The Queen v Cruwys
[2018] VCC 89
•2 February 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
CR-17-02020
| THE QUEEN |
| V |
| LARRY CRUWYS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 2 February 2018 | |
DATE OF SENTENCE: | 2 February 2018 | |
CASE MAY BE CITED AS: | The Queen v Cruwys | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 89 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – use a carriage service to groom a person under 16 years – subsection 474.27(1) Criminal Code 1995 (Cth) – Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr P Darby | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M O’Brien | Stary Norton Halphen Lawyers |
HER HONOUR:
Larry Cruwys, you have pleaded guilty to one charge of use a carriage service to groom a person under 16 years of age contrary to subsection 474.27(1) of the Criminal Code (Cth).
The charge is serious and that is reflected in the maximum penalty prescribed, namely, 12 years’ imprisonment.
The offending relates to offending on one day only, namely 26 February 2017.
You are now 48 years of age and you were aged 47 at the time of the offending. You are a man who comes before the court with no prior criminal history.
Your offending was detected by a covert police operative from Queensland Police who was purporting to be a 14 year old female child, “Abbi” from Brisbane.
On 26 February 2017, you engaged with Abbi on line in the “Twoo” site, that is an adult social networking site.
The summary of the contents of the conversation is set out in detail in paragraph 3 of the Prosecution Opening on the Plea (Exhibit 1). In brief, you spoke in an inappropriate sexualised manner to a person whom you believed to be a female child. I do not propose to repeat those details.
I note that you gave your correct personal details and did not seek to hide your true identity from all users on the site. You did not ask “Abbi” to perform or record any sexual acts which is often a feature of this type of crime.
As discussed in the plea hearing, whilst acknowledging that the offence is a serious one that is reflected in the maximum penalty that is prescribed, I consider that your offending is at the lowest end of the scale of seriousness for this type of charge.
On 5 October 2016, Victoria Police executed a search warrant at your residential address located in Lara. Significantly, police found nothing further of interest.
You took part in a cautioned taped record of interview and during the interview you were co-operative. There were some 328 questions and answers. You made admissions. Initially, you said you thought Abbi was over 18, because of her profile picture, and you thought that she was joking around when she said she was 14 turning 15. Ultimately, you told police that you may have taken the conversation a bit far and said some inappropriate things, and on reflection, Abbi may have been 14. You were adamant that you would never meet or have sex with a 14 year old.
Ms O’Brien made submissions on your behalf at the plea hearing. Your wife of seven years, Colleen, was present and she remains fully supportive of you.
It is accepted by the prosecution that you entered a plea of guilty to the charge at the earliest opportunity at the committal hearing that took place on 6 October 2017 prior to any witnesses being called. There was a delay in your matter due to an incorrect charge having earlier been laid by police.
I am satisfied that your plea of guilty demonstrates genuine remorse and a willingness to accept responsibility for your wrongful behaviour and also reflects good rehabilitation prospects on your part.
Your plea of guilty warrants a substantial discount.[1]
[1]See R v Duncan [1998] 3 VR 208; see also R v Holder [1983] 3 NSWLR 245 at 258.
Further, there is real utility in your plea, as you have spared the Commonwealth the expense and inconvenience of a trial and you have saved the witnesses from having to come to court to give evidence on your trial. You have facilitated justice and your sentence will be discounted accordingly.
I am satisfied that this behaviour is out of character. The police seized your computer, iPad and external hard drives. Forensic analysis revealed nothing further of interest, such that I am satisfied that yours was truly “once off” offending and not a course of conduct.
You were born and raised in Western Australia. Your parents separated when you were a young child and the childhood that has been described to me was very disruptive. You moved between your parents and your schooling was adversely impacted upon. Indeed, you spent time at 14 different primary schools. Your father was employed as a taxi driver and would regularly move rental properties. Your mother was described as struggling financially.
You were an overweight child and you were bullied at school. Scholastically you did not perform well and you found school difficult.
At age 15 you secured employment in the hospitality industry, of your own undertaking, such that you were permitted to leave school. Thereafter, you have worked when you could undertaking hospitality work, cleaning and maintenance work.
At times in the past you have worked in remote rural locations in Western Australia wherever and whenever work was available. I noted a period of unemployment of five years in the late 1990s. Otherwise I consider that you have an excellent work history that is reflective of a strong work ethic.
You met your wife Colleen in 2010 through an online dating site. She lived in Colac and is a horticulturalist. She is some eight years your junior. Ultimately you moved to Victoria to marry Colleen and you were married on 8 December 2012.
Following your marriage you had further difficulties securing employment in Victoria and eventually you obtained work on a station in Richmond, Queensland, as a maintenance man. However you had to cease that employment and return to Victoria to care for Colleen who was described as being suicidal.
Colleen has real issues with depression and is being treated by a psychologist.
Before the offending the subject of the charge you had secured a security guard licence and you were working as a security guard. That work involved long hours away from the home. There were pressures on your relationship. Both you and Colleen were not spending time together and were in effect “ships in the night”.
The context to the offending was that there had been other pressures. You were having difficulties trying to cope with Colleen’s depression and suicidality, Colleen was having difficulty conceiving and there were stresses relating to the expense and cost and the realities of IVF treatment to be undertaken to address her infertility issues. You also had problems concerning your unsatisfactory relationship with your own mother concerning abandonment that sadly, could not be resolved prior to her tragic death from breast cancer last year. You resorted to using the networking site "Twoo" as an escape from your problems.
Whilst providing a context to the offending and providing a reason for your lack of judgement that you exercised on this one occasion it in no way excuses your behaviour.
Recently you told your GP about the charge and a Mental Health Plan was instituted. You have had one one-hour session over the telephone with a psychologist. You found that was useful but would prefer face to face contact. You understand the need for psychological treatment in the future.
I am satisfied in all the circumstances of your case that the context of the offending does explain your behaviour and that you are genuinely remorseful and you have shown appropriate contrition and these are important mitigating factors.[2]
[2]See Cameron v R (2002) 209 CLR 339 at 350; see also CDv The Queen [2013] VSCA 95 at [36] per Harper JA (Buchanan JA agreeing).
Ms O’ Brien submitted that the circumstances of your offending were such that a non-custodial disposition was justified and she submitted a Recognisance Release Order was an appropriate disposition.
Mr Darby, on behalf of the Commonwealth Director of Public Prosecutions, sought a term of imprisonment, however, whether any actual custody was required was a matter for the court. He referred the court to comparative cases that were referred to in paragraph 28 of his written submissions.
As discussed in the plea hearing, there are real differences between the offending that is represented by this charge and the cases that were submitted to the court.
I have had regard to them but acknowledge that I must have particular regard to the circumstances of your offending when formulating the appropriate sentence and they are in no way precedents to guide the court. Rather, they are merely a guide.
The offending the subject of your charge is at the lowest end of the broad spectrum that this offending represents. There was no physical contact, you made no requests for the child “Abbi” to perform any sexual acts, nor did you attempt to film the child which are often features of the more serious types of the offending encompassed by this charge. You made no plan to actually meet the child, nor did you take positive steps to make it easier for the child to engage in or submit to sexual activity for you. The site that you were communicating on was an adult site. You did not attempt to portray yourself in a fraudulent manner and the offending is confined to one day only and is not an ongoing course of conduct. Furthermore, I am satisfied that you were labouring under difficult personal circumstances as I have earlier indicated.
I accept that this charge and also the experience of the investigation has been a salutary experience for you. It has greatly impacted on your life. Upon conviction you will no longer be eligible to hold a security guard licence so effectively that type of employment is now not available to you and will reduce your already limited job opportunities for the future. Also it may impact upon your ability to secure IVF treatment insofar as I am advised by Ms O'Brien that that does involve a police check.
I consider that you do now have insight regarding the inappropriate nature of the interactions and the conversations that you had with the child on this occasion. I accept having regard to the fact that nothing further of significance was found when police executed the search warrant and analysed your computer equipment that the risk of re-offending in the same manner as you have currently is low and I consider your prospects for rehabilitation are favourable.
I have taken into account the relevant sentencing principles. Previously cases have made it clear that general deterrence is a significant sentencing factor involved in such cases.
There is a paramount public interest in promoting the protection of children from sexual abuse and grooming offences have been held to fall within that class of offending for which deterrence is the primary sentencing consideration.
I am required by s.16A(2) of the Crimes Act1914 (Cth) to have regard to the non-exhaustive list of matters insofar as they are relevant and known before sentencing. I have also had regard to s.17A(1) of the Crimes Act1914 (Cth) which provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless having considered all other available sentences the court is satisfied no other sentence is appropriate in all the circumstances.
For the reasons that I have articulated I consider that this is a case where the imposition of a Community Correction Order on the terms that I have earlier described is appropriate. The pre-sentence report assesses you as being suitable to participate in such an order with conditions recommended of supervision, mental health assessment and treatment and offending behaviour programs directed at your underlying offending behaviour as being appropriate.
You have indicated that you are willing to participate in such an order, that you understand an order of that nature and you consent to it being made. You have been advised as to what would occur in the event of a contravention of a Community Correction Order and I am satisfied that you understand that.
Could you please stand now, Mr Cruwys, I will impose the formal court order.
You will be convicted of the one charge of use of a carriage service to groom a person under 16 years of age contrary to subsection 474.27(1) of the Criminal Code1995 (Cth) and you will be placed on a Community Correction Order of 18 months' duration with the requirement that you are required to be under the supervision of the Secretary or delegate of Community Corrections or their nominee for a period of 18 months and that you attend for assessment in respect to mental health assessment and treatment and also participate in programs or courses that address your underlying offending behaviour.
The reporting office is Geelong Community Correctional Services in Malop Street, Geelong, and the address is provided upon the order.
As a consequence of your conviction you become a registrable offender under the Sex Offenders Registration Act 2004 (SORA) and you are required to be registered for a period of eight years.
Shortly, my associate will approach you with your counsel, Ms O'Brien, with a document that sets out the requirements in respect to registration under that Act. The obligations are quite onerous and it is important that you understand what that entails because again, if you fail to comply with what is required under the Sex Offenders Registration Act2004 you can be charged and face further punishment in respect to any breaches under that Act, so I just underscore that for you as well.
I have signed the order and my associate is just going to go out and get the SORA notification.
MS O'BRIEN: Your Honour, might I approach Mr Cruwys in the meantime?
HER HONOUR: Sure. Ms O'Brien, we will get that notification. I do stress to anyone these days who is placed on the register that it is really onerous and they have to comply because too often we are seeing people back and they are getting dealt with pretty harshly for breaching.
MS O'BRIEN: Yes, Your Honour.
HER HONOUR: Ms O'Brien, the orders and the notifications have been prepared so if you can get those acknowledged and signed that would be good.
All right, those documents have been signed. I will adjourn the court and my associate can provide you with copies.
MS O'BRIEN: If Your Honour pleases.
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