DPP v Morey (a pseudonym)
[2020] VCC 320
•25 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL MOREY (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 February 2020 |
| DATE OF SENTENCE: | 25 March 2020 |
| CASE MAY BE CITED AS: | DPP v Morey (A Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 320 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:Brown v R [2019] VSCA 286; Davis v R [2020] VSCA 60; Broes [2020] VSC 128; DPP & Anor v Swingler [2017] VSCA 305; Gaunt v The Queen [2019] VSCA 241
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Ms D. Guesdon | Office of Public Prosecutions |
| For the Accused | Mr R. de Vietri (for Plea) Ms E. Murphy (for Sentence) | Victoria Legal Aid |
HIS HONOUR:
1Joel Morey[1] you have pleaded guilty to the following offences which carry the following maximum penalties:
·Four charges (being 1, 4, 5, & 6) of using a carriage service to transmit indecent communications to a person under the age of 16 years. The maximum penalty for each of these offences is seven years imprisonment. Each of these charges is a rolled up charge;
·Charge 2, using a carriage service for child pornography material. The maximum penalty for this offence is 15 years imprisonment. This is a rolled up charge;
·Charge 3, using a carriage service to procure persons under 16 years of age. The maximum penalty for this offence is 15 years imprisonment;
·Charge 7, sexual penetration of a child under the age of 16. The maximum penalty for this offence is 15 years imprisonment. This is a representative charge of three instances of sexual penetration. This is a standard sentence on the charge. The standard sentence for this offence is six years imprisonment;
·Charge 8, sexual assault of a child under the age of 16 years. The maximum penalty for this offence is 10 years imprisonment. This is a representative charge of three instances of a sexual assault. This is a standard sentence charge. The standard sentence for this offence is four years imprisonment;
·In addition, you have pleaded guilty to summary offences. The first is a charge of contravening conduct condition of bail. The maximum penalty for this offence is 30 penalty units or three months imprisonment. This is a rolled up charge; and
·Three summary charges of harass a witness. The maximum penalty for each of these offences is 120 penalty units or 12 months imprisonment.
[1] A pseudonym.
2In addition, Charges 2, 3, 7 and 8 are classified as sexual offences for the purposes of the Serious Offender provisions. This means that if you are convicted and sentenced to a term of imprisonment on Charges 2 and 3 (and I say that you will be) you will fall to be sentenced as a serious sexual offender in respect to Charges 7 and 8. The immediate effect of this declaration is that the protection of the community becomes a dominant feature in imposing a sentence on each of Charges 7 and 8. I note at this time the Crown does not seek to have a disproportionate sentence imposed.
3Finally in this respect, as you have pleaded guilty to one class 1 offence (Charge 7) and seven class 2 offences (Charges 1 – 6 and 8), you must be registered under the Sex Offenders Registration Act. You must be registered for life and must comply with reporting obligations for the remainder of your life.
4You have no prior convictions or outstanding matters.
5The prosecution tendered a prosecution summary of opening on plea as Exhibit A. A summary and details of your offending extends for 18 pages. Although the opening provides the best detail of your offending, a summary of your offending is as follows.
6You were born in August 1998 and you were 20 years of age at the time of your offending. You are now 21 years of age.
7At the time of your offending you were a seaman in the Royal Australian Navy training as an electronics technician at Crib Point. You joined the Navy in January 2018.
Charge 1
8On 19 August 2018 you used the social media platform Instagram to contact the first victim MT[2]. You then moved to Snapchat. The victim told you that she was younger than 16. You told her you were 21 and she saw photos of you in your navy uniform on your Instagram account.
[2] A pseudonym.
9Between 19 August 2018 and 2 November 2018, you sent a series of sexualised messages to MT. You sent a photograph of your bank account and offered to buy items for her. You sent sexualised messages asking her to send naked photos of herself. You sent photographs of your exposed penis and a series of sexualised messages. You told the victim that you wanted to have sex with her. MT told you to stop sending photographs and that she was 15 years old. She estimates you sent 10 or more photographs to her. You obtained her mobile telephone number and called her persistently.
10After MT blocked your calls, you started using fake accounts in an attempt to contact her. You again sent a photograph of the amount contained in your bank account and offered her “hundreds of dollars” to send pictures of herself wearing a bra or bikini. When MT continued to resist your advances, you sent an abusive message threatening suicide.
11The victim told her mother, who advised her to block you. MT’s mother contacted you and told you to stay away from her daughter.
Charge 2
12You received a photograph or photographs from a 14-year-old girl, EG[3], which depicted her naked. You sent a picture of EG to MT questioning why she ‘couldn’t do the same thing’.
[3] A pseudonym.
13You received two to three nude photos from TN[4] under the guise of being a 16-year-old boy still at school. The photos were of TN’s naked upper body.
[4] A pseudonym.
Charges 3, 4, 7, & 8
14On 17 September 2018 you initiated contact with GH[5] via a social media platform. She told you she was 13 years of age and you told her that you were 18. You then revealed you were in the Navy and sent her photographs of yourself in your Navy uniform.
[5] A pseudonym.
15Your communication with GH became sexualised and you sent her photographs of your penis and videos of you masturbating to ejaculation, along with suggestive sexualised texting (Charge 4).
16GH sent to you 10 to 15 photos of her breasts and bottom both naked and with underwear on.
17You asked GH if the pair of you met up, whether you would ‘have sex’. GH answered ‘yes’. You then arranged to meet.
18On Sunday, 7 October 2018 you met GH and went to the Woolleys Beach Reserve. You both discussed the fact that she was 13 years of age and in Year 8, and that you were 20 years old. You said ‘it doesn’t matter’ and ‘nobody is going to know’.
19At that location GH masturbated your penis (this is the first instance on the representative charge of Charge 8) and you inserted two fingers into her vagina (Charge 7, the first instance on the representative charge).
20On the following Sunday, 14 October 2018, you again met up with GH. You again penetrated her vagina with your fingers on two separate instances on this occasion (both of which form part of Charge 7, the representative charge). She again masturbated your penis (which is part of Charge 8, also a representative charge).
21You did not meet up with GH again but continued to communicate with her. On one occasion you texted ‘God, you’re a slut. See ya’. You also texted that you missed her, and you asked if she had any new guys in her life.
22Police located over 2200 text messages between you and GH between 3 and 31 October 2018. In that time you sent numerous text messages in which you explicitly suggested and fantasised sexual acts with and involving GH. (That is part of Charge 4.)
Charge 5
23In September 2018 you contacted MG[6] and identified yourself as a 15-year-old boy. MG was identified on Snapchat as a 15-year-old girl in Year 9.
[6] A pseudonym.
24You then sent photos to MG of you wearing your navy uniform omitting your face and photographs of your penis with a sexualised message. MG told you to stop and that it was inappropriate. You sent further photographs of your genitals with sexualised messages suggesting sex with MG. MG took screenshots of 25 sexualised photos sent by you (Charge 5).
25On about 19 October 2018 you invited MG out to a party/gathering. From 11 October 2018 you sent MG photographs of your Commonwealth Bank account. You suggested that you would pay sums of between $500 and $1500 for her to send you sexualised photographs.
Charge 6
26On 22 October 2018 you sent a friend request to TN (referred to in Charge 2). She told you that she was 14 years of age and that she was attending high school.
27After the photographs referred to in Charge 2, you offered TN between $500 and $1000, asking what she would do for the money and stating that you would not even need to meet up.
28You sent TN a photograph of your penis (Charge 6).
The disclosure
29On 3 November 2018 MT and MG told the police about the messages and images you had sent them.
30On 22 November 2018 police executed a search warrant and seized two mobile phones. You were arrested and police conducted a field interview. Essentially, you denied the offending. You were charged with offences and released on bail.
Summary charges of contravening bail conditions and harassing a witness
31Part of your bail conditions required you not to contact any person under the age of 18 unless supervised; not to access the Internet unless for a legitimate purpose; and not to contact witnesses for the prosecution.
32Between December 2018 and February 2019, you contacted GH, MG and MT using alias social platform accounts. In two instances, you lied about your identity and age and you asked GH and MG why they had gone to the police.
33On 23 May 2019 you attended on the police with your father and you were placed under arrest. You made no comment to the allegations put to you.
34A telephone seized by police was examined. It contained messages indicating to family members that you were getting a new phone in order to avoid the police seizing it.
35You were remanded on 23 May 2019 and have remained in custody since that date. You have now served 307 days presentence detention excluding today.
36The matter resolved on 30 August 2019 at a committal mention.
Representative and Rolled up Charges
37Charges 7 and 8 are charges of sexual penetration of a child under the age of 16 and sexual assault of a child under the age of 16 respectively. Both are representative charges.
38A representative charge is a single charge that occurs within a wider context. A representative charge does not increase the maximum penalty, nor does it permit a disproportionate sentence to be imposed. Rather, it puts the offence into context, and denies the opportunity for it to be suggested in mitigation that the offending was isolated to a single instance or that it occurred simply ‘out of the blue’.
39In each instance, it is apparent that your offending occurred over two dates on consecutive weekends, and in circumstances where you knew GH to have been 13 years old at the time that you engaged in sexual conduct with her. As I have outlined, your offending was attended by an extraordinary amount of communication with this young girl. Each instance of meeting with her required some support and planning by you.
40Charges 1, 2, 4, 5 and 6; and summary charge 4 are each rolled up charges. A rolled up charge is constituted by identifiable single instances of offending. When sentencing on a rolled-up charge, the court must consider all the circumstances of the offence and the offender including if the offending was carried out over an extended period, whether it victimised multiple persons, and the totality of the harm described in the charge. While the court may consider all of the relevant circumstances of a rolled-up charge, the plea of guilty must still be treated as entered to a single formal charge. The maximum penalty is therefore limited to the maximum for a single charge.
41Charges 1, 2, 4, 5 and 6 on the indictment are all particularised by multiple / numerous instances of communication, especially on your part; often in the face of requests by the recipient to stop and/ or efforts to block your communication. The communications you sent were to numerous young girls. All of the victims of your offending, for these charges and others, were between the ages of 13 and 15 years old.
Standard sentencing principles
42Pursuant to ss.5A, 11A(4) of the Sentencing Act & ss.49B & 49D of the Crimes Act, the sentences I impose for each of Charges 7 and 8 attract the operation of the standard sentencing provisions. These provisions in combination provide a standard sentence for the offence I have said.
43I turn now to a consideration of the standard sentencing scheme:
·first, the scheme provides for a standard sentence of 6 years on Charge 7 (being the charge of sexual penetration of a child under the age of 16);
·the scheme provides a standard sentence of 4 years on Charge 8 (being sexual assault of a child under 16);
·the scheme also provides for a standard non-parole period of at least 60% of the sentence unless I consider it is not in the interests of justice to do so;
·the standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence;
·objective factors exclude consideration of matters personal to you as an offender or to a class of offenders. Rather it is determined wholly by reference to the nature of the offending;
·this does not limit the matters which I must or may take into account in determining the appropriate sentence. Nor is it intended to affect what is known as the instinctive synthesis process. The standard sentencing scheme may be considered as a guidepost in the sentencing consideration. However it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration;
·in determining the appropriate sentences for your offending, I must take into account the standard sentence as one of the factors relevant to the sentencing process. In this way, it is an additional factor to consider in the sentencing process; and
·finally in this respect, I must not have regard to previous sentencing practices which are not standard sentencing scheme of sentences.
Objective Gravity and Moral Culpability
44I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. In doing so, I am mindful of the reasoning and principles enunciated in the recent Court of Appeal decision of Brown v R.
Charges 7 and 8
45The offence of sexual penetration of a child under 16 years is of its nature a serious offence. This is marked in the first place by the maximum penalty of imprisonment applicable to your offending on Charge 7.
46A similar observation may be made in respect to Charge 8.
47You brought about the offending on Charges 7 and 8 through manipulative conduct and your use of social media. Your offending on both charges took place with full knowledge of the victim’s young age. By virtue of her young age, and in contrast with your own age, she was vulnerable to exploitation and manipulation; matters of which you took full advantage. When she reminded you of her age just before the first instance of offending on Charges 7 and 8, you responded with the words “nobody is going to know”. The offending was repeated. As I have previously observed, there were three instances of each type of conduct which constitute the two single charges, having occurred over two separate dates (hence the charges are representative and not single instances of offending). Although you continued to communicate with the victim after the last instance of penetration, you treated her with callousness and disdain. At one stage, you called her a ‘slut’.
48The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.
49The absolute prohibition on sexual activity with a child under the age of 16 years presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victim is presumed.
Offending generally
50Your offending overall was objectively, very serious.
·First, you targeted young teenage girls, all between the ages of 13 to 15 years;
·Second, although your offending (other than Charges 7 and 8) did not result in physical contact with them, they are nevertheless serious instances of those types of offences;
·Third, you targeted multiple victims;
·Fourth, you sent photos of your penis together with sexualised messaging. So much of that messaging suggested sexual activity. It was communicated in a deeply explicit, pornographic and objectifying manner;
·Next, you made implicit and explicit offers of money in exchange for sexual communication and photos from these young teenaged girls; and finally
·You used multiple accounts to in effect bombard these young girls.
51All of this amounts, in my view, to you engaging in serious predatory sexual behaviour.
52The differences in your respective ages was marked not just by years but by enormous differences in emotional, physical and experiential development. You preyed upon naïve young girls.
53Earlier, I spoke about the presumption of harm to young persons from sexual offending. I respect the wishes of MG and her mother, who did not want their victim impact statements read to the court.
54MG’s father had his statement read to the court. He stated that it has been upsetting to see the emotional and mental toll this incident had taken on his daughter. I betray no confidences when I say that the harm of your offending has been real, and it has been conveyed to me in frank terms, and without exaggeration.
55The courage, strength and tenacity of these young girls, only now just turning into young women, who have come forward, in the face of various statements by you of shaming, trying to impose guilt on them, and then out and out harassment must be recognised and applauded.
56Equally, the objectification of females, and in this instance, young persons for sexual gratification must be condemned.
57Your offending must also be seen in the context of the harassment of witnesses after charges were laid and the consequent breach of bail conditions. I do not raise this to add to the seriousness of the offending; nor shall I add more to the sentences for these offences, as you fall to sentenced separately for each of these summary offences. Nevertheless, your offending must be seen as a whole in order to measure its objective seriousness.
58As I have already pointed out, in almost every instance of offending it was repeated, if not persistent, oblivious to the boundaries of age, and always calculated to focus on and satisfy your own desires. The harassment of witnesses is an instance of this.
59Moreover, your use of social media pages, particularly where you introduced yourself by posing as a like - aged boy, highlights your adroit understanding of, and use of, social media as no more than a hunting place.
60Overall, your conduct must be utterly condemned. Your offending must be met by the principles of deterrence, denunciation, and a measure of protection of the community.
Personal circumstances
61I turn now to your personal circumstances.
62You are 21 years of age born on 14 August 1998 in Perth. You were 20 years of age at the time of your offending.
63Your childhood was described as chaotic. You did not know your natural father. You only discovered that your stepfather was not your biological father when you were 13 years of age.
64You were raised by your mother and stepfather in a household that was racked by conflict and violence between your parents. You told the psychologist that the police were often contacted and you were afraid of your stepfather and you felt that he was not affectionate towards you. You felt your siblings were treated better than you by your parents. You moved house on a regular basis and you never felt particularly settled. Your parents often separated, and are now separated. Overall, you felt that your childhood lacked parental guidance.
65The reference from your grandparents speaks of your difficult childhood but also of the fact that you are close to both of them. You lived with your grandparents from age 16 to 17. It is apparent from the reference of your aunt, Emily Naylor[7], that you had a loving and supportive relationship with her as you grew up.
[7] A pseudonym.
66Your schooling appears to have been significantly disrupted. You attended two primary schools and two secondary schools as a result of your frequent home relocations. Moreover, you state that you were suspended on 4 to 5 occasions during primary school, that you were easily distracted and would not complete classwork. You described yourself to the psychologist as a loner at school.
67Your secondary schooling did not go any better. You report being bullied in Year 8 and bullied online. You spent a great deal of time avoiding classes and avoiding days at school altogether.
68From childhood you have always held the ambition to join the defence forces. Although you left school partway through Year 11, you completed a TAFE qualification which met the minimum entry standards for the ADF. You were accepted into the Royal Australian Navy in 2018 at HMAS Cerberus. You undertook coursework as an electrical technician whilst in the Navy. You completed nine months of service before you were charged with this offending and discharged.
69You have a history of alcohol use and experimentation with various drugs. Whilst you were consuming alcohol during the period of your offending, and whilst your alcohol intake appears to have increased during your nine-month service in the Navy, it is not particularly relevant to this offending.
70You report a long history of depressive symptoms and it appears that you are still suffering from depression whilst in custody. You are medicated with antidepressants and you have had periods on suicide watch since your arrest. You have experienced difficulties with your mental and physical health whilst on remand. Mr de Vietri submitted on your behalf that you were not seeking to invoke the principles of the case of Verdins.
71It is apparent from your psychological state that your time on remand has not been easy. As evidenced by their references and evidence placed before the court, you have strong family support from your family members including your stepfather. However, you have received only limited visits from them due to the distance they must travel from Perth. Moreover, you are currently in protective custody due to the nature of your offending. You also reported an incident of harassment involving a prison guard.
72Nevertheless, you have tried to make the most of your time in custody and you have completed courses on alcohol awareness, family connections and money management.
73You hope to study again in the future and to complete a Certificate III of electrical science. You wished to relocate to Perth on completion of your sentence. I have a reference relating to an offer of employment upon your release at a pest control company in Perth. It is apparent that when you are released and you are able to return to Perth, you will have considerable family support and strong likelihood of a job.
74Overall, the references supplied to me speak of a very different side to you than this offending presents. Although I consider this offending extremely serious and that the principles of deterrence, denunciation and protection of the community are more significant than your personal factors, I will not lose sight of the fact that you are still young, and that you have a strong, prosocial supportive network available to assist you in your rehabilitation and reintegration back into society upon your release from prison.
75The report of Simon Candlish, psychologist, comprehensively sets out his assessment of your risk for future sexual offending. Mr Candlish reports that your imprisonment “appears to have had a positive impact on your self-reflection and recognition of the seriousness of your behaviour”.
76Mr Candlish assesses that whilst you have some emerging problematic personality traits, you do not meet the criteria for a formal personality disorder.
77Mr Candlish provided a detailed analysis of the actuarial and structured professional judgement assessment of risk of re-offending. Mr Candlish considers you fall into the low risk category for sexual recidivism in the absence of any interventions designed to increase your risk management.
78Importantly, Mr Candlish considers that [141]:
… Rather than being specifically deviously interested in underage females and preferentially aroused to the underage status of the victim, his interest appeared related to feeling more comfortable and confident and less intimidated with a younger female. He appears to have felt more comfortable and at ease with slightly younger female peers due to his own social and emotional under development.
79In the circumstances, Mr Candlish considers that you appeared to offend in an opportunistic manner in the context of your own emotional and social underdevelopment. It seems this view is consistent with your limited previous sexual history and your immaturity.
80Mr de Vietri submitted that the following factors should be taken into account to mitigate your sentence:
·youth and immaturity at the time of offending, and your youth at the time of sentence;
·early plea of guilty;
·you have no criminal history and prior good character;
·this is your first time in custody;
·the impact of prison and your self-reflection whilst in custody;
·serving time in protective custody with limited visits from parents and family;
·the loss of your career path;
·the low risk of reoffending;
·the very good prospects for rehabilitation; and
·you have exhibited remorse and insight.
81By submissions dated 23 March 2020 from Ms Murphy, who now represents you, I received further defence submissions that touch on the fact that the Coronavirus pandemic is touching all aspects of life in Australia. Ms Murphy referred to remarks made by Justice Lasry in the bail application of Broes [2020] VSC 128. Ms Murphy remarks that, whilst it is not binding on the court and concerned an application for bail, it was respectfully submitted that Justice Lasry's remarks provide a useful guidance. I do not quote those remarks but I refer to Lasry J’s remarks made at [39].
82It was then submitted that you face, at least for the next several months, additional isolation due to the cessation of all personal visits, and restriction on travel from Western Australia to Victoria. The border has now been closed thereby preventing your family from travelling for visits, even if restrictions were lifted in relation to prison visits, and there is additional anxiety for you due to your concerns about your family including elderly grandparents who reside in Western Australia. Ms Murphy refers to the prospects of how conditions will be affected if there is an outbreak of COVID-19 within the prison system.
83Ms Murphy then submitted that whilst the situation is still evolving given the extraordinary circumstances, these are matters that the court can have regard to in imposing sentence, and the consideration will properly result in a mitigation of both the head sentence and non-parole period.
84I refer also to the observations of the Court of Appeal, Priest and Weinberg JJA in Brown, akaDavis v R [2020] VSCA 60 at [49]. Again I do not quote directly from that but I refer to the paragraph as a whole.
85In my view, I can take into account two things. The first is that although it had already been submitted that the prospect of visits was limited because your family lived in Perth, I can take into account the fact that you will receive no visits at least for the time being. Secondly, I can take into account that it will play on your mind the fact that family and loved ones are isolated from you and you face the prospect, as all people in Australia and indeed the global community do now, of worrying about the health and wellbeing and future of those who may be affected by the virus.
86So I accept that each of the matters that I have outlined and those that I have just referred to should play some part in mitigating your sentence. It is necessary to say a little more about your plea of guilty, the role of your youth in the sentencing process, your prospects for rehabilitation and your remorse.
87It is implicit from what I have said above that I accept that your early plea of guilty has a utilitarian benefit in this case. This is because it has saved a number of vulnerable witnesses of tender age from being called to give evidence and being cross examined. Against this, it may be said that a number of charges were easily proved by production of the messages and pictures you sent. However it is to your credit that you accept the statement of GH in respect to your meetings with her and your sexual offending against her.
88It is necessary to consider the question of your remorse and insight. It is apparent that your remorse and insight have only been recently developed. Neither were present at the time you were first charged with this offending because you continued to harass the witnesses by social media. I note however that Mr Candlish considers that you are developing insight. The references from your mother, your grandparents and your aunt, Ms Howe[8], all speak of your expressed remorse, developing insight and increasing understanding of your actions, and your express need to take responsibility for those actions. In this way, I consider that you are beginning to develop insight and that you have exhibited remorse, and that your plea of guilty facilitates the course of justice in this case.
[8] A pseudonym.
89Mr de Vietri further submitted that the particular instances of offending on charges of sexual assault and sexual penetration and also on the Commonwealth charges, and also on the summary charge of harass a witness, fall below the mid-level of the range of seriousness for such offending.
90Mr de Vietri then submitted that whilst the contravention of bail condition constituted a moderate level of objective seriousness, there should nonetheless be a substantial measure of concurrency between that offending and the harassing of witnesses offending to reflect the overlap of conduct.
91I will say more about the level of seriousness of your offending later, but I agree that there should be a considerable measure of concurrency between the contravention of bail condition and harassment of witness charges.
92I will deal with another aspect of the defence submissions. Mr de Vietri provided a folder of cases; a number of which were appeals and sentences in cases of comparable offending on the charges of penetration and sexual assault. As I have already noted, the legislation provides that I must not have regard to previous sentencing practices in cases which are not standard sentence cases. Mr de Vietri then referred me to the County Court sentence of Jenkins, a decision of Her Honour Judge Wilmoth. I have taken note of the circumstances, the principles applied by Judge Wilmoth and the sentence imposed in that case. It was a standard sentencing case.
93Ms Guesdon pointed out the matters which I must take into account in respect to sentencing on the Commonwealth offences.
94I have already referred to the objective factors relied upon by the Crown to characterise your offending as subjectively serious. Ms Guesden submitted that the dominant sentencing consideration in this case remains deterrence, although the Crown conceded that specific deterrence was a lesser factor in light of your lack of prior convictions. Nevertheless, deterrence must take into account the fact that you preyed on multiple victims.
95Ms Guesden submitted that, with the exception of Charge 2, the offending in this case was all serious and should be considered mid-range. The Crown submits that the summary offences amount to a re-traumatising of the victims by pretending to be someone else and asking why the police became involved. In conclusion, the Crown submitted that your offending amounted to a consistent and persistent attempt to get sexualised material from the girls.
96I have already characterised your offending as objectively serious. For all of the factors I've already referred to, your offending on all the charges calls for the imposition of a period of imprisonment, and on Charges 7 and 8, the setting of a non-parole period.
97It is difficult and sometimes unhelpful to simply put a concluding label on offending – whether it is “high”, “mid-level” or “low level”. I remain acutely aware of the sensitivities of the young women who were the targets of your offending, and I am aware that such labels may lead to a misunderstanding for the simple use of a single word of shorthand.
98Rather, the sentence I impose upon each offence in the overall sentence must reflect factors besides the objective gravity of the offending. Overall, given the number of offences you face, I must also ensure that this sentence conforms with the principle of totality - that is, that it reflects the offending and this overall criminality, but that I do not impose a sentence where the individual sentences are so high, or make orders of cumulation such as to impose a crushing sentence.
99It is also necessary to take into account the fact that the offence of sexual penetration of a child under 16 years may be committed in a number of different ways.
100In the circumstances therefore I propose to impose sentences on Charges 7 and 8 that are somewhat lower than the standard sentence as provided for by Parliament. This is done to reflect the gravity of the offending as I see it, and also to ensure that the overall sentence reflects your youth and your prospects for rehabilitation, and your plea of guilty (to the extent that those matters can be taken into account), and then to achieve a sentence which conforms with the principle of totality.
101I intend to impose a non-parole period on the State charges at 60% of the total effective sentence set for those offences, but overall I have decided that the interests of justice in this case are better served by imposing a slightly lower sentence after which you may be released. This is done in order to reflect the matters to which I have just referred.
102I have the difficult task of imposing a sentence which combines charges prosecuted under both State and Commonwealth legislation. In order to assist me in this respect, I have read the cases of Swingler and Gaunt.
103Now I am going to take an unusual step at this stage, I announce to the Bar table. I am going to tell you what the overall effect of the sentence I intend to achieve is, and then I am going to hand a table to you so that you can follow it. I am then going to step down so that you have the opportunity to consider it. Then I am not going to enter into the records until you have had the opportunity to take it back to your respective officers so that you can determine whether the sentences have been correctly imposed. It is not an opportunity to argue the toss. It is simply an opportunity to see whether I have performed the task required by law in imposing both State and Federal sentences, whether I have undertaken that task correctly.
104The sentence that I am striving to achieve, Mr Morey, this is the part in which you are interested, and then I will get to the mechanics after that. The sentence on the total effective sentence for State and Commonwealth offences combined is a sentence of 48 months. That is, 38 months on the State charges with an added 10 months on the Commonwealth Charge 3, to be released after serving 26 months. So they are the figures, Mr Morey, 48 months with 26 months, being eligible for parole after 24 months on the State offences and release on a recognisance release order on the Commonwealth matter, taking into account the commencement of the Commonwealth sentence. I declare 307 days pre-sentence detention reckoned as already served.
105Now before I go any further, Ms Phillips, would you hand down to the Bar table please a copy of - the sentences are as follows:
| State | |||||
| Charge | Name | Victim | Maximum | Sentence | Cumulation |
| 7 | Sexual penetration of a child under 16 | GH | 15 years Standard sentence: 6 years | 27 months | Base |
| 8 | Sexual assault of a child under 16 | GH | 10 years Standard sentence: 4 years | 20 months | 10 months |
| Summary | |||||
| Summary charge 4 | Contravene a conduct condition of bail | 30 penalty units or 3 months | 2 months | ||
| Summary charge 7 | Harass a witness | 120 penalty units / 12 mths | 3 months | 1 month | |
| Summary charge 8 | Harass a witness | 120 penalty units or 12 months | 3 months | ||
| Summary charge 9 | Harass a witness | 120 penalty units or 12 months | 3 months | ||
| TES 38 months | |||||
| Federal sentences | |||||
| 3 | Using a carriage service to procure persons under 16 | 15 years | 24 months | Base Commences at the expiration of State non parole period The global sentence is now 48 months | |
| 1 | Using a carriage service to transmit indecent communication to person under 16 | MT | 7 years | 6 months | Commences today |
| 2 | Using a carriage service for child pornography | EG, TN | 15 years | 3 months | Commences today |
| 4 | Using a carriage service to transmit indecent communication a person under 16 | 7 years | 6 months | Commences today | |
| 5 | Using a carriage service to transmit indecent communication a person under 16 | 7 years | 6 months | Commences today | |
| 6 | Using a carriage service to transmit indecent communication a person under 16 | 7 years | 6 months | Commences today | |
| Federal TES 18 months | |||||
| Total effective sentence for State and Commonwealth offences combined 48 months (being 38 months on the State offences with an added 10 months on Commonwealth charge 3), to be released after serving 26 months (being eligible for parole after 24 months on the state offences and release on a RRO on the Commonwealth matter, taking into account the commencement of the Commonwealth sentence) | |||||
| PSD: Declare 307 days PSD reckoned as already served | |||||
106The s.6AAA declaration is that but for the plea of guilty, I would have sentenced you to a period of 5 years and 3 months, with 3 years and 3 months as the overall sentence, however that would be achieved on the combination.
107Pursuant to s.6F of the Sentencing Act you are declared to be a serious sexual offender in respect to Charges 7 and 8, and I order that fact be entered on the record. You are sentenced as a serious sexual offender in respect to Charges 7 and 8.
108Pursuant to s.34 of the Sex Offender Registration Act 2004, the length of reporting period is life. That is mandatory. I have no discretion there.
109I want to say this. It will be apparent to all that there is a degree of artificiality about the manner in which the sentence is structured. I echo the remarks made in both Swingler and Gaunt about the complexity in sentencing where both Federal and State matters are charged on the same indictment.
110I will stand down before making any further orders to give the parties time to consider these orders.
111But after that, given that I do not have Mr Morey present for the purpose of signing the recognisance release order, or for signing the SORA material, I am going to give you time before I ask him whether he agrees to release on that and I will read some of the SORA material to him. But for the moment I will just stand down.
112(Short adjournment.)
113HIS HONOUR: Mr Morey, I have now got to read a document to you. I am going to read it to you in full because although I have had the document sent to the prison, I cannot guarantee that you will receive it. So if I can ask for your acknowledgement, it will help with the orders into effect. So they will then be entered into the record. By acknowledging this document it in no way affects your right to appeal against the sentence. Are you clear on that?
114OFFENDER: Yes, Your Honour.
115HIS HONOUR: Thank you. All right. So this is the order and recognisance under paragraph 20 sub-s.1 and sub-paragraph B of the Commonwealth Crimes Act 1914.
116The court orders the release of the accused under paragraph 20, sub-s.1, sub-paragraph B of the Crimes Act 1914 after serving two months of the term of imprisonment on Charge 3 by you giving a recognisance of $500 to comply with the conditions, that you be of good behaviour for a period of two years.
117The order has been issued because the accused, Joel Morey, was charged with the following Federal offence:
·Using a carriage service to procure persons under 16 years of age contrary to s.474.26(1) of the Criminal Code 1995.
118The court has sentenced the accused to a term of 24 months' imprisonment on the Federal charge and the court has decided the accused be released after serving two months of the sentence on Charge 3 if the accused complies with the condition of the order.
119So I ask you this: Do you acknowledge that first of all I have explained to you the purpose and effect of the order and the consequences that may follow if you fail without reasonable excuse to comply with the conditions of the order, and that this order may be discharged or varied under s.20(AA) of the Crimes Act 1914, and do you agree to be bound in accordance with the order and agree I will give a copy of the order to your barrister.
120The consequences of breaching the order is that after release if you are not of good behaviour, you will be brought back before me for re-sentence on the original charge. Do you understand that, Mr Morey?
121OFFENDER: Yes, Your Honour.
122HIS HONOUR: Do you agree that I have explained the purpose and effect of the order, the consequences that may follow. That the order may be discharged or varied and do you agree to be bound by the order?
123OFFENDER: Yes, Your Honour.
124HIS HONOUR: Thank you. That being the case, I will sign the recognisance release order now. Ms Murphy, are you happy to sign that in light of the acknowledgment given?
125MS MURPHY: Yes, Your Honour.
126HIS HONOUR: Mr Morey, by operation of law, the fact that you have pleaded guilty and were found guilty of the offences as I outlined in my sentencing remarks, you are now to be registered on the sex offender registration list under that Act for life. There are a myriad of conditions that you will have to comply with, but I want to read to you an acknowledgement that you are not able to sign.
127That is, that as a registerable offender who will report, you will report to Victoria Police seven days after your release from government custody and you must comply with all reporting obligations imposed by the Sex Offenders Registration Act for life.
128I am not in a position to provide the documentation to you for the moment, but I will provide it to your lawyer. Because you are not in a position to receive it, I am going to ask your lawyer to sign the acknowledgment form. I will simply have my associate say that acknowledgement was not sought, but I needed to explain to you that you have these obligations and I am providing the paperwork to Ms Murphy now. All right?
129OFFENDER: Yes, Your Honour.
130HIS HONOUR: I will hand that down. Now there are forfeiture orders sought. I will not deal with them now. Have you got them there?
131MS GUESDON: They are outlined in the opening. Four mobile phone and a SIM card.
132MS MURPHY: Your Honour, there is an issue with one of the phones listed in the summary. I have discussed it with my friend. Perhaps if that application can be made at a later date, we will have discussion as to whether we can reach an agreement.
133HIS HONOUR: Yes. Ms Guesdon, do you agree with that?
134MS GUESDON: Yes, Your Honour.
135HIS HONOUR: Thank you. I will not make the forfeiture order at this time. Is there anything else I need to discuss with Mr Morey? Do you need an opportunity to speak to him briefly before the link is cut?
136MS MURPHY: No thank you, Your Honour.
137HIS HONOUR: Thank you Mr Morey, thank you for your attendance this morning. I will now cut the link.
138OFFENDER: Thank you, Your Honour.
139HIS HONOUR: Nothing else? Thank you both for you attending today and this afternoon.
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