Director of Public Prosecutions v Van Daalen

[2017] VCC 117

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00480

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB VAN DAALEN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2017
CASE MAY BE CITED AS:	DPP v Van Daalen
MEDIUM NEUTRAL CITATION:	[2017] VCC 117

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch
For the Accused	Ms D. Caruso

HER HONOUR:

1Jacob Van Daalen, you have pleaded guilty to one charge of using a carriage service to groom a person under 16 years of age (Charge 1), and one charge of knowingly possess child pornography (Charge 2).  The maximum penalty in respect of Charge 1 is imprisonment for 12 years.  The maximum penalty in respect of Charge 2 is imprisonment for five years.

2The details of your offending are set out in the Summary of Prosecution Opening, which was tendered as Exhibit A.  Charge 1 relates to communications between you and a person you thought was a 12-year-old female child residing in Perth, named Jessica.  The person purporting to be Jessica was in fact a police officer from Western Australia.  On 1 October 2014, you met Jessica on an internet chat site, and then subsequently spoke to her on Skype.  Jessica told you at the start that she was 12 years old, you said you were 17.  You were in fact 23 years old.  On 6 October 2014, Jessica received a message saying "Hi" from you.  She did not reply.  On 12 December 2014, there was a second conversation between you and Jessica. 

3On 1 October 2014, the conversation included sexual comments from you.  You also sent Jessica pictures of yourself, and asked her to send photos to you.  You said that you would like to kiss her and introduced the idea of her visiting you in Melbourne or you travelling to Perth to meet her.  You suggested that she should tell her mother somewhere else where her mother would let her go.  You also told Jessica that you would buy her anything she wanted. 

4On 12 December 2014, you again initiated contact.  This time you said you were 19 and you were a mechanic.  In the conversation on 12 December 2014 you spoke of buying her things, including a phone and said that, if she was in Melbourne, you would spoil her.  You suggested that you show her your penis, and she would tell you how her body reacted.  You then initiated a Skype video chat and showed her your erect penis and masturbated in view of the webcam.  You subsequently asked her if she masturbated.  There was no further contact between you after that.

5On 14 July 2015, police executed search warrants at your premises.  Police seized a black Dell Inspiron laptop which contained child exploitation images.  These images are the subject matter of Charge 2 of possession of child pornography.  Forensic analysis showed that there were 481 images on the laptop, all of which were classified within the Child Exploitation Tracking System (CETS)/Australian National Victim Image Library (ANVIL) as Level 6, being anime, cartoons, or drawings depicting children engaged in sexual poses or activity.  That material included some images of the humiliation and penetration of children by adults.

6You were interviewed on 14 July 2015.  You made a number of admissions and when asked how you felt about Jessica's age said that you felt "she was a bit young" and then said "then I started asking, and she was all right for it.  I just thought 'Well, if she's gonna like - wants it, I might as well just keep going'".  You said you posed as a 17-year-old, because girls would not talk to you if you were over about 19 and a half.

7The committal in this matter proceeded by way of straight hand-up brief, and you have pleaded guilty at the earliest opportunity.  You were committed on
24 March 2016, and there was some further delay due to you having difficulties organising funding for representation. 

8In sentencing you, I have taken into account your personal circumstances.  You are now 25 years old.  You grew up in Melbourne in a close family although your parents separated when you were 20 years old.  You currently live with your father, your older brother and your wife.  You have been in a relationship with your wife for about four and a half years.  Your wife knows of your offending and remains supportive of you.

9You left school at 15, and have since worked full time.  You are a qualified cabinet maker and have for the last year or so been working as a plasterer.  You have played various sports, participating at both junior and senior levels.  You have been umpiring football for some time.  You have no prior criminal history.

10It is evident from the report of Mr Steven Gault, psychologist, dated
4 February 2017 (Exhibit 1), that you do not have any mental health, drug or alcohol addiction, or personality disorder issues.  Mr Gault assessed the risk of you offending as low to moderate.  Mr Gault was of the view that you were to an extent minimising your offending, although he says you told him that you now think your behaviour was "wrong and stupid, and that it was wrong because the girls were underage".

11Mr Gault said "When I asked why it was wrong to interact sexually with underage girls, he said 'Because they are too inexperienced to know what is going on'".  You told Mr Gault that you engaged in the offending behaviour because you were bored.  Mr Gault says that you may have a deviant sexual interest in underage females, but that conclusion is not conclusively established at this stage.   Mr Gault says your offending may have been opportunistic, and "his online activities clearly demonstrate a lack of appropriate guiding norms in relation to his sexual behaviour". 

12Both counsel provided written outlines in addition to their oral submissions.  The Outline of Submissions for Plea Hearing for the defence was tendered as Exhibit 3.  The Crown Submissions on Sentence were tendered as Exhibit B.

13Defence counsel, in her submissions, addressed the factors which must be taken into account in sentencing for a Commonwealth offence, which were also relevant to sentencing for a state offence, noting that Charge 1 is a Commonwealth offence and Charge 2 is a state offence.

14Defence counsel submitted that the sentencing purposes could be achieved by a sentence not involving your immediate incarceration.  She submitted that in respect of Charge 1, a sentence of imprisonment with immediate release on a recognisance release order would be the appropriate sentence.

15In respect of Charge 2, it was submitted that a community correction order would be the appropriate sentence.  Your counsel submitted that such orders would address sentencing purposes, and would also provide for supervision and offence-specific treatment.  Community work could also be a part of the community correction order in respect of Charge 2.

16The prosecutor also addressed factors relevant to sentencing in this matter, as required under the Commonwealth legislation.  He made particular reference to the decisions in R v Gajjar (2008) 192 A Crim R 76, and R v Nahlous [2013] NSWCCA 90. The prosecutor submitted that the offending in Charge 1 constituted an objectively serious example of grooming offences, and that an appropriate sentence would be a sentence involving immediate imprisonment.

17Clearly, any offence of grooming or possession of child pornography is a serious offence, with the grooming offence being the more serious of the two in this case.  General deterrence is the paramount consideration when sentencing for offences of this kind, involving the actual or potential sexual abuse of children.  The courts must take whatever steps they can to discourage adult persons from using the internet to locate and make contact with children so as to procure them for sexual activity, or from possessing child exploitation material.

18It has been made clear in cases such as R v Gajjar and The State of Western Australia v Collier (2007) 178 A Crim R 310, that adults who use the internet to locate and make contact with children so as to procure them to engage in sexual activity would ordinarily expect a term of immediate imprisonment. In R v Nahlous, the court referred to the need for, and public interest in, protecting children from inappropriate sexualisation at an age where they are "ill-equipped to protect themselves, or respond either appropriately or in their own interest". 

19There are serious aspects to your offending.  There is an aspect of sexual questions and comments, which attempted to engage the child in sexual conversation.  You persisted, even when the child made a form of protest.  Your offending escalated to the point of showing her your erect penis on webcam, and masturbation.  It is also serious that you attempted to engage her interest by promising to buy her things if she were in Melbourne.  You told lies to her.

20There are also features of your offending which render it less serious than some other examples of grooming offending.  There were two episodes of contact involving sexual matters.  There was a gap in time between the offending.  You voluntarily ceased contact after the second occasion. 

21In pleading guilty to this charge, you have admitted that you communicated with Jessica with the intention of making it easier to procure her to have sexual activity with her, but you made no concrete, positive or practical arrangements for a meeting between you and Jessica.  There was a lack of persistence in your offending, which is consistent with opportunism, especially give the geographic distance between you.  For those reasons, I consider that the objective seriousness of this offending falls within the low to mid-range of grooming offending.

22The harm caused by your offending is clearly less in this case than it would be in others, because you were communicating with a police operative, rather than a real child.

23The material of child pornography you possessed is disturbing and disgusting, including images of sexual penetration and humiliation of young children.  It was agreed by both counsel that all of the images were animated and there is a relatively small number of images.  It was agreed by both counsel that the harm in this type of behaviour is the objectification of children, which may lead to the corruption of appropriate attitudes toward children and the need to protect them from any form of sexual activity.  The prosecution agree that your offending was at the low end of objective seriousness compared to the cases which generally go on appeal in this type of matter. 

24General deterrence clearly is a significant sentencing consideration.  Your offending must be denounced, and just punishment imposed.  Specific deterrence also has a role to play in sentencing you, in that you must be discouraged from any further offending of this type.

25There are a number of matters which operate in mitigation of sentence.  You have pleaded guilty, I accept that your plea of guilty is an expression of remorse, as well as being of utilitarian benefit.  Your comments at the record of interview suggest that you had at the time of offending a lack of insight into the capacity of underage girls to understand or consent to various forms of sexual activity.  You appear to have gained greater insight by the time of the psychologist's assessment, but nevertheless to a degree where minimising your offending suggests that your remorse is not to the full extent of remorse for this offending.

26It also suggests that you require further counselling or treatment in order to make sure that you do not again have any such thoughts, which appear to be particularly immature, of the type that you described in your interview with police.

27You have no prior convictions, and are otherwise of good character.  The references provided from your employer, co-worker and wife (Exhibit 3) support that conclusion.  Although less weight is given to that in offences of this type, nevertheless it is to be taken into account that you are of good character with no prior convictions, and that is a relevant matter to your rehabilitation.

28Since this offence, you have not offended, and have married.  You are in a stable relationship with your wife, who, as I have said, is aware of these offences and remains supportive of you.

29You have had some counselling since this offending, although according to the report from Mr Gault, you did not find that helpful.  Given the attitude that you expressed in the interview and with a psychologist, I am of the view that you ought to be required to undergo further counselling for the reasons I have previously stated.

30Section 17A(1) of the Crimes Act 1901 (Cth) must be taken into account in every case, and has particular bearing in this case. That section says that imprisonment is only to be imposed where the court is satisfied no other penalty is appropriate. Section 5 of the Sentencing Act 1991 (Vic) contains similar principles in relation to State offences.

31Even taking into account the need for general deterrence and just punishment, I consider that in this case, a sentence other than a sentence of imprisonment is appropriate. 

32In respect of the charge of grooming, which is the Commonwealth offence, you may be placed on a community correction order, if you consent.  A community correction order would provide for the opportunity for the seriousness of this offending to be reflected in its length, and in the conditions.  Work hours could be imposed, together with supervision, and the general restrictions inherent in a community correction order.

33The order would also, of course, allow for the opportunity for you to engage in a sex offender treatment program, if considered suitable for that. 

34In my view, the sentencing considerations required will be better met in this case by a community correction order, rather than a sentence of imprisonment, with delayed or immediate release on a recognisance release order.  In my view, a sentence of imprisonment is not warranted in this case, given the available alternative of a community correction order.  A recognisance release order could allowing for the undergoing of a sex offender treatment program, but would not otherwise have the same general conditions as a community correction order.

35In my view, the punishment that would be achieved through a community correction order would be entirely sufficient in this case for the sentencing purposes required, given the objective seriousness of the offence, together with matters personal to you.

36You are a young man.  Your offending took place when you were 23, and a youthful offender.  You are now still at the upper end of the age range for a youthful offender, being 25.  This is your first offence, you have a background of hard work, you have no mental health or drug and alcohol issues to impede your rehabilitation.

37You have been extremely foolish and morally wrong in your behaviour, but your history and the report, together with the references provided, suggest that you are capable of understanding that this behaviour is wrong, and doing something about it.

38Your rehabilitation is a very important sentencing consideration because of your young age, and because of the importance of protecting the community from any further offending by you.

39For those reasons, I consider the appropriate penalty, if you consent to it, in respective of each of the offences, is a community correction order.  Separate community correction orders would be imposed to reflect the difference in the seriousness of the offences, and the different maximum penalties available, as well as the fact that one offence is a Commonwealth offence, and the other is a State offence.

40You have been assessed as suitable for a community correction order.  The assessor in the report said that you have been assessed at low risk of reoffending, in view of using the tools that that assessor used.  The conditions that I propose to impose have been outlined to you, Mr Van Daalen, and I would ask you now to stand.

41The community correction order I intend to impose in respect of Charge 1 would be with conviction and last for two years, commencing today.  You would be required to do 300 hours of community work.  That community work would have to be performed cumulatively on the other community work that will be imposed in respect of Charge 2.  You would be required to engage in programs to reduce reoffending as directed.  You would be required to be under the supervision of Community Corrections staff.

42In respect of Charge 2, the community correction order I would impose would be with conviction and last for six months.  There would be 100 hours of community work, which again would have to be performed cumulatively on the 300 hours imposed in respect of Charge 1.

43I understand the core conditions have been explained to you, is that correct.

44OFFENDER:  Yes it is.

45HER HONOUR:  And I understand that Ms Caruso took you through the conditions that I intend to impose in these orders.  A very important condition is that if you breach the orders by not obeying directions, or by further offending, you can be brought back before me in breach proceedings.  You would then be at risk of a sentence of imprisonment, do you understand that.

46OFFENDER:  I do, Your Honour.

47HER HONOUR:  Do you consent to the community correction order?

48OFFENDER:  I do consent to it, Your Honour.

49HER HONOUR:  Thank you.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of 20 months, with a non-parole period of ten months.

50You have pleaded guilty to two offences which are regarded as Class 2 offences for the purposes of the Sex Offender Registration Act. You will be required to comply with the requirements of that legislation for a period of 15 years.  In a moment, my associate will come with your counsel.  You will be asked to sign the community correction orders. 

51You will also be asked to sign a document saying that you have received the sex offender registration documentation, my associate will give it to you.  So you will just be asked to sign it saying that you have received that documentation.  All right, thank you, could you take your seat?  Thank you. 
Ms Caruso, would you be able to go with Ms Alquist to get those documents signed?

52All right, now, Ms Caruso, Mr Crouch, is there anything of a technical nature that I have omitted to do that I need to do?

53MR CROUCH:  I do not think so, Your Honour.

54HER HONOUR:  All right, there were no forfeiture orders or anything such as that?

55MS CARUSO:  No Your Honour, there were some consent destruction orders, which were done between the parties.

56HER HONOUR:  Yes.

57MS CARUSO:  And I think the s.464ZF is not going to be proceeded with.

58MR CROUCH:  No, there is no application in respect of that.

59HER HONOUR:  All right.  So I think - now, if anybody sees any problems, please let me know as soon as possible.  Otherwise thank you for your assistance.  And Mr Van Daalen, I hope that is the end of your involvement with any of this type of offending, or any court matters in general, thank you.

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