R v Kinchela
[2020] VCC 410
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-19-00469
| THE QUEEN |
| v |
| THOMAS KINCHELA |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 March 2020 (Plea) 6 April 2020 (Further Plea) |
| DATE OF SENTENCE: | 8 April 2020 |
| CASE MAY BE CITED AS: | R v Kinchela |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 410 |
REASONS FOR SENTENCE
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CRIMINAL LAW – SENTENCE – Guilty Plea – Commonwealth and State offences – Using carriage service to transmit child pornography – Using a carriage service to solicit child pornography – Preparing or planning an offence involving child pornography – Using a carriage service to transmit indecent communications – Possessing child abuse material – Failing to comply with sex offender register obligations – Unusual case – Charges over an extended time period – Episodic offending – Offensive textual material – Skype conversations – Victims outside of Australia – Remitting funds overseas – Harm to children in respect of cybersex offences – Narrow scope of harm – Offending of a lower level of seriousness – Unsophisticated offending – Low number of images – Relevant prior convictions – High level of moral culpability – General deterrence – Specific deterrence – Denunciation – Crimes Act 1958 (Vic) – Criminal Code 1995 (Cth) – R v Edwards [2019] QCA 15 – Adamson v The Queen (2015) 47 VR 268 – DPP v Macarthur [2019] VSCA 71 considered.
CRIMINAL LAW – SENTENCE – Aboriginal Offender – Early plea – Stolen generation – Relevance of deprived background of Aboriginal offender – Connection to the land – Bugmy Considerations – Major depressive disorder – Long history of alcohol abuse – Lack of treatment for underlying issues – Positive community engagement – History of employment – Past prosocial engagement – Cooperation upon arrest – Increased burden of imprisonment – COVID 19 pandemic considered – Self-rehabilitation – Evidence of remorse – Prison as a sanction of last resort – Community interest in offender rehabilitation – Crimes Act 1914 (Cth) ss 16A, 17A – Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) – DPP (Cth) v Zarb (2014) 46 VR 832 [71] considered – Bugmy v The Queen (2013) 249 CLR 571 applied.
CRIMINAL LAW – SENTENCE – Total effective sentence (Commonwealth offences) 15 months imprisonment release forthwith on an 2 year recognisance order – Total effective sentence (State offences) 2 year Community Corrections Order – All sentences imposed are concurrent – Serious sexual offender – Crimes Act 1914 (Cth) s 20(1)(b) – Sentencing Act 1991 (Vic) s 6AAA, 6B – Sex Offenders Registration Act 2004 (Vic) s 34.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pillai (Plea) Ms A. Carlander (Sentence) | Commonwealth Department of Public Prosecutions |
| For the Accused | Mr J. Manning (Plea) Mr A. Vincent (Sentence) | Victoria Aboriginal Legal Services |
HIS HONOUR:
Introduction
1Mr Kinchela you have pleaded guilty to one charge of using a carriage service to transmit child pornography[1], one charge of using a carriage service to solicit child pornography[2], one charge of preparing or planning an offence involving child pornography[3], one charge of using a carriage service to transmit indecent communications[4], they are all Commonwealth offences. The State offences are one charge of possessing child abuse material[5], and two charges of failing to comply with the sex offender register obligations without a reasonable excuse.[6] The maximum penalties are set out in the Prosecution opening which I incorporated by reference.[7]
[1] Contrary to sub-section 474.19(1) of the Criminal Code (Cth), maximum penalty 15 years.
[2] Contrary to sub-section 474.19(1) of the Criminal Code (Cth), maximum penalty 15 years.
[3] Preparing for or planning an offence against section 272.9 of the Criminal Code (Cth) contrary to sub section 272.20(1) of the Criminal Code (Cth), maximum penalty 10 years.
[4] Contrary to sub-section 474.27A(1) of the Criminal Code (Cth), maximum penalty 7 years.
[5] Contrary to section 51G of the Crimes Act 1958 (Vic), maximum penalty 10 years.
[6] Contrary to section 46(1) of the Sex Offenders Registration Act 2004 (Vic), maximum penalty 5 years.
[7] Exhibit A.
2The offending came to light when the Commonwealth authorities executed a search warrant after they had been alerted to your conduct as a result of the remission of funds to the Philippines.
3In overview, the offending arises out of 11 Skype chats between you and Skype users all located in the Philippines. That gives rise to Charges 2, 4, 5 and 6. When your computer was searched child abuse material was located and this gives rise to Charge 7. You were a registered sex offender and had failed to comply with your obligation to advise the authorities of the Skype usernames, within a certain time, and this gives rise to the two State charges numbered one and three. There was a change in the legislation about how quickly you had to provide that information and that is the reason why there are two charges in relation to the usernames.
4The charges under the Criminal Code 1995 (Cth) arise out of an analysis of the chats between you and other Skype users wherein you solicited in text child pornography, transmitted indecent communications, and in relation to three of the communications prepared or planned an offence that involved child pornography without sexual intercourse overseas. That is Charge 5.
5The full details constituting the offending were set out in the lengthy prosecution opening which I incorporated by reference and will not repeat here.
Assessing the seriousness of the offending
6This is an unusual case in that many of the cases concerning child exploitation material (‘CEM’) or child pornography material that come before this Court involve images that have been transmitted or downloaded and which have been classified under what is called the Envil system. That system provides a generalised classification of images and within each of the categories the particular images can vary widely in the extent of the abuse depicted.
7Here, unusually, the CEM in this matter involves text communications in the form of Skype conversations without the camera operating. In relation to the Commonwealth offences, there are 11 Skype conversations. I have numbered them rather than using the names that were used in the Crown opening just for convenience. Of those 11 Skype conversations, four, namely numbers, 8, 9, 10, and 11 involved Skype users adding you as a contact and you the offender accepting that contact. The offending arose from you accessing adult dating sites in the Philippines and that is how these Skype exchanges and acceptances of contact, arose.
8As conceded in closing submissions there was considerable overlap in relation to the communications in the Commonwealth charges. Thus Charge 2 involves six transmissions, and they were rolled up charges, while Charge 4 involves five solicitations. In Charge 2, three of the transmissions namely number 7, 9 and 10 are also involved in Charge 4 , the solicitation charge. In relation to Charge 5, number 10 is also involved in Charges 2 and 4. Numbers seven and nine are involved in Charges 2, 4 and 6.
9 This commonality makes it appropriate to consider the overall offending in relation to the Commonwealth charges together.
The content of the online communications
10The subject of some of the conversations related to the development of an online relationship, with the recipient soliciting payment as conditions of further activity. Thus some of the conversations had an implied future element of sexual conduct, rather than an overly sexual content, whereas others contained express descriptions of sexual activity, including penetrative activity that were they images they would be within category 4 of the Envil scheme.
11Those involving number 1 were discussions in relation to a 15-year-old boy and a 16-year-old girl engaging in penetrative activity, and the offender, that is you, proposing to engage in penetrative activity with the 16-year-old girl. The conversation was over the period 28 January 2015 to 7 February 2015.
12In relation to User 2, the User originally said she was 16 and then after sending photographs of herself, advised that she was 14. She was then requested by you to send sexy photos. You discussed supporting the user and she then asked you to provide money and you responded seeking photos. A couple of days after the first conversation you remitted her about $150 to allow the user to purchase a mobile phone that she so that she could take ‘lots of sexy photos at your request.’ She then sought further payment and you replied ‘maybe if she has any sexy photos.[8]’ There was then continual messaging between the two of you including the exchange of various photos over the period 1 to 17 September 2015.
[8] Ibid (‘EA’) [14]
13Thus the content of this discussion with User 2 can be contrasted somewhat with that in relation to User 1.
14In relation to User 3 she first told you that she was aged 26 and that she was looking for a person who would support her. You then asked if she has other girls maybe younger and a younger sister. The user then asked how old and you said 14. The user then raised the issue of the costs of a private room and you said he did not have the money at that stage.[9] You then asked her if she was interested in developing a relationship with a 12-year-old and she said she could help and get a reward. The user then sought money for milk for a baby. You said would ‘love to see the 12-year-old naked so you could love her for who she is.’[10]
[9]EA [18] – [20]
[10] EA [21]
15The user said it could be illegal and sent a non-explicit photograph of a 12-year-old girl who she said was her cousin. She again asked for support for milk.[11] The discussions were over the period 12 to 18 November 2015.
[11] EA [22]
16Thus in this discussion there was implied future sexual conduct without the proposed content being expressly set out as in some of the other conversations.
17In relation to User 4, you sought from her whether she had a young girl who was aged 13 who could join them. You then sent an explicit photograph of your penis and received a child abuse image back from the user. About three weeks later the conversation continued after you discussed possibly visiting in July and you said you want her and a young girl and sent an image of your penis, and discussed sex acts with the two girls who were said to be aged 13 and 14. The conversation was over the period 26 April to 31 May 2015. Thus this was a conversation where the express acts were stated in relation to some other child aged 13. It is not clear as to the age of this user, who would be the one immediately reading this material.[12]
[12] EA [25] – [26]
18In relation to User 5, you discussed supporting the user and remitted money to her. You then asked whether she had ever had fun with another girl and described sex acts you would like to participate in with the user and another young girl you suggested the girl be 16 and 14, the user said 16 maybe. You then continued to describe those sex acts until the conversation ceased. This conversation was over a single day.[13]
[13] EA [31]
19In relation to User 6, the user originally said that she was 18 and then later said she was 16 and sent you a non-explicit photograph of herself and the two of you discussed you providing her support and you suggested paying 2000 pesos, which is 3 cents Australian each fortnight and asking her to show you her breasts. She sought 5000 pesos and when you could not comply with the request, the conversation ceased. This was a single day conversation.[14]
[14] EA [34]
20In relation to User 7 she told you, her friends were aged 15 and 18 and that she was 18 and she sent a non-explicit photograph of herself and her friend. She then revealed she was only 15.[15]
[15] EA [36]
21You then described sex acts you would like to participate in with the user and a young virgin and asked for a photo of her genitals. You continued to express interest in her and if she was not interested asked her to suggest another girl of her own age or younger that he could get to know and support as long as she was willing to do all on cam when you visited. You were seeking a girl ‘maybe 12’ and you referred to paying 5000 pesos per week. The two of you continued to discuss how much you would pay and whether she could find you a young girl and the conversation ended when you could not agree on a price. This was another single day discussion which did involve express sexual acts but did ask for a photo of her genitals.
22In relation to User 8 you were seeking someone who could be 'all his in every way' and hope to get to know each other. The User said that she was 13 and you asked whether she could be excited by an older man and for her to be your little princess. The uUser said she wanted an iPhone for her birthday and you said she would need to prove that she was all his. You continued to discuss how much you would pay the user and you asked her could she could do all to please him and she said she did not want sex because it hurt her and you then queried how she knew that and whether she had tried before. The conversation, which was over one day, then ended.[16]
[16] EA [43]
23In relation to User 9 you were seeking a boy to be ‘all mine in every way.’ The user said he was 15 turning 16. You then referred to your last boyfriend who was 18 and how you engaged in sex acts with him, you then told the user you would like to feel his 'hard in you' the user then asked for a picture. You also asked for a picture and then proceeded to send a photo of your penis. You then described proposed sex acts with the user and sent further photographs of your penis and also referred to the two of you engaging in sexual activity with another person. Over two days you made further requests to see the users genitals and explicit comments about fellating the user. The conversations spanned a period of three days.[17]
[17] EA [46] – [52]
24In relation to User 10 this user added you to her Skype and you accepted, You were told that she was 21 and had two sisters and said she could work a 'cam show to earn money for my family' she said sometimes she and her younger sister could do a show. You were told the sisters were aged 11 and 17. You were asked for photos and you said would love to enjoy them all on camera. You also described sexual activities you would like the user to engage in with her sisters and sought some ‘hot photos’ and sent images of your penis. You then asked if you were to support the user, what would be a suitable amount to support the three of them and you were told 3500 pesos per month. The user sent an explicit image and said she needed help to buy food. You continued to ask for photos and said the sisters 'need not be completely naked, just topless.' You then received two further images. You then blocked the user after she did not respond.[18]
[18] EA [53] – [58]
25In relation to User 11, on 18 October 2017 after she added you to the Skype you told her you would like to come and play ‘especially if she has a nice young girl that we can play or I can also play with.’ The user asked if you if this meant a naked show on camera. The user then says that she does naked cam show. You then asked if she also has a nice young girl she plays with and asked her if she has any young girls, how old they are. You said maybe you would see them at different times and you asked how old. The user said she does not mind whatever age you liked. The user then said 16 and you replied 'mmm, 12 even mmm'. The conversation ended after the you offender, blocked the user. This was a single day conversation.[19]
[19] EA [59] – [61]
Characterising the nature of the communications.
26It is trite to say that a picture conveys a thousand words. Here it is necessary to consider, in order to characterise the seriousness of the communications, the gravity of those communications in circumstances where an element of the offence is a pornographic communication with a person believed to be under the age of 18, and in relation to Charge 6, under 16. Charges 2 and 6 involve transmitting child pornography or indecent material.
27In this case the offending involved conversations where the overseas ‘User’ in some cases such as in number 2 had advised she was aged 16, or in number 1 referred to a boy cousin aged 15 and a girl cousin aged 16, and in relation to User 3 she was aged 26 but the discussion related first to a girl aged 14 and then one aged 12. User 6 said she was aged 16 and the discussion related to her showing the offender her breasts. User 7 said she was aged 15 and was requested to see if she could find a girl aged 12. User 8 was aged 13 and the male in User 9 was aged 15 turning 16. The sisters in the case of User 10 were aged 11 and 17 and the proposed person in User 11 was '12 even'.
28Thus the age of the proposed persons involved in, or referred to, in the communications or sexual activity ranged from 11 to 17.
29The sexual conduct in the communications ranged from a request to show a 16-year-old's breasts with User 6 to a sexy photograph with User 2 , to penetrative activity in conversations with Users 1, 4, 5, 9 and 10.
30Some of the communications were less explicit but also included in communications with User 10 the provision by the accused of a photo of his penis, and with User 7 a request for a photo of her genitals.
31In assessing the overall seriousness of the communications the age of the recipient has some relevance as to the seriousness of the impact of the content on that recipient. Thus the seriousness of the exchange with User 6 arguably could be said to be less serious than those exchanges with User 7. In the case of User 3 she described herself as aged 26 and so a discussion about child pornography with a 26-year-old arguably has less potential impact on the recipient than a discussion with a 13 or 14-year-old.
Charge 5 – Planning or preparing an offence.
32The learned Crown prosecutor in this matter characterised the offending in Charge 5 as the most serious. The charge was a rolled up charge involving Users 3, 10 and 11.
33This charge encompasses a wide range of conduct given the reference to 'preparing or planning' an offence of engaging in 'sexual activity other than sexual intercourse', which is the essential element of this offence which carries a 10-year maximum penalty. Both of these phrases are of wide ambit.
34Here the discussions with the users involve discussions as to how much support the accused, that is you, would provide and also the provision of images by User 3 and 10, and you providing a photo to User 10. The proposed sexual activity appears to be a naked show on camera in relation to User 11 that was proposed by her. You detailed proposed sexual activity in relation to User 10. In relation to User 3, the user was asking for money before the show and you made reference to wanting to see her naked, not all the time.
35The charge was put on the basis of planning or preparing the proposed online naked shows. Defence counsel submitted that there was nothing sophisticated about the planning or preparation in this case. The three chats were of short duration, and the plans could be characterised as rudimentary. Thus he submitted, and I accept this submission that this was a case of falling at the lower end of the spectrum.
Seriousness of the other Commonwealth Offences
36In characterising the seriousness of the other Commonwealth offences, the prosecutor referred to a number of cases that set out the principles to be applied.[20] As discussed in the course of the plea many of these cases involve images. The number of actual images here in relation to Charge 7 is very much at the low end of the scale. Two of those images were supplied from overseas by the users. The description of them in the plea opening indicates that they are within category 1 and having had the opportunity to view them are very much in the milder end of that low category.
[20] A table of cases was given to the Court to consider.
37I accept, on the authority cited by the prosecutor, that actual images are potent documents that create a direct victim and give rise to the continued risk that those images can be circulated throughout the internet world. In this case the limited number of images makes the basis of Charge 7 very much at the lower end of the scale.
38Turning to Charges 2, 4 and 6, the communications as I have indicated involve 11 individual Skype users. The communication to them or request to them of pornographic material in the chats or the solicitation of it thus has the potential to expose them, as children under the age of 18, (although User 3 stated she was aged 26) to pornographic and sexualised material which is intrinsically harmful.
39In assessing the potential for harm to the purported users, it is relevant to take into account the nature of the chats which even though some of them involved proposed penetrative activity between children, and thus would be within category 4 if they were images, within the breadth of conduct engaged within that category, category 4, they can be seen to be at a milder end of the spectrum.
40As submitted by defence counsel, the communications the subject of these counts, however, are different from images discussed in the leading cases as they were conducted on a private Skype channel, and thus it would be unlikely that they would be more widely circulated. This makes the harm generated by the conduct of a narrower scope and depth than if the conduct involved the exchange of individual images of the Skype users.
41I accept, however, the sentiments expressed in the case of Edwards[21] to the effect that the fact that many of the matters conveyed involve future proposed activity and thus not real children, did not mean that it was harmless. As indicated in that case this activity has a tendency to normalise exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children. It may also have a capacity to groom not only the recipients but others who may be affected.
[21]R v Edwards [2019] QCA 15 [61]
42Applying these comments this means that the harm is potentially wider than the 11 Skype users, but may extend to the younger children that the users were proposing to get involved. Also relevant and going to the seriousness of the offending as emphasised by the learned Crown prosecutor, is that this involved communications with children in a poor Third World country and these laws are designed to protect those children.
43Given the overall number of Skype users at the basis of the charges, and even including the additional persons referred to in some of the chats, in terms of the overall quantum of targeted persons, the offending is, I am satisfied, at the lower end of the scale.
44Relevant to the seriousness of the offending however is that it was over an extended period although as submitted by defence counsel the chats were over episodic periods within the charged periods. Thus in relation the User 2, it was over a period of five days, User 3, three days, User 8, two days. Although in a number of cases, it took some time after the communications ceased for the user to be blocked.
45Considering the offending as a whole, your counsel did not dispute and I am satisfied it was serious offending although as I have indicated the number of users affected is limited to the 11 Skype chats which, unlike images were not to be further circulated.
State charges
46The failure to comply with sex offender registration requirements, which are Charges 1 and 3.
47These charges relate to 6 usernames. Charge 1 deals with three usernames over the period 13 November 2013 to 30 August 2015 that you failed to notify to the register. Similarly four names over the period 5 January 2014 to
1 December 2016 that you failed to report.48Your culpability for this offending is significant given you have a prior conviction for it.
49No particular explanation was proffered in the course of the plea for the failures, but it was noted that in at least one of the cases were using your own name as a username and your counsel submitted that you were not using encrypted software or deleting histories. Overall, however, you were fully aware of your obligations under the registration regime and failed to comply. I note, however, in the report of Dr Zimmerman she said you have problems with organisation which may provide some explanation for your failure to honour your obligations.
50I turn now to other matters involving your culpability.
Prior convictions.
51You have admitted a prior conviction on 13 December 2011 in the Wodonga Magistrates' Court for possession of child pornography and were sentenced to a community-based order for 18 months. On 31 October 2012 you were convicted of failing to comply with your reporting obligations and fined $350 which breached the CBO. The CBO was confirmed to continue until
11 June 2013. On 12 November 2012 on a charge of possessing child abuse material in the Alice Springs Supreme Court you were sentenced to imprisonment for six weeks after the rising of the court operative for a period of 12 months. This apparently involved a thumb drive containing some child pornography.52Thus as submitted by the learned Crown prosecutor you have relevant prior convictions for this offending and that goes to increase your moral culpability.
53I had you assessed for a Community Corrections Order and the assessment indicates that when you were on the community corrections order in 2011 you were not directed to undergo a sex offender treatment program pursuant to that order.
54Your Counsel noted that you have also never had prior treatment for mental health problems or alcohol addiction, which were referred to in the earlier community-based order.
Matters in mitigation
55I turn now to subjective matters in mitigation put in a comprehensive plea on your behalf.
56You are now aged nearly 56. Your personal background is both set out in the report of Dr Zimmerman[22] and in your Counsel's submission which I incorporate by reference.[23]
[22] Exhibit 2.
[23] Exhibit 1.
57First, you have pleaded guilty. The plea was relatively early and followed negotiations. You have facilitated the course of justice and you are entitled to significant credit for that. You also cooperated with the police when they arrested you.
58You are an Aboriginal Australian who was born in the Gilgandra area in central western New South Wales. You are one of 11 children and at the age of six you and your siblings were separated from your parents. You are thus a member of that group of Aboriginal Australians described in the 'Bringing them Home Report,[24]’ and inaccurately referred to in common parlance as the stolen generation. After the separation from your parents you spent three years in foster homes and at one stage you were with one of your brothers. You were then placed with a white family in Sydney where you stayed, from the age nine, until you turned 18. Since the age six you have had little contact with your family and when you were 23 you were advised that your brother had been murdered.
[24] Human Rights and Equal Opportunity Commission, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, ‘Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families’, (1997).
59As submitted by your counsel notwithstanding the loss of your Aboriginal identity and familial connections you have had a good work history having spent some seven years in the Navy, 3 ½ years in the Army reserves and having studied in Aboriginal linguistics and other courses at Newcastle and Monash Universities well as Bachelor College in Darwin. You have also had a number of jobs as a researcher, a farm labourer and as a commercial cleaner. For the past few years you have worked, in the Albury-Wodonga area as a commercial cleaner in partnership with another individual. You suffered significant injuries in a car accident when you were aged 34 and this put an end to a promising sporting career as a rugby player.
60A major setback in your life was that you were involved in the preparation of a dictionary of Aboriginal languages in the Wodonga area. Your contribution to that research was noted in an article that was tendered in the course of the plea, a 2008 article. The dictionary, however, was published without proper recognition of your contribution to it and this caused a major setback to your mental well-being. This is confirmed in a reference from a Dr Hatch a counsellor who has known you for number of years and lived with you at one stage.
Efforts at self-rehabilitation
61A major thrust of the plea concerns events since your arrest and your efforts to address the underlying causes of your offending. Evidence was led from a Dr Bedford a retired, trained social worker who was involved with a church in the local area. You attended at the church and indicated to him that you wanted to become involved and address your problems. Subsequently you explained that you had been charged with these offences. You became actively involved with the local church community and also with another church community in Albury.
62Dr Bedford has been involved in discussions with you attempting to address your problems with alcohol and have you engaged in a sex offender program. He was unable to have you engage with one offered by the Office of Corrections but arranged for you to be referred to a local psychologist who has been providing you with therapy. Dr Bedford indicates that he sees your failure to address your problems with alcohol as your most difficult vulnerability at this point.
63Your counsel tended a reference from Dr Hall who was involved in the Albury church that you had become involved in and he notes you have developed insight into your problems with alcohol. He also indicates that you have expressed remorse for your actions and this is also consistent with the evidence of Dr Bedford and a similar sentiment has been expressed by Dr Hatch in the reference.[25]
[25] Exhibit 8.
64In evidence was a report from Dr Bizzotto, a local psychologist you saw over a period of six months from 17 December 2018. He found that you presented with a major depressive disorder and an alcohol use disorder both of which appear to be long-standing. He engaged in various therapies with you and noted that you have sought to reduce your alcohol consumption. He is of the opinion you need further intervention in that field. He concludes his report as follows:
'It is worth noting that Thomas is part of the stolen generation and that the underlying causes of his depression and alcohol use are likely to be rooted in the trauma associated with this experience and hence therapeutic intervention is considered complex and likely to be long-term'.
Report of Dr Zimmerman
65Your Counsel relied extensively on a psychiatric report from Dr Zimmerman which is comprehensive and consistent with the comment just noted from
Dr Bizzotto. Her report opines as to the commencement on your adult life as follows in paragraph 53, and I incorporate by reference that paragraph without reading it:‘Thus, the young Mr Kinchela who embarked on adult life had experienced poor parental attachments, emotional and physical abuse. He left school at sixteen and commenced what proved to be an enduring pattern of heavy abuse of alcohol. His strength was his ability to find and sustain employment but he struggled with forming relationships, Despite the challenges he had experienced in his youth, Mr Kinchela did not go on to engage in significant antisocial behaviours.’
66In assessing the risk of reoffending the reporter notes that there is evidence of partial minimisation/denial of sexual violence. There was partial evidence of serious problems with self-awareness and evidence that you have past and current problems with stress and coping.
67At paragraph 68 she says this:
'Problems resulting from childhood sexual abuse: Mr Kinchela was exposed to serious abuse via a system that resulted in him being from first his parents and then his siblings, resulting in complete disruption of his attachments systems, his connections to family and to culture. I believe that this impacted significantly on Mr Kinchela psychologically and his pattern of heavy drinking is at least in part as a result of the childhood abuse he experienced. I note there was reference to physical and emotional abuse of Mr Kinchela when he was eight, in the care of the state. I believe he has past and present problems resulting from childhood abuse'.
68She goes on to say you meet the criteria of paedophilia disorder and there is evidence of past and current sexual deviance but no evidence of social/psychopathic nature. She believes you have problems in the domain of non-intimate relationships and partial evidence of problems with planning and problems with supervision. Her assessment of your risk of reoffending was described paragraph 82 as follows:
'Given the presence of risk factors across all domains of the RSVP, based on his presentation on interview with me in conjunction with a range of materials available to me, it is my opinion that he presents a moderate risk of future online sex offending and a very low risk of contact offending. The items of concern that are most relevant in Mr Kinchela's case are his diagnosis of paedophilia, his history of child abuse, ongoing alcohol dependence, evidence of a lack of interpersonal contact connections and problems with supervision. I note there is no evidence Mr Kinchela proposes an imminent risk of sexual violence, nor is there any suggestion that any future sexual violence would involve serious or life threatening physical harm'.
69At paragraph 84 her opinion is that you present as appropriate for community engagement in relation to addressing your substance abuse problems along with your engagement in a sex offender program. She goes on:
'Ongoing work with his psychologist to assist him develop coping mechanisms for trauma related symptoms is important. Strengthening community ties is vital and it is heartening that he has made some connection by way of attending the church services. All these interventions will assist in reducing the risk of his reoffending'.
70At paragraph 85 she says:
'In my opinion his dependence on alcohol is likely to be at least partially a response to the trauma he experienced when he was taken from his family and culture as a young child. The shattering of his attachment system will have damaged his ability to self-soothe/manage stress and he turned to alcohol as a young teenager instead. His offending is more likely to occur when he is in a disinhibited state that is associated with inebriation. Thus I believe that there is an indirect relationship between his childhood trauma and the offending'.
71Dr Zimmerman notes at paragraph 86 of her report that there is no evidence that you were mentally ill at the time of the offending or that you suffered frank mental illness.
Sentencing submissions
Crown Sentencing Submissions
72The prosecution submission was that given your prior convictions and the seriousness of the offending in this case, the only sentencing disposition available notwithstanding the requirement that imprisonment be a sanction of last resort under the Commonwealth Crimes Act[26] was a sentence of imprisonment by way of a head sentence with a non-parole period. In a supplementary submission[27] the learned Crown prosecutor referred to the case of Edwards in her submission that the serious nature of the offending here is not dictated or measured by quantity or category levels and moreover that, even chat text has the capacity to damage the recipients.
[26] section17A
[27] Exhibit C.
Defence Sentencing Submissions
73There were three central thrusts to your counsel's plea submission. The first was, relying on the case of Bugmy v The Queen[28], that your disadvantaged background called for leniency and a disposition that would address unattended problems that originated from your background, including your addiction to alcohol. The second aspect was that a sentence of imprisonment would substantially impair the progress that you have undertaken by way of rehabilitation since this offending came to light and finally that imprisonment itself would weigh more heavily on you, given your psychological make up and loss of community connections. Your counsel also raised the current additional burden of the risk of contracting the coronavirus in custody as well as the pandemic associated cessation of visits. It was also submitted that if you were in custody the you would be burdened by virtue of your distance from the connections that you have made in the Wodonga area.
[28]Bugmy v The Queen (2013) 249 CLR 571
Bugmy Considerations
74Your counsel submitted that the case of Bugmy called for leniency given the link between the offending and your dysfunctional upbringing most notably being separated from your family when you were six. The link was put on the basis that, consistent with the opinion of Dr Zimmerman your heavy drinking was linked to your childhood abuse and it was in that context of your drinking that you were offending. Your counsel referred to the case of MacArthur[29] where the Court of Appeal noted that:
‘Applying the principles discussed by the High Court in Bugmy v The Queen, the respondent’s difficult background was relevant for two reasons. First … it has been established that boys who were abused at about the time of puberty are at greater risk of engaging in future sexual offending than other persons. Secondly, as also noted … the respondent developed an alcohol dependency to avoid feelings of anxiety and low mood resulting from the abuse to which he had been subjected when he was young. It is clear that his offending, in the present case, was committed while under the influence of alcohol. While that of itself is not a mitigating factor, nevertheless it is relevant to take into account, in his favour, that his resort to alcohol (which played a relevant causative role in his offending) was of itself due to the trauma to which he had been subjected when young.[30]’
[29]DPP v Macarthur [2019] VSCA 71
[30] Ibid [68] (citations omitted)
75Also relevant, is that it appears that you have not been afforded any proper treatment for your problems with alcohol until recently nor were you the subject of engagement with the sex offender program under the 2011 Community-Based Order.
76The Crown responded to your counsel's submission that given your prior convictions and notwithstanding your childhood deprivation, protection of the community must be given weight and that a sentence of imprisonment was appropriate.
Assessment
77Sentencing in the present environment is a complex exercise and in your particular case is particularly difficult and I have been torn in ascertaining an appropriate disposition. I am required to take into account the matters in section 16A.[31] I am also required to consider the competing considerations of general deterrence, specific deterrence, denunciation, protection of the community and your rehabilitation. Those matters are in tension.
[31]Crimes Act 1914 (Cth)
78Imprisonment is a sanction of last resort. Each accused person standing for sentence is entitled to have a Court exhaust all sentencing options before the use of the community's ultimate sanction.[32] This applies notwithstanding that in the general run of cases involving child exploitation material, the appellate Courts have said that a sentence of imprisonment is called to meet the requirements of general deterrence. This has been stated in a number of cases but as noted by Justice Priest in the case of DPP (Cth) v Zarb, each case must be considered on its own merits and it is also relevant that any particular case of a sentence cannot be seen as a precedent.[33] You have relevant prior convictions and thus considerations of specific deterrence must have some salience in sentencing you.
[32] Ibid section 17A(1).
[33]DPP (Cth) v Zarb (2014) 46 VR 832 [71], ‘Thus, although a sentence of imprisonment might ordinarily be warranted, cases which do not require actual custody are not precluded. Every case must depend on its own particular facts.’
79Notwithstanding a prior Community-Based Order you have never been accorded treatment that addresses the underlying factors of your offending namely your use of alcohol which itself emanates from your disrupted upbringing. Also you did not take up the opportunity offered of a sex offender program at the time of that earlier community-based order. The program was not mandated under the order and given your dysfunctional upbringing it is not surprising that you lacked the insight at that time to avail yourself of that opportunity. These are matters I take into account in weighing the competing considerations in this case and I cannot ignore the fact that when you first saw Dr Bedford, you sought to get into a sex offender program. While a formal program you could accommodate you, you did then engage with Dr Bizzotto.
80So, in the period since the police seized your computer you have taken significant action to address your underlying issues by engagement with a psychologist, and also by an alcohol counsellor at Gateway. You have also been involved with your Church group. All the while you have maintained your self-employment and evidenced remorse and insight into the underlying causes of your offending.
81Leaving aside the burden of the risk of infection in a prison for a person of your age, the disruption to the social links that you have recently established, a term of imprisonment that would occur as a result of a term of imprisonment located well away from those social links, including your attachment to the land by reason of your Aboriginality, this would all make more imprisonment more burdensome.
82In addition to that it would have a significant impact on your mental health as set out by Dr Zimmerman including an increased risk of suicide, and also lead to your loss of your self-employment which would itself set back your path to addressing your alcohol problems.
83The community will be protected by the need for you to address your underlying problems rather than with all its attendant costs, your incapacitation in a prison.
84In reaching this conclusion I have given weight to your past, and also taken into account that notwithstanding that past you have been a productive member of community. It is hardly your fault that you did not have the insight to accept an offer of a sex offender program back in 2011 when you were on the community corrections order.
85Putting all those matters together, your blighted background, and the fact that the previous community corrections order was not successful in addressing your inadequacies, and the progress you have undertaken since these matters came to the attention of the authorities and your compliance with bail conditions then notwithstanding the seriousness of the offending, I do not regard it as being in the community interest that a person at the moment who is a self-employed member of society, who is showing insight into his problems and seeking to address those problems be thrown into prison for the first time at your age of 55.
86The community interest, particularly of general deterrence and denunciation, can be served by a sentence of imprisonment but with your release forthwith upon a recognisance release order. The community interest in specific deterrence and its protection can be best served by the terms of a recognisance release order that will include engagement in a sex offender program, and a prohibition on the use of the internet to access dating sites, as well as supervision by the Office of Corrections.
87This is truly a case where you are at a fork in the road in your life where you have insight into the sources of your difficulties with alcohol and social isolation and how this leads to depression and the use of the internet for the exploitation of children in Third World countries. Your conduct has to be utterly condemned but it is in the community interest that you be given this final opportunity to continue the steps that you have taken to engage with psychological help, your Church, and your community, while remaining in self-employment.
Sentence
Commonwealth Offences
88Could you please stand?
89The four Commonwealth offences constitute in my view a course of conduct and as I have indicated there are a number of overlapping chats within those charges. In those circumstances I regard it as appropriate to impose an aggregate sentence for the four Commonwealth offences.
90That will be an aggregate sentence of 15 months' imprisonment but you are to be released forthwith upon entering a recognisance in the sum of $1000 to be of good behaviour for two years.[34]
Serious Sex Offender
[34] Section 20(1)(b) Crimes Act 1914 (Cth)
91As I have sentenced you to a term of imprisonment on the Commonwealth offences, you are to be sentenced as a serious sexual offender on Charge 7, the State offence.[35] The protection of the community is to be the principle sentencing purpose. I have achieved that by the imposition of a Community Corrections Order and that will be entered in the records.
[35] Section 6B Sentencing Act 1991
Terms of the Orders
92I have got to explain the terms of the recognisance release order to you and the sentence as a whole. I obliged to do that. A copy of this order will be sent up to you in a moment.
Recognisance Release Order
93You are to be released forthwith on the entering of an agreement, recognisance of $1000. You do not have to put the money up. To be of good behaviour for two years, that is the first term of it. You are to be under supervision of the community corrections service for that period and the sex offender program for that period, the sex offender management or their nominee for two years. You are also to attend and undertake the sex offender program within that two-year period. You have got to report to the Office of Corrections there in Wodonga by 4 pm on 14th of this month, that is next Wednesday.
94You are to report and receive visits as determined by the Community Corrections officer. You are to notify them of a change of address or employment within two clear workings days. You are not to leave Victoria except with their permissions, save to go and continue to work in the Albury-Wodonga region.
95You are to obey all their lawful directions and for the next two years you are not to access internet dating sites. And if you breach that order then you forfeit the $1000 and you will have to pay $1000 and you can be resentenced and that will mean you will have to go and serve your term of 15 months' imprisonment and so you need to acknowledge that I have explained the order to you and sign it when we send it up to you.
State Sentence
96In relation to the State offences, that is failing to comply with the reporting obligations and the child abuse material I have regarded as appropriate to impose an aggregate sentence in relation to these three state offences which will be a Community Corrections Order for a period of two years. The two sentences are to be concurrent.
97The Community Corrections Order will commence today which is the same period as the recognisance release order and the terms of this order is to not commit an offence in that period, to comply with directions of the delegate, the Secretary, to report there within two clear working days, to tell them of your change of address, to not leave the state without permission except to go to work, obey all lawful instructions, be under supervision and undergo treatment and assessment for alcohol abuse or dependency as directed and to undergo any mental health treatment or assessment including psychological or psychiatric treatment or even residential treatment as directed by them for mental health issues or alcohol abuse. As stated, this is an aggregate sentence.
98That will be sent up to you. You have been on a Community Corrections Order before. You will have to sign that and acknowledge that and send it back. The registrar will get that in a moment.
99I declare that had you not pleaded guilty to the Commonwealth and State offences I would have imposed a total effective sentence of 18 months' imprisonment to be served with a non-parole period of 10 months.[36]
[36] Pursuant to section 6AAA Sentencing Act 1991 (Vic)
100There has been a forfeiture order made for the material they have seized and I understand that has been made by consent between the two parties.
101So, Mr Kinchela, we are going to send up a document for you to sign which is an agreement in terms that I have just explained to you, you are sentenced to 15 months' imprisonment but you are released upon entering that agreement. You have got to sign that and they are the terms of it. If you breach that, then you will be liable to serve the 15 months. It is hanging over your head.
102HIS HONOUR: Come forward to the microphone. Do you understand?
103OFFENDER: Yes, Your Honour.
104HIS HONOUR: Right. The terms of that include that you undertake the sex offender program that they direct and that you are not to access internet dating sites for a period of two years just like the conditions of your bail and you have got to contact the Office of Corrections by the 14th. Then you have got a community corrections order and I have explained that to you which is for the state offences.
Sex Offender Registration
105Then there is the Sex Offender Register (‘SORA’), your breach of that and the possession of child pornography. Now, because you have been found guilty of further child sex offences, the Commonwealth offences, you are now required to go on the Sex Offender Register for life rather than the current term you are on, which I believe is 15 years.[37]
[37] By virtue of committing any three or more class 2 offences, pursuant to s 34(1)(c)(iii) of the Sex Offenders Registration Act 2004.
106So, for the rest of your natural life you have got to comply with the terms of sex offender register which means that you have got to tell them of changes of address, changes of phone numbers, changes of your internet address, your email address, car registration et cetera, that type of thing. You have been on that register since I 2011, you know your obligations, it is all to be done with time.
107If you breach those obligations, that breaches your recognisance, it breaches your Community Corrections Order. With the recognisance, you face the 15 months gaol, with the Community Corrections Order, that carries a three month term of imprisonment and the breach of the sex offender registration that carries a five-year penalty as well. So, you will be in a lot of trouble.
108So, I can only exhort you to comply with those conditions and if there is any problems you contact your supervisor and tell him what your problem is and address if they are there to help you, then get yourself back in treatment if necessary. Get Dr Bedford to help you, get the people in your church, go back to Dr Bizzotto, get another mental health plan. So, if you feel you are going to fall back into excessive alcohol use, depression and you want to access these internet sites for sexual gratification, you are breaching it all, you would be in real trouble and this is your last chance as far as the Court is concerned given your record. So, you understand what I am saying to you?
109OFFENDER: Yes, Your Honour.
110HIS HONOUR: Do you acknowledge your obligations under the Sex offender registration, the new one for life?
111OFFENDER: Yes, Your Honour.
112HIS HONOUR: And the Community Corrections Order?
113OFFENDER: Yes, Your Honour.
114HIS HONOUR: Any other matters?
115MS CARLANDER: I apologise that I did not raise this earlier. Your Honour just stated that the two sentences in terms of the Commonwealth sentence and the State sentence are concurrent.
116HIS HONOUR: Yes.
117MS CARLANDER: It is, as I understand it, an actual date for the commencement of the Federal offence is required.
118HIS HONOUR: Yes.
119MS CARLANDER: Rather than simply stating that it is concurrent. And to give effect to that, my understanding is Your Honour would seek for it to commence today.
120HIS HONOUR: The Federal order?
121MS CARLANDER: Yes.
122HIS HONOUR: I specified that, that is today, yes.
123MS CARLANDER: Yes.
124HIS HONOUR: And the Community Corrections Order for the State offence is concurrent with the Federal order. They are concurrent sentences.
125MS CARLANDER: Yes, I simply note that an actual date is required to be expressed for the commencement of the ‑ ‑ ‑
126HIS HONOUR: Yes. Does have to be in the recognisance or it is just in the actual formal order of the court?
127MS CARLANDER: The formal order of the Court.
128HIS HONOUR: Yes, well I will put that in as today.
129MS CARLANDER: Thank you, Your Honour.
130HIS HONOUR: As today, yes.
131MS CARLANDER: That is all I am noting, thank you.
132HIS HONOUR: All right, I will not come back onto the Bench. We will get this up there. So, if you wait while we get this up to you. We will keep the link so your counsel can explain these orders to you and, the Registrar there will give you the orders to sign at the counter. The Court in Wodonga will email them back to us and we will give the them copies. You will get a copy as well.
133I thank Counsel for their assistance in this matter and adjourn the Court.
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