DPP v Conos [2021] VCC 156

1. In around November 2018, you created a profile indicating you were 18 years old. You exchanged messages with Poppy Kean who you knew at the time to be 15. At all times she thought you were 18.
2. You frequently used Snapchat to ask Poppy to send you naked images of herself. When she refused you persisted, telling her you were sad and she later complied. In December 2018 (about a month after you commenced chatting), you continually suggested to Poppy you should meet, and she eventually agreed. On 13 December you arranged to meet at a park near her house and went to the playground and sat there together. Poppy became concerned other people were looking at you engaging in sexual touching so you persuaded her to go to your car with you. When you told her you wanted to have sex with her, she said she wanted to leave, though ultimately she agreed. You drove to a quiet area and put blankets on the windows. You were both in the back seat and you penetrated her vagina with your penis. You used a condom and after the act was completed you dropped Poppy in the street near her home, suggesting you should do it again soon. That is the conduct re Charge 2, sexual penetration of a child under 16.
3. You continued communicating with Poppy, telling her you wanted to meet again but also requesting she send nude photos of herself. She did ultimately send you some in her underwear though she had also blocked her face. You reciprocated and sent about 50 naked photos of yourself and videos of you masturbating.
4. You met another time on 23 December 2018 and spent time together. On 16 January 2019 you met up again. You played some mini golf and had a picnic. After a short time, you walked together to a secluded area in the bush. There you pushed Poppy down onto her knees, grabbed her head and forced your penis into her mouth. When she attempted to push you away, you held the back of her head and forced her mouth onto your penis. You ejaculated in her mouth. She tried to push away from you and wanted to spit your ejaculant out, however, you continued to hold her head on your penis until she swallowed it. When she eventually swallowed your ejaculant you released her head. You then tried to be affectionate to her and offered to buy her an ice-cream, though she said she wanted to go home and you drove her to the park near her home. That is the conduct constituting Charge 3, sexual penetration of a child under 16.
5. On 19 January 2019, Poppy received a message on her Instagram account that warned her about you. She ceased contact with you and blocked you from contacting her. Despite that, you attempted to contact Poppy over the following weeks using Instagram accounts that did not identify you as the sender. You also contacted her around the time of her 16th birthday and continued to try to contact her until October 2019.

1. 'Sienna Rose' ('Sienna') was a profile of a 14-15 year old girl created by Victoria Police Joint Anti-Child Exploitation Team. The profile was created for the purpose of covert online engagement with users of social media. On 10 January 2019, you contacted Sienna through WhatsApp, and thereafter engaged with Sienna in text and social media communications.
2. Amongst the messages you asked Sienna to go swimming on a date. She told you she was 14 and had never been on a date to which you responded that you felt so lucky she was texting you and questioned whether she was really interested in you. You continued expressing an interest in her and wanted to meet up.
3. Between 15 January and April 2019, you ceased all contact with Sienna. That was because of the Instagram communications with Stacey and the intervention of your family and friends to try to assist you in stopping this behaviour and interest in young girls.
4. However, your recommenced communications with Sienna on 3 April 2019 until 20 September on different media applications. Included in these exchanges is recognition of your respective ages, 14 and 26, references by you to the size of your penis and your sexual desires in respect of Sienna. You sent photos of your erect penis and also requested that she send you photos of herself. Towards the end of the exchanges you expressed a desire to meet up with her. The details of the conduct constituting grooming and description of indecent communications are set out in paragraphs 52-69 of Exhibit A. That conduct constitutes Charges 9 and 10, use of a carriage service to groom and to transmit indecent communications to a person under 16.
5. On 20 September in the afternoon you blocked Sienna and deleted your chat log. You had no further contact with her.

1. Your offending in relation to Angelina Barton occurred between February 2019 and October 2019 when she was 15. After initially meeting her at a bus stop, you used Instagram, Snapchat and text messages to groom and remain in contact with Angelina. Your communications with Angelina included you sending and soliciting indecent images and committing various acts of sexual penetration. You also provided Angelina with marijuana and magic mushrooms.
2. In late February 2019, you saw Angelina at the bus-stop in her uniform on the way to school. You frequented that area over the next few weeks and regularly saw Angelina who, as part of her routine, would wait at the bus stop on her way to school. You ultimately began talking to her and she gave you her Instagram account details. She initially thought that you were 18.
3. On 26 March 2019 and the days following, you communicated with Angelina on both Instagram and via texts as she had provided you her mobile number. Some of those communications are set in paras 76-81 of Exhibit A, and include you revealing your true age of 26, Angelina telling you she was 15 and arranging for the two of you to meet up. You also discussed the significance, if any, of the age difference between you.
4. You met up on 29 March 2019 in a park. At that time you attempted to kiss Angelina but she moved away. You apologised and soon afterwards Angelina went home. After she left the communications between you continued, including arranging to meet again. That conduct outlined above in respect of Angelina relates to Charge 4, the grooming of a child under 16.
5. At about 3 o'clock on 30 March you met up for a second time. You picked Angelina up from the bus stop and took her to your house. There you kissed, then asked Angelina to have sex. She refused, though she performed oral sex on you. That is one incident as incorporated in Charge 6, sexual penetration of a child under 16.
6. After Angelina left, you created a new Instagram account and told Angelina it was so that you could communicate privately. On 31 March you and your family went overseas and you returned on 23 May.
7. Between 30 March 2019 and 17 April 2019, you sent numerous messages to Angelina using that Instagram account. Many of the messages you sent her were of a sexual nature and some contained sexually explicit images of yourself. You also asked Angelina to send you sexually explicit images of herself. Details of the sexually explicit messages are contained in paras 87-102 of Exhibit A. There was a significant volume of messages, most containing references to your sexual desires, particularly given Angelina's young age. You also revealed to Angelina that you had previously been involved with a 15-year-old, presumably Stacey Hankin, who you said had turned against you and ruined your life, telling your friends and family.
8. You revealed that you had been seeing a psychologist and that continuing to see Angelina goes against everything. You also contacted one of Angelina's friends, and when asked about that by Angelina you suggested a threesome. These kind of messages continued after 28 September 2019, though you were no longer seeing Angelina, particularly at a time close to her 16th birthday. All these messages as incorporated in paras 87-102 constitute Charge 8, transmit indecent communications to a child under 16. (s474.27A(1) Criminal Code Cth).

1. Soon after you returned from overseas in May 2019, you arranged to meet Angelina. Between 2 June and 30 September 2019, you met up on a number of occasions both during the night when her parents were asleep or other times during the day. Her parents were unaware she was ever meeting up with you. Usually, you met up and you took Angelina to a local park, beach or other secluded spot in your car. It was on these occasions that you engaged in either oral or penile vaginal sex. On some of these occasions, you gave Angelina marijuana or magic mushrooms. On one occasion while at the Wilsons Road Reserve, you showed Angelina how to find magic mushrooms and picked them and gave her some to consume. (para 105). At other times, you gave Angelina marijuana before engaging in sexual activity with her. (paras 110,112,115). Those four occasions constitute Charge 5, supplying a child with a drug of dependence.

1. On the night of 2 June 2019, you picked Angelina up on a street near her house and drove to a nearby park. She refused your request to have sex although she performed oral sex on you. This occurred again on 5, 13 and 30 June in similar circumstances. (see paras 106,107,108,112 Exhibit A). Those four occasions make up the remainder of Charge 6, sexual penetration of a child under 16.

1. On 16 June 2019, you told Angelina to go to your house as you were there alone. You played the guitar for her when she was in your bedroom. Later you were both naked on the bed and you penetrated Angelina's vagina with your penis for the first time. You engaged in the same sexual activity at various locations including the beach and in your car on seven occasions. (see paras 109,110,111,114,115,117,118,119). These eight occasions constitute Charge 7, sexual penetration of a child under 16.

1. On one of these occasions, you were with Angelina in your car. She saw on your mobile phone pictures that she had sent to you of herself. She was unaware that you had saved them. On another occasion Angelina was at a party with school friends in a park in Kew. She had been drinking alcohol and was drunk. At one point during the night, you arrived and she left with you in the car. Her friends repeatedly sent her messages concerned about where she was so you drove her back to the party.

1. Each time you engaged in vaginal penile sex you used a condom. You would often after the event tell Angelina you felt guilty and would seek comfort from her. On 3 September 2019, you deleted your Snapchat account and ended the sexual relationship with Angelina. Around this time you spoke to her about consulting a psychologist regarding your attraction to young girls.

1. On 18 October 2019, police executed a search warrant and seized your mobile phone. They also located some marijuana. (Charge 11 - possession of drug of dependence ). You were arrested and questioned regarding Sienna. On 31 October 2019 you were arrested in relation to allegations of grooming and sexual offending concerning Poppy Kean. You were remanded in custody and you have remained there since.

1. Sometime in August 2020, Angelina Barton asked her mother to take her to your house. Angelina placed an envelope addressed to your father in the letterbox which had a letter and a USB that contained screenshots of messages and naked images that you had sent her. In the letter, Angelina disclosed what you had done to her and asked him for money so she could seek counselling to deal with what had happened. Ultimately police became involved in 1 September 2020 and their analysis of both your own and Angelina's phone allowed police to identify dates, times and locations where you had met up.

1. When interviewed by police on different occasions in respect of your activities with these girls you made no comment.

1. I received victim impact statements from both Stacey Hankin and Poppy Kean (Exhibits 2 and 3), both of which were read in open court by the learned prosecutor. In respect of Stacey Hankin she provided an eloquent and detailed account of the impact of your offending. The emotional impact on her has been great - she has been diagnosed with escalating anxiety and depression, PTSD and suffers from regular panic attacks. She has difficulties sleeping but also feels very isolated and unable to trust others. She is particularly vulnerable with her peers and feels betrayed given you were aware of some of her personal issues and that you took advantage of her vulnerabilities. She has given up music given it reminds her of you, a hobby she used to enjoy. She reveals: she is actually starting to feel like people are wanting to be around her, however that feels fake to her because she is hiding a massive messed up part of herself which she feels is always the elephant in the room as people have noticed how nervous she constantly is and she cannot bring herself to tell them what is going on.
2. Almost all social, educational, financial and emotional aspects of her life have been affected.
3. Similarly, Poppy Kean revealed that her emotional well being and enjoyment of life have been curtailed. She finds it difficult to get close to people and establish trust in relationships. Though no victim impact statement was provided by Angelina Barton, clearly your offending is likely to have impacted on her social development and capacity to trust others.

1. I received a report from Pamela Matthews, Forensic Psychologist, dated 15 January 2021 (Exhibit 4) and she also gave evidence. Additionally I received a report from Danny Sullivan, Psychiatrist, dated 20 May 2020 (Exhibit 5), and a number of character references from family and friends. (Exhibits 2,3 and 6). I take all of that material into account. It is clear you retain the support of your family who have attended court hearings with you.
2. You are currently aged 28 and have three siblings. You have always lived at home with your parents and enjoyed a happy and loving childhood. Your parents run a general practice medical clinic, both working, your father as a GP and your mother as a retired nurse/practice manager.
3. You completed Year 12 and have masters level music and education qualifications from the University of Melbourne and the Australian Catholic University. You are a gifted musician and have been able to pursue a career in music as both a school music teacher and as a member of various bands. After this offending was discovered on social media you ceased teaching. That career has now ended given that you will be unable to work with children on your release from custody.
4. You are in good physical health, though you are currently on medication for depression and anxiety related to your concerns regarding the discovery of this offending. You commenced using alcohol and drugs, particularly marijuana, during your teenage years. You denied that you had any issues with alcohol, though reported a pattern of ongoing cannabis use despite your attempts to cease. You also reported using other recreational drugs. You have remained drug free in custody.
5. Dr Sullivan opined that you have problematic sexual interests. Initially when you were younger this related mainly to pornography, but your level of sexual preoccupation had increased and with it, increasing focus on teenage girls as a target of your sexual desires. This was accompanied by fantasies associated with incest and by efforts to obtain and view images and to engage in sexual activity with teenage girls below the age of consent. Dr Sullivan considered that your sexual pursuits were associated with impaired empathy for your victims rather than a focus on building emotional relationships. Both Dr Sullivan and Ms Matthews agreed that you have a diagnosis of Hebephilia or sexual attraction to teenage girls and that you had limited emotional insight and were immature.
6. As is apparent from the prosecution opening you had previously engaged in psychological counselling with Mr Jason Freeland in 2019 to address your sexual interest in young girls, discovered around the time of Stacey Hankin. You, however, ceased engagement with him and did not recommence any psychological treatment or counselling to address your sexual behaviour until you commenced seeing Ms Matthews in custody. Dr Sullivan noted your early efforts at engagement prior to being charged was likely to be hampered by your ambivalence and the threat to you of discovery of your offending. He remarked that the details of your offending suggested your engagement with the girls was superficial and instrumentally intended to obtain sex rather than development of an intimate personal relationship.
7. I was informed that your therapy with Ms Matthews focuses on your offending behaviours, unresolved relationship anxieties and level of maturity. That you have been addressing with her attitudes of sexual preoccupation, and attitudes towards manhood and masculinity. You have engaged in 17 sessions with Ms Matthews thus far and she indicated that you have developed a greater understanding of the effects of your conduct on the girls and have worked with her on your attitudes to on-line communications and behaviour towards women. She did not suggest that work in this area was complete, rather that you had a way to go and that the signs were that you would continue positive engagement in therapy.
8. As to your risk of re-offending, Ms Matthews after considering results of relevant testing indicated that at the time of your arrest you were considered to be a high risk of re-offending. However she opined that your recent engagement in offence specific treatment was likely to reduce your re-offending risk. This was so despite your earlier attempt to address your issues with a psychologist before the extent of your offending was discovered. In cross examination, Ms Matthews indicated that your current risk of re-offending remained high, though the signs in her work with you were encouraging to reduce your risk over the course of time, particularly if you also successfully engaged in sex offender treatment.

1. I take into account your plea of guilty. It was indicated at an early stage and this was so, even though the charges were only recently finalised. There is a utilitarian benefit in your plea and you have avoided the need for a trial. You have saved the cost to the community and avoided the likely embarrassment and trauma of any of the girls having to give evidence.
2. I accept that your plea is also indicative of remorse. You have worked with Ms Matthews on gaining insight into your offending and the impact that it has had on your victims, though it is fair to say that that has not yet fully developed.

47 As to your rehabilitation prospects, I regard them as good as long as you continue to progress in therapy with Ms Matthews and also engage successfully in sexual offender treatment program. There are other features that augur well for your rehabilitation including your positive engagement in the prison community and continued family support.

48 I also take into account that with COVID restrictions, family visits in custody are limited and conditions in custody are more onerous.

1. Your use of social media allowed you to befriend and exploit young girls and encourage sexual activity with you. These girls were vulnerable and these offences, occurring via carriage services, were designed to protect them against exposure to sexual conduct beyond their maturity and years;
2. Your offending has had a significant impact on each of your victims. You have affected their ability to trust others and exposed their vulnerability to exploitation by the use of social media;
3. You were clearly aware of their respective ages - the gap between you was 10 years;
4. Your offending occurred over a period between December 2017 - September 2019 - over a year and nine months;
5. You continued with your offending against Poppy Kean and Angelina Barton after your activities with Stacey Hankin had been revealed;
6. In respect of Poppy Kean: In the course of oral penetration you compelled her to swallow your ejaculate though she had made it clear that she did not want to. She was not aware of your real age.
7. In respect of Angelina Barton: The sexual penetration of a young girl by an older predator who has 'groomed' her leading up to that act is an offence of utmost seriousness. That is so even where that predator can be said to have lacked maturity, (see Swingler 2017 VSCA 305 [54]). Additionally, you supplied Angelina Barton with drugs leading up to sexual activity between you.
8. You had received or were in the course of psychological counselling given the issues with Stacey Hankin and you expressed to Angelina Barton your recognition of the wrongfulness of your conduct;
9. You were persistent and consistent in your offending with Angelina Barton especially after the period when you returned from overseas;
10. Your counsel conceded that the following sentencing principles applied - general and specific deterrence, just punishment, denunciation and protection of the community are all relevant and important matters for the court to consider. Given the number of victims and number of offences, totality is also relevant. In respect of protection of the community, that factor has prominence given you will be sentenced as a serious sexual offender in respect of Charges 3 and following.
11. The prosecution did not submit that your status as a serious sexual offender required a disproportionate sentence to be imposed. It is necessary for me to take into account all of these matters and the objective seriousness of your offending with mitigatory factors set out in these reasons. In respect of the Commonwealth offences, I have taken into account the matters listed in s.16A(2) of the Code as relevant to you.
12. In circumstances where a person is before the court for both State and Commonwealth offences, I adopt the second option or method of sentencing that is set out in Swingler, namely to group together the state offences, sentence each of those individually, come to a state total sentence and set a state non-parole period, then impose a sentence for the Commonwealth offences to commence at the end of the state non-parole period.
13. As noted in a number of authorities, the position created by the Commonwealth legislation when the court is required to sentence on both Commonwealth and State offences is entirely unsatisfactory. In this case, it is particularly so when offending relating to one of the victims was subject to both State and Commonwealth offences, though were arguably similar in nature.
14. I propose to sentence you as follows.
15. Charge 1, you are convicted and sentenced to a term of imprisonment of three years.
16. Charge 2, you are convicted and sentenced to a term of imprisonment of two years.
17. Charge 3, you are convicted and sentenced to a term of imprisonment of three years.
18. Charge 4, you are convicted and sentenced to a term of imprisonment of four months.
19. Charge 5, you are convicted and sentenced to a term of imprisonment of two years.
20. Charge 6, you are convicted and sentenced to a term of imprisonment of three years.
21. Charge 7, you are convicted and sentenced to a term of imprisonment of four years.
22. Charge 11, you are convicted and discharged.
23. Twelve months of the sentence imposed on Charge 1 and 18 months of the sentence imposed on Charge 3 will be cumulative on the base sentence, which is that related to Charge 7, which makes a total effective sentence of 78 months or six years and six months. I state a non-parole period of 48 months or four years.
24. In respect of the Commonwealth offences, Charge 8, you are convicted and sentenced to a term of imprisonment of two months. That sentence is to commence after the expiration of the State non-parole period.
25. In respect of Charge 9, you are convicted and sentenced to a term of imprisonment of six months. That is to commence after the expiration of the State non-parole period.
26. On Charge 10, you are convicted and sentenced to a period of two months, again to commence after the expiration of the State non-parole period. That leaves a total Commonwealth sentence of six months.
27. My understanding is that if there is a Commonwealth sentence which is six months or less that I am not required to impose a recognisance release order; is that correct?
28. MR FISHER: Yes, I agree with that, that's correct.
29. HER HONOUR: That means that there is a total effective sentence of 84 months, which is seven years.
30. MR FISHER: Yes, that's correct, Your Honour.
31. HER HONOUR: And the earliest release will be four years and six months. What is the pre-sentence detention, please?
32. MR FISHER: It is 536 days, not including today.
33. HER HONOUR: All right. I declare pre-sentence detention of 536 days. Pursuant to the provisions of the Sex Offenders Registration Act you have been convicted of at least three Class 1 offences and the period of reporting will therefore be for life. In respect of the offences post Charge 3, on the records of the court you are noted as a serious sex offender. I was provided drafts of forfeiture and disposal orders this morning and I will make those orders.
34. MR MANDY: Your Honour, could we ask that you defer making those orders. We haven't been able to get instructions about those. I don't anticipate that there is going to be a difficulty.
35. HER HONOUR: All right, I will do them in chambers, that is fine.
36. MR MANDY: We will let you know by email when we have agreed on a position.
37. HER HONOUR: Yes, all right.
38. MR FISHER: No issue with that, Your Honour. I do note that one of them just refers to the green vegetable matter. I wouldn't have thought that would be controversial, that's the forfeiture order.
39. HER HONOUR: All right, that is fine. You sort something out and if you could get in touch with my associate and I will make those orders in chambers. Have people checked those calculations?
40. MR FISHER: Yes, I am just doing that now, Your Honour. Could I just confirm the overall non-parole period or earliest release date, what number did Your Honour indicate that was?
41. HER HONOUR: Four years and six months, which is the non-parole period of the State and then the six months post the Commonwealth matters.
42. MR FISHER: Yes.
43. HER HONOUR: Thank you.

1. MR FISHER: I'm sorry, Your Honour, my instructor just got through in time.
2. HER HONOUR: That is all right. I had seen on the documentation that it was 460 on the day of the plea but what is it, Ms McVean?
3. MS McVEAN: I believe it is 477 days, Your Honour, not including today.
4. HER HONOUR: That makes more sense.
5. MR MANDY: Yes, we agree with that one, Your Honour.
6. HER HONOUR: All right, thank you.