Director of Public Prosecutions v Walls

[2014] VCC 1606

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00193

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER WALLS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March, 10 April, 14 April 2014
DATE OF SENTENCE:	22 September 2014
CASE MAY BE CITED AS:	DPP v Walls
MEDIUM NEUTRAL CITATION:	[2014] VCC 1606

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Sheales	Office of Public Prosecutions
For the Accused	Mr M. Phillips	Victoria Legal Aid

HIS HONOUR: 

1Christopher Walls, you have pleaded guilty to two charges of using a carriage service and transmitting indecent communication to a person under 16, one charge of use of carriage service to procure a person under 16 for sexual activity and one charge of soliciting child pornography material using a carriage service.  The latter two offences carry maximums of 15 years' imprisonment and the first of seven years' imprisonment as maximums. 

2The offending involved three child complainants and were summarised in detail in the prosecution opening which was tendered as an exhibit and will be retained on the court file which I append to this sentence for future reference. 

3Briefly stated, the three child complainants were friends.  They were all from your local community in a relatively small regional town.  Sometime in 2012 you and 'K', who was 14-years-old, became Facebook friends.  I will refer to them by letters for anonymity and privacy reasons.  You had mutual Facebook friends.  You sent her a message of an indecent sexual nature.  You knew she was 14.  You sent her phone text messages telling her that you were masturbating and sent her a picture of your genitals.  She asked you how old you were and you replied saying you were 25 and that was in reference to Charge 1.

4Charges 2 and 3 are charges of procuring for sexual activity.  Complainant 'C' was between 14 and 15 and was not known to you personally prior to the offences.  'K' was her friend.  After becoming aware that 'K' had befriended you on Facebook, sent you a request.  Between January and July 2013 you communicated by Facebook and phone text messaging with the intention of procuring her to engage in sexual activity with you.  I will not recite these communications. 

5Suffice to say that you told her you were masturbating during your conversations, asked her to sneak out at night to see you to have sex with you and you sent her pictures of yourself.  You sent her a number of text messages which related to sexual arousal and in effect invited her to take part in sexual activity with you.  She refused your entreaties.  Also during these communications you asked her for photographs of herself naked or showing her breasts. 

6Charge 4 relates to Complainant 'T' who was 14-years-old.  She knew you had been communicating with 'C' and she also requested to be joined as a Facebook friend.  Within a short time of normal exchanges with you, you also transmitted indecent messages to her about your state of sexual arousal, inappropriate commentary and salacious invitations.  On one occasion, responding to her enquiry as to whether you knew how old she was, you replied "Yes I do". 

7At the time you had a girlfriend of similar age to you who later discovered these exchanges and complained to 'T's father of the communications which had taken place.  After this revelation and remonstrations, all complainants told their parents about their communication and the matter was reported to police.  You were interviewed by police and made full admissions including admitting knowing the complainants were under 16, speaking to them in a sexual manner, sending inappropriate pictures and admissions as to the procuring charge. 

8You were 25 and 26-years-old at the time of the offending.  You are now 27-years-old.  You were charged in October 2013 and in February 2014 at the first committal mention you pleaded guilty. 

9I have received and have taken into account victim impact statements from 'C', 'K' and 'T'.  'C' has written of the anxiety and concern these matters have caused her.  After your interview you still lived nearby and this proximity caused consternation and hyper vigilance.  She was naturally concerned about rumours and repercussions in a small community where public knowledge can be damaging to reputation.  'K' has written that the friendships she has have been affected because of loss of trust and openness.  She has experienced anger and disgust, anxiety and concern affecting her confidence in others and in the use of social networks, which can be a source of connectedness and communication. 

10'T' has written of her ongoing anxiety of meeting you accidentally in that area, and of her fearfulness.  The impact on these complainants is natural and understandable.  Young people have become accustomed to open communications over social networks and phones to an extent which pervades their lives.  This case is similar to many that are seen more frequently in our courts which provide a timely and salutary warning to young people, parents and families generally to be vigilant and sensible about their social networking, and to parents in particular not to surrender too easily and carelessly their responsibility to monitor and regulate such exchanges. 

11It is an increasingly difficult task, given the frequency and significance attached by young people to such ongoing stream of communication which is often trivial, superficial and utterly useless.  However, it must be recognised that there is a social usefulness imbedded within it.  It is in this context that the law has sought to regulate its infiltration by behaviour which seeks to exploit it for criminal or indecent purposes.  You may not have been exploiting the anonymity that often comes with internet exchanges but the procurement offence targets adult offenders who use these ways of communication to win trust and groom children with a view to sexual contact.

12In cases of procuring it is clearly appropriate to give consideration to the principle of general deterrence.  Adults who use the internet must know that it's used to procure children to engage in sexual activity can expect the punishment because there is a paramount public interest in protecting children from sexual abuse and sexualisation.  I consider that although your offending does not lie at the highest end of this type of offending, that certain aspects of it nevertheless is offending which the court must denounce and punish.

13Here there were real child victims, rather than fictitious or victims made up by police to investigate behaviour.  The age difference speaks of itself, as does the duration and frequency and nature of the communication.  The nature of the indecent material and proposed sexual activity is also relevant, and although those caught up in it may consider it to be of a high order, the court sees much worse indecent material than what is produced here.  The number of images may be small but it's nature is no doubt pornographic and offensive when sent to child complainants in this fashion. 

14The court must endeavour by its pronouncements to protect children from conduct that sexualises and exposes them to sexual activity at an age when they are ill-equipped to protect themselves and respond appropriately or in their own interest.  Fortunately here the complainants did respond adequately enough but the reality and potential of your offending still warrants consideration for general deterrence to be primary. 

15I take into account your personal circumstances.  You have no prior criminal history and this is a significant matter to be noted.  However, as authority clearly establishes, such prior good character will ordinarily be of less weight in relation to these type of offences.  Your lack of priors and good character still bears upon the disposition, however, and in my view is a relevant matter which has a weight in its final reckoning.  But in the context of this offending greater weight must attach to general deterrence, as I have said, than to what would otherwise be a significant mitigating factor. 

16I take into account your plea of guilty which was entered at the earliest opportunity.  This was the result by operation of law in a discount on your sentence which recognises that such a plea facilitates the course of justice and represents acceptance of responsibility on your part.  It is of significance because it has a utilitarian benefit of having saved the community the costs of a trial and served the complainants by saving them the difficulties associated with giving evidence during such a trial.  I also accept that because of the circumstances personal to you, and the way in which they impacted upon you, that your plea is accompanied by remorse and regret at your behaviour. 

17I take into account your background and history.  You were born and raised in Alexandra after your earliest years in Werribee.  Both of your parents have been in court, both at the plea and today, and in my view the fact that you have their support will probably mean that you will have available to you a positive network of affection and experience, which are positive factors for your long-term rehabilitation. 

18Your father served as a policeman for some 30 years and gave evidence on your behalf.  Your mother works as a nurse locally.  This positive family environment is a matter I take into account in assessing your prospects of rehabilitation.  You have a younger brother and sister.  You had an unremarkable childhood and educational history.  You completed your VCE in 2004.  You worked in retail for a year after this.  Between 2005 and 2009 you had employment in a supermarket and a sawmill.  In 2009 you secured employment with a ski hire business but left there in 2013. 

19It seems that since school you have been aimless and rather lacking focus and clear direction.  Your father who runs a handyman business employed you but eventually you did obtain a forklift and heavy truck licence and you started a Certificate in Warehousing, which will enable you to be engaged in the transport industry with a focus on warehousing skills.  Or at least, that was the situation upon your plea which has now changed. 

20You had a relationship for three years from 2009 to 2011, after which you returned effectively to live at your parents, except for a short period with friends.  You moved to Ballarat as a result of these matters before the court and your then girlfriend moved there with you.  You have no physical ailments, and apart from recent psychological sessions, you have not had any mental health issues. 

21The court received two reports on your behalf.  The first was prepared by Mr Craig Wilson, a psychologist.  You first saw him in September 2013 prior to being charged.  His report is of February 2014 and you have seen him up to August 2014.  It contains his opinion that you exhibit symptoms of ADHD, that you have insight into your offending and its consequences, that you are remorseful and that you are at low risk of re-offending according to the tests that are administered in these circumstances. 

22His report focused particularly on your lack of impulse control and lack of focus.  I consider that your self-referral to Mr Wilson, no doubt facilitated by your family to gain insight as to the motivation for your behaviour, is a positive factor which I take into account as favourable to your prospects of rehabilitation. 

23I also received the report from Ian Jobling, a very experienced forensic psychologist, his report dated 4 April 2014.  That report focuses on your offending and has provided another assessment.  It is clear that you were bored and took refuge in the Facebook interactions at the time.  Mr Jobling's expertise is well known to the court and he considers you neither a paedophile nor a social deviant but that the communications clearly involved sexual gratification. 

24Fortunately I do not have to deal with, or speculate about, any meeting or encounter between you and the victims but there is little doubt, as acknowledged by you, that the content was growing out of control.  The risk involved in the communication also provided you with evident stimulation and excitement.  Your Facebook friendships and real friendships with real people tends to indicate in Jobling's opinion some degree of inadequacy in your personality and psychological state. 

25I accept that you recognise the seriousness and inappropriate nature of the offending.  I also consider that some specific deterrence must be a relevant factor in this sentence.  Despite the vigilance of those around you, and that your circumstances may have been difficult, I consider that the sentence should emphasis to you specifically that such behaviour is unacceptable, and should occasion present itself in the future.  I heard evidence from your father, who gave impressive evidence of the support you can expect to receive now and in the future.  I consider in totality that your prospect of rehabilitation and reclamation are good. 

26I have reviewed a large number of authorities which deal with these type of offences and have been assisted by the material provided by the prosecution in clarifying current sentencing practices.  I take into account also the matters contained in Part IB of the Commonwealth Crimes Act and specifically the principles in s.17A, the factors listed in s.16A of that Act.  Although I have outlined all the relevant matters going to mitigation, in my view these matters do not overcome or outweigh the need to impose a term of imprisonment as a reflection of the seriousness of the conduct to which you pleaded guilty.  However, it is also made clear by s.17A that imprisonment is to be a sentence of last resort and only to be imposed where a court is satisfied no other penalty is appropriate in the circumstances of the case. 

27In my view, although a period of imprisonment is warranted, there are factors which indicate that that period of imprisonment should not be immediately required.  If you can stand up please, Mr Walls?

28On the use carriage service to transmit indecent communication to a person under 16, Charges 1 and 4, you are convicted and sentenced to four months' imprisonment on each charge.

29On Charge 2, using a carriage service to procure a person under 16 for sexual activity, you are convicted and sentenced to 18 months' imprisonment.  This is the base sentence. 

30On Charge 3 of soliciting child pornography using a carriage service, you are convicted and sentenced to six months' imprisonment. 

31I order that one month of Charge 1, one month on Charge 4 and two months on Charge 3 be served cumulatively on Charge 2, making a total effective sentence of 22 months.  That sentence will be wholly suspended for 24 months under s.21B of the Crimes Act 1914.  I have considered s.19(4) and decline to make a reconnaissance release order.  I have determined that such a sentence is appropriate because of a number of factors.  I have mentioned some of them already and I have received further material this morning which I have taken into account in this decision. 

32The letter from Mr Wilson, who provided a report, was received confirming that you had attended upon him this year.  I also received certificates pertaining to your recent life matters, since the matter was adjourned by me in April of this year.  A number of significant matters, in my view which are protective aspects, confirm what Mr Wilson considered low risk of re-offending in his report, and what Mr Jobling opined in his report, have been considerable deterrent value.  These are materialised as positive advancement in these months.  They were described in a letter by your father which was tendered as an exhibit. 

33In that document he outlines in detail what you have completed in terms of educational training and that you obtained qualification certificates which have allowed you to seek and obtain good employment, which has not only given stability but realistic prospects for advancement.  You have relocated from Ballarat to Melbourne where you will manage your life in a more mature and independently responsible fashion.  You have no Facebook account, or social media forums, participation.  This has been monitored by your father, who has described himself as a lifetime parole officer. 

34Apart from this you have removed yourself from past patterns of relating involving your last relationship.  You have resumed daily contact with your parents and have reconnected with your siblings who live close by in Melbourne.  In my view these matters are significant enough to indicate you will understand that this sentence will hang over your head for two years.  Should you commit any offending during that period you will breach this sentence.  You will then be re-sentenced by me about these offences and you will be re-sentenced on the breach of that suspension. 

35But for your plea I would have imposed a sentence of 30 months with a non-parole period of 12 months.  As a result of your conviction you have become a registrable sex offender under the Sex Offender Registration Act and your reporting obligations last for 15 years.  During that time you will be subject to onerous obligations which will regulate most aspects of your life substantially.  That is including travels, your ownership and registration of phones, your internet use, house accommodation, addresses, contact with children and other assorted matters, including things as insignificant as tattoos and otherwise. 

36Your obligations to report changes in each and many other of those things will continue for the entirety of those years.  You will receive a document which will outline those obligations and I suggest to you that you study it very carefully and you make a concerted plan to report those matters to the police on a regular basis.  Those things are monitored very carefully and the prospects of you breaching those offences means that you will be brought back to court for having breached that registration regime.  Do you understand?

37OFFENDER:  Yes I do.

38HIS HONOUR:  Ms Sheales, I think I'm correct in saying that I have the option of whether to impose a recognisance release order.  Isn't that so?

39MS SHEALES:  No, Your Honour.  It's under three years so it will have to be a recognisance release order.  It's three years and over is you can impose a non-parole period.  And also just in relation to the cumulation, that will need to be effected by setting commencement dates for each of the charges. 

40HIS HONOUR:  Yes.

41MS SHEALES:  So if Charge 2 is the base, that can start today. 

42HIS HONOUR:  Yes.

43MS SHEALES:  Then if Charge 3 commences 14 months after the commencement of Charge 2.  Charge 4 starts three months after the commencement of Charge 3.  And then Charge 1 commences one month after the commencement of Charge 4.  That should get us to 22 months. 

44HIS HONOUR:  Yes.  And the recognisance release order?  What's the starting date? 

45MS SHEALES:  I beg your pardon? 

46HIS HONOUR:  The starting date for that?

47MS SHEALES:  It will be today. 

48HIS HONOUR:  That will be of today?

49MS SHEALES:  That's how he's released forthwith, yes.  And Your Honour will just have to set an amount, although that amount is not payable by the offender unless breached.

50HIS HONOUR:  I understand that. 

51MS SHEALES:  And a period of good behaviour. 

52HIS HONOUR:  And it will be for a period.  Given the period of suspension is for 24 months that your recognisance release order will be for the same period. 

53MS SHEALES:   Yes, Your Honour.  I'll just prepare those orders. 

54HIS HONOUR:  Thank you.  Thank you, Madam Prosecutor.  You will enter additionally into a recognisance release order in the sum of $1,000 for a period of 24 months.  That release order also imposes an obligation for that order not to be breached during that period of time by further offending or matters which can bring you back before the court.  If you do breach such an order not only will you brought back before the court, you will forfeit and be liable to pay the amount of the order. 

55As was outlined and that has changed, the base sentence begins today, 22 September 2014.  The sentence in relation to Charge 3 begins 14 months after the commencement of Charge 2.  In relation to Charge 4, the sentence will commence three months after Charge 3, and Charge 1 will commence one month after the commencement of Charge 4.  Thank you, Ms Sheales.  (To Witness) Take a seat. 

56Mr Phillips, you're probably aware of the fairly onerous obligations that accompany both a suspension of a sentence, the recognisance order and the registration for 15 years.  I'd ask you to go through that material with your client and indicate to him that he's got significant obligations during particularly the next two years, but ongoing until that registration finishes.  That's a long period but it involved matters which impact on his life every day. 

57MR PHILLIPS:  Yes, certainly. 

58HIS HONOUR:  He will have to report them to police as things change.  We've had a lot of instances recently in this court.  I mentioned tattoos because even in relation to a matter like that, where a person gets a tattoo, that has to be reported to police. 

59MR PHILLIPS:  Yes.

60HIS HONOUR:  Where a mobile number is changed, where an address is changed, where travel arrangements are made, both departing and returning, and things of that nature.  Leaving aside more important conditions in relation to working with children or being in the proximity of children during that period of time. 

61MR PHILLIPS:  Yes, certainly.  Those matters will be gone through in detail, Your Honour.

62HIS HONOUR:  Yes, thank you. 

63MS SHEALES:  I have draft orders, Your Honour.

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HIS HONOUR:  Thank you.  Have Mr Walls sign these please,

Mr Sagnelli.  I would suggest, Mr Walls, that you stay away from social networks.  The information that I have about your work hours and where you're working and your reconnection with your family and what's happening in relation to that indicates that you've got probably by this stage and at your age better things to do with your life.  I think you should have absolutely no doubts that especially in that period of time which is covered by the suspension of this sentence, that if you reoffend in any manner similar to what's come before the court you will be looking at a lengthy prison sentence.  Do you understand what I'm saying?

65OFFENDER:  Yes, I understand. 

66HIS HONOUR:  You're fortunate that you have parents who have taken the time out to ensure that something positive happens for you in the future.  I suggest that you maintain contact with them if you can. 

67MR PHILLIPS:  Your Honour, I've been provided with a copy of those orders by Your Honour's Associate.  Might I approach Mr Walls to get him to sign them?

68HIS HONOUR:  Certainly. 

69MR PHILLIPS:  Your Honour, three copies of the recognisance release order have been signed by Mr Walls, together with the notification of the reporting obligations under the Sex Offender Registration.

70HIS HONOUR:  Yes, thank you. 

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