Director of Public Prosecutions v Windsor
[2018] VCC 2248
•14 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-17-02301
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARRONE WINDSOR |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2018 | |
DATE OF SENTENCE: | 14 December 2018 | |
CASE MAY BE CITED AS: | DPP v WINDSOR | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2248 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Soliciting child pornography – Using a carriage service to menace, harass or cause offence – Possessing child abuse material
Cases Cited: DPP (Cth) v DPP (Vic) v Garside [2016] VSCA 74
Sentence: TES – 4 years imprisonment with a minimum of 2 years 3 months’ to be served before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes for plea Ms N. Kohn for sentence | OPP |
| For the Accused | Mr F. Cameron | Tony Hannebery Lawyers |
HER HONOUR:
1 Jarrone Windsor, you have pleaded guilty to two charges of soliciting child pornography, and one charge of using a carriage service to menace, harass or cause offence. These are Commonwealth offences with maximum sentences of imprisonment of 15 years and 3 years respectively. You have also pleaded guilty to a State charge of possessing child abuse material, which has a maximum sentence of 10 years’ imprisonment.
2 That these are very serious offences is shown by the increase in the maximum sentence from 10 to 15 years in 2010 by the Commonwealth parliament for the soliciting charges, and a doubling of the maximum from 5 to 10 years by the Victorian parliament in 2015 for the charge of possessing child abuse material.
3 I sentence you on the basis of the prosecution opening[1], which is an agreed summary. I will briefly outline your offending.
[1] Exhibit A
4 In 2016 and 2017, you were associated with seven Snapchat accounts. Snapchat is an application which allows users to send photos or videos privately or more broadly, and senders can set a time between 1 and 10 seconds for their images and videos to ‘disappear’. If a screenshot of an image is taken by a viewer, the sender is notified. You had another application installed on your devices which enabled you to take screenshots without the sender being notified.
5 In summary, you used these applications to befriend two underage girls in order to have them send you sexually explicit images and videos, and then in an attempt to have them send more, blackmailed them by threatening to send the images to their family and friends. You attempted the same method with a 20 year old woman.
6 In June 2016, a 14 year old female, B, accepted a friend request from you and you began communicating with each other via Snapchat. Your messages became increasingly sexual and you demanded she send you a photo of herself in her underwear. You persisted until she did send such a photo. You then demanded more from her, becoming aggressive in your messages and including sexually explicit instructions. Ultimately, B sent you approximately 50 images and videos, which were sexual in nature, some explicitly so[2], and this forms the subject of Charge 1 of soliciting child pornography. You continued to demand more from B, and threatened to send the material to her friends and family, sending back to her a photo and video of her that you had saved, as proof that you could carry through with your threat. Until then, B had thought the images could not be saved by the viewer. B resisted your threats, and blocked you on Snapchat, but you persisted, and even changed to using one of your other accounts, in a female name, to falsely advise B that her images were being circulated.
[2] One video depicted her penetrating herself with a hairbrush.
7 The same month, June 2016, a 20 year old female, I, accepted a friend request from you and you began communicating with each other via Snapchat. You told her you had naked images of her sent to you by someone else, citing one of your other accounts as the source. On the information I have, I do not know if there were such images, or if there were, I do not know if you had them. The point is that you acted as if you did have the images, and threatened her that the pictures were about to be uploaded onto a website. You pestered her to send pictures of herself in underwear, or the other images would be posted online, even sending her a list of females’ names, including I’s name, claiming that the list had a message attached reading ‘looking to trade, will even pay for any of these girls’. This forms the subject of Charge 3 of using a carriage service to menace, harass and cause offence. As with B, you used one of your other accounts, in a female name, to attempt to get I to send you photos. I blocked that account, and recalled that she had received similar requests made via two other accounts, which it transpired were associated with you. I, sensibly, and bravely, reported the contact to police.
8 Seven months later, in January 2017, you struck again. A 16 year old female, N, accepted a friend request from you. On this occasion, you sent N images of a 16 year old male, falsely asserting these images depicted you. Following this deception, you and N began communicating with each other. Initially, you were pleasant, and an online friendship developed. This became sexual at your instigation, and you exchanged photographs of yourselves naked. This forms the subject of Charge 2 of soliciting child pornography.
9 After this, as with B and I, you began threatening N that you would send her images to friends and family, or more broadly, if she did not continue to send naked photos, becoming increasingly aggressive and persistent. Also, as with B and I, after N blocked you, you contacted N using another of your accounts to continue your threats[3]. Also sensibly and bravely, N took a screenshot of this conversation and reported the offending to police.
[3] Exhibit C
10 In August 2017, police executed a warrant at your address, and seized your devices including an iPhone, a tablet, and a computer. A USB was also seized. On analysis, the computer tower contained 14 images and six video files of B and N, which are classified as child abuse material. The 14 images and two of the videos are in category 1[4], and the other four videos are in category 2. The descriptions of the material[5] demonstrate that being in category 1 or 2, or being only a small quantity, does not detract from the serious nature of this offending[6]. This forms the subject of Charge 4 of possessing child abuse material.
[4] Australian National Victim Image Library (ANVIL)
[5] Exhibit A
[6]DPP (C’th) & DPP (Vic) v Garside [2016] VSCA 74
11 Examination of your iPhone by police was instructive. It showed that your internet search history included references to “blackmail for underage nude pictures on Snapchat” or similar. This demonstrates a high degree of motivation to commit the offences in the way that you did.
12 As is to be expected, B and N have both been severely affected by your actions, as they described fully in their impact statements[7]. They felt ashamed and hurt by being drawn into this web of blackmail, and withdrew from friends and social contact. They lost sleep because they were so terrified of being exposed, and this possibility dominated their thoughts. N felt like giving up, and B thought about self-harming. Both changed from being happy, open, trusting girls into fearful, introverted, unhappy individuals.
[7] Exhibit B
13 I want to say something directly to them. What happened to them is not their fault. Some young people in their mid-teenage years, boys and girls, will experiment with their sexuality, and that may involve other people. Online exploration may seem a safer haven to engage in this activity than direct physical contact, particularly if you believe that your online images will disappear. While it is not their fault, they now know that it can be a mistake to trust anyone online, and they also know that for every application that promises security, there will be another application created that undermines that. The bottom line is that the adult in contact with each of them committed a crime in engaging with them in this way and what occurred is the fault of the adult, not the person aged under 18. While the law exists to protect young people from themselves, when they may not realise the danger they are exposing themselves to, the law mainly exists to protect them from exploitation by perverted adults. I acknowledge the bravery of both young women in speaking up and in giving me the information of the personal impact on them. I very much take into account the effect of the crimes committed on each of them in deciding the appropriate sentence. I hope that they can put this all behind them now. I wish them well in the future.
14 I did not receive a statement from I as to the impact on her, but I find from the way that you menaced and harassed her, that it is highly likely that she did suffer an impact from your offending against her, and I take that into account in deciding the appropriate sentence on Charge 3.
15 It will be obvious from what I have said that your offending provides grave examples of serious offending. Charges 1, 2 and 4 were committed against victims aged 14 and 16; Charges 1, 2 and 3 all involved verbal aggression, followed by threats to get your victims to accede to your sexual requests; these threats were terrifying to at least two, if not all three of your victims; and the offending, employing the same method, continued over a period of months, not days or weeks. For Charge 4, the content of the images kept by you was highly sexual the child abuse material was in your possession for some months in the case of B and the material was not anonymously obtained by you over the internet, but by direct and threatening contact with the 14 and 16 year old victims. This last aspect makes your offending particularly serious, because as soon as you told the victims you had saved their images, they knew immediately that these images could be distributed, and could remain available in perpetuity. There is no evidence that you did distribute the images, but your victims were not to know that, especially as distribution was exactly what you were threatening to do. The fact that you did not pay for, distribute, or profit from, possession of the images is not a mitigating factor.
16 People who commit offences of this kind should expect to receive a term of imprisonment[8]. There is nothing in your case to disturb that expectation, and your counsel did not submit otherwise. General deterrence, that is, seeking by the court’s sentence to deter others from committing such offences against children, is the primary sentencing consideration. You have no criminal history, but that is given very little weight in sentencing for offending like yours.
[8]Garside (ibid)
17 In deciding the appropriate sentence, there are a number of other factors that I must take into account.
18 The first of these is the fact that you have pleaded guilty, and did so at an early stage. I treat that as a sign of your willingness to facilitate the course of justice, accept responsibility, and avoid the need for the victims to give evidence. That last aspect is very important in cases involving sexual offending against children. However, I am not so sure that the early plea of guilty was, at the time it was made, reflective of total contrition, as I will discuss shortly.
19 Next, I take into account your personal circumstances. You are a young man, now aged 23, and were aged 21 and 22 at the time of the offending, and as I mentioned, have no criminal history. Usually, sentencing a young person has as its primary purpose the promotion of their rehabilitation. That purpose is not to be forgotten in my consideration of the appropriate sentence, but it does not displace deterrence, which in my view, also includes specific deterrence, as the primary sentencing purpose. Specific deterrence means that the sentence I impose needs to deter you from re-offending.
20
You are supported by your parents, who have been in court for all your hearings.
They separated in November 2017, but following financial difficulties, returned to living apart in the same house. This had the benefit of both parents being able to provide their support to you in the home after you were charged and before you were remanded in custody on the day of your plea hearing. That support is vitally important to your rehabilitation. You have an older step-brother and older sister who have moved out of home. You completed VCE in 2013, but had only limited short term employment until a job at a call centre in 2016 last more than several months, followed in 2017 by another job in a call centre, which you were in until dismissed in September 2018. You received a small payout for unfair dismissal.
21 You reported to Mr Joblin, the forensic psychologist who provided a report to the court[9] dated in March 2018, that you were socially isolated during your school years, and from the age 12 or 13 began playing video games for many hours and interacting with others online. You changed from gaming to watching pornography for hours, but you told Mr Joblin that eventually watching that ceased to provide you with sexual gratification and you moved to developing the offending habits that I have described, which you said could have been in 2015 or 2016, according to Mr Joblin.
[9] Exhibit 2
22 Mr Joblin reached a number of conclusions about you. He had no doubt that you have a very serious sexual dysfunction. Mr Joblin thought you had insight into your sexual dysfunction, but he also said that you reported you do not have a sexual interest in underage girls, and your source of gratification is females generally. While you told him that you were aware of the potential impact of your offending on them, Mr Joblin thought what you were aware of was that your need to have your ‘sexual addiction’, as you describe it, gratified predominated over the need to stop your behaviour in case you were upsetting your victims, and thus, your awareness of the potential for harm did not deter you. In his opinion, that is a significant symptom of the serious nature of your disorder. He was of the view that you require considerable assistance for your serious sexual deviancy.
23 As at March 2018 when Mr Joblin wrote his report, I find that you had not yet developed true insight into your offending. I also do not accept your assertion that you are not attracted to underage females. You had a choice to interact online with women over 18, as you did with I, the subject of Charge 3; yet you interacted with girls aged 14 and 16. You reported to your treating psychologist that you did not ‘go out of your way’ to check the ages of the females you were dealing with online. It is my view that you are likely to be minimising your position about that.
24 I accept Mr Joblin’s opinion about your serious sexual deviancy and the need for you to receive treatment for it, before the community, being underage females, can be protected from you. To your credit, you did commence treatment towards this end before you were remanded in custody. After receiving a Mental Health Care Plan from your doctor, you began attending a clinical psychologist, Ms Mynard, in June 2018.
25 Ms Mynard provided an initial report[10] dated June 2018, in which she identified a range of areas in which she had begun counselling with you, and the goals for your future work with her. She stated that you had engaged in therapy well, were growing in insight and are an intelligent young man.
[10] Filed by defence but not tendered as an exhibit.
26 She provided an update in October 2018[11]. After eight sessions with her, she described you as recognising now that you were highly socially anxious growing up, not confident to speak to the opposite sex, and that online gaming was a way to interact without fear of rejection from face to face interaction. You reported that with your employment in 2016, you had already reduced your time spent in online gaming, and that after your first two age-appropriate intimate relationships, beginning in 2017, you became less fixated on sex. You have expressed regret that you did not show respect to others and have integrity in your actions, and have begun to reflect on the effect of your behaviour on your victims.
[11] Exhibit 3
27 Ms Mynard’s summary was to the effect that you have progressed from lacking confidence, not being insightful, being emotionally immature and having difficulties in relationships to improving your assertiveness, insight, confidence and self-awareness, as well as showing empathy towards your victims and being remorseful. You expressed the intention to continue with counselling for as long as necessary. While your early plea of guilty was not reflective of total contrition, I find that you are more remorseful after commencing treatment and I take that into account.
28 It is important to your rehabilitation if you are gaining insight, and I take into account that you are willing to continue with appropriate counselling, and seem amenable to treatment. It is vital to your rehabilitation prospects that you take any opportunity to pursue treatment, in or out of custody. You are still a young man, and as an intelligent person, it is to be expected that you have the capacity to develop full insight and strategies to deal with your serious sexual dysfunction. Only then will you be rehabilitated, and will the online community of females be protected from you.
29
Your treatment had only just begun, and it is on hold with that practitioner while you are in custody, but on the basis of all the material before me, including the two psychological reports, I find that there are reasonable prospects for your rehabilitation, but these prospects are only to be found on the basis that you receive and complete the treatment recommended by Mr Joblin and
Ms Mynard. Your counsel told me that you do understand the need for programs to be undertaken while in custody, both for your own benefit and for the benefit of the community to be protected from you on your release.
30 I strongly encourage those involved in your treatment whether in or out of custody to follow the recommendations made by Mr Joblin and Ms Mynard.
31 I have taken into account all relevant matters in Crimes Act (Commonwealth) and in Sentencing Act (Vic), some of which I have specifically referred to in these remarks. I was referred to a number of cases as comparative sentences, or yardsticks. Of course, each sentence must be decided in light of its own facts and circumstances.
32 There is one final matter I need to refer to before I announce your sentence. As a result of my sentence today, you automatically become a registrable sex offender.Charges 1, 2 and 4 are class 2 offences. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. I will now have you provided with a form notifying you of your reporting obligations under the Sex Offenders Registration Act, and Mr Cameron, would you accompany my Associate in case your client has any questions.
33 MR CAMERON: Yes, Your Honour.
34 HER HONOUR: You are convicted and sentenced as follows:
35 On State charge 4 (possess child abuse material) – six months’ imprisonment. That sentence starts today, 14 December 2018.
36 The effective State sentence is 6 months’ imprisonment.
37 On Commonwealth charge 1 (solicit child pornography) – 3 years’ imprisonment. That sentence starts 3 months after the commencement of the State sentence.
38 On Commonwealth charge 2 (solicit child pornography) – 3 years’ imprisonment. That sentence starts 30 months before the expiration of the sentence on charge 1.
39 On Commonwealth charge 3 (use carriage service to menace, harass or cause offence) – 8 months’ imprisonment. That sentence starts 5 months before the expiration of the sentence on charge 2.
40 The effective Commonwealth sentence is 3 years 9 months’ imprisonment. I direct that you serve 2 years of the federal sentence before becoming eligible for federal parole. If you are released on parole, the balance of the sentence will be served in the community subject to the conditions of parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of parole, the parole may be revoked and you may be ordered to serve the balance of the sentence in prison. The purpose of fixing that non-parole period is to provide for a period of supported rehabilitation in the community, if you are considered to be suitable.
41 The effect of the orders for commencement of sentences on all charges is a global effective sentence on State and Commonwealth offences of 4 years’ imprisonment. The global non-parole period is 2 years 3 months’ imprisonment.
42 I declare that the period of time the prisoner has already spent in custody is 50 days including today, the day of sentence, and pursuant to s16E Crimes Act (Commonwealth) and s18(4) Sentencing Act (Vic), these are to be deducted administratively from the sentence.
43 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me states that it is required.
44 However, if you had not pleaded guilty to the State charge but had been found guilty after a trial, the sentence I would have imposed on Charge 4 alone is a total of 12 months’ imprisonment.
45 Any other orders?
46 COUNSEL: No, Your Honour.
47 HER HONOUR: Yes, thank you. Once again, I thank counsel for their assistance and Mr Windsor may be removed. Mr Cameron, you will be going downstairs?
48 MR CAMERON: Yes, Your Honour.
49 HER HONOUR: Yes, thank you.
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