R v Woods (a pseudonym)
[2017] VCC 1062
•4 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM WOODS (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2017 | |
DATE OF SENTENCE: | 4 August 2017 | |
CASE MAY BE CITED AS: | R v Woods (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1062 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – transmit child pornography material using a carriage service – s.474.19(1) Criminal Code (Cth) – sentence of 12 months’ imprisonment and release on Recognisance Release Order to be of good behaviour for two years effective from 4 August 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms D. Go (Sentence) | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M. Walker (Plea) Mr T. Manicolo (Sentence) | M Walker & Associates |
HER HONOUR:
1 Sam Woods,[1] you have pleaded guilty to one charge of transmit child pornography material using a carriage service, contrary to s.474.19(1) of the Criminal Code (Cth).
[1]Sam Woods is a pseudonym.
2 This is a serious offence and that is reflected in the maximum penalty that is prescribed by Parliament, 15 years’ imprisonment. I will proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and exhibited.
3 In essence, the offending concerns you using your mobile phone on 30 October 2015 to send a series of 84 text messages to a phone number belonging to Caitlin Ford,[2] a person who is not known to you. Four of the messages constituted child pornography. During the conversation, you purported to be a female and identified yourself as Isabelle Burnside,[3] and that is the name of your older sister.
[2]Caitlin Ford is a pseudonym.
[3]Isabelle Burnside is a pseudonym.
4 While purporting to be Ms Burnside, you sent Ms Ford a series of texts, amongst which are the four texts that are deemed to be child pornography under the relevant legislation. The particulars are set out in paragraph 8 of the prosecution opening for the plea hearing, as follows:
While purporting to be Ms Burnside, the offender told Ms Ford the following:
· that ‘she’ saw ‘her’ partner wanking while peeking through the bathroom door and watching their daughter in the shower;
· that one night in the lounge ‘she’ let ‘her’ partner finger ‘her’ in front of their 12-year old daughter Lauren[4] and ‘she’ gave him a hand job and made him ejaculate on the bum of their daughter’s clean leggings;
[4]Lauren is a pseudonym.
· that when ‘she’ was told that he had “perved” on Lauren that ‘she’ got aroused ‘herself’ after checking Lauren out in her undies and that a few days after he fingered ‘her’, ‘she’ gave ‘her’ partner head one night in the lounge letting Lauren see ‘her’ giving him head; and
· that on one occasion ‘her’ partner saw Lauren asleep just in her underwear and he went hard and ‘she’ wanked him as ‘she’ fingered ‘herself’ and made him blow on the crotch of Lauren’s undies.
5 When requested by Ms Ford for Facebook contact details, you provided your sister’s Facebook name. She then sent a friend request to Isabelle Burnside, which was subsequently received by the real Isabelle Burnside. The offending was detected because Ms Ford then reported the matter to the police.
6 Following investigations, you were arrested and a record of interview undertaken on 12 November 2015. During the interview, you confirmed that the mobile phone number that was used to send the messages to Ms Ford was obtained for you by your then partner, Ms Leehy[5] and that the mobile phone was in your possession, and that you were at your home address on 30 October 2015. You denied all the allegations that were put to you. You were unable to provide an explanation to police for how the messages were sent from your mobile phone to Ms Ford’s mobile phone, merely stating that somebody else must have used your number somehow.
[5]Ms Leehy is a pseudonym.
7 Your offending has had consequential effects.
8 I have read the victim impact statement filed by your older sister, Ms Isabelle Burnside. She was devastated when she heard about what had happened, and felt sick and confused that a family member would do such a disgusting thing. She was fearful for her daughter and restricted her movements because she did not want her to be approached by you. In the course of the police investigations, both she and her daughter were spoken to, and that caused further distress. She has real trust issues. Your actions have destroyed her relationship with many family members. She suffers anxiety and depression and your criminal activity made her anxiety worse. She fears for her family’s safety and has become more confined to her family home because of her difficulties in trusting people. She is hurt and angry because of your significant breach of trust in using her name and saying those disgraceful things about her daughter, all of which were untrue.
9 A victim impact statement was not filed by Ms Caitlin Ford, but having regard to the circumstances of your offending, I consider that she would have been shocked by receiving the texts given the contents of those messages, and also inconvenienced by reason of having to report the matter to police and make a statement.
10 In sentencing you, there is a real necessity to emphasise both general and specific deterrence.
11 I must impose a sentence that is of severity appropriate in all the circumstances.
12 Turning to matters personal, you are now aged 27, and you were 25 at the time of the offence.
13 Ms Walker, on your behalf, openly conceded that your offending is serious. She submitted, and it is accepted, that it is not the worst example of this sort of serious type of offending. She accepted that it was open to the court to consider a term of imprisonment, but urged that such imprisonment be not immediately served and that you be released immediately on a recognisance release order.
14 The prosecutor, Ms Go, did not oppose that submission.
15 Insofar at the offending is concerned, Ms Walker was unable to provide the court with any rational explanation for your offending. She submitted that it was not for sexual gratification. You now state that it was not done to belittle or affect your sister, from whom you are estranged. The only explanation was that at that time you were using ice heavily. Whilst that may explain your otherwise bizarre and inexplicable behaviour, it in no way excuses it. There is nothing in your background to indicate why you would resort to this behaviour, involving as it did, sordid allegations against your sister and her daughter being sent to an unknown individual.
16 You are a person who has suffered great loss over the years. Your mother passed away when you were 12 following a cardiac arrest, and your father suffered the same fate only five years later. Your father struggled with the grief of losing his wife and turned to alcohol to cope, which often resulted in a lack of emotional support and guidance. You suffered violence at his hands and that impacted upon your life significantly.
17 Psychologist, Ms Carla Ferrari, considers that you have developed opposing attitudes towards discipline in your own children. She considers that you had no family support or guidance during the critical phases of your development and transition to adulthood, which has impacted upon you greatly. She noted your father blamed you for being partially responsible for your mother’s death. You were exposed to alcohol and violence during your childhood. Ms Ferrari considers as such, you are pre-disposed to mental health issues, including depression and anxiety, which manifests as a result of your unresolved grief. Further, you developed substance use issues at an early age as you had no coping mechanisms for your grief, instead learning to suppress it by self-medication.
18 You have been diagnosed by her as having an amphetamine type substance use disorder, severe in partial remission, and an historical borderline personality disorder. You, too, have cardiac issues and you had your first cardiac arrest at age 19 or 20. You have been fitted with a pacemaker, for which you have had a couple of replacement surgeries, the last one being in 2014.
19 You left home relatively young, aged 16. You are the youngest of three children. There is your older sister, Isabelle, and another sister, Ebony. You have not enjoyed a positive relationship with Isabelle for many years, but Ebony remains in contact with you and she contacts you by telephone and visits you whilst you are in gaol.
20 You had your first child, a son, at age 16 with your then girlfriend, Makayla.[6] You were in a relationship with Makayla for four years, and had another boy with her prior to your separation. Those boys are now aged 12 and eight respectively. You remain good friends with Makayla. You then had the relationship with Ms Ellie Leehy, who I mentioned earlier, and you have a four year old son with her. That relationship ended in late 2015 in the context of conflict, primarily arising out of your heavy drug use. Recently, you have had a third child, a daughter, with Makayla. You maintain some contact by telephone with your two older sons and visitation under supervision is to be reinstated.
[6]Makayla is a pseudonym.
21 You have a long history of alcohol and substance abuse. You began drinking and using marijuana at age 14, that was daily, advancing to methamphetamine use at age 16. You then began using heroin, and you have a history also of abusing prescribed drugs.
22 You were using heavily at around the time of the offending and you told the psychologist you had minimal recollection of the circumstances due to being under the influence of substances. When interviewed by Ms Ferrari, you offered no explanation for those messages that were sent from your phone, saying that you were constantly off your face during this time and you had no recollection whatsoever.
23 Ms Ferrari considered that you do demonstrate good insight into your behaviour, and whilst you cannot explain your involvement in the offending, she says you do not attempt to pass blame or avoid punishment, and you accept your role in the offending, which is important.
24 She considered that, based on your interview and profile and her assessment, the commission of this offence would be extremely uncharacteristic for you and would be incongruent, that is, not consistent with the values and belief you hold.
25 On the basis of her assessment, which is unchallenged, you are considered to be a low risk of reoffending in relation to sexually-based offences. Ms Ferrari did not consider that you display any sexual deviance or sexual preoccupation. She considers that you do not hold attitudes supportive of sexual or violent behaviour towards any individual, particularly women and children, and there were no deficits in your interpersonal or affective domains, which are usually typical of child pornography and sex offenders.
26 There is some cause for optimism in respect to your future and your rehabilitation prospects. You have expressed a willingness to engage with psychological treatment to deal with your unresolved traumas and associated depression and anxiety. Further, you do acknowledge the link between your drug use and your offending, and you are committed to abstinence. You have the support of your ex-partner, Makayla, and your older sister, Ebony. You are motivated to reform your lifestyle and engage in meaningful activities, including resumption of employment.
27 You have very little by way of formal education. You barely completed any post primary schooling, but nonetheless, you have a very excellent work history. You have worked as a plasterer, forklift driver and in the construction industry doing concreting. You are a man who had never been without work, apart from the times you have spent in gaol.
28 Insofar as your current circumstances are concerned, you were bailed in respect to this offending, but remanded in custody following further offending on 18 March 2016.
29 You were sentenced at Broadmeadows Magistrates’ Court on 20 June 2017 to 129 days’ gaol to be followed by a Community Correction Order of one year. On 31 August 2016, you were again remanded in custody with respect to fresh offending that also post-dates these offences. Those offences involved theft of a motor vehicle, criminal damage, recklessly cause injury, persistent contravention of a family violence order and acting in a prejudicial manner to the security and good management of a gaol. On 19 September 2016, you were sentenced to an aggregate of three months' imprisonment. There are outstanding matters that are to be dealt with at the Heidelberg Magistrates’ Court on 2 August 2017 and 20 September 2017, none of which are of a sexual nature and all of which are contested matters.
30 It is apparent that from about early March 2016, your life spiralled out of control. The context was that your relationship with Ms Leehy broke down and that was then associated with drug taking and further offending. You had obtained custody of your two younger children, but because of your remand, they are now being cared for by their maternal grandfather. You lost your accommodation which you had been renting for seven years and lost contact with the youngest child. You were homeless, without employment and using drugs heavily.
31 I am satisfied, whilst you have been in custody, you have significantly reflected on your behaviour and there is a degree of contrition. You accept that what you did was wrong, you are disturbed by your behaviour, that is, the subject of the charge on the indictment, and you now indicate a desire to live in a pro-social way.
32 You do have a prior criminal history that you admitted and there are some five court appearances that spanned the period from 18 September 2008 to 20 July 2015. That includes convictions for driving-related offending, fail to answer bail and unlawful assault. Of significance, you do not have any prior criminal history in respect to sexual offending. The subsequent court appearances that I have referred to earlier relate to offending that is linked to your breakdown in your relationship with Ms Leehy, and again, of note, there are no matters that relate to sexual offending per se.
33 In sentencing you, I must have regard to the facts as set out in s.16A(2) of the Crimes Act 1914 (Cth) that are relevant and known to the court. I have considered the nature and circumstances of the offending, which I consider to be a serious example of this offence, although not at the highest level. Having regard to the content of the material, I consider it is depraved and demeaning to both your sister and her daughter.
34 I have already stated general deterrence is of considerable importance. Courts in the past have emphasised that it must be given paramount consideration when sentencing an offender for child pornography offences.
35 Although your offending is text-based, it still falls within the category of child pornography material having regard to the content. Whilst your offending is not exploitative in that it does not involve images or videos depicting the actual sexual abuse of children and victimisation of actual children, it cannot be regarded as trivial offending, having regard to the nature of what was said in the messages. Its impact has been profound, as I have earlier explained.
36 You must be specifically deterred from further offending of this nature in the future. Given your positive responses in the interview with Ms Ferrari, I consider that you do have appropriate insight, Mr Woods, and it is unlikely that you will repeat offending of this nature in the future. I accept that it is uncharacteristic behaviour and that you do oppose any act that involves the sexual abuse of children.
37 I consider that your offending is such that a term of imprisonment is the only appropriate sentence. However, I agree with the submission that you may be released forthwith upon receiving a recognisance release order. The terms of which I have already explained to you and you consent to that order.
38 I have had regard to your early plea of guilty. It is of real utility and represents willingness to facilitate the course of justice. The plea of guilty was entered on 22 March 2017. No one was called to give evidence or to be cross-examined at a committal hearing, nor were they required to attend to give evidence on a trial. Given the nature of the allegations and the impact that they have had on the victim, it is of considerable significance because you spared your older sister the trauma of having to come to give evidence. Your sentence will be discounted accordingly.
39 I have had regard to your character, antecedents, age and physical and mental condition, as set out in Ms Ferrari’s report.
40 Overall, I consider you have demonstrated appropriate contrition and remorse and that you are now motivated to put in place plans to avoid future offending, and that your prospects for rehabilitation are good.
41 I have had regard to the principles of sentencing in respect to this type of offence, as set out in DPP (Cth) v Guest [2014] VSCA 29 and DPP (Cth) v Zarb [2014] VSCA 347 and DPP (Cth) v Garside [2016] VSCA 74.
42 I will announce the formal court orders. Could you please stand?
43 In respect to the one charge of transmit child pornography material using a carriage service, you will be convicted and sentenced to 12 months’ imprisonment, and I order your immediate release upon you giving security by a recognisance in the sum of $1,000 to comply with an undertaking you will be of good behaviour for two years.
44 You have pleaded guilty to one Class 2 registrable offence, as defined in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic). That legislation is known as SORA. Upon your conviction, you are considered to be a registrable offender as defined in that Act, and must comply with reporting obligations for eight years, and my associate will approach you shortly with your counsel to provide you with the relevant notification under the SORA legislation, and it is important that you do have regard to your obligations under that Act, because if you breach that Act again, the penalties are quite severe.
45 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991. But for your plea of guilty, I would have imposed a term of imprisonment of three years, to serve 18 months.
46 I think that covers everything, Ms Go.
47 MS GO: Yes, Your Honour.
48 HER HONOUR: All right.
49 MS GO: I have the bond forms here.
50 HER HONOUR: All right. We have got the recognisance release and we have got the notification. I have signed that. I will give those to my associate. There is one for the court and one for you, Mr Woods. All right, we will get those signed and that will complete that matter.
51 MR MANICOLO: May I approach my client, Your Honour?
52 HER HONOUR: Sure.
53 MR MANICOLO: With Your Honour's blessing.
54 HER HONOUR: Yes. No problem.
55 MR MANICOLO: Thank you.
56 HER HONOUR: All right. That has all been signed? Finished?
57 MR MANICOLO: Thank you for the time, Your Honour.
58 HER HONOUR: All right. Mr Woods can be taken back downstairs, thank you. Thank you. We can adjourn.
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