R v Pollock
[2019] VCC 1239
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-17-00245
| THE QUEEN |
| v |
| NIGEL POLLOCK |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 August 2019 (Plea) |
| DATE OF SENTENCE: | 9 August 2019 |
| CASE MAY BE CITED AS: | R v Pollock |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1239 |
REASONS FOR SENTENCE
---CRIMINAL LAW – SENTENCE – Plea – Commonwealth offences – Carriage service - Soliciting pornographic material using a carriage service - Attempting to engage in sexual activity with a person under 16 using a carriage service – Offender interacted with a covert operative posing as a minor – Exceptional circumstances – Chronic debilitative condition – Verdins considerations – Physical degeneration – Impaired cognition – Expert evidence as to the unsuitability of custody – Whether imprisonment would carry serious risk of adverse effect on offender’s mental and physical health – Principle of parsimony – Considerations of mercy – Muldrock v The Queen (2011) 244 CLR 120 – R v Anderson [1981] VR 155 [160] – R v Mooney (1978) 2 Crim LJ 351 (CCA Vic) considered. – DPP v Cramp [2019] VSCA 174 – DPP v Buhagiar & Heathcote [1998] 4 VR 540 – R v Verdins (2007) 16 VR 269 applied – Criminal Code 1995 (Cth) - Bail Act 1977 (Vic) – Sex Offenders Registration Act 2004.
CRIMINAL LAW – SENTENCE – Total Effective Sentence (Federal) – 9 months imprisonment (concurrent), immediate release on a Recognisance Release Order – Sex Offender Register.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Brown (Plea) Ms C. Caretti (Sentence) | Commonwealth Department of Public Prosecutions |
| For the Accused | Mr C. Terry (Plea) Ms E. Allan (Sentence) | Victoria Legal Aid |
HIS HONOUR:
1Nigel James Pollock, you have pleaded guilty to three charges under the Criminal Code (Cth): using a carriage service to procure a person who the sender believed to be under the age of 16 to engage in sexual activity[1], soliciting pornographic material using a carriage service[2], and attempting to engage in sexual activity with a person under 16 using a carriage service.[3] You have also pleaded guilty to one summary charge of failing to appear on bail under the Bail Act (Vic).
[1] Contrary to section 474.26(1) of the Criminal Code (Cth).
[2] Contrary to section 474.19(1) Criminal Code (Cth).
[3] Contrary to sections 11.1 and 474.25A Criminal Code (Cth)
2The circumstances of the offending were set out in the prosecution opening, which was read in open Court yesterday, and I incorporate them by reference.
3Essentially, the charges were laid related to your use of the Skype carriage service. You used a mobile phone and a webcam over the Skype system, to engage in sexual discussion and the exchange of pornography with a person who was in fact an undercover police operative but who was, according to what was placed before you a person, aged 14 at the time.
4Each of the charges carries, a maximum penalty of 15 years' imprisonment and the charge of failing to appear on bail carries a penalty of 2 years imprisonment.[4]
[4] Contrary to s30(1) of the Bail Act 1977 (Vic)
5Essentially, the matter came to light because in September 2015, you were on an adult dating site called Mingle2.com. You were also on Skype. The police in Queensland had a task force where they were putting up screen names of persons who were under age.
6You saw the photograph of a girl, known as 'Ashy.’ Her profile on Mingle2 stated that she was an 18-year-old from Brisbane and displayed a photo of her. You had a screen name of 'KiwiGuy72' on Mingle2. You contacted her, and in your profile, you stated you were a 43-year-old male from Melbourne and displayed a photograph of yourself. You communicated with her, asking her whether she was on Skype. She then sent her Skype profile to you, including a photo, and that indicated that she was in fact aged 14.
7Thereafter, you used Skype to engage in communications with her which very quickly became sexualised. Charge 1 relates to the whole period, where you first started discussing with her that she was a 14 year old. You then asked her whether she had been involved in any sexual activity.
8The communications progressed to you saying that she would have to wait until she was 16 before she was able to have sex, because you could go to gaol. You then indicated to her that you wanted to engage in kissing and licking with her. That was on the first day. You also asked her about the use of the camera on her laptop. The next day, you started to ask her about whether she was playing with herself.
9So it went from there. Two days later, on 9 October, after the first discussion, you sent two photographs of yourself including one of your erect penis and another where you appear to be ejaculating. You then requested the she delete them.
10There was then further communications between the two of you when she said to you that 'it sucks to be 14', whereupon you then asked, 'You want to be older and hook up with me, right?' There was then further discussion, asking her to engage in activity on herself. You then indicated in that conversation that she was not to tell her parents, because you could be 'put inside.' You also discussed flying up to Brisbane to see her.
11There were then further discussions about her moving to Melbourne and having a meeting with you after you called her mobile phone. These discussions continued through in December about the possibility of you visiting her. That had to be deferred, because you might be overseas in New Zealand.
12The final communication was on 14 January, where you discussed going to Brisbane to visit her but said you could not do it because you had to go to New Zealand. There was also discussion about what you would do when you did visit, and engaging in intercourse for the first time for her.
13So that is the first charge which involves all those conversations on Skype and your mobile phone, between the two of you.
14Charge 2 relates to the soliciting of child pornography. You asked her to take pictures and communicate them to you. She in fact did not do that, but you proceeded to ask her on about three occasions to send a photo to you. So that constitutes soliciting of child pornography.
15Charge 3 was the charge of attempting to engage in sexual activity with a person under 16 using a carriage service. That is your sexual activity with her on the webcam where you had your webcam going, and she was live video-streaming you. You then instructed her on how to engage in conduct with herself. On another occasion, you were masturbating and putting an item into your anus while she was watching it, then you were also observing a live video stream of you masturbating. Again, on a second occasion, the same thing happens.
16The last recorded conversation between the two of you was on the 15th, where she says to you, 'What did your father say?', and you did not reply. So the communications between the two of you and the end date on Charge 3 is 14 January 2016, which is the same end date for Charge 1.
17The police, who had been monitoring this from Queensland, ended up executing a search warrant 10 months later on 11 October 2016. You were living in a caravan at a property in Graytown, which is near Seymour in Victoria.
18They searched your caravan, recovering your notebook, your laptop and your Apple iPhone. You gave them the passwords, told them that you vaguely remembered being involved in an online situation with someone else, which you said you 'backed out of', and they had to remind you of the name of the person.
19You did remember something of it, and you sought to minimise your behaviour. You said that you had gone along with her because you had been involved in adult dating sites where people often lie about their ages or their appearance. You said when she said she was younger than 18, you thought it was part of a game, but conceded that you knew that she was 14 as time went on. You said:
'I realised, "Hang on a minute. This person is still at school. Obviously, she's not 18 and it's time to stop."'
20So you were then directed to the police station where you were charged and released on bail. When the notebook and iPhone were seized, various images that you had sent to her were found, as well as the chat logs and the phone calls.
21You were committed for trial on 14 February 2017. You entered a plea of not guilty. The matter was a hand-up brief, and was then adjourned because there was a suggestion that you would be unfit to plead. There were psychological reports obtained which indicated that in fact you were fit to plead.
22And so on 2 June, you indicated that you intended to plead guilty, and the matter was then listed for a plea. But there was a delay because you failed to attend in August 2017, and you were subsequently arrested in March. You spent five days in custody and were released on bail. The matter was then adjourned for a plea to today.
Seriousness of the offending
23Your counsel did not dispute the seriousness of the offending here. As I said, the first offending relates to Skype communications between you and the other party over a significant period where there were various discussions as to sexual activity, including introducing the other party, the 14-year-old, to sexual activity. You discussed travelling to Brisbane to meet her and what you were going to do when you got up there. Conversations were facilitated through both Skype and your mobile phone communications.
24As I say, the second charge relates to 'persistent', (in terms of two or three) requests, for her to send pornography of her to you. That did not occur, but there were a number of requests by you to do that.
25The following charge relates to the webcam streaming where you were engaged in sexual activity and she was watching it on more than two occasions. It was an attempt, because she could not engage in any activity, because she was in fact an adult police operative.
26You have full culpability because the culpability of the offending goes to your state of mind rather than whether it was possible to actually achieve her engaging in sexual activity.
27I regard the three offences as amounting to a course of conduct that commenced with the original Skype conversation with the operative, leading to the phone calls and then the use of the webcam that involved the attempted sexual activity with her. They were a course of conduct because it involved the same person at the other end of the communications, the different modes, and you were effectively in the same location when all the communications occurred. This is relevant to the overall characterising of the offending, as it involves only one putative victim.
28On the plea, your counsel led evidence from Dr Mark Marriott, a neurologist from the Royal Melbourne Hospital. He has been treating you for the last six years. You have been suffering from MS, multiple sclerosis, for at least the last decade. You have been an invalid pension for some years since you were diagnosed. He gave general evidence as to the impact of MS on you.
29In his report, dated 6 October 2017[5], he states that you have 'quite severe baseline disability.' He noted that it affects your mobility, confidence and cognition. Further, you had leg weakness, poor balance and incontinence problems. He noted you needed a walking stick. He explained that your condition was likely to worsen despite your treatment, and you have the ability only to walk with the use of one or two sticks up to 100 metres.
[5] Exhibit 3 on the plea
30In his final report in March of this year, he indicates your MS is 'worsening with time', and:
'A custodial sentence would be very difficult for Nigel with his disability and treatment requirements.[6]'
[6] Ibid
31In his report dated 16 February 2018, he indicates that:
‘A custodial sentence would … likely worsen his MS and his disabilities. He also has regular need for clinic reviews and MRI scans.’
32He also indicates that your symptoms are getting worse and your disability scores have steadily increased over the years. This is expected with multiple sclerosis, he said, which is unfortunately a progressive disorder. He also said also that psychosocial stressors do impact upon the disease.
33A significant issue that emerged on his evidence was the impact of the condition on your culpability for the offending. In his evidence, he noted that people with MS often have memory problems as well as problems with multitasking and judgment. His opinion was that your condition would have a significant effect on your cognitive ability.
34Under cross-examination, he indicated that MS can affect judgment and thinking. He conceded that it does not mean that people with MS are more likely to engage in sex offending against children. When asked specifically, he indicated that he was of the view that the MS did affect your judgment. He was also of the view that you can be impulsive. He stated that you have problems with impulsivity and judgment. He could not say whether it affected your actual offending in this case.
35He further noted that about half the people with MS have depression, and the use of steroids can exacerbate depression. Because you have had to use steroid medication, that has occurred in your case.
36In placing your condition within the spectrum of MS sufferers, he described you as being on the more severe end of the spectrum for a 48-year-old and you had quite significant disability. He indicated you had a five-to-ten-year reduced life expectancy. He noted that you have been using cannabis for pain relief and you have also have muscle spasticity.
Assessment
37The opinion of Dr Marriott I regard as quite significant, particularly when combined with my own observations of your demeanour in the dock. It is obvious that you have a significant disability and major mobility problems. Dr Marriott supports that particular assessment with his view that you are at the more severe end of the spectrum of MS sufferers.
38In relation to the effect of MS on your judgment, he is of the opinion that it does affect your judgment and impulse control. While he would not concede under cross-examination that this meant that you were more likely to engage in offending against children, he did state that it affected your judgment and you do have impulsivity problems. In the light of the further opinion of Dr Dion Gee, I regard his evidence as significant.
The evidence of Dr Gee.
39The defence led evidence from Dr Dion Gee, a forensic psychologist. He was giving evidence in his private capacity, but he indicates that he works for Forensicare as a psychologist and also as a strategic advisor for the Corrections Department It is obvious from his evidence that he has a significant level of professional experience within the criminal justice system, he is also a published author on sex offending and the effect of mental conditions on criminal culpability.
40In his evidence, he said he would defer to Dr Marriott as to the impact of MS on your physical condition. He noted that you have an interrelated set of symptoms with the use of substances, namely cannabis - that impair your cognitive function and impact on your judgment. He is of the view that you have impaired judgment and struggle to process information.
41In his report[7], Dr Gee in paragraphs 37 and 38 of his report opined as to the link between your social situation and your condition as follows:
'In the light of the foregoing, Mr Pollock's aberrant behaviour is best construed as an unsophisticated attempt at social connectedness, intimacy and companionship, and sexual expression and gratification in a man with compromised psychosocial competence, diminished identity and self-worth, reduced affective awareness, thwarted interpersonal functioning, dysfunctional self-regulation, diminished insight, trauma sequalae, compromised mental state, thwarted consequential thinking and social/moral reasoning, and pervasive neurocognitive comprised emerging from the insidious sequalae of multiple sclerosis. This certainly fits with Mr Pollock's loss of control and disinhibition, the negative evaluation of himself and the offending during the post-offence period, and with hindsight, the clear appreciation of the wrongfulness of his conduct.' It also accounts for his unsophisticated attempts to distance himself from his past behaviour. Overall, Mr Pollock’s offending appears underpinned by an enduring difficulty obtaining a meaningful identity and stable sense of autonomy; wherein he struggles to reflect on what is in his best interests, and to develop strategies that promote such interests whilst avoiding harm to others.
Generally, Mr Pollock demonstrates deficits of insight relating to his mental health needs and struggles to fully understand the nexus between his presenting symptomology and current/previous life experiences. Further, he displays a compromised appreciation of the need for self-regulation; failing to fully understand his role in the process of cognitive, emotional and behavioural control. With respect to his appreciation of the offence process, Mr Pollock struggled with the links between his deficits in self-regulation and aberrant behaviour. Similarly, he presented with a reduced understanding of his risk profile and potential future risks; at times failing to appreciate – or at least to effectively recall/articulate – the need to self-monitor cognitive, emotional and behavioural states to avoid such behaviour in the future.
[7] Exhibit 2 on the plea.
42And at paragraph 40, he elaborates even further and again says:
With respect to Mr Pollock’s understanding of the offence, process, he seemingly struggled to appreciate the links between his mental functioning and aberrant behaviour; with his psychopathology at the time of the offence appearing to have adversely impacted on his social-moral reasoning, consequential thinking and judgement. Specifically, Mr Pollock’s enduring impaired mental functioning currently underpins deficits in self-regulation, with respect to his cognitive, emotional and behavioural control; difficulties that clearly predate his formal contact with the justice system albeit a presentation that has declined further within the contract of the current court matters. Regarding the nexus between Mr Pollock’s impaired mental functioning and the index offences, whilst it is difficult to assert the presence of a direct causal connection, clinically there would seemingly be some degree of association mediated through his neuro-degenerative disorder and its accompanying sequelae; pathology that has fundamentally altered (and currently derails) Mr Pollock’s capacities to function productively. With this as a backdrop, Mr Pollock would likely have been in a position where he was more vulnerable than the average person to act in a manner without having given due consideration to the consequences of his actions, and/or make reasoned and ordered judgements; with there also being some connection to his capacity to maintain control over his faculties. It may also have been the case that his mental state (in combination with the intoxicating and disinhibiting effects of substance use partially obscured his intent to commit an offence; however and whilst somewhat less clear, this level of impairment did not seemingly impair his ability to at least partially appreciate the wrongfulness of his conduct. Of salience, as noted above, while Mr Pollock’s impaired mental functioning appears to have contributed – clinically – to his aberrant behaviour, there does not appear to have been a direct causal nexus between the two; but instead such a clinical associated was mediated through both his neuro-degenerative disorder (and associated pathology) and seeming dependence on marijuana to manage his present pathology.
43While he says there is no direct nexus between your conduct and your condition, there is a clinical association which is mediated through your neuro-degenerative disorder, associated pathology, and seeming, dependence on marijuana to manage your presenting pathology.
44Also relevant to the question of your moral culpability for this offending are the opinions of Dr Vowels, a psychologist who assessed you for the purpose of determining your fitness to plead. In the report, after the administration of a number of tests, it is opined on p.5:
'These results suggest a mild degree of organic impulsivity which may be a factor when attempting to cope with stress as well as making decisions to proceed with intimate conversations with the victim, despite the information given about her age. I am not sure how he would deal with this level of competing demands if the situation were not emotionally neutral or time-prolonged.'
45Furthermore, on the next page, after some tests it is noted that:
'These were instances in several tests in which it was apparent that he could not predict or recognise the likely outcomes of his actions, consistent with the comment by the neuropsychologist about judgment. It is very apparent that he is capable of empathy and moral reasoning, but his perseverative responses of being a victim of his unfortunate childhood experiences continue to intrude in an abnormal way.'
46And then the report goes on:
'His social isolation, albeit voluntary, is probably adding to this as he is not exposed to any challenges to his decision-making or merits.'
47And the report goes on, at the bottom of page, to say:
'It appears from the very comprehensive sampling of cognitive abilities using tests with established sensibility and reliability to identify neuropsychological abnormalities that Mr Pollock is currently demonstrating several significant cognitive disabilities. The basis of this is most probably his demyelinating disorder of eight years, but he gives a history of repetitive mild traumatic head injuries, and extensive alcohol and substance abuse are very probable to have contributed to this as his risk factors are numerous.'
48It is noted that you have got dysexecutive syndrome of a moderate to severe level:
'This includes impairment of his capacity for new learning, moderate difficulties with recognising viewpoints and interpretations, a marked tendency to persevere with responding and poor planning and organisation, and reduced spontaneity with increased impulsivity.'
49Moreover, at about the sixth dot point on p. 7, Dr Vowels states that:
'All these problems are associated with dysexecutive syndrome, as described and identified as being impacted by the organic brain damage you have suffered. They are explained above using the terms "impulsivity", "insightlessness", "impairment of decision-making and problem solving."'
50In final submissions, your counsel sought to de-emphasise Verdins[8] limb 1, which relates to your moral culpability. It is clear from the report of Dr Gee and his oral evidence that he is more nuanced. I do regard his opinion as to your condition, in particular, the cognitive impairment and impulsivity as relevant to limbs 1, 2 and 5 of Verdins.
[8]R v Verdins (2007) 16 VR 269
51A key focus in the submissions was the impact that a sentence of imprisonment would have on you. The learned Crown prosecutor submitted that you would be able to be adequately looked after in the prison system in the event that you are sentenced to a term of imprisonment. This was on the basis of the affidavit of Mr Money, a senior Office of Corrections executive.[9]
[9] Exhibit C on the plea.
52Dr Gee contested that evidence. He noted that this was a complex case with a medical problem, namely, MS, a psychiatric and psychological problem, namely, depression, this is coupled with a need to address your offending behaviour. He noted that because of your condition, it is likely that the medical problems (namely, the MS) would trump the other two conditions. As a result of that, you would be placed in Port Phillip Prison. In that environment, you would not be in a position to be provided with psychiatric and psychological treatment and proper offender behaviour programs. Dr Gee stated that the system of the Office of Corrections:
'was just not in a position - at this stage, was just not geared towards individualised, tailored care for so many different issues.'
53He conceded that you could have your physical needs met, your psychological met, and your offending behaviour needs met, but not effectively in the one place at the one time.
54Under cross-examination, Dr Gee indicated that you have limited insight into your offending behaviour, and effectively, he was criticised in cross-examination about that. But he maintained his position that with appropriate one-to-one therapy, you have a capacity to gain insight into your offending behaviour.
55He indicated that one-to-one intervention for sexual offending is just not available in Port Phillip, where, due to your condition, it is most likely that you would be housed for any sentence of imprisonment.
Assessment
56I found the evidence of Dr Gee, combined with that of Dr Marriott, as persuasive as to the impact of a sentence of imprisonment to be served on you. It is clear that you have complex needs as a result of your degenerative medical condition, and that with those needs, the imprisonment system is just not geared to provide an appropriate response. It follows from this that a sentence of imprisonment would be significantly more burdensome on you than an able-bodied person.
57I have not mentioned that, Dr Marriott has indicated in his reports and in Court that you have got incontinence problems, mobility problems and depression.
58Further, it is clear from the evidence of Dr Gee that your risk of reoffending, which he assesses as 'moderate/low', can be addressed through appropriate one-on-one therapy within the community.
59Dr Vowels is also of the opinion that you have a low risk of reoffending and that you would respond to appropriate treatment:
As a clinical psychologist I would comment that I think reoffending would be unlikely as Mr Pollock’s failure to recognise the impact of his behaviours has been addressed very vigorously by his exposure to date of the legal aspects of the behaviours he has experienced.
My clinical view is that he would accept input and recommendation which would make the prospect of improved quality of life and behaviour greater which is likely to address the probably origin of his offending in terms of social isolation and absence of community exposure which would impact on this ability to recognise the wrongfulness of his behaviours.
Matters in mitigation
60You have come before the Court a 48-year-old man with no prior convictions. You are entitled to the benefit of that, but of course, in these types of cases, it is not decisive. Your counsel put a number of matters in his comprehensive submissions, which is on the file and I incorporate them by reference.[10]
[10] Exhibit 1 on the plea.
61First, you have pleaded guilty. The plea was relatively early, although there was a period where you had pleaded not guilty as the matter required consideration as to your fitness to plead.
62In support of the issue as to whether you were fit to plead was the report of Dr Vowels. As I have indicated, Dr Vowels supports Dr Marriott’s conclusion that you have problems in relation to your judgment. This would help to explain why, in circumstances where originally you were told that the person on the other end of the line was 18, then she indicated that she was 14, you persevered, with the communications which led ultimately to these three offences. You did drop off communicating with her from the middle of January after a period of about four months.
63Dr Vowels indicated that when he examined you in 2017, you were demonstrating several significant cognitive disabilities, and he supported the proposition that you have increased impulsivity. This could explain why, notwithstanding you knew and you articulated that it was wrong that you were dealing with a 14-year-old, you continued to do that. The evidence of Dr Vowels supports some reduction in your moral culpability.
64Your personal circumstances are set out in your counsel's sentencing submissions. As I said, you are aged 48. You come originally from New Zealand, and you were aged 43 at the time of the offending.
65You are single and have no dependents. You have one younger adopted child. Your father lives in Australia. Your mother is still in New Zealand. You enjoyed a happy childhood. You completed high school. You did suffer from dyslexia and struggled with literacy, but excelled in engineering and physical education. You worked for your father's business in painting, and then in a mechanics' shop.
66You were the subject of sexual abuse between the ages of 11 and 15, and this is referred to by Dr Gee. It has not been the subject of any proper therapy or counselling that would allow you to overcome that. That issue has been untreated.
67During your childhood, your parents were involved in racing cars. When you came to Australia, you got a dream job as a V8 car instructor at the Calder Raceway. You did that for a number of years. When the MS started to manifest itself, you ended up working at the racetrack but not in actual driving.
68So you have been a productive member of society until the MS caused a reduction in your functioning. That led you to move onto the disability support pension in recent years.
69You had a long-term partner in New Zealand. You and her had no children, you worked a farm together until you had to leave the farm when disease struck. You moved to Australia. The relationship ended with her in 2008, when the MS became manifest. Since that time, you have had a number of brief relationships. You were in a relationship when you were examined by Dr Gee in 2017, and that has now ended.
70The report of Dr Gee and the reports of Dr Marriott indicate that in recent years, your physical position has declined as the MS set in and you suffered further physical degeneration due to MS. That has also led to the degeneration of your cognitive ability, which the details of which are set out in the report of Dr Vowels as well as in the report of Dr Gee.
71Specifically at paragraph 40 of Dr Gee's report, he indicates:
'Mr Pollock's enduring impaired mental functioning currently underpins deficits in self-regulation with respect to cognitive, emotional and behavioural control, and difficulties that clearly pre-date your formal contact with the criminal justice system.'
72Finally, in paragraph 42, he said:
'His impaired mental functioning would certainly see incarceration weigh more heavily on him than a person in normal mental health. That is, he would present with an enhanced risk of further deterioration in mental state and functioning.'
73In terms of your present social support, since you have been on bail, you have been living with your sister in the Werribee area. You are in constant phone contact with your parents, one in Australia, the other in New Zealand. So you have support, but recently and at the time of this offending, you were socially isolated and living in a caravan on a rural property.
Sentencing submissions
74The learned Crown prosecutor submitted and accepted that there was evidence of remorse. I regard that as particularly relevant in the light of the opinion of Dr Gee, who said that it is only with proper therapy that you will be able gain full insight into your behaviour.
75Significantly, when you were first interviewed by the police, you effectively made full admissions to them, including that you had deleted the number of the person 'Ashy', but admitted that the police would find her number. You also said you had stopped your behaviour voluntarily.
76Your plea does show some insight into your behaviour. It is evidence of remorse. It has obviated the need for a trial. You are entitled to the utilitarian benefit of the plea. It shows insight and is relevant to your prospects of rehabilitation.
77A significant matter in this case is delay. There has been significant delay from when the original offending occurred between October 2015 to early 2016, then the period before you were actually arrested. Then, in the criminal justice system, there was the delay caused by assessing you for fitness to plead. There was further delay when the matter was listed for a plea, and you did not attend. There was further delay until the police arrested you.
78So there has been a lot of delay. Some of it, at least nine months, is caused by you not attending. But that is, in a sense, understandable given your condition. The delay has had an impact on you as indicated in the report of Dr Gee, dated 6 March 2017, where he said:
'The stress of the upcoming trial has been very significant for Nigel and is unfortunately worsening his disability.'
79Since he wrote that, there has been a period of 27 months since that time.
80In sentencing submissions, the learned Crown prosecutor submitted that this was serious offending over a significant period. The fact that it did not involve an actual person does not mitigate the seriousness of the offences. I accept that, and that is made clear in a number of cases referred to.
81Matters that are relevant and make this case distinguishable from some of the other cases that have been referred to is that you did cease this offending voluntarily before your apprehension.
82Next, I see it as a significant that, as set out in your record of interview, you were on an adult dating site seeking relationships with adults when you came across the undercover police officer, and it was only when she gave you the Skype connection describing her age as 14 that you lapsed into engaging in the communications with an underage person.
83So it was not as though you were trawling the internet for underage people. That is a matter of mitigation. This is notwithstanding your own admission that you knew it was wrong, and you continued with your interactions that gave rise to the offending.
84In assessing your moral culpability for the offending, I do find, contrary to the submission of the learned Crown prosecutor, that your condition does provide some reduction in your moral culpability. This is supported by the evidence of Dr Vowels, Dr Marriott, and Dr Gee.
85It is clear that awareness of wrongfulness as a legal matter is different from wrongfulness as a psychological matter, and Dr Gee made that very clear. It is clear from the evidence that your ability to exercise judgment was impaired by your condition. This is set out in the report of Dr Marriott, where he said:
'Unfortunately, it does affect his judgment. The MS also affects his judgment and thinking.'
86That is also reflected in the opinion of Dr Vowels and Dr Gee.
87So the impact of MS with its associated depression is relevant to an overall consideration of the application of the provisions of s.16 of the Crimes Act (Cth), in sentencing you for your offending, and to the application of the principles of parsimony.
88The authorities referred to by the learned Crown prosecutor and the table of cases make it clear that general deterrence is to be the primary sentencing consideration. This, however, must be considered in the context of whether or not you are an appropriate vehicle for the exercise of general deterrence.
89In a recent decision in the Court of Appeal of DPP v Cramp[11] the Court of Appeal was dealing with a Crown appeal involving an intellectually disabled offender with cerebral palsy from a difficult Aboriginal background. The Court of Appeal cited the well-known High Court case of Muldrock.[12] At paragraph 42 (I incorporate the whole paragraph by reference) they say, quoting another case:
'One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[13]
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
In the same case, Lush J explained the reason for the principle in this way:[14]
"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
[11] [2019] VSCA 174,
[12]Muldrock v The Queen (2011) 244 CLR 120
[13]R v Mooney (Unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VR 155 at 160.
[14]R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VR 155 at 160-161.
90They go on:
'The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.'
91Although the relevant case refers to an offender suffering a mental illness and those with intellectual handicap, I regard the comments as having some analogous application here in the light of the opinions of Drs Marriott, Gee and Vowels as to the impact of MS on your judgment, your impulsivity and your cognition.
92It follows from this that the sentiments expressed in a number of decisions referred to in the prosecutor's sentencing table have less applicability to you. I consider each of those cases as being relevant to sentencing practice.
93However, as has been said on a number of occasions, particular sentences do not constitute a precedent, and what is required is consistency of sentencing principle. The cases provide some element of distinction in that none of them deal with a person suffering a degenerative condition on the more severe end of the spectrum, as you do.
94In final address, the learned Crown prosecutor submitted that the mental condition you suffer could be addressed in custody, and that given the seriousness of the offending and the cases that have been put before the court, a sentence of imprisonment to be served was required.
95I regard the circumstances here as exceptional, and call for the exercise of parsimony and mercy. As I said, I have the opportunity to observe your demeanour in the dock. You suffer from a significant disability and appear physically broken.
96The evidence of Dr Gee as to your likely location within the prison system with your condition I found persuasive. Further, notwithstanding the affidavit of Mr Money, I give greater weight to the opinion of Dr Gee in circumstances where, in truth, you have a complex combination of conditions that need to be addressed simultaneously. These conditions could not be address at one time and in one place in the prison system.
97Next, as I have indicated in relation to the recent decision of the Court of Appeal, right-minded members of the community would not regard you as an appropriate vehicle for the exercise of general deterrence, particularly in circumstances where you suffer a condition that, on the evidence, does affect your judgment and thinking.
98Having heard the evidence of Dr Gee, the interest of the community in your rehabilitation must also be taken into account. He is of the view that this can be addressed by way of appropriate psychological therapy, one-on-one, in the community.
99He was also of the view that it is appropriate, as distinct from the submission of the Crown prosecutor, that you should be provided with therapy to address your sexual offending as soon as possible, rather than what the learned Crown prosecutor was seeking - a period of imprisonment followed by therapy in the community, which seems to be inappropriate in your circumstances.
100I am satisfied that the interests of the community and the interests of general deterrence, can be addressed by the imposition of a sentence of imprisonment followed by your immediate release upon a recognisance with a condition that you be under supervision of the Office of Corrections and engage in an appropriate sex offender program or therapy as set out in the report of Dr Gee.
101The Court of Appeal has said, in the old case of Buhagiar & Heathcote[15], that a suspended sentence, which is effectively what I am proposing, can serve the interests of general deterrence.
[15]DPP v Buhagiar & Heathcote [1998] 4 VR 540
102Another matter that arose on the plea was the likelihood of your deportation in the event that you are sentenced to a term of imprisonment of more than 12 months. It is difficult to work out whether or not that is to be taken into account, given that I am not proposing that you immediately serve any term of imprisonment.
103In any event, it carries less risk as a burden because you do have some family in New Zealand, and indeed, you returned to New Zealand in February 2016. It is a matter that I have considered. I do not regard it as decisive, and ultimately, it is a matter of speculation as to what the authorities would do.
104So I have considered all the submissions of your learned counsel, and also the submissions of the learned Crown prosecutor, and I have formed the view that it is not appropriate that you be required to immediately serve a term of imprisonment.
105Could you please stand?
106On the first charge of using a carriage service to procure a person who you believed to be under the age of 16 for sexual activity, you are sentenced to nine months' imprisonment.
107On the charge of soliciting child pornography, you are sentenced to nine months' imprisonment.
108On the charge of attempting to engage in sexual activity with a person under
16 using a carriage service, you are sentenced to nine months' imprisonment.109Each of those sentences is concurrent.
110And on the summary charge of failing to appear on bail, you are convicted and fined $500.
111I order that you be released on the three charges of which I have imposed the nine-month concurrent sentence.
112I order that you be released forthwith on the following terms. That you be of good behaviour for a period of two years. There is to be a recognisance of $1,000, which is a promise to pay $1,000. That you not breach the recognisance. So you are to be of good behaviour for two years, that you be under the supervision of the community corrections officer, sex offender management, or his or her nominee for two years.
113That you attend and undertaken an appropriate sex offender program tailored in the light of Dr Gee within a period of the two years. That you report to the Werribee community corrections service within two business days of today, so by next Wednesday.
114And that you report and receive visits from the community corrections officer as directed. And that you notify the community corrections office of any change of address, and that you not leave Victoria except with their permission, and that you obey all lawful directions of the community corrections officer.
115Madam Prosecutor, I want to check whether there is any legal impediment to the sentence that I am proposing to impose from the point of view of the Commonwealth.
116MS CARETTI: No, Your Honour. I think it's fine. Thank you.
117HIS HONOUR: All right. It is a concurrent sentence of nine months' imprisonment.
118HIS HONOUR: I will declare five days' PSD.
119HIS HONOUR: I will hand you down the proposed recognisance release order, and it has got to be checked by you two. I will just stand down while you check it. Then it will need to be signed by Mr Pollock.
120He is not required to put up any money. It is just a guarantee of $1,000. If he commits an offence in the next two years or breaches any of those orders, then he'll be brought back to me and face the risk of forfeiting the $1,000 and/or serving the nine months' imprisonment that I have imposed. So I will just stand down while that is typed up, and then we will resume when that is done being explained to him.
121Do I need to declare a 6AAA for a Commonwealth offence or not?
122MS CARETTI: Your Honour that is a matter for you. You can. It is not necessary.
123HIS HONOUR: There is a debate as to whether it is picked up, is there not? Under the Commonwealth?
124MS CARETTI: There is, yes.
125HIS HONOUR: Yes. I will not make any s.6AAA declaration.
126MS CARETTI: Thank you.
127HIS HONOUR: All right, thank you. The other matter is, as a consequence of these convictions, you are on the Sex Offender Register for life. Three convictions of a relevant charge. The paperwork will be prepared. You will be required to sign it before we leave the Court. I will come back when this has been prepared and it has been signed.
128(Short adjournment.)
129Mr Pollock, the Sex Offender Register is a very onerous obligation on you that you have got for life. You have got to tell them of your change of address every year, or every moment. Change of phone numbers, internet addresses, and an interview once a year. So again, that carries three months' gaol for any breaches of the Sex Offender Register. You are on that for life.
130So what you need to do now is go to the Office of Corrections, get yourself a mental health plan, get yourself into some counselling to address your depression, stick with the people at Royal Melbourne, Dr Marriott, and with your sister, and try and make the best of what must be a pretty tough life.
131So I want to thank counsel and both of their predecessors for their assistance in the plea, and adjourn sine die.
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