DPP (Vic) v Johanson
[2012] VCC 708
•29 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 11-01751
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN JOHANSON |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2012 | |
DATE OF SENTENCE: | 29 May 2012 | |
CASE MAY BE CITED AS: | DPP v Johanson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 708 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Coidon | Office of Public Prosecutions |
| For the Accused | Mr M. Lincoln |
HIS HONOUR:
1 Kevin Edward Johanson, you have pleaded guilty to an indictment containing three charges. The first involves grooming a child under the age of 16 years contrary to s.474.27 of the Criminal Code. That carries a maximum penalty of 12 years' imprisonment. Charge 2, of sending offensive communications to a person under the age of 16 years contrary to s.474.17 of the Criminal Code, carries a maximum term of imprisonment of three years. Charge 3, of procuring a child under the age of 16 contrary to sub-s.474.26 of the Criminal Code, carries a maximum penalty of 15 years imprisonment. You have no prior convictions.
2 Charge 1 involves an intention of making it easier to procure the recipient of the communications to engage in or submit to sexual activity with you. Charge 2 involves you using a carriage service to transmit communications in a way which was offensive and Charge 3 involves an intention of procuring the recipient to engage in sexual activity with the sender. The prosecution tendered a plea summary which is Exhibit A on the plea hearing and I incorporate that document into these reasons for sentence, by reference.
3 Suffice it to say that the offences occurred between 3 August 2009 and 26 April 2010 and involved your communication by the internet with three separate putative victims. There were of course no actual victims because you were in fact communicating with an undercover police officer. Nevertheless, you engaged with the putative victim the subject of Charge 1 in conversation over the internet between 3 August 2009 and 1 April 2010. There were a significant number of conversations, many of them of substantial duration. And in relation to each of the three putative victims, you became aware during the very first chat session that you had with them that they were aged 14, 13 and 14 years respectively.
4 In relation to Charge 2, the period of your offending conduct was limited to seven days. Clearly that is a significantly less serious offence than the offences the subject of Charges 1 and 3. The offence in Charge 2 commenced on 10 March 2010 during a period when you were still engaged in discussions with the putative victim the subject of Charge 1 and the offending conduct with the putative victim the subject of Count 3 commenced on 16 March 2010 when you were still in conversation with each of the victims the subject of Charges 1 and 2. Very soon after you had your first contact with the victim the subject of Charge 1, you involved yourself in explicit conversation with her. That sort of conduct continued through to the conclusion of that offending conduct.
5 In relation to Charge 3, very soon after you commenced communicating with the putative victim you became involved in explicit sexual conversation and on two occasions on 6 April 2010 you sent the putative victim an image of your exposed erect penis.
6 The offences are all serious offences. However as I noted in discussion with counsel during the plea hearing, there are a number of aggravating features which are often present in these cases that are absent in your case. There was no actual contact with any of the three victims, despite conversation with the victims the subject of Charges 1 and 3 suggesting that you had an interest in making such contact. I am not satisfied beyond reasonable doubt that you actually intended to meet any of the three victims and of course there was no actual victim so there is absent the potentially aggravating feature of the harm that may be done to an actual victim of offending conduct of this kind.
7 But Charge 3 had attended with it the aggravating feature of your sending two images of your penis to the putative victim. It is an aggravating feature that there were three putative victims. There were many conversations and the period of your offending conduct covered some eight months.
8 I was referred in the course of the plea to a number of decided cases by appellate courts: R v Gajjar (2008) VSCA 268, DPP v Hizhnikov (2008) VSCA 269, R v Burdon (2005) QCA 147, Rampley v R (2010) NSW CCA 293, R v Fuller (2010) NSW CCA 192 and other cases at first instance.
9 It is plain from those Appellate Court authorities that the fact the recipient of the communications was an undercover police officer is not to be regarded as a mitigating circumstance. It is also plain that offences of this kind can be difficult to detect and that it is open to a judge to accord prior good character, less weight and to treat with greater weight in the balancing process the sentencing principle of general deterrence.
10 Also emerging from the authorities is the proposition that there is a paramount public interest in protecting children from sexual abuse and those factors in combination indicate that offenders can ordinarily expect a term of immediate imprisonment for conduct of this nature.
11 You were well aware during your first conversations in each case that the ages of the putative victims were 14, 13 and 14 respectively, yet you engaged in and persisted with your offending conduct, albeit in relation to Charge 2 the total period of contact was only seven days. Your offending conduct was serious but on balance I place it towards, but not at, the lower end of the range.
12 On your behalf, Mr Lincoln tendered a report from Dr Janet Hall, a clinical and consulting psychologist. That report is dated 30 January of this year. He called Ms Hall to give evidence, in addition to the material contained in the report. She conveniently sets out matters relating to your background and she reports (in the report which became Exhibit 1) that you had a normal childhood, your father was a hardworking maintenance welder and he determined that his sons would have a tertiary training. He died in 1994 at the age of 68.
13 Your mother is now 88 years of age and lives at home in Melbourne with her sister. You have a good relationship with your mother. You have a brother who lives in Perth, an older brother, although you do not have a close relationship with him.
14 You had a number of girlfriends prior to meeting your wife from whom you are separated, Julie, whom you married in 1983. That marriage continued until the police came knocking on your door in June 2010. It seems apparent that from 1996 onwards, the relationship with your wife was not a sexual one and lacked the elements of love and intimacy normally associated with a continuing marriage. It seems that you stayed in the relationship despite these deficiencies largely because of your daughter still being a young person. She is now aged 18 and is studying physiotherapy at Monash University.
15 You were apparently employed in a leadership position in the information technology industry and you earn about $120,000 a year. You have been regularly employed in that industry for many years.
16 According to Dr Hall, you have had a healthy life and pursue a healthy lifestyle. You do not drink alcohol, you do not smoke, you do not use drugs. She indicated that you are not an anxious man and you are not suffering from depression. Indeed, she does not identify any evidence of any mental impairment. She indicates that you had expressed remorse and upset to her and that you knew that the pursuit of your offending conduct was illegal, that it was wrong and you regard it as being stupid, regarded yourself as being stupid and pathetic for having engaged in that conduct.
17 Mr Lincoln also called your current partner Lauren Ramsey and she gave evidence of discovering, some seven months into your relationship, the fact of your offending conduct. She has indicated that she stands by you and supported the proposition that the loveless and sexless marriage provided the context in which you committed these offences. She also supported the proposition that you are now disgusted with the conduct in which you engaged.
18 You are 55 years of age and you have pleaded guilty to these offences. It was submitted on your behalf that I should treat the plea as an early plea. There seems to be some controversy about that, however it seems to me that on balance, although I do not propose to make a finding as between the two competing propositions, that this ultimately was always going to end in a plea of guilty. It seems to me that the plea was arrived at after a process of negotiation and that you should not lose the full benefit of your plea, which seems to me to indicate both a willingness to facilitate the course of justice and is consistent with remorse that you have already expressed to others. I accept that you are remorseful and I propose to give you substantial credit for your plea of guilty.
19 You are of prior good character with no previous convictions and you have engaged in both charitable and community service work in the past. You have cooperated with the police when they investigated this matter and you made admissions during the course of your recorded interview. As I have indicated, you have an excellent work record and are still in employment. Although no evidence was placed before me on behalf of or by your current employer, it seems to me that there is a risk, perhaps a substantial risk, of you losing your employment as a result of this matter and I take that into account.
20 You have also lost your marriage, although perhaps in a way it was a fortuitous consequence of your being caught in this matter that you are now in a happy and stable relationship with Lauren Ramsey, who as I indicated to your counsel I regarded as an impressive witness and an impressive person. I think that she will have a good deal to do with keeping you on the straight and narrow, to facilitating your rehabilitation. It seems to me that with her at your side, it may fairly be said that you are unlikely to offend again and your prospects of long term rehabilitation are good.
21 I note though that your daughter reacted very badly to news of your arrest and of the offending conduct and that she refused to speak to you for a year, although apparently you are seeing her on a regular basis now. There is no doubt that you will have to live with the stain, so far as she is concerned, of your offending conduct and that too seems to me to be an additional punishment which you will have to bear as a result of your conduct.
22 Although it was put that the context of your offending, the absence of intimacy and love and sexual release in your marriage was a significant feature in reducing the culpability of your offending, it is apparent that you were aware of and availed yourself of other outlets - that is, other outlets which were lawful. It was not necessary on any view of the facts for you to engage in criminal conduct in order to deal with this contextual situation that was relied upon. In my opinion, it really provides no excuse for your offending conduct.
23 It seems to me that you knew not only what you were doing but that you knew that what you were doing was unlawful. You are an intelligent man and you must have appreciated the potential harm to your putative victims, yet you continued with your conduct nevertheless. This was not an isolated incident. This was offending conduct which occurred over a period of between eight and nine months. You had plenty of time to reflect upon your conduct and to desist from it.
24 I was taken by your counsel appropriately to s.16A of the Commonwealth Crimes Act and taken through the various factors which seem to bear upon sentencing in this case. I do not propose to reiterate those matters. Many of them I have dealt with in passing in any event, but I take all of those matters into account.
25 It is necessary for me to express the denunciation of this court for your conduct, to punish you appropriately and to take into account the maximum penalties that are imposed for offences of this kind. I have to give proper consideration to the need to deter you, although as I indicated in the course of discussion with your counsel, it seems to me that that is not a sentencing consideration which weighs heavily in the balancing process. I have to also consider the need to deter others and that of course, as I have indicated previously, is identified as being a paramount sentencing consideration in offences of this nature. I need to consider a sentence which, balancing all those factors, nevertheless facilitates your rehabilitation and avoids imposing upon you crushing sentence. I am satisfied that no sentence other than an immediate term of imprisonment is appropriate in your case and in those circumstances. Would you stand please?
26 In respect of each of the three charges on the indictment, I convict you. In relation to Charge 1 of grooming a person under the age of 16 years, I sentence you to 18 months' imprisonment. On Charge 2 of using a carriage service to cause offence, I sentence you to four months' imprisonment. On Charge 3, using a carriage service to procure a person under 16 years for sexual activity, I sentence you to 20 months' imprisonment. The sentences on Charges 1 and 2 are to commence today. The sentence on Count 3 is to commence on 29 September 2012. The total effective sentence is therefore 24 months.
27 Subject to your consent, I propose to release you on your own reconnaissance of $2000 to be of good behaviour for a period of two years, after you have served a period of six months of the sentence that I have now imposed.
28 I indicate pursuant to s.6AAA of the Victorian Sentencing Act that but for your plea of guilty, and as I indicated I propose to give you a substantial credit for your plea of guilty, but for your plea of guilty I would have sentenced you to a total effective sentence of three years imprisonment and ordered your release upon reconnaissance after you had served a period of 12 months.
29 I note that you are eligible for and will be registered under the Sex Offenders Registration Act for a period of two years. I shall be providing you with a form which indicates your obligations under that reporting regime. I require though your consent to be made the subject of a release on reconnaissance. Do you consent to be released on reconnaissance?
30 PRISONER: Yes.
31 HIS HONOUR: I should indicate to you that if you are of good behaviour in the next two years, that you will not be required to serve any more than the term of imprisonment which I have indicated, being six months, that you will have to serve prior to being released from your sentence. If however you commit other offences punishable by imprisonment, there is a strong likelihood that you will be brought back before me or some other judge of this court and required to serve the balance of the sentence in addition to any other sentence that might be imposed upon you, do you follow?
32 All right, the reconnaissance form will be prepared and you will be asked to check that.
33 MS COIDON: Your Honour, there is one matter?
34 HIS HONOUR: Yes?
35 MS COIDON: I think my friend and I both agree that we heard Your Honour say that the period for reporting under the Sex Offenders Registration Act is two years. It is in fact 15 years.
36 HIS HONOUR: I thought I had written down 15 years but, I am sorry, you will be required to report for 15 years. The period of the reconnaissance is two years. You are only bound by the reconnaissance for two years. Thank you for that.
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