Director of Public Prosecutions v Undy

[2019] VCC 1735

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

AT MILDURA
CRIMINAL JURISDICTION

CR 19-00227

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN UNDY

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JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Mildura
DATE OF HEARING:	23 October 2019
DATE OF SENTENCE:	23 October 2019
CASE MAY BE CITED AS:	DPP v Undy
MEDIUM NEUTRAL CITATION:	[2019] VCC 1735

REASONS FOR SENTENCE
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Subject:
Catchwords:

Legislation Cited:  Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic);

Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. S. Devlin	Office of Public Prosecutions
For the Accused	Mr. L. Cameron	Maloney Anderson Legal

HIS HONOUR: 

1Nathan Shane Undy, you have pleaded guilty to one charge of solicit child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code (Cth)[1] which carries a maximum penalty of 15 years imprisonment.  You have also admitted your criminal record.

[1]Criminal Code Act 1995 (Cth)

2The circumstances of your offending were set out in a summary of prosecution opening dated 18 October 2019 tendered on your plea hearing.  Your offending took place on 6 May 2018.  At that time, you were aged 25 years.  On this date you used your Facebook account to send a Facebook friend request to Emily James.  This Facebook account was in fact used by a Federal undercover operative.

3Subsequent to you sending the friend request, you embarked on a Facebook Messenger conversation with Emily James, commencing at 12.24 am and concluding at 12.41 am.  The details of the Facebook Messenger conversation was set out in the summary of prosecution opening. 

4The overall effect of that communication is that you requested photographs of the breasts and genital area of a person you believed to be 14 years old, which would fall within the definition of child pornography.

5Four minutes into that Facebook Messenger conversation, you were informed that Emily James was 14 years old.  However, you were undeterred by this disclosure and made sexual comments to her and sent two pictures of your erect penis to her. 

6Having considered the contents of that conversation, suffice to say your communications were utterly inappropriate, distasteful and disturbing.  The purpose of your request to Emily James was that so you could obtain intimate photographs in use for masturbation.

7On 21 June 2018, police executed a search warrant at your property and you participated in a record of interview.  During that interview you denied any involvement in this offending.  Such denials were clearly untrue.

8On 4 September 2018, you were arrested, conveyed to Mildura Police Station and released on bail.  You have been on bail since this time and have spent no time in custody by way of pre-sentence detention. 

9Upon being charged the matter proceeded to a filing hearing in September 2018 before proceeding to a committal mention in December 2018.  Subsequent to that committal mention you offered to plead guilty to the charge on the indictment and the matter resolved to a plea of guilty prior to the second committal mention on 5 February 2019. 

10Notwithstanding your early denials of responsibility, I accept that your plea of guilty has been entered at an early opportunity and, as conceded by the prosecution, a full sentencing discount is applicable due to utilitarian reasons. 

11As conceded by your counsel in written submissions and at the plea hearing before me, the offence to which you have pleaded guilty is unequivocally serious.  The gravity of your conduct is reflected in the statutory maximum being 15 years' imprisonment.  Again, as conceded by your counsel, offending involving child pornography requires the imposition of sentences that reflect the ease with which this medium may be used to commit such grave offences and which give primacy to the need to deter and denounce such conduct.

12Any offence involving child pornography is to be considered extremely serious offending.  Denunciation, specific and general deterrence and protection of the community are always significant sentencing purposes.  General deterrence is perhaps the most important of these sentencing purposes in cases like this. 

13While your conduct was serious, I accept that in all the circumstances, your conduct falls towards the lower end of seriousness for this offence.  The offending was isolated to a single occasion, limited to a typed chat exchange and of short duration, being approximately 17 minutes.

14While your intention in relation to the conversation was clear, the subject was in fact an undercover police operative.  No child pornography was actually obtained, and there was no victim as such of your offending.  Your conduct did not involve the making of threats or the offering of any inducements and there is no suggestion in the materials of an intention on your part of disseminating any material provided to you. 

15There was also no suggestion in the materials of you engaging inappropriately with, or soliciting child pornography from any other under-age females.  I also note that when a search warrant was executed at your home, no child pornography was located. 

16There is no suggestion here that you were trawling for under-age females online, and it appears to me that your offending occurred in the context of you then being a fairly lonely individual with low self-esteem.  A pattern of on-line chats between yourself and other adult females often of an explicit sexual nature, a relapse on your part into methyl amphetamine use, which as indicated in discussions this morning, is absolutely no excuse for your behaviour and, in the context of your arousal.

17Finally, and perhaps most importantly, your inability when you became aware of the fact that the subject of the conversation was under-age, to desist or stop your behaviour. 

18According to Dr Barth, you have, or at least then had some cognitive distortions in terms of under-age females and their ability to consent to these very adult conversations.  That appears to me in combination to be the context within which you committed the offending behaviour.

19I agree with Mr Devlin's description of the gravity of the conduct in this case being perhaps a lower level example of a very serious crime. 

20I turn now to your personal circumstances.  You are currently 27, you were 24 at the time of the offending.  You were raised in the Mildura area along with your younger sister, Courtney.  You were educated to Year 10 level before you left school to commence a chef's apprenticeship which you subsequently completed. 

21Since completing this, you have worked as a chef at various establishments in the Mildura region.  Your parents separated when you were 18, causing you some distress, however the separation was largely amicable and you continued to enjoy good relationships with both parents, each of whom have re-partnered. 

22You remain close to your family and they are, as I am informed, a key support in your life.  I note that your family have been in court for the duration of the plea hearing this morning. 

23After moving out of home at around the age of 18, you have had two significant prior relationships with age-appropriate females; one for two years, commencing when you were 17, and another one for one year in your early 20's. 

24You have a relatively limited criminal history which I understand is related to your prior difficulties with drugs.  You began to use cannabis when you were aged 18 and in your early 20s this steadily increased to daily use until you were aged 24. 

25At this point, you started to use methyl amphetamine which subsequently escalated and contributed to you losing employment, entering financial difficulties and having some conflict with your family.

26Your use of methyl amphetamine coincided with your prior period of drug-related offending.  I note that you have previously received community correction orders and you have been dealt with for breaching a community correction order.  These orders do not appear to have been supervised orders.  Again, as indicated this morning, it is of note that this current offending occurred just after the expiration of a community correction order. 

27You have previously engaged in rehabilitation in relation to drug use independently through the Sunraysia Community Health Service for some months in late 2017, undertaking weekly counselling sessions through which you received a period of sustained abstinence from drugs.

28You reported to forensic psychologist, Matthew Barth, that you commenced viewing internet-based pornography during your early 20s and began using online chat sites approximately three years ago.  You informed Dr Barth that you had also chatted with several adult women on Facebook which, on occasion, encompassed sexually explicit conversations. 

29You informed Dr Barth that you found the process of developing connections with adult women utilising the chat sites and social media, to be difficult.

30You informed Dr Barth that the offending occurred during a period when you were having difficulty developing social connections with adult women and you were feeling very lonely.  You were using internet chat sites as a social outlet.  According to Dr Barth, you have a history of social anxiety and you have previously resorted to drug-use to escape your feelings and as a dysfunctional attempt at enhancing your poor self-esteem. 

31According to forensic counsellor, Geoffrey Burrows with whom you have been receiving treatment for some months, you had resorted to engaging in online sex chats to alleviate feelings of loneliness at the time of your offending.

32Your offending also occurred after using methyl amphetamine which you had previously stopped using but had relapsed on this occasion.

33According to Dr Barth, you expressed shame and remorse for your behaviour, stating:

'I'm an idiot, what was I thinking. I'm disgusted in myself, I'm very sorry for my behaviour.  It is not who I am.'   

34According to Dr Barth, you stated that your dominant preference was for sexual contact with female adults and a detailed examination of your sexuality did not, according to Dr Barth, reveal any entrenched history of sexual deviance. 

35You explicitly denied any attraction to pre-pubescent children, however according to Dr Barth, such comments notwithstanding, his offending conduct with a purported 14 year old complainant is clearly very concerning and indicates significant issues with his sexual boundaries. 

36According to Dr Barth, due to your history of problematic interpersonal dynamics you have found comfort in the internet where you can engage in online sex chats without the usual inhibitions, anxieties and fear of rejection that you would experience in real life. 

37Dr Barth says:

'It was also a context in which his social skills deficits were not so readily apparent.  Taking this a step further, Mr Undy was then drawn to an under-age female which provided even less of a challenge to his fragile self-esteem.  Hence, he was able to attain the attention he desired where he could avoid having to navigate the responsibilities and commitments of a typical adult relationship.  In the process, he became increasingly unable or unwilling to enforce appropriate personal and sexual boundaries with the supposed under-age complainant. '[2]

[2] Dr Mathew Barth, Psychological Assessment of Mr Nathan Shane Undy, 6 (34)

38Furthermore, Mr Undy's offending indicates a poor understanding of the enormity of mental and sexual development of under-age females, often referred to as offence-supporting cognitions.  More specifically, he viewed the alleged complainant as being capable of participating and fully consenting to sexually explicit behaviour with him.

39Mr Undy was able to display some signs of challenging these cognitions during the interview with me and demonstrated a realistic empathy for under-age females who are subjected to sexually exploitative behaviour. 

40Notwithstanding this, Mr Undy's insight, according to Dr Barth, into his offending is limited.  It is important that Mr Undy participates in specialist sex offender treatment at the earliest possible opportunity to address the problematic features of his sexual adjustment.' 

41Significantly, Dr Barth opined that your overall risk of sexual recidivism is currently assessed as falling in the moderate risk category.  He says:

'It should be noted that the risk of re-offending in a sexual manner in Mr Undy's case is predominantly in relation to online offending.  Provided the relevant dynamic factors can be addressed through the required treatment and support, it is likely that Mr Undy's risk of recidivism will ultimately be reduced.'[3]

[3] Dr Mathew Barth, Psychological Assessment of Mr Nathan Shane Undy, 7 (42)

42Dr Barth concludes:

'The offending committed by Mr Undy is unequivocally serious and it is therefore important that he completes the required specialist treatment to address the factors precipitating it.  Mr Undy himself recognises this need.  To his credit, he told me that he would willingly engage in the relevant offence-specific treatment.  Successful completion of a comprehensive Sex Offender treatment program is the most important factor in preventing recidivism on Mr Undy's part.'[4]

[4] Ibid 8 (44)

43I note that the report of Dr Barth pre-dates the report of forensic counsellor, Mr Burrows. 

44Since June of this year, you have voluntarily attended the office of Central Melbourne Psychology to participate in the Sex Offender Treatment Program with forensic counsellor, Geoffrey Burrows, at your own expense, attending on ten occasions, the most recent appointment being on 9 October 2019. 

45Mr Burrows authored a treatment report dated 15 October 2019, which was essentially positive in nature.  According to Mr Burrows, you initially demonstrated a limited understanding of the destructive impact of your offending behaviour before engaging in psycho-education. 

46Following this phase of treatment, you acknowledged that it was your responsibility to establish appropriate boundaries when communicating with children.  You demonstrated a clear understanding of the destructive impact of your offending behaviour and you expressed remorse for your actions. 

47You have recently been working with Mr Burrows in developing a relapse prevention plan.  According to Mr Burrows:

'In summary, Mr Undy has positively engaged in treatment and has made some good progress in the SOTP, nevertheless he would benefit from further treatment to continue this progress, particularly with regards to improving his social skills and coping skills and consolidating his victim empathy and relapse prevention planning.  I can confirm that I am willing to continue treating him if he is at liberty to attend.'[5]

[5] Mr Geoffrey Burrows, Mr Nathan Undy Participation in the Sex-Offedner Treatment Program, 2 (8)

48Also subsequent to your offending, you have commenced a relationship with an age-appropriate female, Tioni Muggeridge aged 25 and in court for the plea hearing this morning. 

49You have been in a relationship with Ms Muggeridge for over 12 months.  Your partner wrote a character reference dated 27 May 2019 in which she stated that you have expressed remorse and shame to her for your actions.  You believed that your partner has had a very positive impact on your life, has made you  want to be a better man and you have expressed a hope for a long term future together. 

50You have stable employment, having been in your current place of employment at the Mildura Brewery Pub for some 18 months.  You work full time.  Mr Gary Andrews in his reference provided at your plea hearing confirmed that he has found you to be a very liable and punctual employee, a good team player, quite responsible and good at encouraging others to be happy at the workplace.

51You have also discussed your offending with Mr Andrews and have expressed shame and embarrassment to him, together with significant remorse and an intention that this behaviour will never happen again.

52I have considered all of the character references provided on your behalf, including from your mother Amanda, her partner Jason and your sister Courtney.  It is clear that you have discussed the offending with each of the authors of the character references and all speak of considerable remorse on your part.  Collectively they support the submission that you are well supported and well regarded, which bodes well for your prospects of rehabilitation. 

53Since being charged by police on 4 September 2018, you have complied with strict bail conditions for over 12 months, further supporting the submission that your rehabilitative prospects are good and your ability to comply with any community-based disposition would be good.

54In court this morning there was some discussion in relation to the appropriate label for your rehabilitative prospects. 

55In my view, your prospects for rehabilitation are good, or promising because of the following factors; you are relatively young.  Whilst you have a criminal history which is somewhat concerning, the criminal history does not include relevant sexual offending. 

56You have engaged in voluntary treatments with an appropriate service provider and you have progressed positively.  You have the support of your family, you are in an age appropriate and stable relationship and you have stable employment.

57As conceded by your counsel, in sentencing offenders for child pornography offences, general deterrence is the paramount sentencing consideration.  Denunciation and just punishment are also important.  Cases involving child pornography will often involve a prison sentence. 

58In formulating an appropriate sentence in your case, I have considered all of the submissions made on your behalf.  I am satisfied that you are genuinely remorseful for your conduct warranting a further sentencing discount in addition to the discount for an early plea of guilty. 

59You remain a relatively youthful offender, and rehabilitation remains a significant sentencing purpose in your case, notwithstanding the fact that, as conceded by your counsel, the impact of youth is moderated by the gravity of the conduct and the fact that are now in your mid-20s. 

60While you do have some criminal history, you have an absence of criminal history in relation to sexual misconduct.  While any sentence I impose must reflect the sentencing purpose of specific deterrence, I am satisfied that by virtue of your plea of guilty, your expressions of remorse and your participation in what has no doubt been confronting offence-specific treatment, the need for specific deterrence in your case is limited.

61In light of the matters that I have referred to, together with the opinion of Dr Barth that you represent a moderate risk of reoffending, this risk subject to reduction should you complete appropriate treatment, I am satisfied that while community protection remains important, in your case such protection can be achieved without a prison sentence to be actually served. 

62I have considered all of the matters contained in s.16A(2) of the Crimes Act 1914 including the nature of the offending, your contrition, your plea of guilty, specific and general deterrence, your antecedents and character and your prospects of rehabilitation.

63I have also considered the other comparable decisions which have been provided to me at your plea hearing, noting that none of them are on all-fours, so to speak, with the factual matrix of this case and I must ultimately consider the unique facts before me now.  Pardon me for one moment.

64In my view, notwithstanding the submissions made by Mr Cameron who appeared on your behalf in relation to the appropriateness of a community correction order, a term of imprisonment is an appropriate sentence in this case and indeed, is the only appropriate sentence in this case, albeit not to be served directly by you at this point in time.  Mr Undy, would you please stand: 

65In relation to the charge before me, you are convicted and sentenced to a term of imprisonment of nine months. 

66I order that pursuant to paragraph 21B of the Crimes Act[6] you be released forthwith upon giving security by recognisance in the amount of $500 to comply with the following conditions, (a) That you be of good behaviour for 18 months and (b) That you attend, undertake and complete a Sex Offender Treatment Program within a period of 18 months and to follow the lawful directions of Dr Matthew Barth and/or Mr Geoffrey Burrows and/or their nominees. 

[6]Crimes Act 1914 (Cth)

67Provided you indicate your consent and willingness to comply with the conditions of the recognisance release order, you will be released forthwith. 

68MR DEVLIN:  Your Honour, can I just raise one matter.

69HIS HONOUR:  Yes.

70MR DEVLIN:  Just in relation to the condition of being of good behaviour?

71HIS HONOUR:  Yes.

72MR DEVLIN:  Did Your Honour put a period?

73HIS HONOUR:  Yes, 18 months.

74MR DEVLIN:  Thank Your Honour.

75HIS HONOUR:  Yes.  I must inform you Mr Undy that if you fail without reasonable excuse or cause to comply with the conditions of the recognisance release order, you can be brought back before the court and a number of consequences may follow, including the imposition of a monetary penalty, the extension of the good behaviour period or the period within which you must complete the Sex Offender Treatment Program and one of the options available to the court is that the recognisance release order can be revoked and you can be dealt with for the offence in respect of which the order was made, by ordering that you be imprisoned for the nine month period which I have stipulated as part of the sentence imposed today.  Do you understand that Mr Undy?

76OFFENDER:  Yes, I do, Your Honour.

77HIS HONOUR:  Yes.  Mr Devlin, have I covered everything in terms of the requirements of imposing a recognisance release order.  I am just looking at the documents here.  I have an obligation to explain to Mr Undy what the terms of the order are and that would be consequences upon any breach.

78MR DEVLIN:  Yes, you have, Your Honour.

79HIS HONOUR:  Yes.  All right thank you.  The document will come to you now for signing Mr Undy.  I am not proposing to make a s.6AAA declaration gentleman.

80MR DEVLIN:  Yes, Your Honour, and I am sure Your Honour has not finished, but just so Your Honour's associate is ahead of the game too, in relation to the registration. 

81HIS HONOUR:  Registration, yes.

82MR DEVLIN:  Thank Your Honour.

83HIS HONOUR:  Mr Cameron, do you want to accompany Mr Lavery down to the back of the court. 

84MR CAMERON:  Thank Your Honour.

85HIS HONOUR: Finally, in relation to this matter, a finding of guilt in relation to the charge that you have now been sentenced on, enlivens the relevant provisions of the Sex Offender's Registration Act where you become a registrable offender and the mandatory reporting period under the Sex Offenders Registration Act is eight years. Do you understand that, Mr Undy?

86OFFENDER:  Yes I do.

87HIS HONOUR:  Mr Cameron, have you already, or will you be explaining to your client the obligations imposed on him which are considerable in relation to the registration scheme.

88MR CAMERON;  Your Honour, I have explained it in a general sense and with some detail, but we will go through them in full detail with Mr Undy after court.

89HIS HONOUR:  Yes, thank you.  Mr Devlin, my memory is that in any case involving registration, there is a document that needs to be given to the offender.

90MR DEVLIN:  There is, Your Honour.

91HIS HONOUR:  Yes.

92MR DEVLIN:  And I apologise, I should have foreshadowed it earlier to Your Honour's associate.  There is a document required to be produced and signed. 

93HIS HONOUR:  Yes.  I am told there is some issue in terms of the - I do not quite understand what this means - but it has not been listed which is not generating the usual document which I know is a voluminous document of some eight pages long. 

94MR DEVLIN:  Yes.

95HIS HONOUR:  So my associate needs to do something administratively.  So I will just have to stand down for a few minutes before I finalise the matter.

96MR DEVLIN:  Yes, Your Honour, and I appreciate Your Honour's got other work too, but if it cannot be fixed up quickly, we will come back at 2.15 or whatever time is convenient to the court.

97HIS HONOUR:  Yes.

98MR DEVLIN:  But that document does have to be produced and signed.

99HIS HONOUR:  It has to be signed.

100MR CAMERON:  That is my recollection experience, Your Honour, yes.

101HIS HONOUR:  Yes, a signature acknowledging receipt of the ‑ ‑ ‑ 

102MR CAMERON:  Yes. 

103HIS HONOUR:  Yes, all right.  I will just stand down for a few minutes first and we will see if we can resolve the issue.

104MR DEVLIN:  Thank Your Honour.

105HIS HONOUR:  Thanks.

106(Short adjournment.)

107HIS HONOUR:  I think we have sorted that issue out, the documentation will now be taken down to the back of the court for Mr Undy to acknowledge receipt of.  Again, Mr Cameron, if you want to go with Mr Lavery.  Yes, I believe that does complete all the matters in relation to this case.  Mr Undy, just one more time, if you would not mind standing please?

108I do hope you understand what has happened today, and I hope you understand the gravity of the offending to which you have pleaded guilty.  You are fortunate indeed that you have not been the recipient of a sentence of imprisonment, to be actually served today.  I want you to understand that, although your conversation was limited and it was with an undercover operative, it remains extremely serious offending.  If you do not comply with the terms of the order that has been imposed today, very significant consequences will flow to you.  Do you understand that?

109OFFENDER:  Yes, I do.

110HIS HONOUR:  And I also urge you to have a lengthy discussion with Mr Cameron in relation to your reporting requirements.  They are extensive, they run for eight years, there are significant consequences if you fail to honour those obligations including Mr Devlin, the maximum penalty for breach of the registration I think is two years.

111MR DEVLIN:  Up to five years.

112HIS HONOUR:  Up to five years, five years' imprisonment.  So gaol terms follow any breach of the reporting requirements.  Do you understand that?

113OFFENDER:  Yes. 

114HIS HONOUR:  Yes, you can take a seat for the moment.  Mr Cameron, your written submissions were of a very high standard, I wanted to commend you for them. 

115MR CAMERON:  I hope they were of some assistance, Your Honour.

116HIS HONOUR:  Yes, they certainly were, as were your oral submissions Mr Devlin.

117MR DEVLIN:  Thank Your Honour, and we appreciate, that is 'we' appreciate Your Honour sitting on.  Thank you sir. 

118HIS HONOUR:  Thank you Mr Devlin, are you involved in the other matter today or not?

119MR DEVLIN:  No. 

120HIS HONOUR:  It is a surprise as to who is appearing, but in any event, I will stand down for that matter and counsel are excused.  Thanks. 

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