Director of Public Prosecutions v Wesley Frank (a Pseudonym)
[2022] VCC 811
•3 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WESLEY FRANK (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2022 (Arraignment) | |
DATE OF SENTENCE: | 3 June 2022 | |
CASE MAY BE CITED AS: | DPP v Wesley Frank (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | 2022 VCC 881 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords Sentence – Grooming child for sexual conduct
Legislation cited s.49B Crimes Act 1958; s.49M Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:Markovic v R (2010) 30 VR 589; R v Verdins (2007) 16 VR 269; DPP v Tuting [2019] VCC 688; Tuting v The Queen [2018] VSCA 338; Gray (A Pseudonym)v The Queen [2018] VSCA 163; Worboyes v The Queen [2021] VSCA 169; DPP v Bourke [2020] VSC 130; Re Diab [2020] VSC 196; DPP (Cth) v Stanley (a pseudonym) [2020] VCC 898.
Sentence: Total effective sentence of 4 years’ and 2 months’ imprisonment with non-parole period of 2 years and 6 months; Sex offence registration for 15 years; Section 6AAA declaration of 6 years’ and 4 months’ imprisonment with a non-parole period of 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Farrell (Arraignment and Plea) Mr A McHenry (Further Plea) | Office of Public Prosecutions |
| For the Accused | Mr A Marshall (Arraignment) Ms A Burnnard (Plea and Further Plea) | KPW Lawyers |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the offender, victim and family or witnesses.
HIS HONOUR:
Introduction
1Wesley Frank[1], you have pleaded guilty to one charge of Grooming for Sexual Conduct With a Child Under the Age of 16 Contrary to s.49B of the Crimes Act 1958, (which has a maximum penalty 10 years' imprisonment), and one charge of Grooming for Sexual Conduct With a Child Under the Age of 16 Contrary to s.49M of the Crimes Act 1958, (likewise having a maximum penalty of 10 years' imprisonment). [2]
[1] A Pseudonym
[2]You initially pleaded guilty to a summary charge relating to failure to answer bail on 10 January 2020. Because of the diligence of present counsel, a lawful reason, that always appeared to exist for this failure to appear was evidenced to the Crown and the Court. You withdrew your plea to that charge and the charge was withdrawn
2From June 2017 to October 2019, you groomed your victim, Kristen George[3], a child under 16, for sexual conduct. Your victim was born in December 2003, making her 18 years of age now. She was 13 to 15 years of age at the time of the offending and had met you through her mother.
[3] A Pseudonym
3The victim communicated with you via the social media application Snapchat. The victim viewed you as a father figure and referred to you as her stepfather.
4The victim's mother is Jeanette Holmes[4]; she was 37 to 39 years of age at the time of the alleged offending. Ms Holmes worked as a personal care attendant and lived with the victim. She had escaped domestic violence in a previous relationship and was looking to meet someone who was caring, not abusive and who would not hurt her.[5] She found you instead.
[4] A Pseudonym
[5]Depositions at p. 51
5On 22 May 2017, you commenced an online relationship with Ms Holmes, after meeting on the adult internet dating site, Zoosk. You communicated often, if not daily, before meeting face to face on several occasions between January 2018 and May 2019.[6]
[6]In the document filed as Exhibit 1 (which contained a list of factual matters raised in the Summary of Prosecution Opening that you did not agree with) it was asserted it was often, but not daily.
6In June 2017, shortly after meeting you on the website, Ms Holmes moved from Queensland to Victoria, as she believed she was in a long-distance relationship with you. She believed that you had become engaged in December 2018 and she had purchased a ring for herself to wear.[7]
[7]I note that you did not believe you were engaged
7Between June 2017 and October 2019, you sent the victim numerous sexually explicit messages, ultimately seeking to have sexual intercourse with her. This is the subject of both Charges 1 and 2. The charges cover precisely the same type of offending that would be, but for a change of legislation during the offending, the subject of a single charge. I will turn to the offending now.
The Offending [8]
[8]Exhibit A – Summary of Prosecution Opening 11 January 2022
8On 21 May 2017, you initiated contact with the victim's mother through Zoosk. You are said to have introduced yourself using the name, Brad Harper.[9] Your dating profile contained photographs of yourself.
[9]Exhibit 1 – being a brief document filed on the 7 February 2022, whereby through your counsel you identify factual issues with the first of such issues being that you agree that you made contact through Zoosk, and that you replied to a message from her. You deny ever using a false name
9One of the first questions you asked Ms Holmes was whether she had a Snapchat account, and at that time she did not. You messaged via the dating site for an hour, during which time you told her that you were a Mechanic and a Chef,[10] but had not yet finished your course.
[10]Exhibit 1 – You state you have never been a Chef and never told Ms Holmes you had been
10At the time you said you were not interested in having children. You said you would commit to her, but not marry her. The victim's mother said that she was divorced with four children and she was currently living in Queensland but returning to Victoria.
11In June 2017, you and the victim became friends on Snapchat and began exchanging messages.
12You spoke to the victim about her struggles at school and about going on a road trip with you and her mother so that you could show her the countryside. You asked the victim her age, and she told you that she was 13, nearly 14.
13The messages quickly began to turn sexual, including you sending her a message that said: “biting her nipple?... Mum can suck me while you suck [the victim’s boyfriend]?... Nice rack Kristen... You eating a dick... You wish you were eating a dick”. Thus commences Charge 1 - Grooming for a sexual conduct with a child under 16 – s 49B, and later what I am about to disclose, (Charge 2 - Grooming for Sexual Conduct with a Child under 16 – s 49M(1)).
14Ms Holmes moved to her parents' house in Drouin on 30 June 2017. You suggested that she relocate to Shepparton, as you would be working from there by Christmas.[11] At the end of 2017, Ms Holmes and the victim relocated to Shepparton where they remained for 12 months.
[11]Exhibit 1 – You state that you told Ms Holmes that Shepparton, along with other places met the criteria of places she was looking for
15At the start of 2018, Ms Holmes had still not met you face to face. In 2018, you asked Ms Holmes if her daughter, the victim, would have a baby for you and for her. Naturally the victim's mother told you she would not, and that the only way it could be done was through surrogacy, with the victim donating the eggs. You asked the victim's mother how you were going to come up with that much money. At the time of this conversation I stress that the victim was only 14 years old.
16Ms Holmes then spoke to her daughter about the conversation. The victim asked how the pregnancy would occur, and her mother told her via IVF.
17In December 2018, you and the victim's mother were speaking on the phone, when you asked her if she wanted to become engaged but not married. She agreed and purchased herself a ring. She believed that she was then engaged to you. I note, you do not share that belief.
18The victim believed that you were her stepfather, and often sought advice from you over Snapchat messages. You encouraged her to believe that you were her step-parent, as is evident in some of the text messages I am about to come to.
19On one occasion, you sent a message to the victim, asking her if she wanted to get drunk and how many drinks she would like you to get her. You asked the victim if she enjoyed your last time spent together, and then wrote (part of Charge 2): “drinking gets me super horney hey lol”.
20On another occasion in 2019, this time before the school holidays, the victim's mother had a conversation with you about what you suggested she should do for the victim’s sixteenth birthday, that was to occur in December of that same year. You suggested the three of you go to Melbourne for a night on the town. You sent photos of the dresses you wanted the victim and her mother to wear. The dresses that you suggested were tight fitting and very short.
21You then messaged the victim about her sixteenth birthday plans, including about the dress and the type of underwear she would be required to wear. You said that you would take her to get a strapless bra and G-string and asked if she wore G-strings including, “You want some lace ones or something a bit more sexy?”, and, “...I will even help you try them if you want too”. You then asked the victim to find some that she liked and to show you them (part of Charge 2).
22You told the victim that you had found her a dress, but it was the type of dress under which she could not wear a bra. You sent her a photo of the dress you had found, asking (part of Charge 2):
“Would you wear something like that... And not wear a bra? Bit risky... id be checking all night to make sure you were covered... It would be to make sure your boobs weren’t out at home its different... Would you want me to tell you or just cover them back up... that means I may have to touch them Hey...”.
23You also messaged the victim: “when we go out that night I will show you what a man is supposed to do on a date with a girl ok”. You later asked her, “do you want me to treat you like my daughter or my 2nd gf that night?”; when the victim replied as your daughter, you asked her to reconsider, but she refused (part of Charge 2).
24You continued to contact the victim over Snapchat at least every second day and sometimes more frequently. The contact often occurred during the night or in the early hours of the morning.
25On Saturday, 5 October 2019, the victim was messaging you about wanting her boyfriend to move in with her. You asked what she would do in return for your agreement and brought up the victim helping you and her mother having a baby. The victim asked how that baby would be conceived, telling you: “I could give u a kid but I wouldn’t have sex with you”.
26You responded: “Its kinda the only way you could have a child for us hun... we cant afford IVF its like 40 thousand dollars... its ok”. When the victim suggested artificial insemination, you responded (part of Charge 2):
“Means id have to masturbate and cum on you and help you put it in... You cant put it in anything else unless it’s a surgical sterile room with sterile equipment... You either have to have sex the old fashioned way or you get drs to do it for 40k... id have to cum and youd need to do it straight away... Like I’d be masturbating at the same time as you... You cant tell anyone though... And we need to do it a few times... You don’t get pregnant the first time you have sex... You cant even tell your bf.[meaning boyfriend].. Tell me honestly. Does it make you horny thinking about it?.If your not horny you wont fall pregnant”.
27You then asked the victim about masturbation, before she told you she was unsure about having a baby due to the effect it will have on her body. That question of course was perfectly reasonable, after all, the victim was a child. You then though became upset with this, responding (part of Charge 2):
“Your asking a lot from me but not really willing to give anything back... Ok well im not sure stillI spoke to mum and she thinks he is too old for you.. [Let me] make my decision based on what you offer and mum will support my decision... “.
28You called the victim on Snapchat and again discussed whether she would have a baby for you and her mother. You asked the victim whether she would masturbate while on the phone with you, so that you could hear (part of Charge 2).
29The victim again told you that she would not have a baby with you. You said, “I get that but would you play with yourself over the phone to get used to what you have and let me hear”; the victim said she was going to bed and terminated the call (part of Charge 2).
30You then sent the victim a message, telling her that you were disappointed. The victim asked: “Why. Because I don’t wanna do that with my stepdad' and you replied: 'Im not just that hun... Im the guy who gives you all you ask for”, (part of Charge 2).
31It is estimated that you and the victim had exchanged thousands of messages over Snapchat between June 2017 and October 2019.
Complaint
32On 6 October 2019, the victim was at home with her mother, when she told her mother that you were trying to make her masturbate over the phone with you. She also told her mother that you had asked her to have a baby with you.
33The following day, being 7 October 2019, the victim was at school, when she approached her maths teacher, and told her about the conversation she had with you over the weekend.
34That teacher accompanied the victim to the Wellbeing Officer where the victim told a social worker about what had been happening. The victim showed the teacher and the social worker the messages that she had exchanged with you. They then contacted the police and the Department of Health and Human Services.
Investigation
35On 8 October 2019, the police attended the victim's school and spoke to her in relation to what she had said to school staff. The victim showed many messages that had been exchanged between you two, she identified you as Brad Harper.
36Police took photographs of the Snapchat messages exchanged between yours and the victim's accounts under the relevant usernames on the victim’s mobile phone. More than half the messages and photographs were sexually explicit in nature and showed you were aware of the victim's age when you first began communicating in June 2017. The messages detailed how you expected the victim to conceive a child and how it would need to be kept a secret.
37On 9 October 2019, the victim attended at the local police station and made a VARE.
38Police conducted checks on the mobile number that the victim's mother had used to contact you through, which showed that the number was listed to Wesley Frank.
39On 14 October 2019, the victim's mother attended the local police station and provided police with a statement detailing her relationship with you (who she knew only as Brad Harper), as well as the conversation she had had with you and the victim about conceiving a child.
Interview
40On 11 November 2019, you attended the same police station for an interview with police. You told police you were in a 10 year de-facto relationship.
41You admitted to having the relevant Snapchat account name and conversing with both the victim and her mother.
42Regrettably, you were less forthright about other aspects of your behaviour:
a. You denied then knowing anything about the name Brad Harper. You still do;
b. You denied having a conversation with the victim about her carrying a child for you and Ms Holmes;
c. You told the police that you had not sent the victim any sexually explicit messages, and that it was not you;
d. Only once confronted with the messages themselves did you tell the police that you had in fact sent those messages;
e. Further though, having reluctantly admitted to sending the messages in response to questions, you claimed that they had simply been taken the wrong way.
Charge and Case History
43You were charged on 11 November 2019. This matter has since endured a tortured history and it has taken more than two years for this matter to be concluded. The delays being occasioned by your failure to appear at the filing hearing in April 2020; the fact that you were not represented for long periods of time, that your initial plea of guilty entered in the Magistrates’ Court in September 2020 was withdrawn, further adjournments were occasioned so that you could be represented, and finally the matter was set down for trial which required an intermediary to be engaged for your victim to give evidence and a ground rules hearing conducted.
44Finally, this matter resolved as a Plea on 28 July 2021 before Judge Hampel and was listed for Plea on 7 February 2022. This matter had been listed no less than 11 times in two different Courts by the time the matter was finally mentioned before me on 3 February 2022, seeking to adjourn the Plea that was listed on 7 February 2022.
45In the 7 months since the Plea was first listed by Judge Hampel, you had not engaged with your lawyers and had no psychological report obtained on your behalf for the Plea. A report was later provided, which I shall deal with in a moment.
Victim Impact
46A Victim Impact Statement (VIS) was provided on 4 February 2022,[12] some five years after you first offended against the victim. Your victim is now 18.
[12]Exhibit C – Victim Impact Statement of Kristen George
47That VIS was read in open Court by the Prosecutor. In plain but articulate terms, the victim describes your actions as impacting her relationships even still. She struggles to be affectionate. Her sleep has been affected. She now wakes hourly. She is concerned now with the way that she talks to men via text in case the same thing happens to her again. She does not like going out anymore. She does not feel safe. She constantly argued with and eventually fell out with her mother because of your offending.
Matters Personal to You
48I was provided with a Psychological Report from Ms Sandra Cokorilo dated 1 March 2022[13] that sets out your personal history and other matters relevant about your make-up that have a bearing on the sentence I am to impose. At times though that Report raised more questions than answers.
[13]Exhibit 2
49That Report followed an initial document filed by your then Counsel (who did not ultimately appear on the Plea) which took the form of a list of comments and disputes you took with the Prosecution Opening on the Plea[14] and then later, an outline of Plea submissions were filed.[15]
[14]Exhibit 1
[15]Exhibit 3
Background and Family
50You were born in March of 1981. At the time of the offences, you were aged 36 to 38 years of age and lived in a small regional town in Victoria. You are now 41.
51You have a close, positive relationship with your parents who are still together. You have what you describe as an adequate relationship with your younger twin sisters. You were never exposed to any family violence nor subjected to harsh discipline.
52You first left the family home at age 22, and had lived in Queensland and Western Australia for seven years before returning to Victoria six years ago. You have apparently always enjoyed stability in terms of accommodation.
53You report your interstate relocation was precipitated by the breakdown of a relationship with the mother of your children. You are estranged from them. You have been cohabitating with your current partner for the past decade.
54When asked about traumatic experiences, you informed Ms Cokorilo your grandfather, with whom you were close, died when you were aged 15. Your current partner was diagnosed with uterine cancer three years ago but it is noted that she is now in remission. That is to not say she does not have her own difficulties that I will come to in due course. You have no children together due to fertility issues.
Employment
55You describe a stable educational history. You report positive relationships with teachers and peers, average academic performances and deny exhibiting any behavioural problems at school.
56You exited secondary education in Year 11 to pursue a mechanical apprenticeship. You have had a stable working history as a Mechanic and a Truck Driver since. This role was apparently terminated around February 2022 following a workplace injury.
Relationships
57You have had two significant interpersonal relationships. You have had a 14-year-old son and a 16-year-old daughter to a four-year relationship which reportedly ended due to your ex-partner's dishonesty. You report little contact with those children since the separation, stating they have been “poisoned” against you by their mother, who reportedly makes contact difficult.
58You are in an “up and down” relationship with your current partner of 11-years, though I note that she remains supportive of you and is willing to remain in a relationship with you.
59You informed Ms Cokorilo you support your parents who are unable to reciprocate due to their ill health. You explained that you have few friends as you have become disillusioned with people's intentions from those who reportedly seek to take advantage of you. This is a curious position for you to take, Mr Frank, given the way you sought to take advantage of a child who saw you as her stepfather.
Mental Health and Cognition
60There is no history of poor mental health in your family. You have never been diagnosed with a mental health disorder. You have never been treated with psychotropic medication. You have never attempted suicide, engaged in self-harming behaviours, or had contact with psychiatric services.
61You do not appear to suffer from any cognitive or memory issues, save for where discussions regarding this matter is concerned. Dr Tan noted in her Report[16] that your purported poor memory really is only referable to aspects of this offending itself, and is not evident more broadly when you are recounting aspects of your life or other circumstances of your life at a time commensurate with the offending.
[16]Exhibit 4 at [93]
62You described yourself as having “a short fuse” which you attributed to anxiety, although you denied persistent worry. You report intermittent episodes of low mood precipitated by isolation and separation from your parents and your partner in the context of your arduous role as a long-haul Truck Driver.
63You were referred to a psychologist by your GP five years ago due to impacted sleep, fleeting suicidal thoughts, and distress following your father’s accident when you took 12 months off work to support him, leaving your partner with the pressure to provide financially for both of you.
64There is a more expansive analysis of your mental health that follows this brief outline, when I deal with your offending, your incarceration and prospects of reform. Relevant information comes from two sources – the first of course being the report of the Forensic Psychologist, Ms Cokorilo[17] and the second being a Court ordered Forensic Psychiatric Report by Dr Tan. [18]
[17]Exhibit 2
[18]Exhibit 4
Physical Health
65You were involved in a motor vehicle accident as a Truck Driver seven years ago and you stated that you did not sustain any significant injuries but did note ‘niggling’ residual back pain. Further, you expressed concerns about diabetes due to high blood sugar. You had a recent injury to your left shoulder which was healing well but which did not impair your overall function, although I note that you did not work afterwards.
Alcohol and Substance Use
66You have an unremarkable history of infrequent social alcohol use from the age of 17. You have never used illicit drugs, save for some experimentation with cannabis with your sisters. It is not contended that your judgement was clouded at the time of this offending by substance abuse or alcohol.
Previous Forensic History
67You admit only two prior criminal matters – from Queensland in 2008 for possess tainted property (for which you were fined), and in 2009 for failure to comply with directions regarding a fine. Given the nature, age and penalty imposed for those matters I disregard them for the present sentencing purposes. I note that you have no subsequent offending alleged against you, nor any pending matters. These matters I consider to be important in assessing your prospects for reform.
Other Pertinent Matters
68I gained a deeper appreciation of your life circumstances through the provision of a letter from your partner dated 12 May 2022, which was provided in advance of the Further Plea.[19] She lives in South Australia. She describes your positive personal qualities as being generous, considerate and protective of those who you love – qualities that are very difficult to reconcile with the offending.
[19]Exhibit 8
69She also notes her dependence on you because of her serious anxiety and depression. She relies on you to help her maintain her sense of equilibrium and health; to physically help in maintaining your home and of course financially to service the mortgage on your house and other living expenses.
70Your partner also notes the reliance your parents have on you, as they have a limited ability to live independently; limited means to get to an ever-increasing number of medical appointments (they too live remotely). They also rely on you financially and emotionally. Your mother, I note, has recently been in hospital undergoing surgery.
71These matters were not put in a way that would enliven the principles in Markovic.[20] That is to say that the level of hardship suffered by those close to you was not exceptional. But that of course is not the only way that these matters are relevant. I accept that you care greatly for your parents and your partner, and that while you are imprisoned, their uncertain fate will weigh significantly on you as you worry about the terrible situation that you have left them in. It will add to the punitive burden of your imprisonment and your sentence will reflect this additional burden that you carry.
[20]Markovic v R (2010) 30 VR 589 (‘Markovic’)
72The letter from your partner is of other relevance too. Not only do you perhaps now know what it is that you have to lose should you be minded to re-offend, but your partner says you are committed to do whatever it takes to return home and not re-offend, and upon that return home, you have a network of good people who will support and encourage you.
73These matters go directly to issues of specific deterrence and capacity to reform.
Your Account of the Offences
To Ms Cokorilo[21]
[21]Exhibit 2
74When coming now to your account of the offences, I will firstly deal with the account given to Ms Cokorilo. In contrast to your details at the time you were interviewed, you were apparently able to give something of an account of the offending and your reasons for it to the Forensic Psychologist in 2022.
75You reported having “a rough patch” with your current partner and a subsequent separation of four to five months – although you noted that you continued to reside together. You explained that you met your victim’s mother on an online dating site during the period of separation from your partner of then 10 years.
76You reported that the relationship with the victim’s mother promptly “escalated out of control”, with her relocating to Victoria as she believed you were in a relationship. Although, you assert still that you never indicated that to her as you yourself claimed to be unclear of your own relationship status with your current partner.
77To the assessor, you described this offending as “sheer stupidity”. You reported that you were “triggered” by the “pressure to be the rock of so many different relationships”, stating that your offending conduct served as an “outlet”.
78You acknowledged that you were aware that your behaviour constituted a criminal offence, but added you “w[ere] not thinking right or acting as [you] should”. You indicated that upon retrospective reflection, you came to recognise that you should not have acted in such a manner.
79You denied being sexually attracted to the victim or children in general. In exploration of motivation for your behaviour over the course of the offending period, you indicated that you did “not think it went on as long as that… it was not years long… it was just talking to [Kristen].. engaging with her… just general chit chat”.
80When information was read back to you from Ms Cokorilo from the brief of evidence detailing communication exchanges of a sexual nature, you stated that you simply do “not understand how it got to that point”.
81In further discussions about the nature of communication directed at the victim, you offered contradictory statements about your motivation and intent regarding encouraging the victim to engage in sexual activity, before concluding that your conduct is “inexcusable” and that you are unable to explain it.
82You reported that over the course of the offending period, you were not coping with your relationship discord and your parent’s ill health. You told the Psychologist you felt angry, stressed and depressed due to perceived self-failure.
83You attributed your offending conduct to self-destructive behaviour and the resulting lack of care and respect for others.
84You articulated some remorse for your offending to the Psychologist who prepared a report for Court. You stated that you feel “disgusted” in yourself to “have hurt so many people”. You very properly acknowledged that you have caused “damage that is irreparable” to your victim.
To Dr Tan [22]
[22]Exhibit 4 at [59]
85I will turn now to what you told Dr Tan. You were purportedly unable to recall the specific content of the text messages sent to the victim. When the text messages were read out to you, you denied any direct recollection of them at all. However, you indicated that it was plausible that you had sent these messages and did not deny sending them. This is an odd and clinically unexplained deficit in your memory, Mr Frank. I expect in part it comes about as a result of you being in some degree of denial about the offending and not being able to fully grasp what it is that you have done, let alone discuss it meaningfully.
86You generally agreed you had sent the victim inappropriate text messages and that you were aware that this was inappropriate sexual content to send to a 13-year-old. As with Ms Cokorilo, you could not give Dr Tan an account of why you engaged in this behaviour.
87You denied any paedophilic tendencies or preoccupation and denied any previous encounters (directly or indirectly) with persons under the age of 16.
88You indicated you had previously sent messages with sexual content to consenting adults, but this was your first time sending such content to someone under the age of 16.
Forensic Makeup and Contribution to the Offending
89In an effort to get to the root cause of your offending, Ms Cokorilo posited at [68] of her report the following:
Mr Frank’s responses reached clinical significance (BR > 85) on Bipolar Spectrum and Major Depression Clinical Syndrome scales, whilst Generalised Anxiety, Somatic Symptoms, and Persistent Depression scales were moderately elevated. These findings are suggestive of Bipolar Disorder
(emphasis added).
90Ms Cokorilo then went on to extrapolate in the following way:
It is likely his mental health problems have contributed to his offending conduct. Bipolar disorders are characterised by experiences of both manic or hypomanic episodes (distinct periods of abnormally and persistently elevated, expansive, or irritable mood, accompanied by abnormally and persistently increased energy or activity) and major depressive episodes.
Negative affective states have been linked to impairment in executive functions that govern self-control. Research has identified inhibition and problem-solving skills to be compromised aspects of executive function that contribute to criminal misconduct. Reduction in serotonin in depression can impact the functioning of the prefrontal cortex, responsible for emotional regulation, executive function for impulse control. Therefore, it can alter cognition and behaviour, impairing impulse control and decision-making, ability to rationalise, and consider alternative responses.[23]
[23] Exhibit 2 at [76]
91It ends with the proposition:
Overall, while there is no possible justification for Mr Frank’s behaviour and the commission of his crimes, he reported heightened distress over the course of the offending period which has likely contributed to externalised behaviour in lieu of adaptive coping mechanisms.
92In so far as the opinions expressed by Ms Cokorilo rely on your self-reported symptoms and motivations, I indicated I would not act on them. Your engagement with police and mental health professionals mean that you lack credibility and you have been less than frank about important features of this offending. The opinion I set out in full above, comes from nothing more concrete than a claim that the Psychologists’ findings were “suggestive of Bipolar Disorder”. This is on the basis of a single assessment of you, and in the context of no demonstrable mental health history, no real prior criminal history, and no confirmation made by any third party independent of you. From that source of information and from such a tentative view, I was not prepared to accept that any mental illness played a part in your offending.
93I asked for you to be assessed by a Forensicare Psychiatrist after the Plea (and your remand) to see if there was, in fact, a cogent basis to find that your offending was driven in any way by a mental health issue. It was not.
94Forensic Psychiatrist Dr Tan examined you in custody and after a thorough assessment of you, including reference to prison health records, it was concluded:
a. There was an insufficient evidentiary basis to confirm that you suffer from any enduring severe mental illness;
b. Nor was there sufficient evidence to conclude you suffer from Bipolar Disorder, as, at the most basic level, you by your own admission had never suffered the necessary period of persistent and abnormally elevated mood that is essential in such a diagnosis. You denied having ever experienced an inflated sense of self-esteem or grandiosity, a decreased need for sleep, periods of increased talkativeness or pressure to keep talking. You maintained stable and regular employment throughout your adult life and during the time of the offending, as well as an enduring relationship.
95Given Dr Tan’s findings, Ms Burnnard sensibly withdrew the reliance on the propositions that you were suffering from Bipolar Disorder during the charge period (but not in any causative Verdins[24] sense), and that prison would be more difficult for you than for other members of the general population based on such a diagnosis, otherwise giving rise to (Verdins limb 5).[25]
[24]R v Verdins (2007) 16 VR 269 (‘Verdins’)
[25]Exhibit 5: – Further Submissions on Plea dated 20 May 2022 at [9]
96Accordingly, I attach no weight to Ms Cokorilo’s opinion about the underlying causative factors. That is not to say I found her Report to be without value; quite the contrary. I did find it was very useful in other respects that I will come to, notably when dealing with the issue of risk assessment.
97As the evidence stands, though, there is neither an actual explanation by you for your offending, nor is there any contributing cause to that offending by way of mental illness that would permit me to reduce your culpability, or decrease the value to be placed on general or specific deterrence either.
98Instead, in human terms, I am asked to note that this grotesque but aberrant offending took place in a particularly turbulent point in your life, when there were many strains on your time, finances and emotional energy. In so far as this offending is said to be in part a representation of something akin to unreality or escapism in your life, this has a measure of plausibility and context to it. I agree that there were difficult matters in your life that you no doubt wished to escape from. I note that this notion of escapism is not relied on in any clinical way, but nor does it need to be. It serves as a way for me to understand your offending and assists me in understanding what stressors may exist in your life upon your release from prison.
99There are matters of relevance in both Reports that assist me in determining how you will fare in custody; what risk you will pose to the community in terms of re-offending, and how to best foster your rehabilitation. Before I come to that I will deal with your present circumstances in custody.
Circumstances in Custody
100You are a middle-aged, first time prisoner. You are now at Hopkins Correctional Centre. You experience the kind of distress expected of a first time remandee. You will have ongoing mental health input while in the correctional setting and have been encouraged to seek out the same. I am concerned there is already a wait time of months before you receive more involved mental health and offence specific treatment.
101You have made the most of your time in custody so far by undergoing Occupational Health and Safety courses, literacy and numeracy courses and educational courses. You identify your ageing parents and your partner’s reliance on you as the most significant stressors in your life and have quite a high degree of anxiety about them. Given the relatively isolated lives your family and loved ones lead, visits from them will be few and far between for you.
102I will deal with the other particular difficulties presently facing prisoners in a moment.
The Question of Risk
103Whether you admit it or not, this offending occurred because you had a sexual interest in this particular child. Though you have claimed not to be sexually attracted to the victim, your messages demonstrate otherwise, as does your Plea.
104It appears that it will take time for you to accept that this is so. I did initially query the efficacy of any treatment offered to you while you continue to profess to have little memory of the messages, or grasp of the number, scale and depravity of those messages you sent to your victim – though I do accept that this lack of insight is built into and accommodated in the risk assessment provided by the experts, which I am about to turn to. I accept their views. I also accept that there is some room for optimism over time that you will develop further insight, Mr Frank.
Ms Cokorilo
105Ms Cokorilo[26] uses both the SVR-20 checklist of clinician-rated risk factors for sexual violence that were identified by a review of the literature on sex offenders; those factors include psychosocial adjustment, history of sexual offences, and future plans. Sexual violence is broadly defined as "actual, attempted, or threatened sexual contact with a person who is not consenting or unable to give consent.”
[26]Exhibit 2 at [86]
106You were rated moderate on the major mental illness and minimisation of sex offences scale; and low on suicidal ideation, relational and employment problems. The remaining 15 risk factors were deemed to be absent. Therefore, without any formal intervention, you are considered to be a low risk of reoffending.
107Protective factors which mitigate your risk profile are the absence of sexual deviation, psychopathy, history of sexual victimisation or substance abuse problems. There is no evidence of physical harm to the victim, use of weapons or threats, multiple types of sex offences, high density sexual offences, escalation in frequency or severity of sexual offending, which are all known to pose an increased risk of sexual recidivism.
108Further, you have no prior criminal history and there appears to be no criminogenic orientation or attitudes condoning sexual offending or past supervision failure history. You remain remarkably in a supportive relationship with a partner of 10 years or more, with whom you share a stable home.
Dr Tan
109According to Dr Tan[27] your risk factors for sexual violence include psychosocial coercion, minimisation of sexual violence, problems with self-awareness of the factors and processes that place you at risk of sexual offending, as well as problems with stress and coping. While your current offending occurred during a period of problems with an intimate relationship, you generally provided a history of being able to maintain long-term and stable intimate relationships.
[27]Exhibit 4 at [94] – [97]
110Dr Tan did not find any indication for pharmacology as an intervention for your current offending. You will no doubt benefit from psychological intervention to help you understand risk triggers and triggers for offending.
111Of note, to her, you also reported a history of stable interpersonal relationships, employment and housing, and denied any history of problematic substance abuse. You do not have a history of sexual violence prior to the current charges, and do not have a history of violence based on your self-reports and prior criminal history.
Applicable Sentencing Principles
Grooming
112Sexual offending against children, particularly those under an offender's care or protection (as was the case here with a child who clearly saw you as a stepfather), is a gross breach of trust justifying a term of imprisonment. The offence carries a maximum penalty of 10 years imprisonment, which is indicative of just how seriously Parliament takes this behaviour. Grooming a child for sexual purposes is an appalling crime.
113It is clear, however, that this crime, like all offences, carries with it different levels of seriousness. In assessing the relative seriousness of this offence, it is necessary to consider the nature and extent of the offending conduct, its frequency, its duration, the circumstances in which it occurs, the culpability of the offender and the impact on any victim.
114Here, it is acknowledged you met the victim’s mother on an adult dating site, which is not indicative of you seeking out a child to prey upon. To that extent, it is said that your offending was opportunistic, and I am inclined to accept that.
115But, once having met the victim and her mother, you exploited that relationship with both of them for your own benefit. You held yourself out to be in a committed relationship with the child’s mother. In that way what you did was a gross breach of trust.
116Over a period of two years, you groomed a child for the purposes of securing her involvement in sexual activity with you. She was as young as 13 when this behaviour commenced. There is no question you knew her age, nor is there any ambiguity about the fact that she viewed you as her stepfather.
117You exchanged a large number of messages with your victim over this period of time. Though it is hard to quantify, your counsel noted on those select messages that appear on the brief that approximately half were sexually suggestive or explicit in nature.[28] It is sufficient to say a large number of messages were sexual in nature, and even those that were not so explicit are consistent with grooming more generally in the way that they involve regular contact, the building of rapport and trust – which paves the way for more explicit and improper requests. I do accept there is an absence of videos, photographs and other media often used in offences of this kind by you, save for perhaps one or two examples. It seemed to me that you did not stop this course of conduct on your own accord either, but rather it was ended for you once the matter was reported to the police.
[28]Exhibit 5 at [17] – [18]
118The requests I just mentioned involved messages suggesting various sexual acts that your victim could engage in, including with her own mother. You asked her about her sexual experience and spoke to her about masturbation.
119You also:
a. Told her that she should “fill in” as your girlfriend while her mother was at work;
b. Encouraged her not to wear underwear to bed;
c. Encouraged her to film or photograph her mother masturbating;
d. Sent her a picture of your genitals;
e. Offered to buy her underwear and bras;
f. Offered to take her out for an upcoming sixteenth birthday, but said that she would need to wear a cocktail dress, and that she could not wear a ‘normal’ bra and underwear. You would take her out and show her “what a man is supposed to do on a date with a girl”;
g. Spoke to her about another dress but said she would not be able to wear a bra with it and that you would have to “check” to make sure it was all right that she was covered, and you might be required to touch her breasts. You encouraged her to let you treat her like a “second girlfriend”; and
h. Offered to help her buy G-strings.
120Leaving aside the number of messages for a moment and their content, as a man in his mid to late 30’s you exerted a high degree of emotional coercion over your teenage victim. You were particularly manipulative. I can do no better than repeat the submissions made by the Crown in their written outline at paragraph [3] in its entirety:[29]
Most egregiously, he attempted to emotionally manipulate her into having sexual intercourse with him, on the pretext that her mother wanted children with him but was unable to and could not afford IVF treatment. When the victim asked whether she could simply give them grandchildren, he insisted that it needed to be his child and they would need to have sex a few times to ensure fertilisation. When the victim expressed reluctance, the offender said, “Haven’t I appreciated you so far? Have I not given you all the love and attention you need? Have I not allowed you to grow and mature?”. He accused the victim of “not respecting” him and said, “and the only thing I asked of you was to help me make your mum the woman I love with all my heart happy…”. When the victim said she just didn’t want to have a baby with her stepfather, he said, “I’m not just that hun…I’m the guy who gives you all you ask for” and threatened to cancel her upcoming birthday dinner.
[29]Exhibit C at [3]
121These matters accentuate the gravity of your offending and your culpability for it. I find your culpability to be high. I find this to be a serious example of the offence of grooming, in the upper range of seriousness of offences of this kind.
122Indeed, when I asked for comparable authorities, the parties were unable to find others that matched your behaviour for sheer persistence of the offender and duration of the offending, with the additional facet of such a breach of trust, which was present here.
123The Crown took me to the case of DPP v Tuting,[30] where the offender was sentenced to three years’ imprisonment with a non-parole period of fifteen months’ for a single charge of grooming. That sentence was upheld on appeal.[31] The offending in that case did not involve a breach of trust and occurred over a five-day period. The victim was 13 years old at the time and the accused made arrangements to meet with her on the intention of having intercourse with her but was arrested by police. Tuting was 32 years old, he was homeless at the time of the offending, he made some admissions, he pleaded guilty, had no prior convictions and exhibited remorse.
[30][2019] VCC 688
[31]Tuting v The Queen [2018] VSCA 338
124Your offending is, using almost any measure of gravity, far graver than Tuting’s. Beyond that, there is very limited utility in comparing that case to yours. Tuting was dealt with at a time when the criminal justice system was not crippled in the way that it has been in the last two years during the pandemic. The value of a plea of guilty in the present environment along with the current burden of imprisonment are so substantial now, it makes any comparative sentencing exercises especially difficult, if not impossible.
125Further, the case of Tuting does not establish a sentencing range or pattern by itself. This is not an exercise in parity and each case obviously turns on its facts. It is an example of the serious way in which offences of this kind are to be treated. Significant terms of imprisonment with non-parole periods are imposed in cases such as this, which is inevitable. To that end, Ms Burnnard sensibly resiled from the ultimate submission made in writing by her predecessor that a CCO was both open and appropriate.[32] It is acknowledged that a head sentence and a non-parole period is the only sentence I can impose for your offending here. I agree.
[32]Exhibit 3 at [15]
126It is worth noting here Mr Frank just how well you were served by your counsel on the Plea and Further Plea. This Court was greatly assisted by your Counsel’s diligence, and considered approach to the matter, especially as she came into this matter unspeakably late (in a case that had been already plagued by delays) and had to resile from propositions made by her predecessor that were either unfounded or untenable. Her submissions both in writing and made orally were of the very highest quality. The Court was grateful for her assistance.
Victim Impact
127The impact of the offending upon the Victim needs to be given proper weight in sentencing; and it cannot be overlooked or overvalued.[33] The victim poignantly sets out the impact of the crimes in a victim impact statement – she no longer feels safe going out or talking to males, it has affected her relationship with her mother and her sleeping also.
[33]Gray (A Pseudonym) v The Queen [2018] VSCA 163, [53]
128These are the consequences of your depravity, Mr Frank. The effects are profound and they endure years after your offending behaviour ended.
Plea of Guilty
129Ultimately you pleaded guilty. This was by no means an early plea. As late as July 2021, a defence response was filed whereby you, through your then counsel, denied being in position of stepfather to the victim, you denied sending sexual messages to the victim, you did not admit the totality of the communications that were said to have transpired between you. Further, you had filed a s.342 Criminal Procedure Act2009 (‘CPA’) application seeking to cross examine your victim about an event where she had possibly been sexually assaulted by another boy in the past in an effort to establish a motive as to why she would falsely implicate you in grooming offences.
130Having said that, by resolving this matter, you have spared the complainant and other witnesses from giving evidence and being cross-examined at a trial. This would not include the victim herself but obviously her mother. There is a human saving implicit in pleas of guilty to offending of this kind. You have finally acknowledged your wrongdoing and demonstrated a willingness to facilitate the course of justice, though this has been a long and painful process to finally bring you to account.
131Further, the plea in this matter was offered at a time when COVID-19 was prevalent in the community and I note, still is. Accordingly, this plea is of real utilitarian value to the Court, especially in the context of the pandemic, as observed by our Court of Appeal in Worboyes v The Queen,[34] particularly this section that I think is worth quoting:
“A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. The sentencing judge must ensure that the plea of guilty results in a perceptible amelioration of sentence”.
[34][2021] VSCA 169, [39]. See also: DPP v Bourke [2020] VSC 130 at [32]; Chenhall v The Queen [2021] VSCA 175 at [34]-[35]
132Your plea Mr Frank in my view, warrants a significant moderation of the sentence that would otherwise be imposed. It is my intention to impose a sentence that answers the description as one of being “perceptively ameliorated”.
133Having just dealt with the value of your plea, I still have some reservations about the depth of your remorse, although I am prepared to find that you are to some extent remorseful for what you have done.
Burden of Imprisonment in Pandemic
134Prison will be a burden on you. By March 2020, Corrections took steps to protect the prison system from outbreaks of COVID-19 within it. These protective measures negatively impacted detainees and increased the burden of imprisonment. The pandemic is far from over. Unless and until otherwise it is demonstrated to me, I will sentence on the basis that the same hardship will be occasioned to any prisoner now as that which has already been experienced by other prisoners in the preceding two years.
135Examples of the impact of the pandemic's effects on correctional facilities include:
a. Making time in custody very difficult and/or significantly more difficult for all prisoners;[35]
[35] See: Re Diab [2020] VSC 196, [38] (‘Diab’); DPP (Cth) v Stanley (a pseudonym) [2020] VCC 898, [63] (‘Stanley’)
b. Creating greater isolation for prisoners by placing restrictions on face-to-face visits;[36]
c. Reducing access to education and programs for prisoners;[37]
d. The increased burden caused by lockdowns;[38]
e. Infection scares occurring at various prisons;[39]
f. The increased anxiety arising from concern as to contracting the virus whilst in prison;[40]
g. The inability of prisoners to protect themselves from exposure by avoiding areas of concern or distancing themselves from others;[41]
h. The fact that the risk in prison of contracting the virus is far higher than in a prisoner's home;[42]
i. The fact there is a 14-day isolation mandatory period for all new prisoners;[43]
j. Increasing fear and concern, both for family members and from them;[44] and finally, as I have noted already,
k. Making the plea of guilty one of greater utilitarian benefit.[45]
[36] Diab (supra), [38]; Stanley (supra), [63]; DPP v Sulieman [2020] VCC 454, [81]–[88] (‘Sulieman’); DPP v Teplin [2020] VCC 846, [44] (‘Teplin’); DPP v Williams & Anor [2020] VCC 739, [75] (‘Williams’); DPP v Barnfield [2020] VCC 631, [42]; DPP v Hoblos [2020] VCC 720, [121] (‘Hoblos’)
[37]Diab (supra), [38]; Stanley (supra), [63]; Teplin (supra), [44]; DPP v Vu [2020] VCC 775, [27] (‘Vu’); Hoblos (supra), [121]
[38]DPP v Zampatti [2020] VCC 628, [59]–[67] (Zampatti); DPP v Bietman [2020] VCC 894, [63]; Teplin (supra), [44]; Williams (supra), [75]
[39]Stanley (supra), [63]; DPP v Danci [2020] VCC 575, [55]
[40]Zampatti (supra), [59]-[67]; Teplin (supra), [44]
[41]Zampatti (supra), [59]-[67]; DPP v Noble [2020] VCC 600, [50] (‘Noble’); Hoblos (supra), [121]
[42] DPP v Lang [2020] VCC 759, [117]; Noble (supra), [51]
[43]Zampatti (supra), [59]-[67]; Sulieman, [81]-[88]
[44]DPP v Osman [2020] VCC 638, [87]; Sulieman (supra), [81]–[88]; DPP v McInnes (a pseudonym) [2020] VSC 799, [35]; Vu (supra), [27]
[45]Teplin (supra), [43]; Barnfield (supra), [41]
136I accept that, in recent history, there has never been a more difficult time to be a prisoner or remandee in this State than now. I accept that these are the conditions you will be confined in for a significant period of time. The sentence I impose will reflect this additional burden of imprisonment in the circumstances as I have just described them above.
Formulation of sentence
137In formulating an appropriate sentence in your case, I have had regard only to the purposes for which sentences must be imposed. Previous sentencing decisions have made clear the importance of general deterrence and protection of the community in relation to sexual offending against children.
138I am satisfied though that in the circumstances of this case, the need for specific deterrence and the need for community protection, is somewhat decreased. Except for now dated, isolated and minor offending, you have not offended before; certainly not in this fashion. You have not offended in the near three years since this offending ended. There are incentives for you to reform in custody and those who love you and rely on you in the community will be there to assist you upon your release. There is also a need for any sentence I impose to facilitate your rehabilitation as appropriate and I accept the opinion of the experts in that regard that your risk of repetition of offending is low and your prospects for reform must be seen favourably in this light.
139Ultimately, it is unavoidable though, that this serious offending must be denounced on behalf of the community, and that you must be justly punished for your crimes.
140The totality of the offending is split across Charges 1 and 2, and I note only by virtue of a change in legalisation that criminalised the very same behaviour, in the very same way and carries with it the same maximum penalty, that otherwise, this would be a single charge. The parties agreed in these circumstances, it was appropriate to deal with the offending by imposing an aggregate sentence under s.9 of the Sentencing Act1991 and I propose to do so.
141Finally, in affixing an appropriate penalty for you and allowing for a parole eligibility component, I have had regard to the principles of parsimony; that is, the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which sentence is to be imposed.
142The purpose of parole, Mr Frank, is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires that you must serve, having regard to all of the circumstances. I have concluded that it is appropriate to allow for a substantial, meaningful parole component to your sentence.
143Accordingly, the non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, will appropriately take into account the number of mitigatory factors in this case and to facilitate your reintegration into the community and ultimate reform.
Sentence to be Imposed
144I come now to the portion of my sentencing remarks where I pass sentence on you, Mr Frank. As I have said, there is no alternative but to impose a head sentence with a non-parole period. Having carefully balanced the relevant matters and sentencing considerations, I sentence you as follows.
145On Charges 1 and 2, you are convicted and sentenced to an aggregate term of 4 years and 2 months imprisonment (50 months).
146In your case I order that you need to serve a period of 2 years and 6 months (30 months) before becoming eligible for parole.
PSD
147Pursuant to s.18 of the Sentencing Act 1991, I declare that a period of 64 days has already been served by way of pre-sentence detention, and I will order that this period be administratively deducted from your sentence.
s6AAA
148Mr Frank I am required under s.6AAA of the Sentencing Act, to tell you what sentence you would have received, had you not pleaded guilty.
149In this case, but for your plea of guilty I would have imposed a total effective sentence of 6 years and 4 months, with a non-parole period of 4 years and 6 months.
Sex Offenders Registration Act 2004
150Finally, you will be a registrable offender at the time of sentence, namely now, because of the operations of the Sex Offenders Registration Act2004 (‘SORA’), the reporting period is 15 years.
151Are there any other matters, counsel?
152MR McKENRY: Sorry, Your Honour. Could I get you to repeat the s6AAA declaration?
153HIS HONOUR: Six years and 4 months.
154MR McKENRY: Yes.
155HIS HONOUR: A non-parole period of 4 years and 6 months.
156MR McKENRY: Thank you, Your Honour. No, there is nothing further.
157MS BURNNARD: Nothing further from me, Your Honour.
158HIS HONOUR: I am prepared to waive the requirement that seems to be an active impediment, practically speaking at the moment, that the accused actually acknowledges receipt of his notification obligations under the SORA legislation. In the past I have simply had that particular box ticked on the form. Is the Crown and you, Ms Burnnard, content with that?
159MS BURNNARD: As long as those documents are sent through, no issue with that.
160HIS HONOUR: They will be. My Associate will send them through.
161MR McKENRY: None from the Crown, Your Honour.
162HIS HONOUR: Can I genuinely thank counsel for your considerable assistance. I will leave the link. There is no revisiting from the media but I do want to say this to those who are from the Shepparton News, that I meant what I said earlier in the reporting of this matter. It was reported very sensitively and sensibly and I could not be more impressed with the way in which possible identifiers that might lead to the identification of the victim, were immediately removed once they were drawn to the media's attention and you are to be congratulated for that. If there are any orders that I need to make, Mr McKenry or Ms Burnnard, to ensure the anonymity of this victim, mention the matter by all means before me.
163MS BURNNARD: Yes.
164MR McKENRY: As Your Honour pleases.
165HIS HONOUR: Thank you Mr McKenry and others, you can be excused. Bear with us while we try and work out - when I say we - someone smarter than me will work out how to leave you on the link, Ms Burnnard, with your client.
166MS BURNNARD: May it please the Court.
167HIS HONOUR: Thank you.
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