DPP (Cth) v Guest
[2014] VSCA 29
•3 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0254
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| Appellant |
| v |
| STEPHEN JAMES GUEST |
| Respondent |
AND
| DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA) |
| Appellant |
| v |
| STEPHEN JAMES GUEST |
| Respondent |
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| JUDGES | WEINBERG, WHELAN and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 February 2014 |
| DATE OF JUDGMENT | 3 March 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 29 |
| JUDGMENT APPEALED FROM | DPP v Guest (Unreported, County Court of Victoria, Judge Gaynor, 21 November 2013) |
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CRIMINAL LAW – Sentencing – Joint Commonwealth and State Directors’ appeals – Commonwealth and State pornography offences – Using carriage service to access child pornography – Using carriage service to transmit child pornography – Sentenced to three years and six months’ Community Correction Order (‘CCO’) – Whether sentence manifestly inadequate – Whether sentencing judge erred in construction of serious sexual offender provisions – Whether immediate term of imprisonment appropriate – Appeals allowed – Sentence manifestly inadequate – Discretion in re-sentencing where Director seeks to replace non-custodial sentence with custodial sentence – Where offender has commenced serving CCO – Offender re-sentenced to eighteen months’ imprisonment backdated to commence at beginning of service of CCO, to be released after six months on a Recognizance Release Order for a period of two years in the sum of $1,000 – Sentencing Act 1991 (Vic) s 6D considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R J Bromwich SC | Director of Public Prosecutions (Cth) |
| For the Respondent | Mr G A Georgiou SC with Mr P J Smallwood | Victoria Legal Aid |
WEINBERG JA
I agree with Coghlan JA.
WHELAN JA:
I also agree with Coghlan JA.
COGHLAN JA:
On 8 November 2013 the respondent pleaded guilty, in the County Court at Melbourne, to the charges set out in the table below. After hearing a plea on that day, and a further plea on 21 November 2013, the sentencing judge imposed the following sentences:
Charge on Indictment Offence Maximum Sentence 1 Use a carriage service to access child pornography – s 474.19(1) Criminal Code Act 1995 (Cth) 15 years’ imprisonment Community Correction Order (‘CCO’) of 3 years and 6 months with 300 hours community service 2 Use a carriage service to transmit child pornography – s 474.19(1) Criminal CodeAct 1995 (Cth) 15 years’ imprisonment 3 Possess child pornography – s 70 Crimes Act 1958 (Vic)
5 years’
imprisonment
6AAA Statement: 3 years 6 months with a non-parole period of 2 years. Other orders: Registered as a sex offender for life. Conditions were imposed on the CCO as to supervision treatment and community work.
For completeness it should be noted that, on 21 November 2013, her Honour received a report from the Department of Justice. In that report, the respondent was found to be suitable for release on a Community Correction Order (‘CCO’). He was said to be a low risk of recidivism.
By notice of appeal dated 11 December 2013, the Commonwealth Director of Public Prosecutions appealed against the sentences imposed on charges 1 and 2.
Subsequently, by notice of appeal dated 4 February 2014 the Victorian Director of Public Prosecutions appealed against the sentence imposed on charge 3. The Commonwealth Director assumed the conduct of both appeals.
Pursuant to s 288 of the Criminal Procedure Act 2009 (Vic) a Director’s appeal ‘is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the sentence is imposed’. The notice signed by the Victorian Director was therefore out of time. However, s 313 of the Act provides that time may be extended.
That section contemplates that application be made to, inter alia, serve the notice of appeal out of time. No such application has formally been made. The matter was not adverted during the hearing of the appeal, and the respondent took no issue with the competence of the Victorian Director’s appeal. The point may fairly be described as a technical one, since the grounds of appeal are identical, and there is no substantial prejudice to the respondent in allowing the adequacy of the sentence on charge 3 to be considered in conjunction with the Commonwealth Director’s appeal.
In any event, it is impossible to disentangle the sentences imposed on the three charges from each other. They all contributed to the judge’s decision to order that the respondent be released on a CCO, and — in that sense — merged. I would grant leave, pursuant to s 313, to the Victorian Director to appeal out of time.
The ground of appeal in each notice is identical:
GROUND OF APPEAL (Charges 1 & 2)
1. The sentence imposed was manifestly inadequate
PARTICULARS OF GROUND
In imposing sentence the learned sentencing judge failed to give sufficient weight to:
(a) the objective gravity of the offending;
(b) the maximum penalties prescribed for each offence;
(c) the principles of general and specific deterrence;
(d) the need to adequately punish;
(e) the need for consistency in sentencing standards;
and gave undue weight to:
(f) the factors in mitigation, including the Respondent’s assistance to police, the Respondent’s prior good character, the Respondent’s engagement in treatment, and plea of guilty; and
(g) the fact that the Respondent might not be able to complete a sex offender’s program whilst in custody.
On the plea, a lengthy Summary of the Prosecution Opening was tendered. It is useful to repeat the relevant portions here:[1]
[1](Footnotes and addresses omitted).
2) On 21 January 2013, the Australian Federal Police (AFP) identified that an IP address assigned to an Australian Internet Service Provider (ISP) was being used to download child pornography material.
3) The AFP identified that between 9.15 pm on 18 January 2013, and 6.17 am on 19 January 2013, the user of IP address … connected to the ‘eDonkey’ network and downloaded 286 images classified as child pornography.
4)The ‘eDonkey’ network – specifically the program ‘eDonkey2000’ – is used to share files on the internet. The application uses peer to peer technology which is an internet network that allows a group of computer users with the same networking program to connect with each other and directly access files from each other’s hard drives.
5) AFP enquiries established that the IP address … was assigned to a Telstra account in the name of the Accused, at his residential address of ….
Search Warrant Execution:
6) At about 8.45 am on Tuesday 12 March 2013, members of the Australian Federal Police’s Child Protections Operations Group attended the Accused’s residential premises at … for the purpose of executing a section 3E Crimes Act 1914 (Cth) search warrant.
7) At about 8.50 am, upon executing the search warrant, the AFP officers were met by the Accused’s wife, who notified them that the Accused was at work in Bendigo.
8) As a consequence, at about 9.00 am, AFP officers travelled to the Accused’s place of employment at …. Upon entering the Accused’s workplace at around 9.55 am, the officers were directed to the Accused’s workstation.
9) The Accused was found at his desk with a HP laptop computer powered on and connected to a Toshiba external hard drive. AFP officers observed Yahoo! Messenger, a chat program, was open and a chat session was active between the users … and ….
10)A preliminary forensic examination of the laptop computer and external hard drive revealed the devices contained saved images identified as child pornography. The laptop and external hard drive were seized for further examination.
Arrest and Interview
11)At around 10.58 am, the Australian Federal Police placed the Accused under arrest and conveyed him to Bendigo Police Station for interview.
12)At 11.38 am the Accused participated in a Taped Record of Interview where he stated the following:
a)He probably did download the child pornography on 18 and 19 January 2013 which had sparked the investigation;
b)He used his personal laptop at home and at work and connected it to two hard drives – a Toshiba hard drive where he stored child pornography material, and a blank hard drive which he used for work;
c)He couldn’t be sure which file sharing program he used to download the images as he had removed it from his laptop;
d)He understood how file sharing or peer to peer programs worked – i.e. as the program downloads files, parts of the file can be uploaded by other users;
e)He would leave his laptop running the peer to peer program overnight at home and he probably did this between the 18th and 19th of January 2013;
f) He probably used the search term ‘PTHC’ as although he didn’t know specifically what it meant, he knew he would see child pornography material as a result of using ‘PTHC’ as his search term;
g) After running the program overnight, he would transfer the downloaded files to his Toshiba hard drive and remove them from his peer to peer sharing folder;
h) He understood child pornography involved pictures or movies of people under the age of 18;
i) He first started looking at child pornography in the 1980s;
j) About 6 months prior to his arrest, he started using Yahoo chat to access and view child pornography on a weekly basis;
k) Using his Yahoo account, he downloaded child pornography from others and would ‘show’ others child pornography which they could choose to download if they wished’;
l) He stored the images downloaded through Yahoo chat on his Toshiba external hard drive;
m) After downloading them, he rarely went back to look at the images or video;
n) His interest in child pornography material started in the 1980s, ‘probably out of curiosity’ and his sexual interest in the material varied from a ‘zero to a seven’;
o) He kept the images he acquired during the 1980s on CDs and transferred them across to his external hard drive at some stage;
p) His interest was in female teenagers aged 13 and older, but he did get images of much younger children through his searches;
q) He was sexually abused as an 8 or 9 year old and didn’t tell anyone;
r) Five to ten years prior to his arrest, he started using peer to peer programs like Limewire, at first to search for music, but then he came across child pornography;
s) He then downloaded child pornography for around 6 months to 1 year before stopping in the early 2000s;
t) He resumed viewing child pornography material about 6 months prior to his arrest when he created an account with ‘motherless.com’ and started using Yahoo! Messenger;
u) He also resumed using peer to peer file sharing programs about 6 months prior to his arrest;
v) He removed the most recent peer to peer program, after his last download on 19 January 2013, because he felt guilty;
w) He was the operator of the email account …;
x) He last viewed child pornography material that morning, when he sent images of naked teens between the ages of 10-13, to a lady he chatted with in Texas;
y) He was ashamed of his actions and it was a ‘fight within his brain, not knowing why he did it’ given he hardly derived any sexual satisfaction from the material;
z) He hoped the information extracted from his computer may assist in catching other offenders, and was willing to assist if he could;
aa)He may have been doing it every now and then to get caught and it felt good to be opening up and talking about it.
13)At 1:38 pm the record of interview was concluded and the Accused was formally charged.
14)At about 4:00 pm the Accused appeared before Bendigo Magistrates Court where he was granted bail and released from custody.
Forensic Analysis
15)Between 12 March 2013 and 19 April 2013 the contents of the computer devices seized were examined by AFP members. Forensic analysis identified 9,958 images, 217 video files, and 54 text files classified child pornography material.
16)Child pornography files were located in various folders and subfolders. The picture and video files had creation dates from 15 July 2003 to 8 March 2013.
17)The AFP classified the child pornography identified on the HP laptop computer and Toshiba external hard drive in accordance with the below scale:
Level 1 — Images depicting nudity or erotic posing, with no sexual activity.
Level 2 — solo masturbation by a child or sex acts between children.
Level 3 — non-penetrative sexual activity between children and adults.
Level 4 — penetrative sexual activity between children and adults.
Level 5 — sadism, bestiality or any form of child abuse.
Level 6 — Anime, cartoons, drawings etc depicting children engaged in sexual poses or activity
HP Laptop Computer
Category Pictures Videos Level 1 12 2 Level 2 1 1 Level 3 6 2 Level 4 2 7 Level 5 0 1 Level 6 0 0 TOTAL
21
13
Toshiba External Hard Drive
Category Pictures Videos Text Files Level 1 7958 28 0 Level 2 336 39 0 Level 3 650 14 0 Level 4 822 116 0 Level 5 73 7 0 Level 6 98 0 54 TOTAL
9937
204
54
The material found was described as follows. In general, the material characterised as being in levels one and two involved images of children alone. Levels 3 and 4 involved sexual activity between adults and children. Level 5 involved sadism, bestiality and other forms of child abuse, and level 6 involved computer-generated images of adult males penetrating male and female children and text ‘stories’ describing sexual acts performed on children, including incest and rape.
Returning then to the Prosecution Summary, it continued:[2]
[2]Addresses deleted.
Peer to Peer Software
19)Analysis of the Accused’s HP laptop computer revealed the peer to peer program ‘Gnutella Turbo’ was installed on 4 October 2012 and deleted on 19 January 2013. The earliest identified child pornography material downloaded using this program was 22 November 2012.
20)A total of 6,058 files of the child pornography files located were accessed and downloaded using this program.
…
22)Analysis also revealed the Accused had set Gnutella Turbo to allow uploading from a number of folders including ‘H:\new young stuff\Gnutella Turbo’. This folder is not one of the default sharing folders set-up upon installation of Gnutella Turbo, but rather was a folder located on the Accused’s Toshiba external hard drive.
23)The Gnutella Turbo application maintains a count of the number of times each shared file has been uploaded by others users of the network. Records of the files shared from the Toshiba external hard drive reveal segments of the top five uploaded files, identified as child pornography material, were uploaded a total of 5,929 times.
Yahoo Messenger
24)Analysis of the Yahoo! Messenger program installed on the Accused’s HP laptop computer revealed the user … had held over 90 chat sessions with other Yahoo! Messenger users. A number of photo-sharing sessions had been initiated during these chats.
25)Analysis of the photo-sharing chat session which took place on 4 March 2013 indicated that 24 images were exchanged in that session – 16 were shared by the user … and 8 were received from other Yahoo! Messenger users. Of these 24 photos, 20 were identified as child pornography material by the AFP.
26)Analysis of the photo-sharing chat session which took place on 12 March 2013, indicated that 6 photos were shared in that session by the user …. Of these 6 photos, 4 were identified as child pornography material by the AFP.
27)A comparison of the usernames of recipients who had held chat sessions with …, and directories identified as containing child pornography on the Toshiba external hard drive, revealed a number of sub-directories existed in the folder ‘/New Young Stuff/’ with names matching or very close to matching users who had held chat sessions with ‘[address deleted]. A total of 33 such file directories containing child pornography material were found to exist on the Toshiba external hard drive, indicating that the Accused had either transmitted or received child pornography material from these users.
28)An examination of the email inbox of … by the informant on 22 April 2013 located 9 opened messages between 6 and 7 February 2013, containing a total of 71 images classified as child pornography material (level 1).
29)A particular email dated 6 February 2013 provides information in relation to … agreeing to share images believed to be child pornography material with another Yahoo user in exchange for the transmission of child pornography material.
Summary Of Offences:
30)The conduct relevant to each charge on the indictment is summarised as follows:
Charge 1: Access Child Pornography:
·Between 1 August 2012 and 19 January 2013, the Accused accessed a total of 6,058 files classified as child pornography material via peer to peer software.
·The charge begins on the date the Accused admitted, in his record of interview, that he recommenced viewing and downloading child pornography material. The charge ends on the date the Accused deleted the peer to peer program Gnutella Turbo from his computer.
Charge 2: Transmit Child Pornography:
·Between 1 August 2012 and 12 March 2013, the Accused used Yahoo! Messenger to engage in chats with other users where he transmitted child pornography material to other users, and caused child pornography material to be transmitted to himself. Particularly:
·A chat session on 4 March 2013 is representative of this conduct – where 20 images classified as child pornography material were transmitted to another or received from another user.
·A chat session on 12 March 2013 – where the Accused transmitted 4 images classified as child pornography material to another user.
·Additionally, during this period the Accused used peer to peer software to transmit child pornography material to other users. Segments of the top 5 files identified as child pornography material were uploaded to other users a total of 5,929 times.
·The charge begins on the date the Accused admitted in his record of interview that he commenced sharing photos with other users on Yahoo! Messenger. The charge ends on the date of the last chat session where images were transmitted.
Charge 3: Knowingly Possess Child Pornography:
·On 12 March 2013 the Accused knowingly possessed 9,958 images, 217 video files, and 54 text files classified as child pornography material.
·This charge represents the full collection of child pornography material found on the Accused’s computer and external hard drive.
Detailed written submissions were filed by the prosecutor on the plea. It was not suggested, before this Court, that anything contained in those submissions had been inaccurate.
The prosecutor submitted, on the plea, that an immediate custodial sentence was required. He proffered a range of 20 to 30 months as the head sentence, with a non-parole period of 10 to 13 months. In the course of discussion, her Honour said that the difficulty with that range was that it would lead to a sentence (I assume a non-parole period) which would not allow the respondent to complete a sex offender’s program.
In further discussion, her Honour said:
If I’m looking at protection of the community, sending this man to gaol for the period of time that you have suggested, is not going to achieve the protective goal that I need to be looking at. And look, it’s not your fault, I understand why you’re getting up and making the submission, I keep saying, it’s just – there is just such a waiting list, and it’s absolutely crucial, I get many reports like Dr Kennedy’s saying look, he’s a moderate risk, if he’s just left to go, he’s a moderate risk, but with treatment it will make a lot of difference.
And later:
MR KERLIN: Well Your Honour, the Crown position is that that program could be facilitated by way of a longer recognisance release period. So once the accused has done a period of time and is released, as a condition of that recognisance order, the appropriate ‑ ‑ ‑
HER HONOUR: No it won’t, because he won’t go on the waiting list. He comes out of gaol and he goes on a waiting list. OK? That’s what happens, that’s the nuts and bolts of this.
MR KERLIN: Certainly, Your Honour, notwithstanding those difficulties, the Crown’s ultimate submission is that a degree of punishment and general deterrence is still very appropriate in this matter given the range of materials ‑ ‑ ‑.
In her sentencing remarks the learned sentencing judge said:
41.The prosecution has urged me to deal with you by way of a sentence of imprisonment to be immediately served. Ordinarily I would have no hesitation in agreeing to this course. You are, in relation to Charge 3 on the indictment, to be sentenced as a serious sexual offender which means I must have primary regard to protection of the community. What I do not have in front of me is material indicating that you are paedophilic in nature. You are not someone who has engaged in hands on abuse of children, although let me assure you that what you engaged in does amount to abuse of children, albeit at arm’s length.
42.Protection of the community, in my view, means the court should take steps to ensure that the offending of the person before the court so accused is dealt with in such a way to maximise the chances of it never recurring. I am certainly satisfied you are extremely remorseful for your offending. This has been evidenced by your extreme candour with police, your early plea of guilty, your offer of assistance, your assistance to police in handing over the passwords of other persons with whom you have shared this material, your earnest endeavours to seek assistance yourself, your forthrightness in the way you went about telling others what you had done.
43.I am satisfied, although I do not regard it as a Verdins nexus, but I am satisfied – and should I add this is one of those rare cases where the court is actually in a position to make some judgment about how the offender came to offend in such a way – I am satisfied that you have been bedevilled by personal problems over the years that explain, without in any way excusing, this behaviour.
44.It is my view that Dr Kennedy’s report and psychological testing has revealed that you are a person with rehabilitative prospects. My concern is that you receive appropriate treatment. I do not expect that that will happen in gaol unless I sentence you to a term of imprisonment which in my view is excessive. That is because, lamentably, there is a long waiting list within a custodial setting for the sex offender’’ program and it is my view that the sex offender’s program is vital in ensuring the community is best protected from a repetition of this behaviour, you needing to be educated and to be treated by those who work in that area so that you understand entirely the effects this has, the basis of this market, and for you to best understand how it was that you continually over the years returned to this form of, what I am satisfied is, escapism.
The judge then proceeded to impose the sentences identified in the table at the commencement of these reasons.
Mr Bromwich SC, the Commonwealth Director, submitted that the sentence had really proceeded on the basis of what was best for the respondent, because what was in his interests would also be best for the community. It followed that little, if any, regard was had to deterrence. No weight had been given to general deterrence, which had to be the paramount consideration when sentencing for this type of offending.
Mr Bromwich also submitted that her Honour had erred in taking into account what programmes were available in custody as part of her reasons for not imposing an immediate custodial sentence. He pointed out that it was part of the prosecution sentencing submissions below that a sentence could be framed which allowed for treatment on a recognizance release order, after a term of imprisonment had been served. He further submitted that little, if any, weight appeared to have been given to just punishment and specific deterrence.
Mr Georgiou SC, who appeared on behalf of the respondent, acknowledged that the sentences imposed below might be thought to be merciful. He submitted, nonetheless, that they were within range. The making of a CCO was carefully tailored to meet the needs of the community on the one hand and the needs of the respondent on the other. He relied, in particular, upon two decision of this Court in which Crown appeals had been dismissed in relation to offending that was said to be not dissimilar to that of the respondent, DPP v Smith[3] and DPP v Ison.[4]
[3][2010] VSCA 215 (‘Smith’).
[4][2010] VSCA 286 (‘Ison’).
As indicated, in each of those cases an appeal brought by the Director of Public Prosecutions had been unsuccessful. In general terms, the offending had been similar to the offending in this case.
It should be noted, however, that both Smith and Ison had been sentenced to a term of imprisonment (18 months in each case, albeit wholly suspended). In addition, in both of those cases the respondents had been released on a Community Based Order (CBO) for two years. By the time the appeals were heard, Ison had completed five months of the CBO and Smith close to one year. That consideration was important in each case.
It is fair to say that the charges faced by Ison were similar to those faced by the respondent. However, Smith did not face any charge involving the transmission of child pornography. In addition, it should be noted that the Commonwealth charges in those cases then carried a maximum of 10 years, as distinct from the 15 years that the respondent confronted.
It seems to me that the only relevance of both Smith and Ison is that, in the particular circumstances of those cases, the sentences could not be said to be outside the range. It was accepted in each case that a non-custodial sentence for offending of this kind was unusual.
I accept that not all offenders who possess child pornography, or for that matter cause it to be transmitted, must necessarily receive an immediate custodial sentence. At the same time, it should be noted that since those cases were determined the maximum sentence for the Commonwealth offences has been increased to 15 years, and that is a matter of some significance. Moreover, at least in relation to State offences, suspended sentences have been abolished. I acknowledge, of course, that it would be possible to use the powers of the Crimes Act 1914 (Cth) to impose a sentence which operates as a suspended sentence.
The sentencing principles applicable to offences of this kind were set out in some detail in DPP (Cth) v D’Allesandro.[5] They were largely replicated in DPP v Smith :
[5](2010) 26 VR 477, [21] (Harper JA, with whom Redlich JA and Williams AJA agreed).
1)First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:
(a)The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.
(b)The number of images or items possessed.
(c)Whether the material is for the purpose of sale or further distribution.
(d) Whether the offender will profit from the offence.
In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant considerations.
2)Secondly, general deterrence is regarded as the paramount sentencing consideration – because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender’s prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.
3)Thirdly, a sentence of immediate imprisonment would ordinarily be warranted, but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.[6]
[6][2010] VSCA 215, [23] (Nettle JA, with whom Harper and Hansen JJA agreed) (citations omitted).
It was not suggested on behalf of the respondent that the offending in this case could be characterised as anything other than very serious.
I do not accept that it was open to her Honour to reason that because of her belief that suitable programs would not be available to the respondent whilst serving a sentence of imprisonment, such a sentence being otherwise appropriate, a custodial sentence should not be imposed.
It was equally inappropriate for her Honour to reason that the expression ‘protection of the community’ as contained in s 6D of the Sentencing Act 1991 (Vic) could possibly be used to justify a non-custodial sentence. The serious offender provisions contained in Part 2A of the Sentencing Act 1991 (Vic) are intended to be entirely punitive. They have nothing to do with protection of the community through rehabilitation.
Her Honour seems to me to have given very little weight to either general deterrence, or specific deterrence. In approaching the matter in the way that she did, she failed to have regard to what this Court has made clear on a number of occasions, namely that general deterrence is the ‘paramount sentencing consideration’ for offending of this grave nature.
I am satisfied that the sentence imposed upon the respondent in this case was wholly outside the range reasonably open to the sentencing judge. In other words, it was manifestly inadequate. Her Honour ought to have imposed a sentence of imprisonment, some part of which had to be served immediately.
That is not the end of the matter. It is clear that when dealing with Crown appeals, the Court retains a discretion to decline to intervene. That discretion will most commonly be exercised in favour of a respondent when his or her circumstances have changed significantly since being permitted to go at large. It has often been said that the Director’s task will be a more difficult one in cases where it is sought to have a custodial sentence replace a non-custodial one.[7] That proposition stands in its own right, and has nothing to do with the principle of double jeopardy (now abolished).
[7]DPP v Groube [2010] VSCA 150, [27].
The respondent having been released on a CCO, this Court received a report from Corrections Victoria about his progress under that program. We also received a report from psychologist, Shaelyn Jeffrey, which was also tendered on the appeal.
The following sections of the two reports are particularly relevant when considering what might be an appropriate disposition in this appeal.
The Corrections Victoria report dated 6 February 2014 states:
Supervision
Upon receiving this Order, Mr Guest has attended Bendigo Community Correctional Services on a weekly basis as directed. During weekly supervisions, Mr Guest has demonstrated a willingness to discuss the antecedents relating to his offending behaviour, current stressors in his life and has engaged in the development of an individual management plan identifying short term priorities in his life.
Mr Guest attributes his offending as a form of escapism from a life in which he was unhappy. He describes at the time, having been working unrealistic hours, and dedicating spare time as a volunteer to the local County Fire Authority (CFA) to the detriment of his marriage. Mr Guest identifies establishing a more realistic equilibrium between his work and home life as key to minimising his risk moving forward. He also identifies avoiding any form of pornography and internet use more generally as the safest option for him at the current time.
More broadly, Mr Guest relays his immediate priorities as being a more attentive and involved husband. Specifically, he identifies the desire to be more honest in his relationship with his wife and to express his thoughts and emotions rather than bottle them up. Additionally, he intends on spending time with his extended family, possibly securing some casual work with a friend as a handy-man in the future and completing the current Community Correction Order (CCO) successfully.
It was noted that the respondent had completed 83 of the 300 hours community work that he was obliged to perform.
Under the heading ‘Treatment and Rehabilitation’ it was said:
On the 25th of November 2013, a referral was completed to Corrections Victoria’s Sex Offenders Program (SOP). A response was received dated 23rd of December 2013, indicating that a file review had been completed and that a general risk of sexual recidivism had been made. Based on this assessment, Mr Guest has been identified as falling within the low risk category for sexual recidivism.
Mr Guest has been identified for further assessment to determine his suitability for treatment and individual treatment needs and responsivity factors. This is scheduled to occur within three to five months of the commencement of Mr Guest’s Order. However, it should be noted that whilst the appeal against Mr Guest’s sentence remains outstanding treatment is unable to commence.
Additionally, Mr Guest attends regular appointment with his General Practitioner, Dr Violetta Stoyanova, of the Queen Street Medical Practice. During a telephone conversation with the writer on the 31st of January 2014, Dr Stoyanova confirmed that Mr Guest attends weekly appointments at her clinic. She Indicated that she has been treating Mr Guest over an extended period of time for ‘severe stress’ and that this treatment is likely to for the short-medium term. Dr Stoyanova indicated that she has been encouraging Mr Guest to focus on a daily routine, and that he has continued to experience stressful events such as fire activity near his home. She emphasised that Mr Guest’s recovery is going to be long and slow. Dr Stoyanova confirmed that currently there is no suggestion that Mr Guest is a risk to himself, and she believes that he is committed to improving his mental health.
Mr Guest is also attending weekly treatment with Ms Shaelyn Jeffries [sic] (Psychologist) at Bendigo Psychology. Ms Jeffries indicated that Mr Guest attended two appointments prior to Christmas and that he has been attending weekly since the 17th of January 2014. The nature of her treatment in the short term is focused on assisting Mr Guest to identify the precursors to his offending. Ms Jeffries informed that Mr Guest is engaging in treatment, although he finds it difficult to discuss some of the inherently personal aspects of treatment though she expects that this will become easier as time goes on. In the event that Mr Guest is considered suitable for Sex Offenders Program, Ms Jeffries informs that treatment with her will cease, as it is considered best practice for only one form of treatment to occur at any one time. Otherwise, she expects her involvement with Mr Guest to last between two to three months.
Ms Jeffrey, in her report dated 11 February 2014, said:
Initial sessions were devoted to exploring what it means to make change, what it takes to make change, and the impacts of Mr Guest’s offending behaviour – specifically, what he gets out of it and what he loses as a result. This exploration occurred through a variety of exercises conducted both in-session and as homework. Mr Guest has been able to identify discrepancies between his offending behaviour and the attainment of his other life goals. This has enabled Mr Guest to reflect on his dysfunctional cycle of interpersonal behaviour and develop strategies to help him address his risk factors. Through developing an understanding of the CBT model, Mr Guest has been able to identify thoughts, feelings and behaviours associated with his offending. As such, he has been able to identify maladaptive thoughts that have influenced his offending
As Intervention is in its primary stages, ongoing treatment will involve increasing Mr Guest’s awareness of his internal processes in order to further identify triggers and develop skills to manage his emotions more effectively. This will be addressed through cognitive restructuring to replace offence thoughts with more useful and rational thinking and behavioural strategies to develop and refine Mr Guest’s skills in problem-solving and address maladaptive offending behaviours. Assisting Mr Guest to strengthen his sense of self and develop his skills in assertive communication will provide alternative coping strategies for emotional dysregulation and help Mr Guest to develop an individualised, practical safety plan to manage ongoing risk
It is reasonably clear that the respondent’s progress to date, under the CCO, has been very positive.
It was submitted on the respondent’s behalf at both the plea and before this Court that his circumstances put him in a different position to many other sexual offenders. Clearly the judge placed considerable weight on the report by Dr Simon Kennedy that was tendered on the plea. However, there were some contradictory features between what was said in that report and the other material that was tendered on the plea. In particular, Dr Kennedy’s views regarding the respondent’s social isolation did not sit well with the large number of character references that were tendered and that suggested the very opposite of such isolation. In addition, Dr Kennedy’s description of an incident involving a sexual act on the part of a 10 year old boy inflicted upon the respondent when he was aged 8 or 9 would not generally be regarded as sexual abuse.
I am not persuaded that the respondent is to be regarded as being different in any significant way from other offenders who commit crimes of this type. I note that he is significantly older than either Smith and Ison. Even if it be accepted that his isolation played a significant role in his offending, that particular feature is not uncommon in cases of this type. It was present in Smith and in Ison.
In my opinion, a CCO did not sufficiently meet the needs of general deterrence in the particular circumstances of this case. The sentencing judge had no alternative but to impose a term of imprisonment, and one that involved immediate custody.
At the same time, I recognise that the respondent has been at large, and has actively carried out all that has been required of him by Community Corrections. In addition, he has been attending both his general practitioner and his psychologist. These factors must be borne in mind.
Balancing these competing considerations, on charge 1, I would set aside the sentence below and, in lieu therefore, sentence the respondent to a term of 18 months’ imprisonment. However, because he has been subject to a CCO, I would order that the term of imprisonment commence on 21 November 2013.[8]
[8]See R v Jennings [1999] 1 VR 352 in which Brooking JA discussed the circumstances under which this Court may backdate a sentence once a decision has been made to substitute a new sentence for that which was originally imposed.
Similarly, on charge 2, I would set aside the sentence imposed below and, in lieu therefore, sentence the respondent to term of 18 months’ imprisonment to commence on 21 November 2013.
In relation to both charges 1 and 2, I would order that on 21 May 2014 the respondent be released on a Recognizance Release Order for a period of two years, in the sum of $1,000.
On charge 3, I would set aside the sentence imposed below and, order that the respondent be sentenced to a term of 2 months’ imprisonment, which of course will commence this day. I would order that the sentence on charge 3 be served concurrently with that portion of the sentences imposed on charges 1 and 2 not yet served.
In relation to the Recognizance Release Order, I would impose the following conditions:[9]
(i)that on release the respondent report to the Office of Community Corrections, Bendigo and thereafter report to the allocated Community Corrections officer as required, and obey that officer’s lawful directions;
(ii)that the respondent undergo such treatment and attend such courses as directed by his allocated Community Corrections officer, or his or her nominee;
(iii)if directed by his allocated Community Corrections officer to do so, to resume and continue treatment with Dr Violetta Stoyanova and/or psychologist Ms Shaelyn Jeffrey.
[9]Although the Community Corrections regime would not ordinarily apply to Commonwealth offenders, the Court was assured during the hearing that arrangement are in place for Community Corrections to accept Commonwealth offenders.
I would add that in cases of this kind, involving both the possession and transmission of significant quantities of child pornography, including some at high levels, any non-custodial sentence would not normally be appropriate. A non-custodial disposition should only be contemplated in circumstances that can properly be said to be exceptional.
I would declare, pursuant to s 6AAA of the Sentencing Act 1991(Vic) that the total effective sentence on all charges that would have been imposed but for the respondent’s guilty plea would have been three years and six months with release upon a Recognizance Release Order after serving 18 months.
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