R v Mawson
[2019] VCC 1319
•21 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00261
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| DARREN MAWSON |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 19 June and 1 August 2019 | |
DATE OF SENTENCE: | 21 August 2019 | |
CASE MAY BE CITED AS: | R v Mawson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1319 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: 48-year-old offender with no prior criminal history alleged – two rolled-up charges of using a carriage service to procure a person under the age of 16 years for sexual activity
Legislation Cited: Sex Offenders Registration Act (Vic) 2004; Sentencing Act 1991
Cases Cited: R v Verdins [2007] 16 VR 269
Sentence: Total effective sentence of three and a half years’ imprisonment with a non-parole period of 24 months. 6AAA statement: Total Effective Sentence of 5 years’ imprisonment with a non-parole period of 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms S Thomas | Office of the Commonwealth Director of Public Prosecutions |
| For the Offender | Mr P Gordon | James Dowsley & Associates |
HIS HONOUR:
1 Darren Mawson, you have pleaded guilty to two charges of using a carriage service to procure a person under the age of 16 years for sexual activity. Each of these charges carries a maximum penalty of 15 years’ imprisonment.
2 Your offending conduct is summarised in the Prosecution Opening Upon Plea (Exhibit “A”). Each of the two charges is a rolled-up charge and involves multiple acts of offending over a six week period.
3 Charge 1, which relates to your female victim who was aged 14 years, involved internet communications by you (then aged 48) with her over a period of six weeks in May and June 2018. Shortly after initiating contact with her, you expressed your desire to have sex with her, and tried to lure her by offering her clothing and flattery. You made specific reference to a “leather-look” mini skirt which you would like to see her in, as well as asking if she had a school uniform. You referred to your victim’s “hot body” and wanting to see more of it, and wanting a picture of her “smooth naked pussy” which was “so fucking young too” and asking for “a fucking hot pic to remember how close it could have been by me eating and licking your fresh young wet pussy”. You offered to secure a mobile phone for your victim so that you could communicate, and said you would really like to see her in person. After the victim expressed her displeasure about you speaking to her in the way you were, you moderated your messages by saying “I can’t fuck you. You’re 14”, but invited her to come over to wear some stuff for you as her body was so hot, and she could smoke pot and drink too, and bring her girlfriends and have a sleepover. In a later message you stated that she should “disregard the sex and fucking” but went on to state “Your sexy body in skin tight leggings or skirt would be very awesome for a bloke to have strutting around in front of me, fuck all my dreams in the 1 moment.”
4 Charge 2 relates to communications on the internet with an undercover operative who was posing as a 14-year-old girl called “Emily”. The charge involved you transmitting communications to “Emily” over a period of some six weeks, from 24 May to 2 July 2018. You gave compliments to “Emily”, whom you believed to be 14 years old, and told her that she made you horny. You gave her advice that she would be popular once she started having sex and could ask you anything she was curious about. You suggested she should not wear underwear so she could feel sexy and for boys to check her out. You offered to buy her clothing so that she would look hot and sexy and sent her images of clothes that you bought. You also suggested that she meet your son so that she would have an excuse to come over to your place and you could have sex together, and in this way you could introduce yourself to her mother so that her mother would trust you.
5 You told “Emily” you could teach her how she could become good at sex and suggested that she google “porn hub” and access it using a false date of birth. One message suggested that you had sent her a pornographic video. You gave her assurances that you were nervous as you had not had sex with a 14-year-old virgin before, but would not hurt her. You also asked her if she had tried drugs or alcohol and said she was welcome to come to your house, and you suggested that she watch porn with you so she could learn.
6 You sent many explicit messages to “Emily”, and several nude images of yourself, including images of your penis. You also downloaded a picture of a vagina for “Emily” stating that that is how her vagina would look after you had fucked her. You sent another image of your penis, boasting about its size and how you would “get her lose (sic) over time” and you could “pump [her] cunt fast and hard or soft and slow”. You sent multiple messages to “Emily” requesting a meeting, and ultimately made arrangements to meet her at a train station, suggesting that she should wear a skirt. You were arrested at the train station at the time of the scheduled meeting. A warrant executed at your home detected girls’ leggings, bike shorts and a skirt.
7 When you were interviewed by police you claimed, initially, that “Emily” was going to meet your 14-year-old son, who had a disability. You admitted that you had taken a photo of yourself in the mirror out of the shower and sent it to “Emily”, and that your penis was in your hand, and seemed to blame your use of alcohol and antidepressant medication. You stated you did not know why you had sent photos to “Emily”, but admitted that it was wrong and claimed that you planned to tell her so, and that you could not go through with it when you met up with her.
8 You were charged with the offences on 6 July 2018 and entered a plea of guilty in the Magistrates’ Court on 8 February 2019.
9 You are presently aged 49 years, having been born on 17 November 1969. You come before the Court with no prior criminal history.
10 The plea hearing conducted on your behalf by Mr Gordon was spread over three days.
11 Initially your counsel’s submission relied to a significant extent upon a very prolix report from Dr Dion Gee, forensic psychologist, dated 17 June 2019 (Exhibit “3”). I must say that I found it somewhat difficult to ascertain what Dr Gee meant in parts of his report due to his verbose expression and lengthy sentences. However, he seemed to premise his opinion upon an acceptance that you have compromised mental health and that you “impressed” as a man whose cognitive function was within borderline to low-average ability, although he undertook no formal testing of the latter. He considered that you were at elevated risk of suicide because of impulsive actions underpinned by heightened levels of acute distress. He seemed to accept that you had been acutely suicidal and had tried to hang yourself after being charged with these offences and that this resulted in a presentation to the Emergency Department of Frankston Hospital. I here interpolate that no material to this effect was tendered at the plea hearing.
12 Dr Gee apparently accepted your history which had been given to a psychiatrist, Mr Kruk, in 2017 that you had been suffering from post-traumatic symptoms as a consequence of being a volunteer with the Country Fire Authority during the Black Saturday fires. You claimed that this had caused you to turn to using ice as a form of self-medication. However, later in the report, Dr Gee stated that you gave a history of having commenced methamphetamine following an operation in 2010, “as a means of coping with pain, flashbacks and nightmares”.[1]
[1]Paragraph 28 of Exhibit “3” (I here note that it is noted elsewhere that you had a cholecystectomy in 2010 which was complicated by a cardiac arrest: see report of Dr Kruk, psychiatrist, dated 22 December 2017 Exhibit “2”)
13 Dr Gee noted that you claimed to have been under the influence of methamphetamine during your period of offending and had ceased taking it after your arrest. He considered that you showed some appreciation, albeit reduced, of the wrongfulness of your conduct, and some degree of insight into the harmful nature of your actions on the victim. He noted that you appear to lack mature confidence and tended to seek nurturing from others in a childlike manner, and were socially avoidant unless you were certain to be liked. He considered that you displayed prominent features of major depression, persistent depression, somatic symptoms, generalised anxiety, post-traumatic stress, bipolar spectrum and drug use, along with the presence of schizophrenic spectrum.
14 He considered that your depressive pathology was in the severe range and your acute mental health pathology made it difficult to accurately evaluate you. He considered you had post-traumatic experiences which induced fear and feelings of helplessness and horror, these causing enduring distress and anxiety and, seemingly, in an attempt to manage this pathology, you have relied on drug abuse. He stated that, given your marked social and interpersonal difficulty, this abuse derailed your already limited coping capacities and further thwarted your personality functioning.
15 Dr Gee considered that you fulfil the International Classification of Diseases diagnostic criteria for a recurrent depressive disorder, as well as for a substance use disorder in remission, and that you demonstrate features consistent with Post-Traumatic Stress Disorder. However, he also considered that you met the International Classification of Diseases diagnostic criteria for a personality disorder, being a moderate personality disorder presenting with mixed schizoid and dependent personality features, with impairment traits of detachment, avoidance of socio-emotional experiences, negative affectivity and disinhibition. He found it difficult to ascertain whether you did meet the diagnostic criteria for paedophilic disorder but considered, on the available information, that you did not. Nor did you meet the criteria for another paraphilic disorder.
16 He concluded that your aberrant behaviour seemed to demonstrate a pathway characterised by under-regulation. He explained that this meant that you had a desire to avoid sexually aberrant behaviour, but lacked the requisite skills and competency to meet your needs in a more adaptive, pro-social and meaningful way. Hence, he concluded that your aberrant sexual behaviour appeared motivated by an implicit need for self-regulation, rather than explicit desire to commit sexually aberrant acts because of an ingrained deviancy.
17 Dr Gee considered that you struggled to fully appreciate the links between your mental functioning and aberrant behaviour, and concluded:
“Regarding the nexus between Mr Mawson’s impaired mental functioning and the index offences, whilst it is difficult to assert the presence of a causal connection, clinically there would seemingly be a degree of association ameliorated through his psychopathology.”
18 He considered that you were more vulnerable than the average person to act in a manner without giving consideration to the consequences of your actions, but were not disinhibited through a combination of illicit substances, mental state decline and enduring psychopathology. Generally, you would be able to appreciate the wrongfulness of your conduct and control your emotions. Hence, he concluded that, although your impaired mental functioning would have predisposed you to act in an aberrant manner, there does not appear to be a direct causal nexus between the two.
19 He assessed you to be at moderate risk of re-offending sexually in the future, that is, you are as likely as a typical convicted sex offender to re-offend if not provided appropriate and timely intervention. He thought that future re-offending would be most likely to be in regard to post-pubescent adolescent females.
20 Dr Gee also considered that you needed to access support and intervention, which would be best done in the community, and should undergo offence-specific interventions in order to better understand and address the cause of your behaviour. He opined that provided you were given an opportunity to access and engage in psychological or psychosocial intervention in a timely manner, it is arguable that you would present a fair prognosis for rehabilitation. He considered that imprisonment would weigh more heavily upon you than on a person of normal health, and that there was an increased likelihood of further deterioration in your mental health following incarceration.
21 Dr Gee’s report did not appear to sit well with the contents of a report from Ms Kate Earl, psychologist, who had provided a report upon your psychological condition dated 28 June 2010 (Exhibit “1”). This report had been produced in the context of a dispute in the Federal Magistrates’ Court between you and your second wife over custody of your son. The report makes no mention of any symptoms of Post-Traumatic Stress Disorder relating to your work as a volunteer firefighter during the Black Saturday fires notwithstanding that it is dated over one year and four months after those fires. Ms Earl took a history that you did not drink or take any drugs. She assessed you to be of average intelligence with a thought stream that was logical and coherent and stated that you demonstrated good concentration. She found no evidence of cognitive abnormalities. In particular, on a self-report measurement taken to obtain diagnostic information on such things as anxiety or depression, your scores showed that there were no elevations to clinical levels on any of the sub-scales.
22 Ms Earl concluded that you were a psychologically healthy individual and that there was no evidence to suggest that you were Impulsive or irresponsible in your choices. However, some years subsequent to that report, your treating psychiatrist, Dr Kruk, in letters dated 22 December 2017 and 21 August 2018 sent to your general practitioner (Exhibit “2”) had noted that you had reported a history of anxiety, depression and post-traumatic symptoms since attending the Black Saturday fires. This had resulted in your general practitioner having prescribed Lexapro (20 milligrams) for approximately 12 months since late 2016. Dr Kruk had added dexamphetamine (20 milligrams) in or about December 2017 and had indicated in his letter dated 21 August 2018 that he had explained to you that he would have to stop prescribing stimulant medication if you started to use ice again. He noted that you had been using ice for eight years and had been spending $1,000 per day on it at the peak of your addiction.
23 A further letter from Dr Kruk back to your general practitioner on 21 January 2019 was at odds with Dr Gee’s assessment of you suffering severe depressive symptoms. In that letter, Dr Kruk stated of you: “He reported feeling much calmer on dexamphetamine 30 mg/d. His depression is well controlled by Lexapro 20 mg and Seroquel 25 mg.”
24 The matter was adjourned for a further plea hearing to 1 August 2019 in order to try to clarify the discrepancies to which I have referred and, also, to obtain information relating to an application which had been made on your behalf to the National Disability Insurance Scheme.
25 The adjourned plea hearing took place on 1 and 2 August 2019. A report from Dr Kruk dated 4 July 2019 was tendered as Exhibit “6”. This report clarified that Dr Kruk had never treated you for your offending behaviour, which you had never discussed with him. You had been referred to him in December 2017 for the purpose of determining whether you had an Attention Deficit Disorder and Post-Traumatic Stress Disorder, in view of your past service with the CFA, and amphetamine addiction.
26 Dr Kruk noted a history from you that, since childhood, you had struggled with attention and often daydreamed and found it difficult to hold down a job until being offered a position in your brother’s business. You had two failed marriages and claimed that your second wife left you in 2010 when you were “fighting for your life”, after a cholecystectomy complicated by a cardiac arrest. You stated that you had been homeless for four months after the separation and slept in your car. You gave a history that, following the Black Saturday fires, you abused Ice and drove fire trucks under the influence and attended to emergencies while affected by drugs. You ceased working as a volunteer with the CFA in 2013. You stated that you continued to abuse ice until 2016, but had a relapse of drug use in 2018.
27 Dr Kruk stated that you were diagnosed with depression and Post-Traumatic Stress Disorder and your developmental history was suggestive of a ADHD, which you had self-medicated with illicit amphetamines. Also, he noted that you had suffered a head injury in a car accident at the age of 17, but considered that you did not have any obvious signs of an Acquired Brain Injury. He noted that you had a son from your second marriage who had an intellectual disability, and he had ultimately been left in your care, but when you were charged with these offences he went to your mother’s care.
28 When Dr Kruk saw you on 21 August 2018, and again more recently on 24 June 2019, you attributed your offending to your past trauma while serving as a fire fighter and your past Ice abuse. On 24 June 2019, you told Dr Kruk that you did not remember anything about the teenage female victim. Dr Kruk noted that this was despite police transcripts indicating that you engaged in consistent, lucid correspondence with her and with the undercover operative.
29 You told Dr Kruk “I never had any thoughts or feelings towards young girls, I did it because of Ice”. I here note that this is in direct conflict with the concession made by your counsel on the first day of the plea hearing on 19 June 2019, that you do actually have a sexual interest in children, and specifically young females.[2]
[2]Transcript of proceedings 19 June 2019, page 20, lines 18-23
30 Dr Kruk noted that you reported that, since ceasing Ice 11 months previously, your mental state had improved, and he advised you to stop Dexamphetamine. Although you continued on Lexapro (20 milligrams) for anxiety. He commented that it was possible that, at the time of offending, your judgement was affected by Ice, and considered that ongoing abstinence from drugs is likely to reduce any risk of offending. However, he stated it would be difficult for you to engage in any meaningful intervention program for sex offenders while you maintain that you do not remember the offences.
31 The material before me indicates that you are an unreliable historian. Indeed, your own counsel acknowledged this. In this regard I note that, although Dr Kruk recorded a history that your anxiety and depression and post-traumatic symptoms had started after the Black Saturday fires, you apparently told him that after those fires you had abused ice and driven fire trucks under the influence and attended to emergencies while affected by drugs. You then had a relapse of drug use in 2018. Hence, Dr Kruk recorded a history of ice abuse for a period of eight years which, at the height of your addiction cost you $1,000 per day. This is somewhat different to the history recorded by Dr Gee. He stated that you conveyed that you had “Got involved in drugs … Started illegal drugs in 2010 … Started ice. Started at $100 a week … Towards the end it was daily use, $1,000 a week by 2018.” Moreover Dr Gee commented that you “commenced methylamphetamine use following [your operation in 2010] as a means of coping with ‘pain, flashbacks and nightmares’”.[3]
[3]Paragraph 28 of Dr Gee’s report Exhibit “3”
32 You told Dr Gee that the offending occurred in the context of you never having had friends and thinking that the subjects of your offending were friends and “I thought kind of fantasy that they were older”. You made reference to being on Dexamphetamine and Ice up until you were arrested, and having been under immense pressure “in and out of Family Court for my son, working full-time as a metal polisher and full-time as a dad, volunteer fire fighter as a first responder”.[4] I here interpolate that this history, concerning you still being a volunteer fire fighter at the time of offending, is at odds with that which you gave to Dr Kruk, namely that you had worked as a volunteer fire fighter for about 20 years until you left the CFA in 2013.[5]
[4]Paragraph 35 of Dr Gee’s report, Exhibit “3”
[5]Exhibit “6”
33 As best I can glean from Dr Gee’s report, you put your offending down to being under pressure, having some kind of fantasy and using both Dexamphetamine and Ice. However, you acknowledged that the subjects of your offending would have been emotionally hurt by the context of your messages, and that it was bad for an adult to ask for sexual things of a young girl.[6] Yet, when you saw Dr Kruk most recently on 24 June 2019, although you blamed the trauma of your work as a fire fighter and your past Ice abuse for your offending, you claimed that you did not remember anything about the teenage female victim. Dr Gee had apparently seen you on 24 May 2019, only four weeks prior to your last seeing Dr Kruk.
[6]Paragraph 36 of Dr Gee’s report, Exhibit “3”
34 Finally, I note that while Dr Gee took a history of symptoms of severe distress and depression when he saw you in June 2019 for the purpose of a court report to be tendered at the plea hearing, Dr Kruk had reported back to your general practitioner that, when he saw you on 21 January 2019, you reported feeling much calmer on Dexamphetamine and your depression was well-controlled by Lexapro and Seroquel.[7]
[7]Exhibit “2”, report of Dr Kruk dated 21 January 2019
35 I here note that, in his report, Dr Gee did acknowledge that you had a significant tendency towards over-endorsing symptoms and magnifying your level of experienced illness, and an inclination to complain and be self-pitying, albeit that he considered this to be underpinned by a “cry for help”, from a person experiencing extreme vulnerability and acute turmoil, rather than because of deliberate exaggeration of symptoms. Nevertheless, it makes it difficult to be satisfied, on the balance of probabilities, as to any mitigating psychological condition.
36 Perhaps the most troubling matter that emerges from the inconsistency in reports is that, having instructed your counsel to inform the Court on the first day of the plea hearing that you do acknowledge that you have a sexual interest in children, specifically young females, you then contradicted that when you last saw Dr Kruk on 24 June 2019, by stating “I never had any thoughts or feelings towards young girls, I did it because of Ice”.[8]
[8]Exhibit “6”
37 In all of the circumstances, I cannot be satisfied, on the balance of probabilities, that there was any significant mental illness which was linked to your offending, such that the principles in Verdins’ case[9] should apply. Certainly, Dr Gee opines that it is difficult to assert the presence of a causal connection between any impaired mental functioning and the offences. In any event, as I have already stated, I have difficulty accepting a number of Dr Gee’s diagnoses in the light of Dr Kruk’s opinion that your depression and anxiety and post-traumatic stress symptoms seemed to be well-controlled when he last saw you.
[9]R v Verdins [2007] 16 VR 269
38 Moreover, Dr Gee notes that, amongst other things, you meet the International Classification of Diseases criteria for a moderate personality disorder presenting with mixed schizoid and dependent personality features. Impairment traits of detachment, avoidance and disinhibition are said to be relevant in your case. This diagnosis would mean that the principles of Verdins’ case could not apply, even if one were able to tease out what aspects of your behaviour were attributable to it, as distinct from any depression or anxiety or post-traumatic stress symptoms (which I cannot).
39 I consider that these personality factors make it difficult to be optimistic at this stage about your prospects of rehabilitation. Indeed, Dr Gee refers to the fact that you are deficit in your insight relating to your own mental health needs and appreciation of your need for self-regulation, and a reduced understanding of your need to self-monitor your cognitive, emotional and behavioural state to avoid offending behaviour in the future. As I have mentioned, Dr Kruk comments in his most recent report that “It would be difficult for [you] to engage in any meaningful intervention programme for sex offenders while you maintain that [you] do not remember the offences.”[10]
[10]Final paragraph of Dr Kruk’s report dated 4 July 2019 Exhibit “6”
40 In the light of your concession through your counsel that you do have a sexual interest in children, specifically young females, I do not accept Dr Gee’s conclusion that your aberrant sexual behaviour is motivated by an implicit need for self-regulation rather than an explicit desire to commit sexually aberrant acts because of an ingrained deviancy. Your concession to the Court also undermines Dr Gee’s conclusion that you do not appear to meet the diagnostic criteria for a paedophilic disorder or a paraphilic disorder.[11]
[11]Paragraph 53 of Exhibit “3”
41 Despite my concern about the inconsistent histories that you have provided, I accept that you appear to have suffered from some form of an Attention Deficit Disorder. This made it difficult for you at school, such that you had a history of being bullied and experienced learning difficulties. Also, this made it difficult for you to hold down work until such time as you received employment in your brother’s business in or about 2013. It would appear that you have had difficulty in connecting socially in an effective way with others, and there is some basis for finding that you were suffering Post-Traumatic Stress Disorder symptoms, according to what you told Dr Kruk prior to this offending occurring. However, I think you are prone to exaggeration and self-pity, as Dr Gee says. I do not know whether you have or have not been given the highest medal in the CFA as fire fighter of the year or a bravery medal for saving your captain’s life, as you told Dr Gee. I here note that no evidence of any such award was placed before the Court. Nor were there any character references from old CFA associates. In relation to the latter, your counsel stated that you had not told any of your former CFA associates about your offending. Indeed, apparently it was only very recently that you told your own family about the full extent of your offending.
42 Although you were medicated for depression prior to this offending, you were also an ice addict for some years. While I accept that you were suffering some symptoms of depression and anxiety and post-traumatic stress for which you were medicated by your general practitioner and referred to Dr Kruk, who prescribed further medication, it is difficult to get a clear picture of your psychological condition which has been complicated by long term ice use to the point where Dr Kruk had indicated in a letter dated 21 August 2018 to your general practitioner that he had explained to you that he would have to stop prescribing medication if you started using drugs again.[12]
[12]Part of Exhibit “2”
43 I accept that, having no prior convictions, it is likely to be difficult for you spending time in custody for the first time at the age of 49 years. Also, as a matter of common sense, if you are suffering symptoms of anxiety and depression and post-traumatic stress, it will be more burdensome for you to serve a term of imprisonment because of that, and it may well be that imprisonment will worsen those symptoms.
44 I take into account that you have pleaded guilty to the offences at an early stage. Your pleas have significant utilitarian value. However, although you stated to Dr Gee that you acknowledge that a young girl would be hurt emotionally by the content of your messages, and that adults should not be engaging in that sexual way, which could have long-term impacts for a young girl in terms of trusting men, or making it difficult to communicate with males, you are inconsistent in your acknowledgment that you have a sexual interest in children, and have endeavoured to hide behind your psychological symptoms and addiction to Ice.
45 I do not accept your claim to Dr Kruk that you do not remember anything about your teenage female victim. For this reason, I have reservations about your remorse, although I understand that when you have limited insight into your own psychological state and, hence, the reasons for your offending and, hence, the potential risk of future offending, it can be difficult to develop true remorse.
46 You present as a socially isolated person and no family or friends were in Court to support you. The only person present was a representative from Wellways, who has been endeavouring to achieve some progress with your application for benefits under the National Disability Insurance Scheme. There was a letter from Mr Matt Dore, program worker, tendered as Exhibit “5”, but I place little weight on his remarks concerning your expression of remorse and “strong progress”.
47 It is in your favour that very soon after you were arrested for this offending you voluntarily referred yourself to Frankston and Mornington Drug and Alcohol Services on 10 July 2018. Reports from that service dated 21 January 2019 (Ex “4”) indicated that you had attended eight alcohol and other drug counselling sessions, with treatment focused on assisting you to maintain your abstinence from Ice and prevent relapse, and that you were continuing to engage in counselling at the time of that letter. Apparently, you have not used Ice since being charged with these offences, and that is to your credit.
48 Mr Mawson, there is no doubt about the seriousness of this offending. Young girls of the age of 14 are, unhappily, too regularly preyed upon by older men on the internet. The internet has made it easy for unscrupulous, immoral adults to invade the lives of children. These offences are presumed to cause harm to victims and are morally repugnant because they expose children, who are just discovering their place in the world and their own sexuality, to depraved and inappropriate and humiliating conduct which is completely and utterly inappropriate. The reason that conduct like yours is a criminal offence is because children need to be protected from such depraved behaviour as yours and, also, to some extent from their own immaturity.
49 These offences are prevalent and difficult to detect. It is acknowledged by the higher courts that, notwithstanding that the person with whom you were communicating in relation to Charge 2 was an undercover police officer posing as a 14-year-old girl, the offence is no less morally reprehensible. The offences to which you have pleaded guilty are designed to prevent harm to children and they need to be detected. One of the effective ways of detecting them is through the use of undercover police operations. Moreover, your offending on Charge 2 contains a highly aggravating factor in that, not only did you arrange to meet with a person whom you believed to be a 14-year-old girl, but you actually turned up to that arranged meeting. You were also found to have young girls’ clothing present at your residence.
50 Each of the charges is a rolled-up charge representing multiple repulsive communications over a period of six weeks in relation to each offence. Charge 2 contains another very serious aspect to it, in that you were advocating that the person whom you believed to be a 14-year-old girl should meet your teenage son, so that she could effectively fool her mother into believing that she was going to meet up with him, when in fact she was going to come around and have sex with you. This is seriously distorted and offensive behaviour, encouraging what you believed to be a young girl to deceive her own mother in this serious way.
51 In sentencing for these offences, the Court must place emphasis upon general deterrence so that others who are minded to act in this creepy, predatory way towards young girls will know that they will be appropriately punished. There is also a need for emphasis upon specific deterrence, given the repeated nature of your illegal acts of intending to procure a person to engage in sexual activity in relation to each charge. Your lack of insight and denial of sexual gratification are worrying aspects to your offending and, in the light of these, it is very difficult to assess your prospects of rehabilitation. I certainly consider that it is imperative that you undertake a sex offender program.
52 Your offending on Charge 1 involves many text messages to your victim with minimal response from her. At times, the text messages are late at night after 11.00pm or, on one occasion, after midnight. These are times when one would expect a 14-year-old schoolgirl would be sleeping. You regularly ask her to meet up with you, offer to get her a cheap mobile phone, and tell her to deceive her mother by saying that one of her friends has lent it to her. You also ask her to deceive her boyfriend, and offer to meet her, even at 2.00am.
53 When your victim reveals that it is awkward because your son is best mates with her step-brother, you tell her that that makes it easier for her to come and see you. You ask her whether she has a school dress, and claim that you will buy her stuff that makes her look older and hot. You say you have a leather-look mini skirt that she would look great in, and offer to buy her skin tight leggings. You make references to you having a shower with her stuck in your mind.
54 By 24 May 2018, it is very evident that, notwithstanding that you have been bombarding your victim with messages, she is not responding, so you tell her that you have “got the hint and will leave her alone”. However, you continue to send her many messages and do not ultimately cease until 19 June 2018. Your victim told you that she ignored you because she has a boyfriend and does not like you randomly talking about sex in the way that you do. By this time, you had repeatedly asked to meet her, asked whether she is a virgin, claim that you are “not out to fuck her”, but just to spoil her “fucking sexy hot body”. Your messages are depraved, where you talk about how close it could have come to you “eating and licking [her] fresh young wet pussy” and how you “would have let [her] suck [your] cock.”
55 You purport to apologise by saying “I can’t fuck you you’re 14 I’m not that type of bloke”, but persist with enticements about buying things for her, how you could offer her pot and alcohol, and she and her girlfriends could come and have a sleepover. You ask her to disregard “the sex and fucking”, but continue to be offensive in your messages by saying that “[she] would still be hot and fucking sexy for [your] eyes” to look all over [her]. [Her] sexy body in skin tight leggings or skirt would be very awesome for a bloke to have strutting around”.[13]
[13]Annexure A to Exhibit “A”
56 Your offending on Charge 2 has the same elements of persistent messaging with flattery, advice, suggestions as to how to deceive her mother, and effectively pretend that “Emily” is going out with your son. You offer enticements about how you can teach “Emily” to become good at sex, and assure her that you will not abuse her and will take your time with her. You also make offers of alcohol or drugs, and ask “Emily” to come to your home. Your messages are sickening in their depravity, the way you speak of meeting and taking her virginity, and how you could “fuck every lunch time of the school holidays”.
57 Notwithstanding that you refer to the fact that you have seen on the news that “a bloke raped a 14 year old girl”, you state that you hope that “Emily” does not have you arrested for rape because you would lose her and your son. Despite that acknowledgment, you continue with your highly sexualised and depraved descriptions of your penis and her vagina, and very specific descriptions of what you will do with her, encouraging her to take the “first step to become a fuckable chick”. Notwithstanding minimal responses from “Emily”, your messages go on and on, even referring to her as “my darling girlfriend”. You begin a countdown to the day you will meet, and ask if you can refer to her as “my little fuck buddy”. You ask if she will let you fuck her without a condom, and claim that she cannot get pregnant because you are sterile.
58 After arrangements are made by you to meet “Emily”, you tell her that you need to get the drug Ice, and ask if she can stay the night, and send her a text stating “I have me, porn, drugs, alcohol, you, a virgin, what more do I want? Nothing”. On the way to the arranged meeting, believing that “Emily” is on the train, you state “whilst I’m driving I be feeling your pussy”.[14]
[14]Annexure C to Exhibit “A”
59 This crude invasion of young girls’ lives on the internet, debasing them to become sexual playthings long before they could be expected to have the psychosexual maturity to adequately deal with such things, cannot be tolerated. As I have said, the internet makes procuring an underage child to engage in sexual activity very easy, particularly as children are prone to be lured by enticements and compliments, and need to be protected from themselves.
60 In sentencing you I have taken into account the matters in mitigation put on your behalf and such of the factors listed in s16A(2) of the Crimes Act 1914 (Cth) as are known to me. It is my duty to impose a sentence of severity appropriate in all the circumstances of the case. I have also had regard to comparable cases in jurisdictions throughout Australia to use such cases as yardsticks in determining an appropriate sentence.
61 Notwithstanding that the duration of your offending on each charge was approximately six weeks, your illegal acts of procurement were very intensive in relation to each charge over that six week period. On Charge 1 you sent approximately 77 messages to your first victim. On Charge 2 you sent approximately 331 messages to “Emily”. I have already referred to the despicable aspects of your offending whereby you endeavoured to have your first victim and “Emily” deceive their mothers, and your preparedness to use your own son, who apparently has special needs, as a way of getting sexual gratification for yourself. In addition, there is a serious escalation factor on Charge 2, in that you not only arranged to meet “Emily”, but actually turned up for the meeting.
62 I do not accept what you told the police, namely, that you intended to not go ahead with the meeting and tell “Emily” that it was inappropriate. This simply does not fit with your messages to “Emily” whereby you, with excitement, counted down to the time of meeting and, indeed, your last message immediately prior to the appointed time was of a highly sexual nature.
63 I have also made it plain that I do not accept that you were not capable of clear consequential thinking at the time of your offending. I have already referred to you messaging “Emily” about how you would lose everything if it became apparent that you had inappropriate relations with a 14-year-old girl. Indeed, you had earlier acknowledged to “Emily” that a judge and the police would shoot you for talking to her.[15] Moreover, you had begun to engage with “Emily” in early May 2018 at the same time as you were communicating with your first victim. Your communications with “Emily” escalated to explicit sexual content by 24 May 2018, once it became apparent to you that your first victim was not going to be responsive to your incessant messaging.
[15]18 June 2018 Exhibit “C”
64 In all of the circumstances, it is my view that Recognisance Release Order, as urged by your counsel, would not sufficiently reflect the gravity of your offending. I consider the appropriate sentence to be one of imprisonment with a parole period, particularly as you are socially isolated and likely to require significant supervision and support upon your release. For this reason I have made your non-parole period somewhat shorter than might be usual. This will give the option of you undertaking a sex offenders program either while in custody or upon your release.
65 On Charge 1, you are convicted and sentenced to be imprisoned for a period of two years.
66 On Charge 2, you are convicted and sentenced to be imprisoned for a period of two and a half years.
67 The sentence imposed on Charge 2 is the base sentence, which is to commence this day.
68 I direct that the sentence imposed on Charge 1 commence 12 months prior to the expiration of the sentence imposed on Charge 2. The total effective sentence imposed this day is thus three and a half years’ imprisonment. I direct that you serve a non-parole period of 24 months before being eligible for parole. I declare a period of pre-sentencing detention of 19 days be reckoned as time already served under the sentence imposed this day.
69 Charges 1 and 2 are Class 2 offences for the purpose of the Sex Offenders Registration Act (Vic) 2004. They are registrable offences pursuant to s7 of that Act, and pursuant to s34(1)(b)(ii) you are required to comply with the reporting obligations of that legislation for a period of 15 years.
70 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been five years’ imprisonment with a non-parole period of three years.
2
0
0