DPP v Sims [2021] VCC 571

Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty for that offence is 10 years' imprisonment.

(b) Charge 2: sexual penetration of a child under the age of 16 contrary to s.49B of the Crimes Act 1958, as amended by the

Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty for that offence is 15 years' imprisonment.

(c) Charge 3: supply a drug of dependence to a child contrary to s.71B(1) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is 15 years' imprisonment.

(d) Charge 4: produce child abuse material contrary to s.51C(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016. The maximum penalty for that offence is 10 years' imprisonment.

(e) Charge 5: possessing a drug of dependence contrary to s.73(1) of the

Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence where it has been established on the balance of probabilities that the possession was not for the purposes of trafficking is a fine of 30 penalty units or one year's imprisonment.

1. Charge 1 is a standard sentence offence and the standard sentence is four years' imprisonment.
2. Charge 2 is also a standard sentence offence and the standard sentence is six years' imprisonment.
3. In fixing a non-parole period for a standard sentence offence, pursuant to s.11A(4)(c) of the Sentencing Act 1991, where a term to be imposed is less than 20 years the non-parole period must be at least 60% of the relevant term.
4. I also note that upon the imposition of a term of imprisonment for whichever of Charges 1, 2 or 4 is the third sentence imposed, you are to be sentenced as a serious sexual offender for the purposes of the Sentencing Act 1991. This means that the sentence imposed is to be cumulative on other sentences, unless a contrary order is made. In sentencing for that offence, the provision requires that protection of the community be the primary sentencing consideration.

1. Your offending was set out in some detail in the summary of prosecution opening read out in court and tended as prosecution Exhibit 1. I will not repeat that in full now but will give an abbreviated version.
2. At the time of this offending you were 47 years old. You are now 48 years old. The victim was 15 years old at the time she met you. She was at the time under the care of the Department of Health and Human Services and residing in a residential care unit in Dandenong.
3. Both you and the victim were registered on Skout, an adult dating app whose use is restricted to those over the age of 18. On 5 May 2020, you contacted the victim through that app. You sent your telephone number and asked her to send a picture of herself to you. On 8 May 2020, the victim sent you a picture of herself and told you that she lived in Dandenong.
4. On 9 May 2020, you told the victim that you were getting a motel room in Dandenong and you asked her to join you. The victim told you that she was 15 years old, that you would have to keep your activities secret, and that age was just a number to her. That there was no misunderstanding from you about what she had told you about her age was apparent from the message you sent in response. You told her 'Sorry, age might be a number to you but I am not a paedophile and have a son that age keep the fuck away from older guys and harder drugs for fuck's sake'.
5. Despite being informed of her underage status, you continued to communicate with the victim. She went on to tell you that she was in government care. Extracts from her telephone messages show that she told you she was in 'Resi'.
6. You provided the victim with directions on how to get to the motel. She arrived at 11.30 pm on the evening of 9 May 2020. She did not return to her residential unit until 10 o'clock the following morning. During that period you and the victim smoked methylamphetamine through a pipe. You used your telephone to film yourself blowing smoke on her exposed breasts. You also took photographs of the victim exposing her breasts. This is the conduct that is covered by Charge 1, sexual activity in the presence of a child under 16.
7. Over the next seven days you exchanged numerous sexually explicit messages with the victim. The messages encouraged her to bring lingerie to your next meeting. In those messages you expressed in graphic terms what sexual acts you wished to engage in with the victim. Other of those messages were about drug use. You told her that you had some meth and that you were going to 'hot rail'. You said that you get a better hit from the meth if you heat up the glass first as that causes the 'meth to vaporise better'. As noted, at the time you were sending those messages you were fully informed that she was 15 years old.
8. On 17 May 2020 you organised an Uber to pick the victim up from her residential unit in Dandenong and bring her to your home in Bentleigh. Upon her arrival at your house you supplied her with methylamphetamine. You showed her how to 'hot rail'. This is this supply of a drug of dependence to a child that is the subject of Charge 3.
9. On that occasion, during a time spanning 17 and 18t May 2020, you engaged in sexual activity with the victim. The acts that are the subject of Charge 2, sexual penetration of a child under the age of 16 years, were filmed on both your telephone and the victim's telephone. Charge 2 is a composite charge in which separate acts of penetration of her vagina with your penis, fingers, tongue and a sex toy are dealt with under this single charge.
10. The victim stayed at your house whilst you went to work on 19 and 20 May 2020. The victim arranged to be picked up. She messaged you to let you know this. You told her to make sure her phone was cleaned of incriminating material.
11. Charge 4, producing child abuse material between 10 and 18 May 2020, is a rolled up charge that includes all the sexual activity that was filmed on yours and the victim's telephones over this period. I am told that none of the images and film the subject of Charge 4 is activity separate from that covered in Charges 1 and 2.
12. On 25 May 2020 the victim sent you a message telling you that it was her birthday. In reply you wished her a happy birthday, and asked whether that made her 15 or 16 years old.
13. The offending was discovered when the victim's phone was left in the office of her residential care unit. An employee there opened her phone and discovered the videos of the victim engaging in explicit sex acts with you, and smoking an illicit drug. The employee also found a receipt for a transport ride that revealed that she had been dropped off at your house in Bentleigh.
14. The residential care unit employee used another phone to film the material on the victim's phone, upload it to a work computer, copy it to a USB and then hand it to the Dandenong SOCIT police.
15. On 7 June 2020 you were sent a notice prohibiting you from having any contact with the victim. Your response to this was to message the victim to tell her that police had visited you. You went so far as to photograph and send the notice you had been served with. You told the victim to dump her phone and get a 'burner' phone.
16. On 9 June 2020 police executed a search warrant on your home. Police located and seized methylamphetamine on a bread plate and GHB in a cup behind a television in a bedroom. The possession of these drugs is the subject of

Charge 5. I note that it is accepted by the prosecution for the purposes of sentencing that the evidence establishes, on the balance of probabilities, that your possession of these drugs was for your own use and not for the purpose of trafficking. As such, this charge attracts the lesser maximum penalty applicable in such circumstances. 17. You were interviewed by police on 24 June 2020. During the interview you told the police you had met the victim on the dating app. You told police that you thought her profile on that app stated that she was 21 years old. You said you arranged for her to get to your house in Bentleigh by Uber. You said that upon her arrival you realised she was obviously not 21. You told police that the victim told you she was 16 years old. You said that when she arrived at your house she asked to stay. You told police that you agreed to this and that she stayed with you for two to three nights. Police put to you that they had found a message on her phone in which she told you that she was 15 years old. You told police that you could not remember that message. You claimed to police you could not remember staying in a motel in Dandenong in May. When police told you they had videos of the victim also being in the motel room, showing you blowing smoke over her exposed breasts, you told the police you could not remember the victim being at the motel with you. 18. You told police that you started taking drugs about a year after your teenage son ran away from home. You admitted using methamphetamine with the victim but denied supplying it to her. You claimed that she brought ice, cannabis and GHB to your house. You admitted showing the victim how to 'hot rail'. 19. When police informed you that they had videos showing you sexually penetrating the victim, you claimed to have had no memory of those events. You did not however, deny that they occurred. Whilst you blamed your drug use for a lack of memory, you also stated that you had made a 'horrible mistake'. You claimed to have had no memory of sending sexually explicit messages to the victim, nor any memory of messages relating to the use of illicit drugs.

1. The victim did not provide a victim impact statement to the court. Neither did she provide a statement to police about any of the events the subject of the charges. As such, I can make no specific finding about the impact of these events upon her to this point in time.
2. I can in assessing the general gravity of the offence have regard for the fact that sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. The legislative scheme means that a child under 16 cannot consent to sexual penetration. This prohibition has the dual purposes of protecting the child from harm that can come from premature sexual activity and deterring adults who would contemplate having sex with someone under the age of 16. This prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent. There is nothing that has been put before the court in this case to suggest that presumption ought not apply in the current circumstances. As such, even without any specific material from the victim in this case I intend to sentence you in accordance with this presumption of harm.

1. Sexual offences involving children are inherently serious. Whenever sentence is imposed for such offences the court must have regard for the protection of children from sexual exploitation.
2. In the current instance, there are several matters to be considered in assessing the relative gravity of the offences on the indictment.
3. It is accepted that you have met the victim through an adult dating app. There is no suggestion that in making initial contact with the victim that you were doing other than seeking contact with an adult. I accept that you did not initially seek out a child for sexual purposes. However, you were informed prior to any meeting with the victim that she was 15 years old. Armed with that knowledge, and apparently aware of her naïveté to the point that you warned her to keep away from 'older guys and harder drugs', you nevertheless chose to pursue a sexual encounter with a child.
4. The age difference between you and the victim was significant, namely 32 years.
5. As has been noted, the victim in this matter was in government care. At an objective level, this meant that in addition to being a child at the time of this offending, she had some additional vulnerability as a child under the protection of the Department of Health and Human Services who had been identified as being at risk of exploitation. The evidence in the form of messages you exchanged with the victim is somewhat unclear as to whether you knew this prior to the incident the subject of Charge 1, but it is undisputed that you knew of her residential circumstances prior to the incident the subject of Charge 2.
6. The activity covered by Charge 1 differs substantially in gravity from that covered by Charge 2. Charge 1 involves you blowing smoke over the victim's bare breasts, and filming her bare breasts. It does not involve actual physical contact with her.
7. Charge 2, however, has been described as a 'composite' offence in which separate acts of sexual penetration of her vagina with your penis, tongue, fingers, and a sex toy are charged as a single offence.
8. The physical acts the subject of Charge 2 are also committed in the context of you using drugs with a 15 year old girl, and filming the sexual acts. These are all matters that aggravate the offence.
9. You knew at a time prior to meeting up with the victim for the first time that she was underage. You appreciated the potential danger she was subjecting herself to. You told her that you were not a paedophile and warned her to stay away from older men and harder drugs. Despite this, you persisted in arranging to meet the victim for sexual activity and supplied her with drugs. You had time to consider the wisdom and morality of the actions you were about to engage in. You chose to pursue them anyway. This makes your moral culpability for your actions very high indeed.
10. Your counsel has highlighted certain aggravating features that other cases do feature that are not present in this case. I accept, for example, that this case does not involve the breach of a relationship of trust. I also accept that the offending was not achieved through any violence nor threats of violence.
11. She was aged 15 years and 11 months at the time of the offending, and as such was at the upper end of the age range for offences of this type.
12. The absence of these features in this case are not matters in mitigation nor, should I point out, were they submitted to be such. The fact of the victim being close to 16 years old does not meant she is afforded any less protection in the eyes of the law. The absence of certain matters in aggravation serves only to reveal that each case must be dealt with based on its own unique circumstances and that means direct comparisons between cases is often difficult.
13. I have already mentioned that one of the aggravating features of the conduct covered by Charge 2 was the fact that it involved you, in a pre-planned way, supplying the victim with methamphetamine. This is separately the subject of Charge 3.
14. The charge of supplying a drug of dependence to a child is a serious offence, as reflected by the 15-year maximum penalty. In assessing the gravity of this particular example of the offence, I take into account the fact that the charge makes it a crime to supply drugs to someone under the age of 18. As such the victim in this case as a 15 year old could not be said to be at the higher end of the age range. I must also consider the amount and nature of the drugs that you supplied. In this case the amount can only be what the evidence reveals the victim to be smoking as depicted in the video. The drug supplied, which is accepted to be methylamphetamine, is a dangerous and addictive substance. It has been supplied in the context of you pursuing sexual activity with this child.
15. This is a serious example of the offence, and the penalty imposed must reflect that. That said, the conduct covered by this offence is also an aggravating feature of Charge 2.
16. Similarly with Charge 4, the act of filming the sexual activity with the victim is an aggravating feature of Charges 1 and 2. I note there is no suggestion that the child abuse material you produced was intended for further dissemination or for commercial gain. It involved a single victim. As such, Charge 4 is a moderate example of an inherently serious offence. It must carry an individual sentence that appropriately reflects those matters.
17. In structuring the total effective sentence, I must be conscious not to impose a penalty that would result in you being punished twice for the same conduct.

1. Your personal circumstances have been set out in some detail in both the written submissions filed on your behalf and in the psychological reports that were tendered. You were born in Melbourne in 1972. Your father worked as a maintenance fitter at the Port of Melbourne, and had a long association with the union including serving as President. Your mother worked as a store person. Your father died in 1997. You were educated to the end of year 10 before commencing an apprenticeship as a diesel mechanic at the Port of Melbourne. You remained in continuous employment on the docks until 2020.
2. You commenced a relationship with Michelle Emmett in 1998. That relationship lasted until 2010. You have one child of that relationship, a son who was born in 2005 and is now 15 years old. After your separation you and Ms Emmett shared care of your son and I am told that this relationship has been amicable and cooperative. You have been very involved in your son's sporting activities. You have volunteered in roles at your local rugby and football clubs.
3. Your use of methylamphetamine has been a relatively recent occurrence in your life. I am told that you were introduced to the drug in 2019. Your use of that drug was occasional until a stressful event involving your son saw a significant escalation of your use, to the point of dependency. Your drug use has not been put before the court as a matter excusing your conduct. It is, however, put as something that has reduced your inhibitions and has been a contributing factor to you, a person with no prior criminal history, committing acts that seem incongruous with the life you had previously led.
4. Since being released on bail after this offending, you have completed a three-month course of inpatient rehabilitation at the Dayhab Addiction Treatment Centre. Whilst your drug use, whether before or during the offending, does not reduce your moral culpability, it is a relevant factor in assessing your prospects of rehabilitation.

1. I also note the psychological report of Dr Matthew Barth dated 19 April 2021 tendered on your behalf on the plea.[1] Whilst it is not contended that you have any mental impairment that enlivens any of the principles set out in Verdins,[2] the report does provide valuable insight about your circumstances. Dr Barth notes that your previous drug use suggests you have a stimulant use disorder of a severe level. He notes that this has had a 'destructive impact' on your life and is a matter that must be addressed in order for you to achieve full rehabilitation. He regards you as being of moderate risk of sexual reoffending, for reasons including the history of substance abuse, some limited insight at the time of the offending, and your difficulties coping with stress and intimate relationships. He considers that you require further treatment to address these matters.

1. You have pleaded guilty to these offences at a time properly regarded as your earliest available opportunity. Whilst the plea of guilty was made in the context of a prosecution case that appeared irrefutable, you are still entitled to a discount on sentence for the utilitarian benefit of this plea. Especially in the context of the pressures placed on court lists as a result of pandemic restrictions, it is significant that your plea has saved the time, resources, and delay that would inevitably have flowed had you contested any of the charges against you.

1. I also consider that you have some remorse for your conduct. You pleaded guilty at an early stage. You have expressed some level of insight in the psychological reports. Most importantly you having engaged in substantial efforts at rehabilitation. You expressed to forensic counsellor Jeffrey Burrows that you were 'Deeply ashamed of [your] actions and [were] motivated to utilise treatment to avoid re-offending'.[3]
2. Against that, a number of the matters you stated in your record of interview were plainly untrue. I also note that your conduct in seeking to have the victim dump her phone and remove incriminating evidence and to 'get a burner phone' is inconsistent with remorse. Overall, remorse is a question of degree and balancing all the available evidence I give some weight to the fact that you have substantial if not a complete level of remorse for your actions.

1. In relation to your prospects of rehabilitation I note the following. You have no prior criminal history. Your previous good character is also confirmed by personal references and direct testimony relied upon at your plea hearing. There is no evidence that you specifically sought out a sexual encounter with a child. There is clearly also some connection between your behaviour and your drug use.
2. Your efforts at rehabilitation since the offending are substantial, indeed it is difficult to imagine what more you could have done to address the issues that have been identified. You have a good work history. You have ongoing family support. I have had the benefit of reading character references tendered on your behalf, as well as hearing in person from your former wife, Ms Emmett and your mother's partner, John Velja. You are a father, and have the ongoing motivation to continue to support your son. You have undertaken a Sex Offender Treatment Program ('SOTP').
3. You have returned clean drug tests for the period covered by Defence Exhibit 4. Neal Sanderson, clinical counsellor at Dayhab Private Hospital, speaks of a 'Remarkable change in Jason's attitude and outlook towards life'. He notes that you successfully completed the intense treatment program on 28 October 2020, and other material confirms that any lack of engagement after that was only due to the unavailability of specific programs.[4] All of these matters support the conclusion that there is substantial optimism about your future prospects.
4. Against that, I must have some level of caution simply because this is serious offending that has been committed relatively recently. The offending, it would seem, only ceased as a result of its detection. Your efforts at rehabilitation only really commenced in June 2020 and as such are still at a relatively early stage. For this reason it is understandable that despite your very admirable commitment thus far, Dr Barth considers your risk of re-offending to be moderate. Jeffrey Burrows notes that 'Mr Sims has made some initial progress but it is at an early stage of the SOTP. He requires further assistance to identify and address the interpersonal and sexual factors which contributed to his offending behaviour and to develop a comprehensive relapse prevention plan to reduce his risk of reoffending'.
5. Balancing all these matters I am prepared to sentence you on the basis that you have good prospects of rehabilitation at this stage, with every expectation that the probability of you successfully rehabilitating will increase as you continue to progress and engage on that path. It is certainly encouraging and to your credit that you have remained willingly engaged in that process.

1. I also take into account that for the 37-day period you spent on remand before you were released on bail, you were subject to restrictions in custody due to the pandemic. And that going forward, some level of restriction in custody will remain. Given the relatively small proportion of your sentence that 37-day period represents, only limited weight is placed on this in suggesting that imprisonment may be more burdensome than would otherwise be the case. But I do take into account that pandemic restrictions are something that will remain in place in custody at some level going forward.

1. I also place some limited weight on the fact that you were bailed on the condition that you reside as an inpatient at a rehabilitation centre. I have been provided with details about the restrictive nature of the facilities program, and accept that your participation as an inpatient at that facility justifies some weight being placed on that in the sense outlined in Akoka.

1. The nature of these charges, involving the sexual exploitation of a child, means that general deterrence and denunciation have significance in the sentencing process. I place some weight on the need to specifically deter you from future offending, though the importance of that as a sentencing consideration is somewhat reduced by the efforts you have made at rehabilitation in recent months. It is also necessary for me to impose a sentence that represents a punishment that is just in all the circumstances.
2. I have also had regard for the standard sentences that apply to Charges 1 and 2. I note the observations of Priest J and Forrest J JA in McPherson.[6] In particular I note the observation that a standard sentence is 'a factor in the application of the intuitive synthesis, in the same way that the maximum penalty is. No more, no less'.
3. I also note that once I have imposed sentences of imprisonment on Charges 1 and 2, on Charge 4 you are to be sentenced as a 'serious offender' pursuant to s.6E of the Sentencing Act 1991. That means that for this offence I must regard protection of the community as the principal sentencing purpose. That does not mean, that the other sentencing purposes have been excluded. It also means that unless otherwise ordered, any sentence of imprisonment imposed on Charge 4 must be served cumulatively upon the sentences imposed on Charges 1 and 2.
4. For the reasons I have already outlined, however, I intend to order that the period of imprisonment imposed on Charge 4 be served concurrently with that imposed on all other sentences.
5. The sentences I impose are lower than the standard sentences for the offence of sexual activity in the presence of a child under 16 and sexual penetration of a child under 16. Having identified and considered what I consider to be the relevant factors in assessing the sentence on Charge 1, including my assessment that the offending is somewhat below the higher end of the scale, when weighed against the significant matters in mitigation I regard the imposition of a sentence below the standard sentence to be appropriate.
6. In relation to Charge 2, when what I regard to be the serious nature of that offending is weighed against the matters in mitigation, I similarly regard the imposition of a sentence below the standard sentence for that charge to be appropriate.

1. Mr Sims, you are convicted and sentenced as follows:
2. On Charge 1, sexual activity in the presence of a child under 16, you are sentenced to two years and six months' imprisonment.
3. On Charge 2 sexual penetration of a child under 16, you are sentenced to five years' imprisonment.
4. On Charge 3, supply a drug of dependence to a child, you are sentenced to nine months' imprisonment.
5. On Charge 4 produce child abuse material, you are sentenced to 12 months' imprisonment,
6. On Charge 5, possessing a drug of dependence, you are convicted and fined $500.
7. Charge 2 is the base sentence.
8. I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.
9. I direct that the sentence imposed on Charge 4 be served concurrently with the sentences imposed on all other charges.
10. This means you have a total effective sentence of five years and six months' imprisonment.
11. I direct that you serve a minimum term of three years and six months before becoming eligible for parole.
12. I declare that you have served 45 days in pre-sentence detention not including today. These will be deducted administratively from your sentence.
13. I declare that you have been sentenced as a serious sex offender on Charge 4, and direct that this be noted in the records of the court.
14. Pursuant to s.6AAA, I declare that but for your plea of guilty I would have imposed a total effective sentence of six years and three months with a non-parole period of four years and six months.
15. I direct you are required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for life. I do not require Mr Sims to sign the documents acknowledging receipt, but I will give a copy of those to his representatives.
16. I will also make that disposal order.
17. Are there any other orders that are required?
18. MS STRUGNELL: No other orders, Your Honour.
19. HIS HONOUR: Now, for the sex offender registration, sorry, I will just ‑- that was on the basis that Charge 1 was a class 2 offence, that Charge 2 is a class 1 offence and that Charge 4 was a class 4 offence.
20. MS STRUGNELL: Yes.
21. HIS HONOUR: Is that right? I said that correctly.
22. MS STRUGNELL: We think that Charge - Charge 2 falls under schedule 1 I think Your Honour.
23. HIS HONOUR: Yes, sorry, I will just go through that again.
24. MS STRUGNELL: Which makes it 15 years.
25. HIS HONOUR: Yes.
26. MS STRUGNELL: On that charge, the other two are both eight years, which gives us life.
27. HIS HONOUR: Yes, so is that correct. So, if I go through it, the Charge 1 is a class 2 offence, is that right?
28. MS STRUGNELL: Charge 1 is a class 2.
29. HIS HONOUR: Yes. Charge 2 - - -
30. MS STRUGNELL: Charge 2 is class 1.
31. HIS HONOUR: Class 1.
32. MS STRUGNELL: And Charge 4 is a class 2.
33. HIS HONOUR: Charge 4 is class 2.
34. MS STRUGNELL: Which, and because Charge 1 is 15 - - -
35. HIS HONOUR: Yes.
36. MS STRUGNELL: - - - and - Charge 2 is 15 years registration, Charge 1 and 4 are both eight years ordinary - - -
37. HIS HONOUR: Yes.
38. MS STRUGNELL: - - - we would then be in a situation that we have life registration.
39. HIS HONOUR: Yes.
40. DR FITZGERALD: I agree with that.
41. HIS HONOUR: Yes. So, that is what I have ordered. All right, is there anything further that should - - -
42. MS STRUGNELL: Nothing further, Your Honour.
43. HIS HONOUR: All right, I will ensure that that paperwork's provided to Mr Sims' representatives but apart from that I will adjourn the court till 10.30.
44. MS STRUGNELL: As Your Honour pleases.

[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] Akoka v The Queen [2017] VSCA 214 ('Akoka').

[6] McPherson v The Queen [2021] VSCA 53, 31.