I must express the community's denunciation of your conduct and I must give effect to the need for protection of the community from you.  I should promote, if possible, your rehabilitation.  I must have regard to current sentencing practices for this kind of offence and to the statutory maximum penalties imposed by Parliament.  In short, I must try and balance your personal circumstances with the circumstances of your offending.

61Your offending since 2008 and the report of Dr Darjee make clear that your deviant desires are now entrenched and that you remain prepared to act upon those desires.  You are not to be punished again for past offending; the relevance of that offending is that, in my view, the need for specific deterrence and for protection of the community are to be afforded greater weight.  It also impacts directly upon my assessment of your moral culpability and your prospects of rehabilitation.  Clearly, principles of general and specific deterrence, denunciation and protection of the community are the primary sentencing considerations in your case. 

62I give full effect to the mitigatory factors to which I have been referred.  For the avoidance of doubt, I have expressed regard to:

i.Your plea of guilty;

ii.Your expressed remorse;

iii.Your personal history, as set out above;

iv.Your expressed willingness to engage with pharmacological treatment to suppress your desires; and

v.To the principle of totality. 

Nonetheless, Mr Truscott, this offending is too serious for anything other than an immediate term of imprisonment.

63If you could stand up, please, Mr Truscott.

64On Charge 3, you are convicted and sentenced to a term of imprisonment of 12 months.

65On Charge 4, you are convicted and sentenced to a term of imprisonment of six months.

66I direct that four months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed upon Charge 3. 

67That makes a total effective sentence for State offences of one year and four months’ imprisonment beginning today.

68On Charge 1, you are convicted and sentenced to a term of imprisonment of 12 months.

69On Charge 2, you are convicted and sentenced to a term of imprisonment of three years and six months.

70I order that the sentence imposed on Charge 2 start at the expiration of the State sentence, and the sentence imposed upon Charge 1 commence two years and eight months after the expiration of the State sentence.

71That makes a total effective sentence for the Commonwealth offences of three years and eight months' imprisonment.

72I direct that you are to serve a minimum of 26 months of the Commonwealth sentence before being eligible for parole, which I order to commence at the expiration of the State sentence.

73That makes a total effective sentence on both the State matters and the Commonwealth matters of five years' imprisonment.

74I fix a period of three years and six months during which you are not eligible to be released upon parole.

75Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period you have been in custody in respect of these offences is 428 days and I order that to be deducted administratively from your sentence. That period that you have already served will be taken off your State sentences. On the State sentences you have approximately one more month to serve, and then you will begin your sentence on the Commonwealth offences.

76Pursuant to s.6F of the Sentencing Act 1991, you are sentenced as a serial sexual offender in respect of Charge 3, and I direct that be entered into the records of the court.

77Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a term of imprisonment of six years and three months with a non-parole period of four years and nine months.

78Pursuant to s.34 of the Sex Offenders Registration Act 2004, you are now again a registrable offender for the rest of your life. You will need to sign a document acknowledging receipt of the document containing your reporting obligations. It is duplication because you already are a registered offender for life, but I must make the order and inform you that you must comply with your reporting obligations under Part 3 of the Sex Offender Registration Act 2004.

79Mr Toal, are there any custody management issues?  I am sure Corrections are aware of the requirement for knee surgery, and that's obviously a very painful and chronic condition.

80MR TOAL:  Yes.

81HIS HONOUR:  Are there any other matters that you want entered on to ‑ ‑ ‑

82MR TOAL:  Your Honour, I can't add anything to what I have already said.

83HIS HONOUR:  I have no doubt that Mr Truscott was given an opportunity to engage in sex offender treatment.

84MR TOAL:  Yes.

85MS MACKAY:  Your Honour, I believe on the last occasion Mr Keks raised the possibility of an application for forfeiture.  I should put on the record that that's been resolved between the parties.

86HIS HONOUR:  Thank you both very much for your attendance.

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