Director of Public Prosecutions v Tsembas

[2016] VCC 1322

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00834

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANASTASIOS TSEMBAS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 September 2016
CASE MAY BE CITED AS:	DPP v TSEMBAS
MEDIUM NEUTRAL CITATION:	[2016] VCC 1322

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS R. VERDON
For the Accused	MR G. DOUGLAS

HIS HONOUR

1You pleaded guilty to an indictment charging you with three offences of transmitting child pornography material using a carriage service; one offence of producing child pornography material using a carriage service and one offence of possessing child pornography.  The first four offences, to which I have referred, are offences under Commonwealth law and possession of child pornography is an offence under the law of Victoria.

2The prosecution has tendered and relied upon a prosecution opening for a plea of guilty and that was read to the court yesterday.  I am not going to read it in detail again but I incorporate it in its entirety into these reasons for sentence.

3You have no prior convictions.  The offences the subject to Commonwealth law each carry a maximum term of imprisonment of 15 years and the offence of possession child pornography under State law carries a maximum penalty of 10 years' imprisonment.

4The offending came to light as a result of your engaging in contact with a covert operative attached to the Queensland Police Service who was using an online persona of an adult male child sex offender.

5You made contact with that person by email. Subsequent contact between the two of you involved email transmissions as well as the use of Kik messenger, a free instant messaging application for mobile devices.  The contact between you is reflected in Charges 2, 3 and 4.  In particular, the messaging subject of Charge 2 on the Indictment involves you in, on the face of it at any rate, seeking to procure the operative's assistance for you to engage in offending conduct with a child or children in Victoria.  The nature of the communications between you, reflected in Charge 2, was particularly vile and pornographic.

6As the prosecution submitted it was at best highly risky behaviour on your part with each of the participants, albeit that the other participant was a police officer, apparently encouraging one another but you apparently seeking to procure a child, a young girl, for your sexual gratification in Victoria.  Now, whether that was fantasy or not is not to the point.  The nature of the communication was pornographic and depraved.

7It may be that conduct of that kind can be distinguished somewhat from the production of images or videos involving children in sexual poses or activity in that there is not the same number or types of victims involved. But as the prosecution submitted offending conduct of the kind reflected in Charges 1, 2, 3 and 4 is nevertheless to be regarded as far from trivial and far from innocuous criminality.  It is calculated to normalise sex with children and calculated to lead to one or other party escalating their interest in and perhaps contact with children.

8The upshot of the police investigation was the execution of a search warrant upon your premises on the 30th of December 2015 and your Apple iPad, your iPhone 4 and iPhone 5 were seized, analysed. The offending the subject of Charge 1 was revealed involving text messaging between you and your co-defender named in the prosecution opening over a period between the 22nd of December 2015 and the 15th of December 2017.  It was a further example of vile discussion about sexual activity with young children, particularly female children. I do not know that I need to go into the detail which is set out in the prosecution opening.  That too I regard as a serious offence of this kind.

9The police also found images on your iPad totalling 280 all of which fell into one or other of Categories 1-6 of child pornography.  There were a total of 91 images falling into Category 1. I accept the prosecution's submission that a number of those images were towards the higher end in terms of seriousness for that category.  More concerning, there were 81 images in Category 3 and 94 in Category 4. That too I regard as a serious offence of its kind although many cases that come before the courts involve very much larger numbers of images and videos so there is some distinction between your case and many others that come before the court where the number of child victims is greater the degree of depravity, even greater than that revealed by the images on your iPad.

10As the prosecution pointed out there were something in the order of 94 children in penetration activity without adults subject to Category 4 and potentially somewhere in the order of 280 different child victims depicted in the images that were on your iPad.

11I was referred to a number of authorities and it is apparent that although a term of imprisonment is ordinarily the outcome of sentencing in these sorts of cases, it is not mandated and every case has to be looked at on its own merits.

12Turning to matters personal to you; I was provided by your counsel with a report dated the 9th of August 2016 from Mr Ian Stapleton, psychologist, together with a supplementary report dated the 5th of September 2016 from that same psychologist.

13I was also provided with a letter by way of a report from Mr Efremidis, psychologist, with whom you consulted on the 14th of January 2016 and thereafter to late March of 2016 when, as I understand it, you moved to the Mornington Peninsula to live with your brother and it then became more convenient for you to consult with Mr Stapleton.

14Each of those gentlemen identify the fact that you have apparently been suffering for some time from anxiety and depressive illnesses which are of a serious nature.  It is not suggested by your counsel that those impairments impact upon your moral culpability for these offences, rather it is submitted that I ought to take those into account in assessing the length of any term of imprisonment on the basis that you would do your time in custody harder than somebody who did not have those impairments.  I am inclined to accept that submission.

15I note also that you have been assessed as being suicidal and a real risk of you committing suicide has been identified. That too is something that I take into account and will be noted in the records of the court and in the material that goes to the Corrections Department to ensure that your mental conditions and your suicide risk is understood and catered for.

16The reports of Mr Stapleton suggest that you were a good deal less than frank, to put it mildly, with him in discussing the nature of your offending conduct and that in turn must have impacted significantly on the effectiveness of any treatment that was offered to you.  It is very difficult to discern remorse, genuine remorse, from somebody who on the face of it is seeking help from the psychologist and yet describing their own role in a much more favourable light than the facts reveal.

17Your self-reporting of your offending conduct was calculated to minimise your offending, to blame the police officer with whom you engaged in the contact subject to Charges 2, 3 and 4, and to suggest that you are a person who was sexually inveigled into committing offences that you would not otherwise have committed. 
I do not accept that for a second.  You were the initiator of the contact with the undercover operative and it was you who was seeking his assistance apparently to enable you to commit offences against young children.

18You have expressed remorse to others.  Again, it is difficult to accept the genuineness of the remorse.  I am quite sure you are sorry for yourself.  I am quite sure you are embarrassed about having been caught and these facts being revealed but I am far from convinced that you have yet reached the point of really appreciating the true nature of your offending conduct and showing genuine remorse for it.  That impacts also on the risks that you still pose to the community and your prospects of rehabilitation.

19Mr Stapleton was particularly optimistic in his first report but more guarded in his second report once it had been revealed to him that you had been misleading him as to the nature of the offending conduct. Yet still Mr Stapleton was, in my opinion, giving you a far too favourable assessment in terms of your risks of reoffending and your genuine willingness to face the full responsibility for your conduct and to address the underlying causes of it.

20So my assessment as to your prospects of rehabilitation are necessarily guarded and I do think that there is a need to give proper effect to the principle of individual deterrence as well as the particularly important sentencing principle of general deterrence; that is, deterring others from committing similar conduct.

21However, you are a person with no prior convictions and the fact you have been caught and brought before the court and humiliated in many respects in front of your family and friends, will no doubt have had a significant impact upon you and that in itself hopefully will act as a deterrent to you engaging in similar conduct in the future.

22You are 50 years of age with a lot of life ahead of you and you have a capacity for work.  You have got obviously some psychological problems that you are going to have to deal with and you are going to have to address the underlying causes of your criminal offending. I would expect you to engage fully in the rehabilitative courses that are offered to you to address your risk of further sexual offending.

23I do not accept that there is evidence before me to suggest that you are anything other than a paedophile.  I think there is a real risk that you are and that your paedophilia will require some quite substantial and significant treatment to deal with it and to reduce the urges that you have towards young children.

24I am required under Commonwealth law to take into account a number of factors that are set out in s.16A(2) of the Commonwealth Crimes Act and I have endeavoured to identify a number of those.  I am required to punish you adequately for your offending to denounce your conduct and to pass a sentence that has the capacity to deter to you and others from committing further offences.

25I am bound also to promote your rehabilitation as far as I reasonably can.  I am satisfied that nothing other than an immediate custodial sentence is required in this case but I am persuaded that it is necessary and desirable that there be a balance between the term of imprisonment that you will actually have to serve and the rehabilitative measures that would be offered under a community corrections order. The balance of punishment can be divided between a term of actual incarceration and the terms of the community corrections order and reflected in the requirement that you perform some unpaid community work as well as comply with the terms of the order over a period of two years.

26Doing the best I can to balance all of the factors in your favour. Your family and friends speak well of you.  You have many good qualities I have no doubt and you are entitled to parade the fact that you have no prior convictions.  You are also entitled to parade the plea of guilty to each of the offences and whilst I am not persuaded that you have shown genuine remorse, you are entitled to the utilitarian benefit of those pleas. I will give you full benefit for that early indication of a plea of guilty.

27I am now ready to impose sentence upon you.  Would you please stand.

28On Charge 1 on the Indictment of transmitting child pornography, I convict you and sentence you to imprisonment for a period of 6 months.

29On Charge 2 of transmitting child pornography, I convict and sentence you to imprisonment for a period of 12 months.

30On Charge 3 of producing child pornography, I convict and sentence you to imprisonment for a period of 3 months.

31On Charge 4 of transmitting child pornography, I convict and sentence you to imprisonment for a period of 3 months.

32On Charge 5 I sentence you as a serious sex offender.  I am not asked to impose a sentence that is disproportionate and whilst I regard that as a serious example of the offence of possessing child pornography, it is by no means the most serious offence of its kind that I have come across and it seems to me in all the circumstances that I can deal with that by a community corrections order for a period of 2 years with conditions that you complete 200 hours of unpaid community work, that you participate in rehabilitation programs and dealing with alcohol issues, mental health issues and programs to reduce your risk of reoffending which will no doubt include a sex offender's rehabilitation course.

33The order will be for 2 years commencing at the conclusion of the sentence of imprisonment that I have imposed. 

34All of the sentences of imprisonment will commence today except for the sentence on Charge 2 which will commence on the 8th of December 2016, that is in 3 months' time, making a total effective sentence of 15 months' imprisonment and I order that you be released after serving 6 months of that sentence on a recognisance to be of good behaviour for a period of
2 years in the sum of $1000.  That will act as a suspended sentence hanging over your head and if you commit further offences punishable by imprisonment in the period of 2 years after your release from custody, then you are liable to be required to serve the remaining period of the 15 months total effective sentence that I have imposed as well as losing the recognisance of $1000.

35Also, so far as the community corrections order is concerned, it is important that you comply with the terms of that order.  Breaching the terms of the order will make you liable for imprisonment of up to 3 months just for breaching the order.  If you commit a further offence punishable by imprisonment in breach of the order, then not only would you be up for sentencing for that offence but you could be brought back to this court and resentenced for the offence of possessing child pornography in Charge 5 and that may well mean an increase in the length of the time that you would be in custody so it is important that you do not breach the terms of the community corrections order.

36I cannot impose that community corrections order unless you are willing to consent to it.  Are you willing to consent to that order?

37PRISONER:  Yes.

38HIS HONOUR:  All right.  Well, take a seat and that order will be drawn up.
I should say that you are now the subject of reporting obligations under the Sex Offenders Registration Act and those obligations will be with you for life and you will be given some documentation to explain those obligations to you, all right.

39MS VERDON:  As Your Honour pleases.

40HIS HONOUR:  Apart for your pleas of guilty I would have sentenced you to
2 years' imprisonment with a recognisance allowing your release after a period of 12 months.  Are there any other orders I need to make?

41MS VERDON:  Your Honour, I believe the offender is entitled to a pre-sentence detention of one day as a result of his remand.

42HIS HONOUR:  One day, yes.  I declare one day pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively. That fact will be noted in the records of the court.

43MS VERDON:  And, Your Honour, if I could hand up the prepared recognisance release form.

44HIS HONOUR:  Yes, thank you, yes.

45MR DOUGLAS:  Just for Mr Tsembas' benefit here, Your Honour, Mr Tsembas fundamentally has been sentenced to a term of imprisonment of 6 months to be released after that 6 months; to then complete a community corrections order for 2 years; do 200 hours community work; and on top of that basically he has got 9 months suspended hanging over his head and if he breaks the law obviously he has got to come back and face the consequences.

46HIS HONOUR:  That's essentially it, Mr Douglas.

47MR DOUGLAS:  And he ‑ ‑ ‑

48HIS HONOUR:  There is one other thing I should add about the community corrections order; the 200 hours of unpaid community work I will allow him to offset 100 hours of rehabilitative programs satisfactorily completed against that 200 hours, all right.

49MR DOUGLAS:  Yes very good, very good.

50HIS HONOUR:  Yes, all right.

51MR DOUGLAS:  And you have allowed one day already served.

52HIS HONOUR:  One day already served, yes.

53MR DOUGLAS:  Thank you.

54HIS HONOUR:  Yes.  All right, now I will sign this.

55(His Honour signs recognisance release form.)

56HIS HONOUR:  Frankston Community Corrections Centre, is that satisfactory?

57MR DOUGLAS:  That is what the report says.  That obviously means he would be living with his brother down in Mornington way.

58HIS HONOUR:  Well, I understood that that was open to him so I assume that if that becomes - if the arrangements change then he can always apply to have it transferred to another more convenient centre.

59MR DOUGLAS:  Yes thank you, Your Honour.  I will be explaining everything to Mr Tsembas when I see him next, Your Honour.

60HIS HONOUR:  Yes, all right.  Well, when you - perhaps you would accompany my associate to Mr Tsembas so that he understands what he is being asked to sign.

61MR DOUGLAS:  Sure.

62HIS HONOUR:  I will just leave the Bench for a moment.

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