IN THE COUNTY COURT OF VICTORIA
Revised
(Not) Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL JURISDICTION
THE QUEEN
v
TREVOR TED (a pseudonym)
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JUDGE:
WHERE HELD:
HIS HONOUR JUDGE MEREDITH
Melbourne
DATE OF HEARING:
DATE OF SENTENCE:
21 October 2014
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:
[2014] VCC
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
Use internet to groom a child
--APPEARANCES:
Counsel
For the Commonwealth
Ms T. Tran; Mr A. Field
For the Offender
Mr M. Page
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne - Telephone 9603 9134
Solicitors
HIS HONOUR:1
1
Trevor Ted, you were charged with two offences, using a carriage service to
groom a person under 16 years of age for sexual activity contrary to
s.474(27)(1) of the Commonwealth Criminal Code, and using a carriage
service to transmit indecent communications to a person under 16 years of
age contrary to s.474.27A(1) of the Commonwealth Criminal Code.
2
You pleaded guilty to the indecent communications charge in front of the jury
and stood your trial on the grooming charge. The conduct constituting the
indecent communications charge was subsumed within the conduct relied
upon to found the grooming charge.
3
After a trial lasting several days, following a short period of deliberation, the
jury convicted you of the more serious charge of grooming. No verdict was
taken on the less serious charge of transmitting indecent communications.
The maximum penalty for the offence of grooming is 12 years’ imprisonment.
4
You had lived next door to the complainant and her family for a number of
years until 2009 when you and your family moved away.
You and the
complainant commenced communicating with each other over Facebook
utilising the internet. The complainant's parents were unaware of your
communications and were understandably concerned when they were
discovered.
5
At the time of the communications in question, the complainant was aged
between 14 and 15 years.
You were aged 54.
Your communications
occurred intermittently with the complainant over the period of approximately
13 months, between May 2011 and July 2012.
6
Over the charged period, some of your communications involved innocuous
topics and others involved you participating in sexually explicit conversations
1
The name of the accused has been given a pseudonym in order to safeguard the privacy of the
complainant.
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with the complainant.
Invariably you initiated the sexually explicit
conversations. In total 48 pages of chat logs were tendered on your trial. Of
these, your communications included the following:
On 1 July 2011, “Nice pics honey…it’s hot and sexy…no wonder every
guy in your school is chasing your ass lol xxx”.
On 6 July 2011, “You should show me your boobs coz I dream of it girl
lol…gee you got big tits honey…I wanna play with them lol…now if you
was bare ass naked and muddy mmm lol me too…”.
On 11 July 2011 “Gwadd if I was there now I’d probably just rip your
undies off with my teeth and then lick them lips in your hips and make
you go ooh omgg yes yes…".
On 17 July 2011, a discussion took place concerning the appearance of
the complainant’s backside. You responded, “Awww mmm I didn’t get to
see it…can I grab it and squeeze it someday lol then I get to ride
it…harddddddd lol and make you go oohhhhhhhhhh”.
On 20 July 2011, “Yer ur way too young for that just let the guys wear the
condom and use their tongue to make you come lol…I know I wud but
damn you’re not here lol…would you let me lick you out would be so hot
is that legal lol.”.
On 7 August 2011, “Yup…n u can come by for a swim next time…way
better when I’m home alone lol. Gwadd that would be soo hot mmm I’m
all horny now imagiing you swimming in my pool…naked lol…come here
honey I want you so bad right now lol.”
On 2 February 2012, you and the complainant had a discussion
concerning anal sex.
On 18 February 2012, you communicated as follows with the
complainant, “I seriously wud if you were legal lol…but till then I’ma just a
dream of that bum…but then again ud be worth it if I got my ass in jail
wait I couldn’t go to jail is all I wanna do is give you a thickshake lol.”
7
In a number of communications, you referred to the fact that the complainant
was not yet legal or was not 16 years of age at the time of your
communicating with her. In a number of your communications, you indicated
that you wished her to become legal, or 16 years of age, before you would
progress to any sexual activity with her. You apparently were of the view that
if she were over 16 this conduct would be legal. In this respect, I note the
existence of the State offences of taking part in an act of sexual penetration,
and committing an indecent act with a 16 or 17 year old child, who is under
the care supervision or authority of the adult offender (see ss.48 and 49
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Crimes Act ( Vic) ).
8
My sentencing task begins and ends with the charge you were convicted of,
and I make it plain that I am not sentencing you for some other offence that
may, or for that matter may not have been committed, depending on whether
or not sexual activity actually occurred between you and whether or not “care
supervision or authority” existed. The criminality which I must sentence you
for relates to the charge of grooming.
9
Whilst there was on occasion discussion of the complainant sending you
pictures, the state of the evidence does not permit a finding by me that she
did.
10
You suggested in a number of your communications that you and the
complainant meet, and on one occasion you did. I note that there was no
sexual activity undertaken or suggested by you as taking place with the
complainant at this meeting.
11
On your arrest by investigating police, you were interviewed at length. In your
interview, on a number of occasions you referred to the fact that you had no
intention whatsoever to engage in any sexual activity with the complainant at
any future time and you were simply flirting with her. You did concede
however in your interview after having had played to you a number of the
communications in question that they were inappropriate.
12
On your trial it was put that you were only fantasising and had no intention to
engage in sexual activity with the complainant. The jury have clearly rejected
your denial and their verdict means they are satisfied that by your
communications you intended to make it easier to procure the complainant to
engage in sexual activity with you.
13
The jury’s verdict involves a finding that at the time you sent your
communications you contemplated as a real possibility engaging in sexual
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activity with the complainant. On all of the evidence, I am not in a position to
find that this was contemplated by you prior to the complainant turning
16 years of age.
14
The complainant’s evidence was to the effect that she regarded your
communications as a joke and professed to have very little memory of any
sexually explicit conversations occurring between the two of you. On the plea
proceedings however, a victim impact statement of the complainant was
tendered in which she attributes harm having been suffered by her as a result
of your offending.
Amongst other things she speaks of having dreaded
turning 16, and of your conduct leaving her in a dark and dangerous place,
that her relationships with others suffered as did she. I accept that this is
explicable by her growing insight into the nature of your conduct. I have had
appropriate regard to the content of her victim impact statement.
15
By agreement further evidence of the harm occasioned to the complainant
was lead through a document in the form a victim impact statement of the
mother of the complainant.
By agreement, I have taken into account the
relevant and admissible portions of this document which deal with this issue,
and I have also had appropriate regard to the content of it.
16
There was contradictory evidence concerning the circumstances in which the
communications between you and the complainant ended. In your interview
you refer to the complainant telling you of police involvement concerning the
subject matter of your communications; whereas the complainant simply
states that she had lost interest and it wasn’t funny anymore. I am not in a
position to make a finding concerning the circumstances in which the
communications stopped.
17
So far as the offence of grooming is concerned your culpability is marked by
the frequency and duration of your communications with the complainant, the
escalating nature of their sexual content, and the obvious breach of trust
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which they represent, you having formally been a neighbour to the
complainant and her parents. Your offending is however to be contrasted with
that of an offender who contemplated as a real possibility engaging in sexual
activity with a younger victim. Your case appears, in that regard, dissimilar to
the factual ingredients of the authorities to which I have been referred.
18
The authorities to which I was referred speak of the need to appropriately
emphasise general deterrence in offences of this type. The object of the
offence of grooming is the protection of young persons, from the predatory
behaviour of adults, and behaviour that inappropriately sexualises them at an
age that they are ill equipped to protect themselves from, or respond
appropriately to, or in a way that safeguards their own interests.
These
concerns must appropriately underpin the sentence which I impose on you.
19
Turning to your personal circumstances, you are 56 years old. You have no
prior convictions.
20
You emigrated to Australia when you were 23 years old. You obtained a
degree in Marketing and Business Management and worked within the retail
electrical and furniture goods industry. You operated at a fairly high level in
this industry having been a state manager for approximately 10 years, and
then corporate manager.
21
In or about 2000 you commenced to work for yourself; initially setting up a
computer software business and then moved to wholesaling electrical goods.
As a result of a failed business deal you were bankrupted in 2008, and after
this commenced your present venture of importing electrical goods and on
selling these. In 2012 a major financial backer withdrew funds from your
venture and you have been in the process of endeavouring to build the
business up since then.
22
In your interview you explained your communicating with the complainant
having coincided with your use of the internet to contact business associates,
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often late at night as they were overseas. That at this time you had a young
child and your partner was very involved with the care of this child. That your
offending occurred against a backdrop of increasing business pressure which
ultimately resulted in your backer withdrawing his funds.
23
It was put on your plea that given these combined circumstances you were
somewhat isolated, vulnerable and under considerable pressure.
24
You have been in a stable relationship for 14 years and you and your partner
have three children aged 12, 8, and 6 years of age.
You are the sole
breadwinner and consequent on my remand of you your partner has had to go
into debt to pay the rental and other expenses required. She has also had
limited assistance in managing the affairs of your business and there are fears
that your absence will result in a major financial difficulty for you both.
25
You were described on the plea as having a close bond with your children and
that both you and they miss each other. Your partner deposed to this in a
letter tendered on the plea on her behalf.
26
Your partner is medicated for anxiety and depression by use of the medication
Zoloft. No in-depth material was tendered on the plea. I have however had
regard to the last psychologist letter on the file of your partner’s GP. It is
dated 24 February 2012 and makes reference to a range of symptoms from
which she was suffering at the time. Her continued medication and history of
anxiety and depression are confirmed in a letter from her GP dated 7 October
2014.
27
I accept that she will find it difficult to cope without you and that your business
interests will most likely suffer. I do not find however that this amounts to
“exceptional hardship” as that is referred to in the sentencing authorities. It is
to be expected that any term of imprisonment will visit hardship upon a
prisoner’s dependents. It is the “tragic but inevitable consequence of almost
every conviction and penalty recorded in a criminal court.” What must be
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demonstrated is more than that.
There must be cogent evidence of
exceptional hardship, that is "considerably more severe than normal for a
family where the father is imprisoned.”
This has not in my opinion been
demonstrated here.
28
I do however accept that the effect on you of hardship caused to family
members by your imprisonment raises different considerations, to which the
‘exceptional circumstances’ test has no application. I do accept that you will
find prison a burdensome experience as a consequence of this.
29
Further, it is anticipated that any sentence will be served by you as a
protection prisoner. Not in the sense of being an informer but as a result of
your classification within the prison system and that this will result in a
sentence more burdensome than if you were a mainstream prisoner. I have
had appropriate regard to this matter.
30
I accept that at the age of 56 you have found the past 36 days in prison a
difficult experience. It represents the first occasion you have been remanded
and I accept that you have sought to isolate yourself from the other inmates
as a way of coping with the experience.
31
Despite you plea of not guilty to the grooming charge, you conceded in your
interview that you should have shut down your conversations with the
complainant and that you had allowed things to go well beyond what they
ought.
Having regard to the nature of your offending, your lack of
antecedents, your plea of guilty to the lesser charge of communicate indecent
material, your stable relationship and work history, I am of the view that your
rehabilitative prospects are positive.
In addition I had you assessed by
Corrections
a
Victoria,
who
applied
widely
accepted
actuarial
risk
management instrument, and were of the view that you were a moderate to
low level risk of sexual re – offending.
32
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Section 16A(2) of the Crimes Act (Cth) obliges me in sentencing you to take
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into account the matters referred to within that section “as are relevant and
known to the court”. I have done this. Pursuant to s16A(1) of the Crimes Act
(Cth), I must impose a sentence that is of a severity appropriate in all the
circumstances of the offence. I am of the view that in your case nothing other
than a sentence of imprisonment is appropriate. Section 16A accommodates
the application of common law principles of sentencing.
While general
deterrence is not specifically listed in s.16A(2), it is a matter to be accorded
weight given the nature of your offending.
33
In my view the need to deter you and others who would engage in this type of
behaviour, can be adequately met in this case with the imposition of a term of
imprisonment, coupled with an order for your release after serving an
additional period in custody, and that you undertake a sex offender treatment
course, and be supervised by Corrections Victoria. This will mean that you
will have in effect the balance of a sentence of imprisonment hanging over
your head, and be subject to treatment and supervision. This in my view
adequately takes account of the nature of your offending and the mitigatory
matters that operate in your particular case.
34
On charge 1 I sentence you to a term of 2 years' imprisonment.
35
I direct that you are to be released after serving 3 months upon giving security
by recognisance in the sum of $5,000 that you will be of good behaviour for
the period of two years. I direct that you are to undertake a sex offender
treatment programme within that time, and be supervised by Corrections
Victoria.
36
I declare that you have served a total of 36 days by way of pre-sentence
detention.
37
The purpose and consequences of making the recognisance release order I
have just made are to reflect the gravity of your offending, but to also take into
account the mitigating factors to which I have referred.
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DPP v Ted (a pseudonym)
3 months in prison before being released. If you are of good behaviour over
the following two years, and undertake the treatment course as required and
subject yourself to supervision, that will be an end to the sentencing process
so far as this Court is concerned. If you are not of good behaviour, in all
likelihood you will be brought back before this Court and, depending upon the
nature and seriousness of your transgression, the court, probably myself, may
either take no action, impose a fine, extend the period of good behaviour, or
impose a different penalty, or revoke the recognisance release order and send
you back to prison for the balance of your sentence.
38
By virtue of my sentencing you today, you become a registrable offender
under the Sex Offenders Registration Act 2004.
By operation of the
legislation you will be required within 28 days of your release from custody to
report your personal details and begin a regime of reporting required by the
Sex Offenders Registration Act and be otherwise subject to the Act for
8 years.
39
I will have my associate hand you a form which notifies you of your reporting
obligations. Would you please sign where indicated to acknowledge that your
receipt of the form and you might want to assist in that process.
40
MR PAGE: Grateful, Your Honour.
41
HIS HONOUR:
Now, Ms Tran, I assume you will have to draft the
recognisance release order?
42
MS TRAN: I will Your Honour, and have my friend check over it. If we could
have some time.
43
HIS HONOUR: All right, I will stand down. You can both attend to that and I
will come back on the Bench when you are ready.
44
MS TRAN: Your Honour, if I could hand up to Your Honour two copies of the
draft of the recognisance release order.
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45
HIS HONOUR: Thanks.
46
MS TRAN: Your Honour, in terms of the conditions, what we have done there
is just included two conditions, which are consistent with the Court of Appeal
decision, just to indicate that on release he is to be released to the
Corrections officer and then follow their directions and then undertake the
courses and programs as necessary.
47
HIS HONOUR: Yes.
48
MS TRAN: Thank you, Your Honour.
49
HIS HONOUR: You happy with that?
50
MR PAGE: I am, Your Honour.
51
HIS HONOUR: Yes, all right. In terms of the reporting, I said 28 days in my
sentencing remarks, but I will alter that to 7 days, to report within 7 days of the
release.
52
MR PAGE: Yes, Your Honour
53
HIS HONOUR: All right, no other orders required?
54
MS TRAN: No, Your Honour, just a direction that the sentence commences
today for completion.
55
HIS HONOUR: Yes. This sentence commences today.
56
MR PAGE: Thank you, Your Honour.
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