R v Hopes
[2013] VCC 984
•31 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00608
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL HOPES |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2013 | |
DATE OF SENTENCE: | 31 July 2013 | |
CASE MAY BE CITED AS: | R v Hopes | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 984 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Palmisano | OPP |
| For the Accused | Ms C. Gwynn |
HIS HONOUR:
Paul Hopes, you have pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age.
The prosecutor, Ms Palmisano, opened the circumstances of the offending by reading from a written opening, which was tendered.
In short, between 1 and 5 January 2011 you engaged in sexually explicit conversations on Facebook and telephone as well as sending 5 text messages. Your intention was to procure the complainant to engage in sexual activity with you. You were 22 at the time and the complainant was 14.
Being well aware of her age, you told the complainant that it was illegal for you to be in a sexual relationship with her. You had been friends with the complainant for somewhere between about 12 and 18 months. Online contact began in October 2010 and after about 3 months the offending began and continued over a few days.
To preserve the anonymity of the complainant I will not describe the group circumstances in which you met her however, your offending did involve a breach of trust.
The offending is clearly very serious as reflected in the maximum penalty of 15 years imprisonment.
In the course of a VARE interview the complainant said your conduct made her feel sick, lonely, scared and uncomfortable. A victim impact statement was tendered and read in open court. Once again she referred to being scared as well as anxious. She said her studies were not affected too much and although initially being concerned about speaking on the Internet after a while she ‘went back to normal’.
The complainant’s father discovered the conversations, told his wife and reported the matter to police. Accordingly, you did not desist of your own volition. When the victim’s father pretended to be his daughter and asked you to stop the sexual comments you responded that if she did not like the way you talked to her then she should not talk to you.
When interviewed by police you cooperated and made full, frank and extensive admissions.
Indeed, your counsel, Ms Gwynn, argued that it was your admissions that provided the required element regarding your intention. The fact of your admissions is an important matter. Whether or not you would have been found guilty without them is speculative.
Ms Gwynn outlined your personal history. You are 24 years old and, as I noted previously, were 22 at the time of the offending. You live with your parents and three siblings. Two other siblings have left home. Your family supports you. You completed the VCAL year 12 course.
At the time of the offending you were not working. Ms Gwynn said, at this time you were a naïve young man with too much time on your hands.
She correctly emphasised your relative youth, the limited 4 or 5 day period of offending, your very good rehabilitative potential, particularly if you receive appropriate support and guidance, your absence of past or subsequent offending and the absence of any pending matters.
She noted that the offending grew out of a genuine friendship in which the complainant expressed her liking for you, which you took to be an attraction towards you. The contrast, Ms Gwynn emphasised, was with cases of procuring that commonly result from offenders using or trawling the Internet to seek and locate potential victims.
She noted the 8 year age difference which in my view is significant but can be contrasted with many other cases where the age difference is much greater and the offender much more mature than you.
Your conduct was essentially opportunistic rather than predatory a matter referred to in a psychological report from Dr Michelle Wauchope. Dr Wauchope considered the offending “more situational and opportunistic, with elements of predatory behaviour; as opposed to being purely predatory and deviant and sexually disordered in nature”. I agree with this.
Your offending was victim specific. Your victim knew who you were and how old you were. She seems to have not fully understood the precise nature of what you were suggesting she engage in. In any event, she swiftly rejected the proposals.
Although there was no actual meeting proposed, as often occurs in similar cases, your relationship with the complainant did give you physical access to her.
A common feature of many cases of using a carriage service to procure is the absence of a ‘real victim’, communication being with a covert police officer. Here of course your victim was a real child, eight years younger than you and with whom you were in a position of trust even acknowledging your relative youth and the somewhat informal and volunteer nature of your status.
Your counsel referred to a number of features often found in association with offending such as yours that are absent in your case. For example, thorough searches revealed no other offending or possession of disturbing imagery and you made no request for or presentation of sexual imagery or offered any such imagery. No threats or gifts were employed by you to induce or entice the complainant. In short, Ms Gwynn argued that in your case there was an absence of many of the hallmarks of the sexual predator, often present in procuring cases.
Your family is fully aware of your conduct, as are others, including your group, with which you remain active and through which you met the complainant. When I am refer to "group" I am obviously referring to the larger organisation. I expect from what I was told that you have been and will continue to be closely scrutinised. Your activities in the group are now confined to adults. Your contact with the complainant has of course ceased.
You have been in prior age appropriate relationships. Dr Wauchope thought the risk of re-offending in a similar or escalating manner was low, if you are given appropriate treatment. You need treatment and treatment in the community is likely to provide the best possible rehabilitative outcome. Dr Wauchope believed you would engage in this help, in short, as your counsel put it, you are amenable and open to treatment. You do not meet the criteria necessary for a diagnosis of sexual disorder. You have no underlying pathology or significant mental health issues and do not present with the negative and dysfunctional beliefs and attitudes most commonly associated with sexual offending. Your problems are associated with maturity and social skills.
Dr Wauchope thought you presented as less adept and competent in face-to-face contact with women your own age than many other young men of your age. The Internet would have likely reduced your normal inhibitions such as your awkwardness and shyness. However, she thought it clear that you now understand the inappropriateness of your behaviour and that you have had “a big wake up call” and are showing remorse and regret. However, some elements of denial and minimisation remain and further insight is needed. These are common phenomena in those charged with sexual offending prior to treatment.
You are now employed on a casual basis working in a warehouse for 32 hours a week.
You must benefit from your plea of guilty, which the prosecution accepted was made at the earliest opportunity. It has utilitarian benefits saving time expense and the need for witnesses to give evidence. I accept that it is accompanied by remorse.
You are still relatively young and your counsel emphasised this noting that about two years elapsed between the offending and the time you were charged at the end of January this year. You were interviewed in February 2011. There has now been a delay of over two and a half years since the offending. As noted in discussion this is quite unacceptable. The cause seems to have been lack of police resources. I was referred to well known authorities concerning youthful offenders and the significance of delay.
I was taken in some detail through the relevant criteria in s 16A of the Commonwealth Crimes Act 1914.
The central dispute concerns whether some period of immediate imprisonment needs to be imposed. The prosecution submitted that imprisonment for between 18 months and 24 months was necessary and that you should be required to serve between 3 and 8 months before being released on a recognisance release order.
Your counsel submitted that at most a sentence of between 12 and 18 months should be imposed and that you should be immediately released.
I was referred to the Explanatory Memorandum that accompanied the Bill that introduced the current “grooming” and “procuring” offences.
I was given a number of ‘comparative’ cases in a chart and I was referred to a number of cases concerning relevant sentencing principles. None of these principles were in dispute. The question is how should they be applied to your case and what guidance can be derived from the ‘comparative’ cases. The absence of any ‘comparative’ case that closely resembles the features of your case does not mean that the table is unhelpful.
In cases involving sexual offending against children the courts have emphasised that the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender. There is a paramount interest in protecting children from sexual abuse. The need for a deterrent sentence, both specific and general is high, indeed paramount. Good character will usually carry less weight than it might otherwise bear. An adult who uses the Internet to procure a child for sex should ordinarily expect to be immediately imprisoned.
Ms Palmisano emphasised the sentencing approach required for offending such as yours and placed particular emphasis on the fact that the victim was an actual child rather than a covert police officer together with the breach of trust.
She submitted that the absence of any planned meeting was not particularly significant because you had access to the complainant at group meetings.
Ms Gwynn placed particular emphasis on your youth and immaturity, the considerable delay, your immediate full and frank cooperation, the essentially opportunistic rather than predatory nature of your conduct, your low risk of re-offending and rehabilitative potential given appropriate support to which you are amenable, the absence of significant harm to the complainant and the fact that you are supported and under scrutiny.
She also emphasised that although you were in a relationship of trust it was as a volunteer youth group leader and the group meetings were in suspension during the period of the offending.
Of course the matters addressed by each counsel go well beyond these factors just outlined, which were given particular emphasis.
I am conscious of the contaminating impact of imprisonment on young or youthful offenders
In my view the balance falls in your favour.
On the single charge you will be convicted and sentenced to 16 months imprisonment. The sentence is to commence today but you are to be released forthwith on entering a recognisance in the sum of $1000 to be of good behaviour for 18 months.
The special conditions will be as discussed in submissions this morning to be of good behaviour, as I just indicated, for 18 months. You are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 18 months and you are to attend for assessment and if assessed as suitable for treatment for sex offender programs or programs to reduce sexual re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
Ms Gwynn would you explain to your client that if he is not of good behaviour it is almost certain that he will be required to serve time in custody.
MS GWYNN: Yes, I will. I will explain every aspect of Your Honour's order.
HIS HONOUR: Had you not pleaded guilty I expect I would have sentenced you to about 2 years imprisonment and not released until you had served about 6 months in custody.
You are subject to the provisions of the Sex Offenders Registration Act 2004 and are required to comply with its reporting conditions for a period of 8 years.
Anything that counsel can identify that I've overlooked?
MS GWYNN: I don't believe so, Your Honour.
MS PALMISANO: Your Honour, just factually it's not a carriageway, it's a carriage service.
HIS HONOUR: Say that again.
MS PALMISANO: It's called a carriage service when you use the internet.
HIS HONOUR: What did I say?
MS PALMISANO: You referred to it as a carriageway.
HIS HONOUR: That's wrong, isn't it?
MS PALMISANO: I'm not sure if it's the same thing, I don't know. And just in relation to the recognisance - - -
HIS HONOUR: I'll just correct that. So let me make that correction first and the correction will appear in the revised reasons. You are absolutely correct. Using a carriage service, yes.
MS PALMISANO: And I'm just - D, E, F, G and H, Your Honour, need to be I think in the order.
HIS HONOUR: I see.
MS PALMISANO: And Your Honour would need to then - - -
HIS HONOUR: I see. Yes, that's correct, because he'll need to report, won't he?
MS PALMISANO: Exactly. So Your Honour would need to - - -
HIS HONOUR: Just let me read them again. They all flow from him being under supervision ordinarily, don't they?
MS PALMISANO: Exactly, Your Honour.
MS GWYNN: He may not require E.
HIS HONOUR: Pardon?
MS GWYNN: He may not require E. Because Your Honour's essentially directing him towards treatment conditions, that's - -
HIS HONOUR: I am.
MS GWYNN: Your intention is covered in B and C in my submission.
HIS HONOUR: It is but he'll need to report to Community Corrections - - -
MS GWYNN: That I agree with.
HIS HONOUR: - - - - today obviously, that's D.
MS GWYNN: Yes.
MS PALMISANO: You would need E because he would need to report in order to come under Community Corrections
MS GWYNN: No, I don't agree with that, Your Honour, because you've got the condition that he attend on a certain day and then B and C he's following the lawful directions effectively of Community Correctional Services and Sex Offenders Management Branch so that's covered. They're going to tell him you've got an appointment here, off you go and he's required to do it. The outcome of that appointment will direct him elsewhere.
HIS HONOUR: He is directed at circumstances where a Community Corrections Officer may wish to visit his home so why shouldn't that condition be imposed even if it's not activated. That sometimes happens, doesn't it, that a Community Corrections Officer wants to see where someone lives. Moves out of him, where's he living, is that a good idea, that sort of thing.
MS GWYNN: I've never seen it happen but I understand what Your Honour's saying but in my experience with the Sex Offender Management Branch if they remain involved that they'd be doing all that sort of stuff, they tend to do environmental checks and those sorts of things but - - -
HIS HONOUR: Well then E makes it clear that if they want to visit his home, I think it’s unlikely but if they do, he has to receive a visit from - - -
MS GWYNN: I'm not taking a big issue with it, Your Honour, I'm probably jousting with a bit of a ghost but it just seems superfluous.
HIS HONOUR: All right. I think it's better to include it, it may be excessive but I can't see the downside to it to be frank.
MS GWYNN: All right then, thank you.
HIS HONOUR: But I'm just wondering about why I would need to - what’s the purpose behind G? Why can't he leave Victoria without the permission of an officer at the specified Community Corrections Centre?
MS PALMISANO: I think, Your Honour, because then he's supervised by Corrections Victoria so once - he would need to then at least notify Corrections Victoria who could then I guess - I mean I guess it depends on the period upon which he would be leaving Victoria for but it relates to the supervision aspect.
HIS HONOUR: That's right. if he wants to go to New South Wales for the weekend does he have to get permission? It seems odd to me.
MS PALMISANO: Look I'm not - - -
HIS HONOUR: If he wanted to go and live somewhere else it might be difficult, it might be different but that could be problematic anyway because they might require him to attend on a particular day which would make it difficult for him if he's interstate so he'd be in effect controlled from living outside their jurisdiction by the imposition of any reporting condition. I mean I think it looks excessive to me and can't see the reason for it. I don't see why he should be asking for permission to leave Victoria for a short period of time.
MS PALMISANO: Look I just read it, Your Honour, as that he's under the supervision of Corrections and Corrections would need to know. I don't know whether it would be problematic for him to leave Victoria for a short period of time or an extended period.
HIS HONOUR: Well he's obviously got to be in contact with them, doesn't he? Because he is - he's got an obligation to advise them of his residence and any change of address and employment, that's all directed at them knowing where he is. He goes interstate and they don't like it, I think that's problematic for some extended period of time. What's to stop them saying you need to report here for appropriate supervision at regular intervals? There's the difficulty they can still manage him, can't they?
MS PALMISANO: Yes.
HIS HONOUR: So I think it's excessive so I'll impose all of the conditions.
MS PALMISANO: Apart from G.
HIS HONOUR: Apart from G.
MS GWYNN: Enquiries will need to be made obviously of the Community Correctional Services about an appointment time and place in order to impose that condition.
HIS HONOUR: All right. I'll get my Associate to do that so that when the document is prepared we have a specified time. Is that the lot?
COUNSEL: Yes, Your Honour.
HIS HONOUR: We'll come back when we've made that inquiry and the document's been prepared.
(Short adjournment.)
HIS HONOUR: So the documentation has been prepared. You've seen that? All ok?
MS GWYNN: I've seen it and I've been through it with my client so that he understands the conditions. He's in a position at a convenient time to sign it with that understanding.
HIS HONOUR: All right. And the appointment time is acceptable anyway?
MS GWYNN: Yes, Your Honour.
HIS HONOUR: Then I think I should it first.
HIS HONOUR: It would be obviously to your client that the conditions relating to counselling or treatment are for the purposes we discussed during the course of submissions.
MS GWYNN: Yes, Your Honour.
HIS HONOUR: All right. Could you have your client sign that an as acknowledged of receipt, that's all.
(Orders signed and acknowledged.)\
HIS HONOUR: Thank you very much for attending, I'm sorry it took so long this morning.
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