R v Trevor TED [2014] VCC 1794 | Case summary

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 Crimes Act ( Vic) ).
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.
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.
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.
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.
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.
The jury's verdict involves a finding that at the time you sent your communications you contemplated as a real possibility engaging in sexual 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.
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.
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.
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.
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 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.
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.
Turning to your personal circumstances, you are 56 years old. You have no prior convictions.
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.
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.
In your interview you explained your communicating with the complainant having coincided with your use of the internet to contact business associates, 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.
It was put on your plea that given these combined circumstances you were somewhat isolated, vulnerable and under considerable pressure.
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.
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.
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.
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 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.
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.
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.
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.
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 Victoria, who applied a widely accepted actuarial risk management instrument, and were of the view that you were a moderate to low level risk of sexual re - offending.
Section 16A(2) of the Crimes Act (Cth) obliges me in sentencing you to take 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.
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.
On charge 1 I sentence you to a term of 2 years' imprisonment.
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.
I declare that you have served a total of 36 days by way of pre-sentence detention.
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. You will serve 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.
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.
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.
MR PAGE: Grateful, Your Honour.
HIS HONOUR: Now, Ms Tran, I assume you will have to draft the recognisance release order?
MS TRAN: I will Your Honour, and have my friend check over it. If we could have some time.
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.
MS TRAN: Your Honour, if I could hand up to Your Honour two copies of the draft of the recognisance release order.
HIS HONOUR: Thanks.
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.
HIS HONOUR: Yes.
MS TRAN: Thank you, Your Honour.
HIS HONOUR: You happy with that?
MR PAGE: I am, Your Honour.
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.
MR PAGE: Yes, Your Honour
HIS HONOUR: All right, no other orders required?
MS TRAN: No, Your Honour, just a direction that the sentence commences today for completion.
HIS HONOUR: Yes. This sentence commences today.
MR PAGE: Thank you, Your Honour.

R v Trevor TED

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