Director of Public Prosecutions v Volovik

[2022] VCC 2184

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00783

DIRECTOR OF PUBLIC PROSECUTIONS
(CTH)

v

ANTON VOLOVIK

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2022
DATE OF SENTENCE:	6 December 2022
CASE MAY BE CITED AS:	DPP v Volovik
MEDIUM NEUTRAL CITATION:	[2022] VCC 2184

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Guilty plea – Child abuse material – Carriage service – High range offending – Imprisonment – Recognizance release order

Legislation Cited: S 474.22A Criminal Code Act 1995 (Cth) - S 20(1b), S 20(1A) and S 20(1B) Crimes Act 1914 (Cth) – S 6AAA Sentencing Act 1991 (Vic)

Cases Cited:DPP v Garside [2016] VSCA 74 - DPP v Watson [2016] VSCA 73 - CDPP v Zarb [2014] VSCA 347 - Hutchinson v R [2015] VSCA 115 - Worboyes [2021] VSCA 169 - Verdins [2007] VSCA 102 - DPP v O'Neil [2015] VSCA 235

Sentence:  2 years and 6 months imprisonment – Recognizance release order on own surety of $2,000 for a period of 1 year and 6 months, which comes into operation after serving 1 year gaol

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Thomas	Ms J. Pan
For the Accused	Mr J. Lavery	Ms C. Blakeney

HIS HONOUR:

1Mr Volovik pleaded guilty to one charge in the Commonwealth indictment laid on 2 June 2022, in a plea heard here on 30 November of this year.

2Mr Volovik was born in February 1987, at the time of this offending was aged 32, and is now aged 35.  At the plea, the DPP was represented by Ms Thomas and Mr Volovik was represented by Mr Lavery, both of whom appear today.

3The charge in the indictment was pursuant to s474.22A(1) of the Criminal Code Act (Cth). The charge being, to possess or control material obtained or accessed using a carriage service, that is child abuse material.

4The seriousness of such is indicated by the fact that the maximum penalty prescribed for this offence is 15 years.

5Exhibit A was the prosecution opening which was accepted by Mr Lavery as the facts upon which I am to sentence his client.

6The circumstances are unfortunately far too familiar to this Court.  Mr Volovik who has no prior offences and who to the age of 32 has lived a meritorious life, full of achievement, comes before the Court pleading guilty to this most serious of crimes.

7

In [19] of Exhibit A, is the chart of the child abuse material found at

Mr Volovik's premises on 5 December 2019. The background is that the prisoner went to Malaysia and returned to Australia with a new computer drive purchased there on 29 September 2019.  That is he returned to Australia on 29 September 2019.

8From that day he populated the new tower and computer with child abuse material (CAM).  As detailed, to the degree of 10,564 images and 389 videos.  In Exhibit C of the prosecutor's submissions, the degree of depravity was noted.  While Mr Lavery did not dispute the seriousness of the offending, in his submissions, Exhibit 1, he maintained it was a mid-range characterisation.  The prosecution maintained the offending was higher than that, in the totality of its circumstances.

9While it is something I try to avoid, it was necessary for me to peruse Exhibit D, the representative sample provided by the prosecution.  I gave Mr Lavery the option to do so, which he declined, thereby being content, on behalf of the defence, to abide by my determination. 

10Upon perusal of the represented material in Exhibit D, it is clear that the images are particularly detailed and almost medically clinical at each level.  The concentration as to the subjects is upon very young children, indeed in two instances babies.  The behaviour committed upon these very young children is quite depraved, I therefore accept that objectively at each level, the child abuse material is in the high range.

11

As to other aspects of the objective seriousness I refer to paragraph 5(b) of

Exhibit C of the prosecution submission and agree that items (III) and (IV) are not applicable, but all other aspects are.

12Mr Lavery questioned the determination of the number of children, being the actual number of children involved in these images and videos.  The Court can do no more than look at the number of images.  Whether one child is part of many such images essentially seems to me, not to the point.  I do however, accept Mr Lavery's submission that the crime was not aggravated in this instance by distribution or forwarding of this material to any other person, that it was a “one-off” situation, albeit one needs to understand the context involved in the placement of the child abuse material after the return from Malaysia.

13On the general principles exposed in DPP v Garside [2016] VSCA 74, [24], DPP v Watson [2016] VSCA 73, [89] and CDPP v Zarb [2014] VSCA 347, [27], as detailed by the prosecutor, I confirm my advice to Mr Lavery that given the circumstances of this offending a Community Correction Order was not appropriate.

14In that regard, I refer to the comments of Priest JA in the case of Hutchinson v R [2015] VSCA 115, [17] where His Honour said:

'Acknowledging that a CCO might be appropriate, "even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment", it should not be thought that Boulton offers a "Get out of gaol free" card, in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.  One of the purposes for which a sentence may be imposed is of course to punish the offender to the extent and in the manner that is just in all the circumstances.  There will be cases indeed many cases, where having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which in all the circumstances is just.  At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts including the circumstances of the offending and the offender and the circumstances of any aggravation or mitigation.'

15While submitting that immediate imprisonment was necessary in the totality of this case the prosecutor did accept, after hearing the plea material put by Mr Lavery, that a gaol sentence together with a recognizance release order was within the range.

16In that regard I was referred to s20(1b) and (1A) as to giving consideration as to the terms of such recognizance to encourage rehabilitation of Mr Volovik, albeit such was not mandatory given the date of the offending in this matter.

17Coming then to the plea of Mr Lavery.

18Firstly, Mr Lavery spoke to Mr Volovik's personal background and activities to which I have already referred, which were detailed specifically in Exhibit 2 by the Psychologist, Ms Cidoni, at [20]-[42].  As I have already said, he has been a conspicuous high achiever in all of those aspects.  Secondly, Mr Lavery spoke of the fact that he has no priors.  Thirdly, that his plea of guilty should be seen as one of genuine remorse and I accept that.  That it should be seen as utilitarian and as helping the course of justice which I also accept.

19In the particular circumstances that this community is currently met with, I also accept that pleas taken at this stage, which involve no need for trials, are on the principles set out in Worboyes [2021] VSCA 169, [39], are such that a more pronounced amelioration of sentence is applicable.

20

The fourth matter is that it was submitted that I should be particularly confident that Mr Volovik will effect rehabilitation and that he is a person who is capable of doing so. It is to be noted that the prosecutor raised the issue, detailed in

Ms Cidoni's report at [66], when considering the issue of his capacity to effectively rehabilitate that there was an admitted finding of his sexual interest in young females, which I have already indicated was very obvious from the material that I have had to view.

21

I accept also, there was an ongoing denial in the history to Ms Cidoni, at p14. 

Ms Cidoni speaks of that in the circumstances of the case.  However, I am totally satisfied given Mr Volovik's high intelligence that he will take the steps recommended by Ms Cidoni to effect his rehabilitation which is set out in her report at [87] and ensure that he is not involved in this type of criminality again, therefore ensuring that he will not have to endure the hardships which will be associated with the sentence.

22Specifically, I note that his wife is on maternity leave, having recently given birth to their first child in September this year.  No doubt, the impact of the sentence that is to be pronounced will be particularly marked because of that to Mr Volovik.

23Also, I am certain this conviction will in the future impact on his employment potential, where previously he has been a major achiever.  Mr Lavery in support of his submission as to consideration of the Community Correction Order and a sentence not involving imprisonment relied upon Verdins [2007] VSCA 102 in particular principles 1-4 and principle 5. As to principle 5, given the Cidoni report, I accept that the Asperger's diagnosis and the particular characteristics as detailed by Ms Cidoni in [88] will make prison more burdensome for Mr Volovik. Indeed it was this diagnosis, which led to the prosecutor amending its submission to include a recognizance release order in the range of appropriate sentences.

24Coming however to principles 1-4, I point out the need for what is described as, 'vigorous evaluation' as to such evidence when a submission is made to the Court in this regard, see DPP v O'Neil [2015] VSCA 235. Mr Lavery particularly relied on Ms Cidoni's opinions at [74] and [78] as to his client not fully understanding, owing to his high functioning autism diagnosis, the full implications of behaviour in this case both as to the victimisation and such being a serious breach of the law. Upon close analysis however of the report, it discloses that Ms Cidoni states, that Mr Volovik 'might' lack empathy or concern, see [74], and at [78] that many studies point to autistic people who may not fully comprehend what they are doing.

25I think the analysis of Mr Volovik's life even upon the civil standard, does not support such submission put by Mr Lavery.  As I said, he is a high achiever, a person who holds an Honours degree in Science and Information Systems.  He was working in Coles as a manager for 20 years and has otherwise conducted himself at a high intellectual level.

26The testing results in what is a threshold score of autism indicated in the circumstances that Mr Volovik has achieved, and he has not had any psychological or psychiatric assistance in his whole life. As is indicated, that life has been one of achievement.  While I am happy to conclude that such diagnosis may explain the intensity of his obsession and the volume of the images, I cannot conclude, as suggested by Ms Cidoni, that Mr Volovik had any doubts that what he was doing was illegal, nor that such actions particularly involved the abuse of young girls he was obsessing about, or that such material would be detrimental to their lives.

27I do not accept that such diagnosis provides any basis for reduced culpability or moderation of general deterrence.  I therefore formally reject this aspect of the plea.

28As I said, I accept principle 5 upon the basis of the diagnosis, although I also accept that gaol will be particularly burdensome for him because of the impact upon him of the loss of not only his wife but the situation in regard to his child.  I also note that his SORA obligations which have been necessitated by Act of Parliament.

29As detailed and not disputed, given the corruption and exploitation of the victims in this case, general deterrence, denunciation and punishment assume particular importance in cases of this type.  Taking all those matters into account I therefore sentence Mr Volovik as follows.

30Would you please stand Mr Volovik.

31On the one charge of breach of s474.22A of the Commonwealth Criminal Code you will be convicted and sentenced to imprisonment for two and a half years.

32I fix pursuant to s 20(1b) a recognizance release order upon your own surety of $2,000, which will be for a period of one and a half years, which therefore comes into operation after you have served one years’ gaol. The effect of that Mr Volovik is that you will be required to serve an immediate term of gaol for 12 months and for the balance of the period of your sentence, you will be released, after that 12 months, on a recognizance release order to be of good behaviour.

33It is not appropriate, simply because I do not have the power to take any further steps apart from recommending to you that pursuant to the recommendations of Ms Cidoni, upon you undertaking the recognizance release, you should effect the steps that she has indicated and further, it seems to me that you should be and should consent to being subject to supervision and to a probation officer assisting you as I understand the law however at the moment, given the date of your offending, I cannot do anything about that but make a recommendation.

34Although it is not necessarily clear as a matter of law, I do take the step of making a S 6AAA declaration, albeit it being a Commonwealth matter, doing as best as I can to comply with the requirements of Parliament, Mr Volovik, can I tell you, had you not pleaded guilty, you would not have been given a recognizance release order and indeed would have been given a sentence which amounted to three and a half years gaol with a minimum period to serve of 24 months.

35In the circumstance therefore you will see the benefit of your sentence and of your plea of guilty, meaning that as to immediate imprisonment you only have to serve one years' gaol and not two years' gaol.  As I indicated Mr Volovik I intend to direct the Correction authorities to be provided with the report of Ms Cidoni and her recommendations set out at [87], and that if possible those recommendations be undertaken while you're in gaol, or as, or during your period of recognizance.

36Mr Volovik, I am confident that you will take the necessary actions to ensure you do not end up in front of a court again, so I do hope that you voluntarily undertake supervision and appropriate probation and any other recommendations made when you enter into the recognizance release order, albeit I do not have the power to enforce those at this time.

37Yes, take a seat. I just want to clarify with counsel that you are happy with that. As best I can understand it, the recognizance release order should be in the following form. Court orders are released on the defendant under paragraph 21B of the Crimes Act after serving 12 months of a term of imprisonment forthwith by recognizance of $2,000 to comply with the conditions that the defendant, (a) be of good behaviour for a period of 18 months; and (b) to comply with the following further conditions if possible when on recognizance which I have recommended in the sentencing remarks. 

38That is that Mr Volovik make himself subject to supervision of a probation officer and obey all reasonable directions of the probation officer.  You might explain when you get the opportunity, insofar as that recommendation is concerned Mr Lavery that that is essentially the recommendation I make based on Ms Cidoni's report.

39MR LAVERY:  Yes, Your Honour.

40HIS HONOUR:  Can I just hand down the document to make sure everyone's happy with it?  I also didn't look particularly correctly at who was in Court, Ms Pan I do apologise, I said that Mr Thomas was here again and I do apologise.

41MS PAN:  That's all right, Your Honour.

42HIS HONOUR:  And Ms Thomas who appeared for the Director and Ms Pan who now appears in person.  Mr Lavery if I could just give you the background I was sent a draft which I returned to the prosecution, who understood that they had mistakenly included the circumstances which must become part of a recognizance release order in regard to these offences, but such doesn't apply to this particular offence.

43MR LAVERY:  Yes, Your Honour.

44HIS HONOUR:  They do apply after the date and that was accepted by the prosecutor.

45MR LAVERY:  Yes, Your Honour.

46HIS HONOUR:  But I have simply recommended that it would be appropriate for those steps to be taken, I can't do anymore than that.

47MR LAVERY:  Yes, Your Honour.  Your Honour I was copied in on the correspondence and so - thank you Your Honour.

48HIS HONOUR:  Yes, all right.

49MS PAN:  I might be of assistance Your Honour.  Whilst those conditions that are contained currently in s20(1B), whilst they're not mandatory given when the offending took place, Your Honour's still able to make those conditions should you wish to, so you have that power.

50HIS HONOUR:  I thought I didn't have the power, because those conditions weren't in at the time of the offending.

51

MS PAN:  Yes, that's right.  So they're not mandatory, you don't have to

make - - -

52HIS HONOUR:  But that's why I've recommended they should be there and I've said that it would be appropriate and I'm certain given Mr Volovik's intelligence that he'd be happy to comply with those.

53MS PAN:  Yes.  Sorry, I'm just trying to say that you're nevertheless able to make them should you wish to but you're not - yes.

54HIS HONOUR:  Well, I'm prepared to make them if I can.  Have you got any objection to me making those recommendations?

55MR LAVERY:  No, Your Honour.

56HIS HONOUR:  Yes, I just didn't think I could.

57MS PAN:  No, you can, Your Honour, they don't have to be recommendations, they can actually be conditions it is essentially - - -

58HIS HONOUR:  All right, well I'll make those conditions.

59MS PAN:  Yes, Your Honour, it will be essentially as if Mr Volovik was on a CCO, so Corrections would still supervise him as in the first time, yes.

60HIS HONOUR:  All right, so what are we - do we go back to the last draft that you gave us?

61MS PAN:  Yes, we can if you like Your Honour.

62HIS HONOUR:  Well, I can just - can we just amend mine.

63

MS PAN:  So, we can just amend this really just to say, 'To comply with the following conditions' and then just remove, 'if possible when a

recognizance' - - -

64HIS HONOUR:  Yes, all right.

65MS PAN:  So, where there's no extra conditions in terms of - yes.

66HIS HONOUR:  Thank you Ms Pan.

67MR LAVERY:  If I can just approach the dock, Your Honour.

68HIS HONOUR:  Yes, certainly.  Yes, thank you Mr Lavery.  Yes, the prisoner can be taken down thank you.  Good luck Mr Volovik.

69PRISONER:  Thank you Your Honour.

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