Director of Public Prosecutions v Vann
[2018] VCC 2010
•16 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-01565
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY VANN |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2018 | |
DATE OF SENTENCE: | 16 November 2018 | |
CASE MAY BE CITED AS: | DPP v Vann | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2010 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Use carriage service to procure person under 16 years of age for sexual activity
Legislation Cited: Sentencing Act 1991 (Vic), Sex Offenders' Registration Act 2004 (Vic), Crimes Act 1914 (Cth), Criminal Code (Cth)
Cases Cited:
Sentence:2 years’ imprisonment: to be released after 6 months on recognisance of $2,000 to be of good behaviour for 18 months and attend programs
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr P Darby | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr S Kelly | Dessi Legal |
HIS HONOUR:
1 Anthony Vann, you have pleaded guilty to one charge of use a carriage service to procure a person under 16 years of age for sexual activity contrary to s.474.26(1) of the Commonwealth Criminal Code.
2 The maximum penalty for this offence is 15 years' imprisonment.
3 You are presently 44 years of age, having been born on 26 May 1974, and you were aged 43 when this offending occurred in April this year.
4 You do have a criminal record, albeit minor, for an appearance at the Ringwood Magistrates' Court in 2003 where, for behaving offensively in a public place, you were convicted and fined $150.
5 At the time of the current offending you were living with a housemate in Croydon and you were employed as a receiving manager for a curtain and blind company.
6 The circumstances of your offending are as follows.
7 On 9 April 2018 you used your Facebook profile in the name Anthony Vann to send an unsolicited friend request to a person with a profile in the name "Emily James". “Emily” was in fact an undercover investigator from Victoria Police who was purporting to be a 14-year-old girl.
8 Between 9 April 2018 and 24 April 2018 you and Emily regularly engaged in online conversations using Facebook Messenger.
9 On 9 April 2018:
a.you and Emily introduced yourselves.
b. Emily told you that she was 14 years old.
c. you asked Emily if she had a boyfriend.
d. you said that you had had your nipples pierced, and said “I’m sure your [nipples] will keep growing for some time yet” and asked Emily if she had huge boobs.
e. you asked Emily what part of Melbourne she lives in, and she told you that she lives in Bentleigh.
f. you asked Emily if she would like an “underwear pic” and then sent her a picture of yourself in your underwear.
g. you said that your plans for the night were to “chat with [Emily]… and get really naughty.”
h. you and Emily then engaged in sexualised exchanges including the following:
·How you would like her to masturbate you
·Whether she was ‘horny’
·How she should masturbate herself
·How sexually excited you were ‘teaching’ her
·How you would like to meet her somewhere to ‘teach’ her
·How you would like to sexually touch her
·How you would like her to give you oral sex
·That you were masturbating as you were speaking to her, and that you had climaxed
i. Emily then gave you a mobile number. You sent a text message to that number shortly afterwards and you both engaged in a brief conversation in which you asked Emily if she had any pictures of herself.
10 On 10 April 2018 you sent Emily a Facebook message and a text message early in the morning. The two of you then resumed the conversation that afternoon:
a. You asked Emily if she had been thinking about being taught some hot stuff and if she had taken a picture.
b. Emily did send a picture and you said she looked very pretty. You also said her boobs looked bigger than a b cup and said you would like to touch them.
c. You then engaged in an exchange about a potential meeting in a park near her home.
11 On 11 April 2018:
a. You sent Emily a Facebook message and a text message early in the morning.
b. Emily told you to have fun at work, and you said you would much rather have fun with her.
c. Emily sent you a text message saying she can’t meet you on Sunday because she has her cousin's birthday, but says she has got her term 2 timetable and she only has a half-day of classes on Tuesdays.
d. Later that day, on Facebook Messenger, you both discuss Emily not being able to meet on Sunday. You say it is totally fine. You say it would be hard to meet on a Tuesday but you may be able to make your rostered day off a Tuesday.
e. You talk about spanking Emily for her “badness”.
12 On 12 April 2018:
a. You again sent Emily Facebook messages early in the morning.
b. You both engaged in a conversation later in the morning during which you mentioned that you had taken a photo of your penis and then sent Emily a photo of an erect adult penis and asked if she like it.
c. You had a further conversation that evening in which you discussed topics such as going to the city, going to the movies, the football and the weather.
13 On 16 April 2018 Emily initiated a conversation with you but you were generally unresponsive.
14 On 17 April 2018 you asked Emily how her half-day was and said you would try to get a Tuesday off soon and engaged in a further short exchange.
15 On 18 April 2018:
a. You asked Emily if she had experimented with drinking or smoking.
b. You asked Emily if she was free on Anzac Day and then you had a discussion about meeting at the Bentleigh Reserve and whether she would feel comfortable touching you.
c. Later in the day Emily said, "I can do Anzac Day if you still want to". You responded, "sounds good", and asked if there was anything in particular Emily wanted to do.
16 On 20 April 2018:
a. You and Emily had a conversation about the weekend, local football and Emily’s family. Emily said that she didn’t know her dad. You later asked Emily if not knowing her dad made her attracted to older guys.
b. You asked Emily if she was curious about sex, and when she said she was not interested in anyone at school, you asked her if she preferred older guys.
c. You said you would like to touch Emily when they meet. You then described how you would like to masturbate her.
d. You asked Emily if she had any g-strings. When she responded that she had a pink g-string, you asked if she felt sexy wearing it.
e. That night you had a further conversation, and you said you were getting horny thinking about Emily and that you may need to wank soon.
17 On 23 April 2018 you asked Emily if she wanted a "naughty pic" and then sent a full frontal nude picture of yourself. You then asked Emily if she had ever thought about taking any “naughty pics”.
18 Later in the day Emily said Wednesday (which was Anzac Day) "won't be a problem", as her mum would be in the city after lunch. You said you were “very keen”.
19 On 24 April 2018 you and Emily spoke about a Harry Styles concert which Emily said she had been to that night. You also discussed you being stuck in traffic and that you were rushed. You suggested that the two of you meet another time when Emily had decided what she wanted to do.
20 On 25 April 2018 Emily sent a message to you asking if you were meeting today or not. You did not respond.
21 Later on 25 April 2018, when it became apparent that you had decided not to meet with Emily as planned, police executed a search warrant at your home. You were present and you were cooperative with the police investigation.
22 At the completion of the search warrant on 25 April 2018 you were charged in relation to the conversations and released on bail.
23 A filing hearing was held on 27 April 2018.
24 At the first committal mention on 3 August 2018 you entered a plea of guilty to the single charge now on the indictment. The matter then proceeded by way of straight hand-up brief.
25 I now turn to your personal circumstances.
26 As noted earlier, you are presently 44 years of age and you were 43 when this offending occurred earlier this year. You have one prior conviction for an offence which I consider has little significance in the present circumstances.
27 You have described a childhood characterised by detached and neglectful parents involving some physical violence from your father and verbal abuse from your mother. You now have a poor relationship with your parents and have not spoken to them for about 12 months.
28 You enjoyed school but found your academic progress plateaued at Year 12 and you felt you had hit a wall.
29 Your employment history has been consistent and mostly involved in warehousing. At the time of offending and at present you are employed as a receiving manager responsible for coordinating deliveries to customers.
30 You have had a number of adult heterosexual relationships over the years and have a child now aged 13 whom you see every third weekend.
31 A psychological report from Dr Annabel Chan was tendered on your plea. Dr Chan described you as having presented as "a lost and lonely man with notable angst about his life's directions". You also exhibited notable anxiety about the current court proceedings.
32 Formal testing indicated symptoms of stress, anxiety and depression in the normal range as well as a profile of severe relationship deficits, emotionally detached, with difficulties in forming and maintaining relationships. Your avoidance of emotional engagement appears motivated by hypersensitivity to rejection. You may use fantasy as a main defence mechanism.
33 Dr Chan opined that your disorganised attachment style makes it difficult for you to sustain relationships and maintain meaningful social bonds. Your resultant loneliness makes you vulnerable to seeking maladaptive ways to feel wanted, competent and worthwhile.
34 In summary Dr Chan considered that you did not present as a high risk offender, rather as a traumatised individual who has developed maladaptive defence mechanisms upon which you rely to manage both desire and fear of emotional connections. You require support in minimising the risk of future sexual offending and may experience deterioration in your mental state if required to serve an extended period in detention.
35 I note that you do not use illicit drugs and alcohol assumption is limited to a social basis.
36 The offending remains obviously serious notwithstanding that the perceived ‘victim’ was in fact a covert police officer. The intended procurement of children through internet sites is, unfortunately, not uncommon and is to be deplored. The authorities are expected to protect the rights of children and the process undertaken by police on this occasion was directed to that end.
37 This type of offence has the potential to do great damage to children as the offending is hard to detect, and general deterrence is of particular significance when sentencing. There is a paramount public interest in protecting children from sexual abuse and the courts have reiterated that those who engage in this behaviour can ordinarily expect to receive a term of immediate imprisonment.
38 Generally in cases of this type, personal mitigatory factors and prospects of rehabilitation must be accorded less weight than might otherwise be given.
39 I have taken into account the matters set out in the provisions of s.16A of the Crimes Act 1914 (Cth) and in particular s.17A of that Act.
40 Your counsel submitted that in all the circumstances a community correction order was in permissible sentencing range, given your personal background and, in particular, that you had ultimately refrained from meeting with your perceived victim.
41 You have been assessed as suitable for such an order.
42 The prosecution submitted that, given the seriousness of this type of offending, the nature of your repeated remarks to your perceived victim and the clear pronouncements of intermediate appellate authority, a sentence involving a term of imprisonment is required.
43 In mitigation I take into account the matters urged on your behalf by your counsel, including:
· your early plea of guilty, both for its utilitarian value as well as expression of remorse;
· your cooperation with the police - I accept that you have demonstrated genuine remorse and subjective acceptance of responsibility;
· your consistent history of employment;
· your detached personality state which is likely to have made you more vulnerable to this type of aberrant behaviour;
· that you ultimately refrained from completing the arranged meeting with the ‘victim’; and
· that you have not been assessed as a high risk re-offender and I accept that, with psychological intervention, your prospects of rehabilitation are good.
44 During the course of the plea hearing each counsel made submissions as to comparable sentencing decisions. Particular attention was directed to the circumstances in the case of Singh[1].
[1]DPP v Singh [2017]] VSCA 146
45 I accept that recent comparable sentencing decisions are helpful as guidance, however each case must turn on its own facts. The courts have been consistently clear that a sentence of immediate imprisonment should ordinarily be expected for this type of offending.
46 I have read and considered the material provided by the parties concerning like cases, and I have also read the original sentencing remarks of His Honour
Judge McInerney in the sentence of Singh at first instance[2].
[2]DPP v Singh [2016] VCC 2016
47 Whilst in your case the gravity of offending was not aggravated by actually proceeding to meet the perceived ‘victim’, as it was in the case of Singh,
His Honour Judge McInerney gave specific emphasis in his decision to the relatively younger age of the offender, and in particular that offender's emotional immaturity, naïvete, culturally sheltered upbringing and lack of life experience. The Court of Appeal, when deciding not to interfere with His Honour's sentence, remarked upon this aspect of His Honour's sentence.
48 I note also that, although some photographs were also exchanged in Singh's case, they were accepted as not being of a “lewd” type. Yours were of a different character - quite lewd - and at age 43 you are a mature adult and expected to act responsibly.
49 In my view, the circumstances in Singh are distinguishable from yours. I note also that the Court of Appeal stated that the original sentence was "remarkably lenient", that it was considering the sentence in the more restrictive context of appellate procedure and that the disposition was not one that the Court would have imposed had it been exercising the sentencing discretion itself.
50 I am satisfied that in all the circumstances, having considered all available sentences, no sentence other than one involving some term of immediate imprisonment is appropriate.
51 Mr Vann, could you please now stand.
52 I propose to sentence you to a period of imprisonment which I intend to partially offset by way of a Commonwealth recognisance order. It is similar to a partially suspended sentence of imprisonment.
53 The purpose and effect of the recognisance order is to grant you conditional freedom from its commencement. The conditions are that you be of good behaviour for a period of 18 months and that you attend for assessment and programs as ordered.
54 If you breach the recognisance order - which comes into effect in six months' time - you will be brought back before the court, and most likely that will be before me, to be dealt with for that breach and to be re-sentenced. The order may be extended or revoked and you may be required to serve the remaining term of imprisonment. A breach would also mean, in this case, that the sum of $2,000 would be forfeited.
55 You should also bear in mind that, having given your recognisance, either you or the Commonwealth Director of Public Prosecutions may apply to vary or discharge that order. Do you understand that, Mr Vann? You do not. All right.
56 It simply means that given the recognisance to be of good behaviour for a certain period with conditions, at some stage if your circumstances materially alter you can apply to the court to vary or discharge that order. That is what it means and your counsel will explain that more completely if you still have some confusion about it.
57 On Charge 1 of using a carriage service to procure a person under 16 years of age for sexual activity you are convicted and sentenced to two years' imprisonment.
58 I order that you be released under sub-s.20(1)(b) of the Crimes Act 1914 after serving six months of the sentence imposed upon you giving security by recognisance of $2,000 to comply with the following conditions:
(a) that you be of good behaviour for a period of 18 months;
(b) that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 18 months; and
(c) that you attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
59 This sentence commences today.
60 Mr Vann, do you understand the terms and conditions of the recognisance order?
61 OFFENDER: Yes, Your Honour.
62 HIS HONOUR: Thank you.
63 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is three years' imprisonment with a non-parole period of 24 months.
64 I will give you a copy of the recognisance order which I have already signed and I will ask you to sign an Acknowledgement that you have received it shortly. There is a further matter to which I need attend. You may be seated for the time being.
65 The offence to which you have pleaded guilty is a registrable offence pursuant to the provisions of the Sex Offenders Registration Act 2004, and by reason of you being sentenced for this offence you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
66 Further, pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.
67 I am also required to inform you of the length of your reporting period, which in your case is for eight years.
68 My associate will shortly hand to you the Notice Of Reporting Obligations which I have already signed. Your representative in court today, Mr Kelly, will ensure that you understand the requirements set out in this Notice. I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notice and to return the Acknowledgment to my associate.
69 So we'll just pass you the recognisance order and sex offender registration material through Mr Kelly. Could you make sure that Mr Vann does understand the conditions both on the recognisance order and the sex offender registration material? Thanks, Mr Kelly.
MR KELLY: Thank you, sir.
HIS HONOUR: All done? All right. Thank you. Mr Vann, may be removed now. I'll just remain here for a moment because I need to speak to counsel in the next matter. Thank you both, Mr Kelly and Mr Darby. Nothing further?
MR DARBY: As Your Honour pleases. Thank you.
MR KELLY: As Your Honour pleases.
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