R v Philip
[2013] VCC 999
•26 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00721
| THE QUEEN |
| v |
| CHRISTIAN FREDERICK PHILIP |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2013 | |
DATE OF SENTENCE: | 26 July 2013 | |
CASE MAY BE CITED AS: | R v. Philip | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 999 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Coidan | |
| For the Accused | Mr M. Pena-Rees |
HIS HONOUR:
1 Christian Frederick Philip, you have pleaded guilty to one charge of use a carriage service for sexual activity with a person under the age of 16 and one charge of knowingly possess child pornography, an offence under the state Crimes Act.
2 The prosecution has tendered as Exhibit 1 a summary of the facts which is relied on in relation to each of the two charges. That summary is not disputed by the defence on your behalf. It is the factual basis upon which I have sentenced and I will not refer to the facts of the case, but any reader of these reasons can refer to the exhibit to place the sentence in its factual context.
3 The prosecutor submitted that an appropriate sentence, as I understood it, would be detention in a youth justice centre for a period of somewhere between three to six months.
4 Mr Pena‑Rees, on your behalf, tendered a report from Mr Jeffrey Cummins (Exhibit P2) dated 11 July 2013 and Mr Cummins gave evidence. That report sets out in comprehensive detail your background so I will not refer to it. He told me that he has actually seen you 27 times which, as these sort of reports go, is an extremely comprehensive report. As everyone knows, the court is often met with reports based on a 40‑60 minute consultation between the psychologist and the accused. That is not the case here.
5 When I asked Mr Cummins what autism spectrum disorder was, he said in relation to you you have elements of some characteristics of Asperger's and some of autism and some of social anxiety phobia, and that is what his diagnosis of autism spectrum disorder referred to.
6 He had also discussed the issue with Dr Lewi, who has been your treating general practitioner for a number of years.
7 In answer to questions from myself, Mr Cummins thought that another 18‑24 months of treatment with him would be preferable to going into a sex offenders group program and would be of more assistance to you and thereby, in my view, of assistance to the community.
8 He said that you are generally socially immature, particularly psychologically sexually immature; that you are on antidepressant medication and that if you were to go into somewhere like Juvenile Justice, that would exacerbate the state of depression you have.
9 He is pleased with your continued studies at RMIT and a certificate was tendered to me in respect of that.
10 Mr Cummins' opinion was that your risk of reoffending was low and he did not assess you as suffering from paedophilia or hebephilia. He said:
"In my opinion, his offending behaviour was reflective of sexual experimentation on his behalf and of his extreme psychosexual immaturity".
11 That, in my view, is a better explanation of what is actually occurring here than trying to fit it under one of the labels in Verdins and talking about moral culpability.
12 Your parents and your sister are in court to support you. It is submitted on your behalf that you, obviously, have very strong family support and I have read references from both your father and your mother. As I said in running, I could just only sympathise with them with the position they are currently in.
13 On your behalf, it is submitted that you entered an early plea of guilty at committal mention and I accept that. As such, you receive a discount because it will save the cost of a trial and it is an acknowledgment of responsibility by you of your offending.
14 You are a young man; you are 19. At the time you were 18. Indeed, your taking down some of these images on your computer started at the age of 14.
15 I have considered all the matters set out in s.16(2) of the Crimes Act.
Is there a particular part of the Crimes Act that refers to recognisance that I have got to refer to and state reasons and so on?
MS COIDAN: Your Honour imposes the recognisance under s.20(1)(b).
HIS HONOUR: I have to explain to him what the purpose and effect of the order is.
16 Taking into account all of those factors - and, in particular, there are a couple of things you have got to understand, Mr Philip - I have to consider ‑ and in these particular types of cases it is important ‑ the principle of what is called general deterrence. That is a legal concept of trying to deter other people from indulging in this sort of behaviour.
17 You must understand that this is not a victimless crime because they are just images on the Net. Clearly the other young boy involved is a victim; but the young people that you have observed in relation to those photos are also. The circumstances under which they take part in that type of activity I can only imagine it is because of poverty, very bad family circumstances and so on. It certainly would not be voluntary, particularly with the photos of the very young people, and they are victims. If people did not watch it, they would not be told to do it. Imagine what sort of life they are going to lead after, at a very young age, having to take part in these type of photos and videos. So it is not just about you, it is about other people. If people like you did not download this type of material, it would not be produced. So no matter what all your problems are, imagine what the problems of some of those young people are after having taken part in these types of sessions, what sort of life they are going to lead. That is what I have to consider.
18 I also have to consider specific deterrence, which is to stop you committing this again. Now you are in a very long series of treatment programs with Mr Cummins and hopefully that will have the desired effect, but you are also going to have hanging over your head six months of gaol. If you were to breach the conditions of the orders I am about to impose, you would be going to gaol, so that is hanging over your head.
19 The purpose and effect of the order is to allow you to continue treatment with Mr Cummins. The consequences of failing to do that, or if you were to breach the law in some other way by an offence punishable by imprisonment, you would come back before me. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: Then I would deal with you.
20 As you might have just heard me say, I have dealt with a number of these types of cases, generally speaking with many more images, but on my recollection this is the first time I have not gaoled somebody.
21 Weighing up all those competing sentencing considerations, I am not gaoling you or sending you to Youth Justice because you are in treatment with Mr Cummins; because of your age; you have no prior convictions; you come from a respectable family who is here supporting you; you have entered a plea of guilty. Hopefully, we will never see you again.
22 In relation to charge 1, the Commonwealth offence, I sentence you to six months' imprisonment with a recognisance to start today, with a condition that you continue attending treatment with Jeffrey Cummins, consulting psychologist. I have an undertaking from him that if you cease that treatment, that will be brought to the attention of the prosecuting authority.
23 In relation to the second count, the state offence, that recognisance is to last for 24 months.
MS COIDAN: Thank you, Your Honour, and you also need to fix an amount.
HIS HONOUR: An amount of $500.
MS COIDAN: If Your Honour pleases.
HIS HONOUR: In relation to the state count, I fix a sentence of six months to be suspended wholly for a period of 24 months.
Thank you. Are there any other orders or matters I need to mention? I don't do a 6AAA, do I?
MS COIDAN: We ask that a 6AAA order is made and also the sex offender registration order.
HIS HONOUR: Thank you.
24 Very importantly, the state legislation says that for the conviction on the knowingly possess child pornography, that means that I must put you on the sex offenders registration for eight years. You will be given some documentation that will be served on you and I ask you to sign that as service and Mr Pena‑Rees will take you through what all that means.
MS COIDAN: The recognisance has been drafted.
HIS HONOUR: Thank you.
MS COIDAN: I will provide that to Your Honour to have a quick look at the wording of it.
HIS HONOUR: Thank you.
MS COIDAN: There are a lot of lines there, but essentially at the very bottom there is the condition about the treatment with Mr Cummins.
HIS HONOUR: Thank you.
25 The order is that you are released today under the recognisance of $500 to be of good behaviour for 24 months and to continue treatment with Jeffrey Cummins, treating psychologist, and you have been sentenced to a term of imprisonment for six months.
MR PENA‑REES: Thank you, Your Honour.
(Order, signed.)
MS COIDAN: And then there is just the 6AAA order, Your Honour.
HIS HONOUR: Yes. Sometimes I decline to give them in Commonwealth matters, but I have got a state matter so I don't have a choice.
26 Stand up again, thanks, Mr Philip. If you had not entered a plea of guilty, I declare under s.6AAA of the Victorian Sentencing Act that I would have detained you to a youth justice centre for a period of eight months.
27 Mr Philip, I have just signed an order under the Sex Offender Registration Act under which you are registered for a period of eight years. Attached to it are the conditions of that order and no doubt Mr Pena‑Rees will explain it to you. My associate will come up with these documents and if you would like to sign them saying you have acknowledged receiving them, do so; if not, don't. If you would like to go up also, Mr Pena‑Rees.
MR PENA‑REES: Yes, Your Honour.
28 (Order, acknowledged and signed.)
HIS HONOUR: Thank you. You can come out of there, Mr Philip.
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