R v D'Costa
[2012] VCC 554
•4 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00448
| THE QUEEN |
| v |
| FAYLIN ANTONY D'COSTA |
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JUDGE: | HER HONOUR JUDGE THORNTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2012 | |
DATE OF SENTENCE: | 4 May 2012 | |
CASE MAY BE CITED AS: | R v D’Costa | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 554 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentence – plea of guilty – one charge of using carriage service to procure person under 16 for sexual activity – contrary to s.474.26(1) Criminal Code 1995 (Cth)-2 years’ imprisonment- to serve 3 months’ imprisonment -released on $1000 recognisance with conditions under s.20(1)(b) Crimes Act 1914.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. Aman Dhillon | |
| For the Accused | Mr. Scott Johns | Dr. Martine Marich |
HER HONOUR:
Charge
1 Faylin Antony D’Costa, you have pleaded guilty to one Charge of using a carriage service to procure a person under 16 for sexual activity.[1] The offence occurred between 4 October 2010 and 13 December 2010.
[1]Criminal Code (Cth), s.474.26(1).
2 The maximum penalty for this offence is 15 years’ imprisonment.
Circumstances of the offence
3 You agreed with a summary of facts tendered by the prosecution which forms the basis of this sentence.[2]
[2]Exhibit A.
4 There is no victim of your crime which was detected by a police officer posing as a 13 year old girl known by the pseudonym “Tahlia Black”. The police officer used the internet chat applications “Yahoo!7Messenger” to monitor and engage in online communications. You operated a Messenger account which you had registered under the username “guy30marriednlkg” which had the associated chat screen name “JeffAlexua”.
5 On 4 October 2010, you invited the account username and associated chat screen name “tahliagyrl” using the pseudonym “Tahlia Black” to enter a one on one private chat session with you using your account username “guy30marriednlkg” with the pseudonym “jeffAlexua”. At the commencement of this chat session, tahliagyrl stated that she was 13 years of age.
6 Thereafter, between 4 October and 13 December 2010 you used Messenger to chat with Tahlia, believing that she was a 13 year old girl from Caulfield, Victoria.
7 You sent an invitation to tahliagyrl asking to be added to her list of friends and told her that you were a 36 year old from Cranbourne.
8 Over that period of time, in total you engaged in 39 separate online chats on 30 individual days. On 11 of these occasions you tried to initiate a conversation but received no answer from tahliagyrl. During this period you transmitted images (video and photographs) of yourself engaged in masturbation on six occasions. You also contacted or attempted to contact tahliagyrl by mobile phone on three separate days (6, 7 and 13 December 2010).
9 You were apprehended by police on 13 December 2010 whilst driving your vehicle along Kokaribb Road in the vicinity of Mimosa Street in Carnegie. The location and time at which you were apprehended accorded with the arrangements that you had made earlier that day to meet “Tahlia”.
10 When intercepted you spontaneously said to the police, “No, it’s not me. No, please give me a chance. Nothing was going to happen, I wouldn’t do that. I was going to end it, that’s what today was about. Please just give me a chance.”
11 Police seized an Apple iPhone and a laptop computer from the vehicle you were driving and searched your home address locating a hard drive and PC computer tower. You provided police with the passwords you used to access your Yahoo! Messenger and Facebook accounts in the fictitious name of Jeff Alexua. Tahlia Black appeared in a list of friends of Jeff Alexua’s Facebook account.
Your Interview with Police
12 When interviewed by the police, you told them that you were going to meet Tahlia to tell her that it was not right and that you made mistakes in chatting to her and that you were driving to the pre-arranged location with a view to telling her it is wrong and just to forget about it.
13 You admitted making mistakes in talking to Tahlia in the chat room, such as asking her whether she had kissed someone and what she was wearing at the time.
14 You stated that your intention in planning to meet her was to explain things and just move on, but you then said that your intention upon meeting Tahlia was to tell her a bit about how to train her voice and stuff.
15 You told police that in the first chat on 4 October, when Tahlia told you that she was 13, you continued to chat with her because people often lie about their age.
16 You told police that you deleted recent calls and messages to Tahlia because you wanted to move on, not because you feared that your wife may find out about Tahlia.
17 You admitted that you asked Tahlia to send you sexy pictures of herself and also that you asked her about her bra size.
18 You denied asking Tahlia whether she was naked during the first chat, however, admitted that you did ask her whether she masturbates and if she had pubic hair.
19 You admitted that you did not tell Tahlia your real name but used “Jeff”.
20 You admitted showing her your penis using a webcam on 4 October but denied masturbating. You admitted exposing yourself a couple of times but said that you would never go any further than that. You stated that you exposed your genitals to Tahlia two or three times and admitted exposing your genitals on 19 October and 6 December, but denied doing so on 3 December.
21 You said that the conversations about purchasing iPods and other items for Christmas were meaningless.
22 You admitted having a sexually explicit conversation with Tahlia on 29 November and that on other occasions you talked about scrubbing her back in the shower, French kissing and massaging her. You denied that there was any sexual intention behind these expressions.
23 You admitted that on 9 December you suggested meeting at Chadstone or somewhere where you could steal a kiss, but that this was just a silly comment.
24 You agreed that you and Tahlia were to meet at the Caulfield Swimming Pool prior to your arrest. You said that you then told her to come to Caulfield Station so you could say what you wanted to and then move on. You admitted driving past the station and denied that you were in fact driving to the Caulfield Pool in Carnegie. You said that you did not know the area, agreed that you had a navigation system in your car which you used to travel from Narre Warren to Caulfield and that you had set it to Mimosa Street.
25 You told police that there would be a chat, phone call or SMS in which your intention to end the relationship could be found and agreed saying that Tahlia was 16 years old accompanied by winks and smiling icons during some of the chats. You denied doing so as a means of communicating to her that you knew her actual age. You admitted that Tahlia had told you she was 13 years old and you realised that she was telling the truth.
26 You said that the actual reason that you felt “chicken” about meeting with “Tahlia” was not because she was not the legal age, but it was nonetheless inappropriate for you to be friends with a 13 year old girl particularly in light of the content of your chats.
27 Forensic analysis of your laptop located a number of photographs which tahliagyrl had sent you and your iPhone seized from your car was found to contain the mobile number that was provided by tahliagyrl.
Your background
28 You are 41, born in India, an only child and both your parents live in India. Your 68 year old father is semi-retired and your mother is working as a kindergarten teacher.
29 You grew up in southern India with both parents and your family relocated in 1988 to Dubai where you completed Year 12. You returned to India and worked as a courier and in a clerical role with a shipping company for nine years. You worked in freight forwarding and customs clearance in shipping. You met your wife in India, married in 1997 and in November 2003 settled in Melbourne where your wife has a cousin. You were employed in the freight forwarding business in Australia for 6 years and have twin daughters aged 12.
30 You were relieved to have been made redundant by your previous employer in May 2011 because of the toll which your work life had placed upon you. In June 2011 you established your own fuel exporting business in partnership.
31 A report from consultant psychiatrist, Dr. Lester Walton[3] suggested that your depressive frame of mind led to the erosion of proper social judgement and that you have suffered from long-term low self esteem and likely diagnosable depression at times.
[3] Exhibit 2 dated 12 April 2012.
32 At the time of the offending you would appear to have had some strain in your marital relationship which has subsequently been overcome but which exacerbated your depression. Dr. Walton was of the view that you lack comprehensive insight into the motivation for your misconduct and remain perplexed and struggling to explain your behaviour whilst not seeking to shirk responsibility.
33 Since being arrested you have had extensive psychological counselling with Mr. Wright.
34 You have dated the onset of your depression to 1999 and you have had fairly serious health problems, having undergone triple cardiac bypass surgery successfully five years ago. You remain on medication to control your blood pressure.
35 You have a number of interests including singing, playing the guitar, cricket and badminton and have been raised in a Christian religious tradition, having an active role in your local Church where your local priest has described you as respected by other members of the community and having a good character in the time that he has known you over the last four years. He has written that you are genuinely remorseful and that your offending has come as a shock to him.[4]
[4] Exhibit 1.
36 Other character referees have described you as presenting as a devoted family man and confirmed that at the time of the offending you were suffering from low self esteem and depression.[5]
[5] Exhibit 1.
Sentencing submissions
37 Your counsel did not take issue with the sentencing range for this offence submitted by the prosecution, but highlighted the fact that there was no overt language used by you and distinguished your case from those cases referred to by the prosecution on the basis that there was no explicit discussion about what would occur when the arranged meeting took place. Whilst conceding that general deterrence is significant for this offending and that a term of imprisonment was appropriate, your counsel submitted that the imposition of a term of imprisonment with a recognisance that did not require any immediate imprisonment to be served, would satisfy principles of general deterrence, whilst allowing for rehabilitation by completion of sex offender or other programs to reduce reoffending by way of conditions. This was submitted on the basis of your degree of contrition, shame, fall from grace, plea of guilty, previous good character, lack of any criminal history, depression, cooperation by significant admissions, your employment history and good prospects of rehabilitation because of your family and community support.
38 Alternatively your counsel submitted that the minimum period of imprisonment to be served should be 3 months’ imprisonment having regard to the mitigating factors which included principles 1 and 5 of Verdins’ case[6] and that you would be serving a term of imprisonment for the first time.
[6]R v Verdins [2007] VSCA 102 [32].
39 The prosecution referred to the second reading speech for the introduction of the legislation for this crime targeting situations where an offender, having won a child's trust, then uses a telecommunications service to orchestrate a meeting with the child so as to engage in sexual activity.[7]
[7] Crimes Legislation and Amendment ([Telecommunications Offences and Other Measures. All) Bill (No. O) 4 August 2004.
40 The prosecution submitted that a range of between 21 months’ and 30 months’ imprisonment with between 3 and 6 months’ imprisonment to be served was appropriate having regard to other relevant cases and in particular a number of authorities which were provided in a folder (R v Asplund [2010] NSWCCA 316; R v Fuller [2010] NSWCCA 192; R v Gajjar (2008) 192 A Crim R 76 ).
41 The prosecution submitted that general deterrence is of primary importance, where there is predatory offending using the anonymity of the Internet. The prosecution referred to the need to protect young persons and the difficulty of detecting this offending referred to in the case of Asplund and relied upon the conclusions outlined in the decision of the Victorian Court of Appeal in Gajjar’s case. The prosecution also referred to Gajjar’s case for the proposition that adults who use the Internet to locate and contact children to procure them to engage in sexual activity can ordinarily expect a term of immediate imprisonment.
42 The prosecution emphasized that the absence of a victim does not mitigate and referred to the fact that there was extended communication in your offending over several months where contacts were sometimes made two to three times per day. The prosecution also relied on your clear knowledge of the illegality of your conduct having regard to the content of your conversations revealed in the chat logs and emphasised your conduct on the first contact in the chat room which was instigated by you. The age difference between you and your fictional recipient, the fact that you disguised your actual identity and your conduct in masturbating on the Webcam were also emphasized by the prosecution.
43 The prosecution conceded that you proceeded by way of a straight hand up brief at the committal and entered a plea of guilty on the first day of the trial without the need for witnesses to be called. The prosecution conceded that Verdins has some application but that any moderation should be at the lower end suggesting that there was no independent testing of the depth of your depression which was self-reported. The prosecution sought an immediate term of imprisonment to be served. The Prosecution also suggested that the facts of Gajjar’s case are similar, although the offender there initially posed as a 20-year-old girl.
44 The prosecution did not take issue with Dr. Walton's opinion that you are unlikely to be an active paedophile or that you do not seem to harbor any deviant sexual interest in children and conceded that you have voluntarily had some psychological counselling.
Further sentencing considerations
45 The maximum penalty for this offence being 15 years’ imprisonment reflects the seriousness with which the Australian Parliament regard this offending.
46 The Court of Appeal in Victoria has observed that there is a paramount public interest in protecting children from sexual abuse and that for this particular offence ordinarily one can expect to receive a term of immediate imprisonment.[8] The court observed that in these cases paramount consideration must be given to the principle of general deterrence and that whilst prior good character is, of course, relevant to sentence, it must be open to a sentencing judge to give less weight to prior good character in such cases. The court highlighted the deplorable nature of this kind of conduct which the legislature has reflected in creating this offence. The offence is designed to be preventive and it is likely to be detected only through the use of undercover police techniques. The absence of a victim does not mitigate the offence, although the presence of an actual victim may aggravate the offence.[9]
[8]R v Gajjar [2008] VSCA 268 [63-64].
[9] R v Fuller [2010] NSWCCA 192 [35].
47 You had a clear knowledge of the illegality of your conduct, and even expressed concern about the possibility of the recipient of your contact being a police officer. The age difference between you and the 13-year-old child with whom you believed you were communicating is significant. The period of the offending was over several months during which you transmitted images of yourself engaged in masturbation on six occasions and contacted or attempted to make contact by mobile phone with the recipient on three separate days. These circumstances are relevant in that this was not an isolated incident and your first sexual image was transmitted on the first chat session after 20 minutes.
48 On the other hand, I accept that you have been a person of good character with no prior criminal history, involved in church activities and having the support of your wife and friends. You have been frank and honest with your wife and friends in having them attend court where they have heard the salacious details of your conduct. The references I have read also confirm your offending is out of character.[10]
[10] Exhibit 1.
49 You cooperated with the police once detected, agreeing to the forfeiture of your property and making significant admissions including admitting having exposed yourself on the WebCam. You have also voluntarily sought extensive psychological counselling with Mr Wright until February 2012.
50 I accept the opinion of Dr. Lester Walton that you are unlikely to be an active paedophile which was also the conclusion of the Department of Human Services, who conducted an investigation soon after your offending was disclosed. I also accept Dr. Walton's opinion that you have been afflicted by long-term low self-esteem and likely diagnosable depression at times. He has noted the salutary effect upon you of the criminal justice system, that you regret your actions and impressed as being well motivated not to reoffend.
51 I have applied principle 5 of R v Verdins[11] because I accept that imprisonment would weigh more heavily upon you having regard to your depression than a person of normal health and I have also taken into account that you have never previously served a term of imprisonment or been convicted of any offence. You have suffered the consequences of your offending by having the Department of Human Services conduct an investigation into your relationship with your children and public shame and indignity, all of which I accept has caused you to appreciate the gravity of your offending. I also note that you require medication for a heart condition.
[11] [2007] VSCA 102 [32].
52 Whilst I accept that you were depressed at the time of your offending, which is a factor I take into account, because your social judgement was affected to some degree, this is not to a level which eliminates or significantly moderates principles of general deterrence.
53 There is real utility in your plea of guilty which has saved the community the cost and spared the witnesses the inconvenience of attending a trial. There has also been a saving of time and cost because you did not contest the committal hearing. I accept that you are remorseful.
54 I have considered the range of authorities provided to me by the prosecution including sentences imposed in the County Court and your counsel did not dispute the range submitted. Some of the cases provided to me were helpfully similar on the facts, but no two cases are ever the same. I have taken into account your particular background and the fact that you have good prospects of rehabilitation having regard to your history of employment and support of family and friends.
55 I have carefully weighed the mitigating factors in your case, the nature and circumstances of the offence, including the nature of the conversations you had about the prospective meeting, your character, lack of antecedents, your physical and mental condition, plea of guilty, contrition, the forfeiture of your computers, your cooperation in the investigation with police, your prospects of rehabilitation and the effect on your family, but consider that a period of immediate imprisonment must be imposed to reflect principles of general deterrence, denunciation and just punishment. Having considered the matters set out in section 16A of the Crimes Act1914, I have come to the conclusion that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of your case.[12]
[12]Crimes Act 1914, s.17A.
Sentence
56 On Charge 1, using a carriage service to procure a person under 16 for sexual activity, you are convicted and sentenced to a period of 2 years’ imprisonment.
57 I order that you be released under section 20(1)(b) of the Crimes Act 1914 after serving 3 months’ imprisonment upon you entering into a recognisance of $1000 to comply with the following conditions:
(a) to be of good behaviour for a period of 2 years; and
(b) that you are under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 2 years; and
(c) that you attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 2 years. I refer the Community Correctional Services to the comments of Dr. Walton that group therapy might be beneficial but not in a group comprising much more serious sex offenders.
58
This means that, after serving an immediate term of imprisonment of
3 months, you are not required to serve the remainder of your sentence in prison unless you breach any of the conditions I have outlined. You must not commit any offence during the 2 year period.
59 Pursuant to s.16E(2) of the Commonwealth Crimes Act, I declare the period of 8 days be reckoned already served under the sentence imposed and direct that it be noted in the records of the court.
60 If you fail to comply with any of these conditions, you may be brought back before me, the order may be revoked or cancelled, the $1000 forfeited and you may be sentenced on the original charge and you may be required to serve the balance of the term of imprisonment being 21 months.
61 Under s.20AA of the Crimes Act 1914, you may apply to the court in certain circumstances for a discharge or variation of the terms or duration of this order.
Section 6AAA Sentencing Act 1991 (Victoria)
62
I indicate that, if it were not for the plea of guilty, I would have convicted and sentenced you to a total effective sentence of 30 months’ imprisonment with an order that you be released on similar conditions after serving a term of
6 months’ imprisonment. So I have taken into account the plea of guilty and the sentence has been reduced.
Sex Offenders Registration Act 2004
63 These offences are Class 2 offences under the Sex Offenders Registration Act 2004, which makes you a registrable offender on sentence, and the reporting period applicable at law is 8 years.
64
Accordingly, you are now subject to reporting obligations for a period of
8 years.
65 The court is required to notify you in writing of your reporting obligations and the consequences of failure to comply. My associate will serve you with the written notice and I ask that you sign your written acknowledgement of receiving the notice where indicated. I ask your counsel to assist you in providing any further explanation if you have any questions about this notice. You will see that the notice requires you to report certain information to Victoria Police. The reporting obligations to which you are now subject apply to you automatically by reason of the nature of your offences, and they apply for 8 years.
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