DPP (Cth) v Zarb [2014] VSCA 347

DPP (Cth) v Zarb [2014] VSCA 347 - VSCA 2014 case summary — Zoe

[17]

On 5 December 2013 an investigator from Queensland Police entered the adult website Motherless.com using the covert online identity 'singledadbrissy'. This occurred as part of a controlled operation aimed at gaining evidence of offences involving child abuse and child exploitation material.

After entering the website, the investigator engaged in a chat conversation with the offender, who was using the pseudonym of 'AussieMelbDad'. 'AussieMelbDad' has a profile which states that he is a '[h]ardcore porn lover and always looking for others into taboo, no limits chat.'

In the course of this chat, 'singledadbrissy' and the offender engaged in the following conversation:

Singledadbrissy: both ur kids girls?

AussieMelbDad: yeh

imagine fucking your daughter just to get back at your ex?

Singledadbrissy: are you into that kinda stuff?

AussieMelbDad: in fantasy.. pretty hot...

Singledadbrissy: 12 to 14 wud ne (sic) kinda hot im not really sure about 8 though

AussieMelbDad: love them smooth mate .. 8 is a hot age to be honest

wouldn't it be nice to push into her to get back at the ex?

Singledadbrissy: never thought about it kinda like em a bit older than her age

AussieMelbDad: mate seriously.. theyre amazing that age..

ya ex would freak, but fuck her..lol

SingleDadbrissy: sounds like you have had some experience???

AussieMelbDad: nah ... but I love the fantasy

The two then exchanged Yahoo! Messenger usernames to facilitate the exchange of child pornography images or videos via Yahoo! Messenger.

The Motherless.com chat ceased at 9.39pm, at which time a new chat session commenced in Yahoo! Messenger. During the course of this chat the offender sent three child pornography images to the covert police operative from his Yahoo! Messenger account. Categorised according to the Child Exploitation Tracking System ('CETS') Scale, one of the images was a Level 1 image and two were Level 4 images. After sending one of the Level 4 images, the offender commented ' ... very cute lil girl cunt..shes about 8 .. your daughters age.. niiiice.'

The images sent by the respondent are described as follows:

[37]

Mr Zarb expressed a clear orientation towards sexual interactions with adult women. He was adamant that he had never participated in any form of actual (i.e. 'off-line') sexual contact with under-age individuals.

Such comments notwithstanding, the offending committed by Mr Zarb clearly raises concerns about his sexual adjustment. Specifically, the deviant nature of material he accessed together with the extended duration of his involvement with it and the progression of his behaviour to include extensive engagement with others via 'chat-rooms' and other online venues all point to the presence of wide-ranging, diverse and entrenched deviant sexual cognitions. These were integrated with deviant arousal patterns and intensified by the broader behavioural problems (drug and alcohol abuse) which pervaded Mr Zarb's life. Mr Zarb candidly acknowledged that he had been sexually aroused by a wide range of paraphilic material. In short, his engagement with child pornography and related content goes well beyond mere 'escapist fantasies' or a secondary complication of substance intoxication to indicate the presence of significant psychosexual pathology.

Mr Zarb's treatment with Dr Barth has incorporated a focus on addressing deviant cognitions, challenging the misconceptions inherent in them. It is planned to assist Mr Zarb to develop better self-awareness and communication skills to allow him to address his interpersonal problems, and to incorporate an emphasis on improving his broader stress-management skills. Dr Barth informs me that Mr Zarb has made good (if incipient) progress towards his treatment goals.

Diagnostically, I would consider Mr Zarb's offending behaviour to be sufficiently problematic to meet DSM-5 diagnostic criteria for an 'Unspecified Paraphilic Disorder'.

......

A review of stable risk factors in Mr Zarb's case would indicate a relatively low risk of recidivism. This evaluation takes into account his age, his good employment history, the lack of any prior criminal history (including the absence of any prior sexual or violent offending), and his capacity to sustain a long-term marriage. Each of these factors is correlated with lower rather than higher risk of recidivism. His risk of recidivism would be assessed as being in the 'Low Risk' range if such factors alone were considered.

A review of dynamic risk factors, however, suggests that this estimate may well underestimate the level of risk in Mr Zarb's case. The main issues identified are those related to the dysfunctional arousal patterns and deviant cognitions which are intrinsic to the offending itself. It particular, the diversity of Mr Zarb's paraphilic interest together with the entrenched and compulsive nature of his online activities are deeply concerning. To these are added the strong role played by substance misuse in his offending and the indications of broader behavioural disinhibition which it entails. Beyond such matters, Mr Zarb's social skills remain relatively poor. In combination, and notwithstanding his reportedly good progress in treatment, these dynamic risk factors are assessed as raising Mr Zarb's risk of recidivism beyond the 'Low Risk' range into the 'Moderate Risk' range overall.

Several protective factors can be delineated in Mr Zarb's case. Firstly, he has participated actively in initial treatment and made good progress towards his specific treatment goals. While further treatment is clearly required, his capacity to benefit from the treatment he has received indicated that it would have a genuine protective benefit in his case. In addition, the requirements of sex-offender registration and the deterrent aspects of sentencing are expected to confer further protective containment in Mr Zarb's case.

In summary, taking into account the combination of all factors Mr Zarb is assessed as being at 'Moderate Risk' of re-offending. With further participation in treatment and the protective factor of sex-offender registration it is likely that Mr Zarb's overall risk of recidivism will ultimately be reduced. It should be noted that such risk of recidivism as is extant in his case would also most entirely relate to his use of the internet or other 'virtual' offending .

[42]

Thus, although the emphasis upon general deterrence in sentencing for offending of this type would generally require a custodial sentence, in your particular case I have concluded that a fairly lengthy Community Correction Order is a just and appropriate sentence, which can serve the purpose of general deterrence. I have received a report from the Office of Corrections dated 28 August 2014, which assesses you as suitable for a Community Correction Order. I note that the report assesses your general risk of re-offending (as distinct from specific sexual offending) as being low according to VISAT (Victorian Intervention Screening and Assessment Tool).

The gains which have been made by treatment since your arrest somewhat lessen the extent of the emphasis in sentencing which, otherwise, would need to be placed upon specific deterrence, although this is still definitely a factor which requires some emphasis, particularly given the length of the period of your offending on Charge 1. However, I consider that the sentencing objective of specific deterrence can be served by you undertaking a Community Correction Order. It seems to me that, for a person like yourself, who has achieved to a high managerial level in your work and been well regarded by colleagues and the community generally, to be compelled to engage in a Community Correction Order for a reasonably lengthy period of time is likely to have a deterrent effect, as well as permitting the progress which you have made towards rehabilitation to continue.

In arriving at this conclusion, I have taken into account that your emotional reaction to your legal predicament has been a severe one coming, as it does, on top of already fragile self-esteem and anxiety. I note that you have suffered suicidal ideation and I am satisfied that a sentence of imprisonment would weigh more heavily upon you because of your depression/Adjustment Disorder, and that there is a serious risk that imprisonment would have a significant adverse effect on your mental health. I consider that a term of imprisonment is very likely to jeopardise what rehabilitative gains you have made since your arrest and I particularly take heed of Dr Barth's opinion that you are at a critical phase in the treatment of your sex offending.[7]

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