Edison Lopes
Representation: Counsel:
Defence: Mr M Fordham
Source
Original judgment source is linked above.
Catchwords
Edison Lopes
Representation: Counsel:
Defence: Mr M Fordham
Judgment (3 paragraphs)
[1]
Solicitors:
Crown (Commonwealth): Ms Strati
File Number(s): 2022/270073
[2]
JUDGMENT
The offender, Edison LOPES, entered a plea of guilty in the Local Court to a sole Commonwealth offence of distributing child abuse material outside Australia. This offence is contrary to s 273.6(1)(a)(ii) of the Criminal Code and there is a maximum penalty of 15 years imprisonment.
The maximum penalty for an offence provides relevant guidance. In determining the sentence to be passed, I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. This offence provision is one for which a statutory presumption in favour of a term of imprisonment exists unless there are exceptional circumstances.
There is a utilitarian benefit that flows from a plea of guilty. The plea is to be regarded as an early plea. I intend to reduce the sentence by 25% to recognise the plea. The plea also warrants amelioration of the sentence as it demonstrates remorse, acceptance of responsibility, and a willingness to facilitate the course of justice even if this assessment is made in the face of a strong Crown case.
Agreed facts were tendered. I have read the full facts and will sentence on that document. I recite only some facts in summary.
There is a dispute as to the interpretation of part of the offender's conversations. It was submitted on behalf of the offender that the repeated references by the offender to children kissing his penis reflects non-penetrative sexual activity. The offender gave evidence and said he could not explain the words; it was all just 'crap'. He said generally that he could not explain what was in his mind. These conversations include the offender being circumspect and declining to use the word 'penis'. I am satisfied beyond reasonable doubt that the context in which the discussions occur reflects a reference to fellatio.
There is also an issue raised on behalf of the offender as to what $2000 per month referred to, whether it was Australian or Filipino currency. The offender gave evidence it was just words, and he did not explain what currency he was discussing. As the submission is that it was not based on fact, and that there is no suggestion I am to sentence on the payments in fact having been made, it is not necessary to determine.
The offender arrived in Australia from Bangkok on 8 December 2021. ABF officers searched his phone, accessed using his password provided by the offender, and located messages in the encrypted WhatsApp app and in Skype.
These messages included the offender messaging a person named "Estela" on a Filipino service. On two separate days he discussed his sexual interaction with three girls, aged 13, 14 and 18 and engaging in sex with the 18-year-old and fellatio with the younger girls in exchange for money and of his interest in boys aged 12 to 13 engaging in fellatio. The ABF also located a Skype conversation with an unknown person in which he discussed he engaged in video calls involving sexual content with a 14-year-old Filipino in exchange for a monthly payment to her mother.
The three separate messages occurred within a week: between 16 November 2021 and 23 November 2021. All the messages involved words only. The offender purported to act alone and not with like-minded persons; although I note Estela continued the communication despite the content. The words convey the offender candidly and without any prompting discussing his conduct. That conduct involved admitting to exploiting children, in poorer countries, in exchange for money. The offender was 60 years older than the children discussed. Other than his representations of what he had done, which forms the child abuse material, there is no evidence of the commission of the disclosed conduct. The offender told police upon arrest that he made up the conduct although he denied it was fantasy. The offender gave sworn evidence he did not engage in the conduct, and he could not explain why he said what he did.
This account presents as implausible, given he volunteered the information to different people, and that he was a 76-year-old man with no cognition impoverishment or mental illness. I am not in a position to positively find to the contrary. I cannot determine he had a sexual interest in children in general or in particular. I proceed on the basis there is no evidence he committed any of the conduct.
There is limited assistance in assessing child abuse material constituted by words; particularly when the description of conduct is not supported to be genuine. Features informing the assessment more generally are identified in R v Hutchison [2018] NSWCCA 152. Some of the features are not applicable. I take into account that there were three separate conversations, the terms of the content, distributed for an unknown reason, to two different persons. The age of the children, as discussed, is relatively young and there is discussion of fellatio with more than one child. There is no particular graphic quality to any conversation. All three conversations were conducted within a week. The offender is only sentenced for the words constituting the child abuse material.
I note the submissions advanced by both lawyers on where each offence fell on the range of objective seriousness. The Crown submitted the offence to be serious for the reasons nominated in the written submissions at [15]. Counsel for the offender outlined in submissions at [5] and [20] the reasons informing a determination that the offending fell at the lower end.
This is a relatively low-level example of the offence provision.
The offender is now aged 78. He is a person of prior good character. He was prosocial, with employment in various positions until his retirement. He continues to assist others in the community. His son wrote to the court indicating the offending to be out of character. His friend of over 45 years praised his various qualities including of honesty. This absence of convictions informs the significance of personal deterrence and the prospects of rehabilitation. He is assessed by the psychologist to fall within the low risk of reoffending. This assessment is based on an acceptance of the offender's denial of there being any truth to the conduct described in the messages. I consider the shame and embarrassment arising from the offending being detected will serve as a salutary lesson to the offender. He is unlikely to reoffend and therefore personal deterrence assume a more minimal role.
The offender repeatedly indicated in evidence that he did not mean anything by his words. I have not positively accepted that the conduct described did not occur. I proceed on the basis it is not established by the prosecution that it did occur. There is a residual concern that the offender would contemplate such conduct to then describe it to two apparent strangers, not solicited by either. This demonstrates some perversity of thought to even envisage, let alone communicate, his engagement in the conduct. Although said to be both inexplicable to the offender and out of character to those who know him well, that it occurred is suggestive of the possible benefit of some professional intervention.
The offender has provided direct and hearsay expressions of his remorse. He swore in his affidavit that he was confused, upset and ashamed about his actions. He described his words as stupid and unexplainable. He explained he was on social media to address loneliness and meet adult peers. His plea of guilty supports remorse. I accept that the expressions of remorse are genuine to the extent that the remorse is as to the error of conveying the words containing child abuse material.
The offender sought out assistance after arrest. This included spiritual support. More pertinently, he attended six psychological consultations as part of a GP based Mental Health Care Plan. No continuation of care is scheduled. This assistance is premised on an acceptance the conduct described in the messages did not occur.
There is no insight into the harm caused by child abuse material. This is largely informed by the account of there being no real victim, no real act, and only words without substance; committed by a person with no admitted sexual interest in children. The offender repeatedly indicated they were 'only words' and those words were 'crap'. How he came to communicate those words remains unknown. It remains of some concern and impairs insight.
The offender's subjective case is supported by his affidavit and sworn evidence, his letters of support and the report addressing psychological opinion. There is no mental health issue or disadvantage advanced to support amelioration to sentence. The offender is in good health and has experienced a fortunate life.
I am mindful of the need to ensure adequate punishment. General deterrence and denunciation are paramount sentencing considerations in these types of offences. These offences are committed in private, overseas and are difficult to detect.
As this is a sentence for a Commonwealth child sex offence, I must additionally have regard to the objective of rehabilitating the person, including by considering rehabilitation or treatment options or if imposing imprisonment, to include sufficient time for the person to undertake a rehabilitation program when determining the length of any sentence or non‑parole period.
Conditions in custody may be more onerous because of the offender's age and his classification based on the offence type.
The offender provides practical care for a long-term friend. This supports his contribution to the community and is in keeping with the supportive evidence. Any loss to his friend if the offender was not available is not a hardship warranting amelioration to sentence.
The Crown submitted that a full-time term of imprisonment was required. It is not accepted on behalf of the offender that the only appropriate penalty is one of full-time imprisonment.
The offender is convicted.
Informed by the two days of pre-sentence custody, the specific percentage discount for the plea and other sentencing factors I have considered all other available sentences, and I am satisfied that no other sentence is appropriate. The offender is sentenced to 9 months imprisonment.
I have considered whether exceptional circumstances exist to allow for immediate release. I determine that in combination they do; this is based on the nature of the offending, and it being committed by a remorseful elderly offender of prior good character with a limited risk of reoffending. To the extent rehabilitation is required it would be better met in the community.
The offender is to be released forthwith upon entering into a recognizance in the sum of $200 conditioned to be of good behaviour for a period of 2 years. Further conditioned to:
1. be subject to the supervision of a probation officer appointed in accordance with the order; and
2. obey all reasonable directions of the probation officer; and
3. not travel interstate or overseas without the written permission of the probation officer; and
4. undertake such treatment or rehabilitation programs that the probation officer reasonably directs; and
5. report to City Community Corrections office [Ground Floor, 13-15 Wentworth Avenue SYDNEY NSW 2000] within 7 days.
[3]
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Decision last updated: 17 August 2023