DPP v Minney [2020] VCC 1769 (27 October 2020)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

V

MATTHEW JOHN MINNEY

JUDGE:	Judge Johns
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2020
DATE OF SENTENCE:	27 October 2020
CASE MAY BE CITED AS:	CDPP v Minney
MEDIUM NEUTRAL CITATION:	[2020] VCC 1769

Catchwords: CRIMINAL LAW – Sentencing – One charge of using a carriage service to groom – One charge of using a carriage service to solicit child pornography material – Extra-curial punishment – Matters in mitigation.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Carlander-Munro	Commonwealth Director of Public Prosecutions

For the Accused	Mr P. Tiwana	James Dowsley and Associates

1 Matthew John Minney, you have pleaded guilty to one charge of using a carriage service to groom a person believed to be under 16 years of age, which carries a maximum penalty of 12 years imprisonment, and one charge of using a carriage service to solicit child pornography material, which carries a maximum penalty of 15 years imprisonment.

2 The facts of your offending are set out in the Prosecution Opening for Plea dated 25 September 2020 which became Exhibit A on your plea.

3 You were born on 4 September 1990 and were between 28 and 29 years of age at the time of the offending.

4 The offending conduct subject to this plea took place between March 2019 and September 2019 which involved communications with Under Cover Operatives (‘UCOs’) from Victoria Police who were undertaking covert operations on the social media platform ‘Kik’.

5 These conversations were conducted on a mobile device, recorded, saved, and then transferred to a computer by the UCOs.

6 Charge 1 relates to a conversation you had with an UCO who was purporting to be a 14-year-old female named 'SR'. You first contacted SR in March 2019 for a short period before ceasing communication due to your Kik account being deleted. Communications recommenced on 24 May 2019.

7 The most prominent examples of the offending conduct are extracted in Exhibit A which include you transmitting four photos of yourself to SR and requesting sexually suggestive photos from SR on multiple occasions.

8 Your communications with SR illustrate that you believed you were talking to a 14 or 15-year-old female and that you wanted to meet for a sexual encounter, however, unspecified.

9 You ceased communicating with SR when she would not provide a live image of herself and you began to become suspicious about her identity.

10 Between 6 and 12 September 2019, you engaged with a different UCO purporting to be a 14-year-old female given the pseudonym ‘LT’.

11 It is clear from the communications that LT is purporting to be 14 years of age. Regardless, you sent topless photos of yourself while also requesting pictures of her and enquiring about her sexual history.

12 Your requests for more sexually suggestive images were persistent until LT complied.

13 On 3 October 2019 Victoria Police executed a search warrant at your residence. Your Apple iPhone was seized with several photographs of LT being located on the phone as saved images.

14 You were interviewed later that day and admitted to chatting to both LT and SR explaining that you knew the profiles were 'fake' and that you only continued with the communications for your own entertainment by trying to discern the person's real identity.

15 Your personal circumstances were outlined in your counsel's written Outline of Submissions on Plea dated 29 September 2020 which was Exhibit 1 on your plea and forms part of these reasons.

16 You are currently 30 years of age, you have an older brother, Richard and two younger half-siblings born to your mother and stepfather.

18 Written submissions on your behalf describe your upbringing as difficult due to a lack of guidance and affection which has resulted in anxiety, depression, vulnerability to stress, persistent suicidal ideation, and seeking validation online from strangers. I accept that throughout your childhood and developmental years you were deprived of positive influences and emotional support and that those deprivations have had a lasting impact upon you.

19 I am told that until age 13 you were permitted by your mother to see your father intermittently, however, this stopped when your mother and stepfather gave you an ultimatum that you could not live with them if you continued to see your father.

20 Shortly after your older brother left the family home to live with your father. Your mother and stepfather extended their prohibition so that you could no longer see your brother either. You subsequently reconnected with your brother in 2017.

21 Your stepfather is described as a controlling and verbally abusive person whose bad behaviour was exacerbated by alcohol. An example of the controlling behaviour is that apparently you were required to be in bed by 7:30 pm for your entire childhood up to the age of 18. Further, you were denied affection by both your mother and stepfather, such as being left behind alone when they went on holidays, and they showed little interest in your life pursuits.

22 An examination of your academic history demonstrates your considerable athletic and sporting ability which prepared you well for your enlistment in the Australian Navy on 27 July 2009.

23 While serving you met your wife Georgia in 2010 when aged 20. You began living together in 2012 and married in 2017.

20 drunken males. You sustained some bruising and denied counselling offered by the Navy.

25 You served in the Navy for eight years doing a range of important and strenuous work. Operational work was also stressful understandably and you have reported that you were constantly 'On edge'. A number of examples of the hypervigilance required during specific periods and events was provided in your counsel's submissions and in the psychological report prepared by Ms Pamela Matthews. You left the Navy on 30 November 2017 at the rank of Able Seaman performing the role of electronics technician.

26 Upon leaving the Navy you undertook a course to be qualified as a personal trainer and obtained full time employment in a Keysborough gym, where you were promoted to manager.

27 During the COVID-19 pandemic you continued to conduct training sessions online, however, this was not sustainable, and you lost your job some six weeks ago.

28 At the time of offending you were experiencing great turbulence in your marriage due to a number of circumstances. These included the fact that your wife did not get along with your mother and stepfather which resulted in you ceasing contact with them, a reduction in your salary when you left the army for a career in personal training, and a significant amount of debt acquired to buy a home, which was later sold at a significant loss.

29 It was posited that these stressors drove you to find solace in your phone by talking to strangers, and that this activity provided validation, compensating for the personality traits which had stemmed from a deprived childhood.

30 As a result of your offending, your marriage has broken down and you have been through divorce proceedings.

31 Your wife was pregnant at the time of the separation and your son was born on 9 February this year. With the exception of five visits within the first two months of your son's life, you have been unable to connect with him.

32 A report by Ms Pamela Matthews, tendered as Exhibit 2 on your plea demonstrates the personal difficulties you were experiencing at the time of the offending and how you utilised online validation to deal with your stressors.

33 The report also goes some way to explaining how the relationships with your mother and stepfather, marked by attachment disruptions and family violence, detrimentally impacted your development and later relationships as an adult.

34 You reported to Ms Matthews that you found it difficult to communicate with your wife about your anxiety and depressive symptoms. You have been on Zoloft since November 2019 and were more recently prescribed Melatonin to assist with sleep.

35 Ms Matthews opined that your responses during evaluation demonstrate a pattern of maladaptive behaviour aimed at controlling anxiety of a level which causes a persistent level of tension and discomfort. Additionally, Ms Matthews identified that you experience frequent suicidal ideation.

36 Ultimately, Ms Matthews arrived at the conclusion that you have a compelling need for self-validation with a comorbidity of hypervigilance and avoidance related features resulting from trauma you experienced while serving in the Navy.

37 As I understand it, the trauma relates to the state of hypervigilance and state of ‘always being on edge’ referred to above, as well as a serious assault that you and colleagues were the victims of when set upon by some 20 or so drunken males also mentioned above.

38 Ms Matthews also referred to your heavy alcohol use during your Navy years and your reportage that you replaced alcohol abuse with a ‘phone addiction’ spending many hours a day on your phone, gambling, chatting and accessing pornography.

39 She noted that you have managed your high anxiety levels somewhat through regular exercise.

40 She administered psychological testing. She found that you were at a low risk of reoffending, subject to the risk factors driving your offending, being stressors relating to previous traumatic events and turbulent family relationships, are addressed.

41 Importantly you have insight into the potential for harm to children that is inherent in your conduct.

42 In a concluding paragraph to a very thorough and comprehensive report she wrote:

‘Mr Minney suffered significant life losses during 2019 and 2020, including the loss of his marriage, his child, his home, and his employment. He has suffered a Major Depressive Disorder as defined by DSM-5, which has resolved partly with psychological counselling and psychopharmacological treatment.

Mr Minney, however, still presents with sufficient symptoms to meet the DSM-5 diagnostic criteria for a diagnosis of Major Depressive Disorder, and in the writer’s view is a current and unpredictable risk of completing suicide. The writer is concerned should Mr Minney be incarcerated his mental state would deteriorate rapidly with a congruent escalation in suicide risk. Given

Mr Minney’s developmental vulnerabilities and mental state, any time he may spend in custody is likely to be quite onerous.’

43 These are offences that require penalties that reflect the need for general deterrence. General deterrence is a primary sentencing consideration. There is a paramount public interest in promoting the protection of children from sexual abuse. There is a difficulty in detecting the activity of predators such as yourself who would harm our children.

44 Activity such as yours, whether it strikes a real or fictitious victim, must be condemned and denounced in strong terms.

45 One aspect of this is summed up in the case of Rampley v R [1] referred to in the prosecution’s submissions:

‘...the offence is no less reprehensible when the offender is communicating with a fictitious person who they believe to be real than when communicating with a real person...The nature of the offence is such that the creation of fictitious identities and the involvement of police in communicating with offenders is necessary. Regrettably the reality is that many actual victims may not report the internet exchanges with the offender. Their own immaturity may result in a failure to appreciate the consequences of the behaviour induced by an offender. They may not report out of fear of the consequences either from the offender or from parental discipline.’

46 Your offending was persistent. You only ceased once you were sure that the recipient of your advances was a plant. Up until that point you may have had your suspicions that you were the subject of a ruse but you held some hope that the object of your advances was genuine and I reject your explanation to the police that you only engaged in the activity to detect the ruse.

48 There are other aspects of your offending which place it toward the lower end of the scale of offending, being that your contact was not overtly sexual or explicit in any way and the age of each imaginary victim was at the less serious end of the range.

49 Counsel on your behalf submitted that there are a number of factors in mitigation of the circumstances of your offending and your personal circumstances.

a) You are a person of previous good character with no prior convictions with references from your grandmother, Sarah McCann, your brother, Richard Minney and friend, Ryan Camille; all of which I have read and taken into account their testament as to your character.

b) I am satisfied you have some remorse for the offending although it must be said that you have sought, to some degree, to minimise your offending by maintaining that your conduct is substantially constituted by your endeavours to uncover the ruse.

c) The plea of guilty at your initial directions hearing was at an early stage. There is a significant utilitarian value to your plea of guilty, particularly so at this time.

d) I find you have strong prospects of rehabilitation due to a history of employment and lawful behaviour, further counselling sought from Mr Iacobucci since 23 October 2019 indicates that you do not appear to have any issues with illicit substances and in particular I accept the findings and report of Ms Matthews in her assessment based on testing, placing you at low-risk of reoffending, subject to those matters being addressed that she outlined in relation to the stressors.

e) You have the support of your brother, your father and your grandmother and in the context of your personal circumstances and history that is significant.

f) I do find that your offending was not at the lowest end of the scale, but it does fall toward the lower end, in that:

II. Chat or discourse was ‘mild’ in nature with no discussion of explicit sexual acts;

50 Your counsel submitted that you have suffered extra-curial punishment, and I seek to deal with this separately.

51 The extra-curial punishment in question is that as a result of the offending your marriage has broken down and currently you cannot visit your newborn son.

52 You are also unlikely to return to work as a personal trainer due to the requirement to pass a working with children check. You have also suffered the financial loss I referred to in relation to the sale of the house.

53 These matters constitute consequences of your conduct, and in a sense can be categorised as a form of punishment. I consider that these consequences of your conduct will assist in the specific deterrence required in your case in combination with the sentence I will impose.

54 Your Counsel Mr Tiwana also made submissions in relation to your experience in custody if you were to be jailed. The restrictions in custody due to the COVID-19 pandemic are particularly restrictive, specifically in relation to visits but also it would involve two weeks of quarantine which would essentially be isolation.

55 I have also taken into account the matters raised by Ms Matthews as to hardship in custody otherwise stated in her report.

56 I will not summarise the helpful and detailed prosecution submissions on sentence filed by Ms Carlander-Munro on behalf of the prosecution (Exhibit B) but I have considered them carefully.

57 The prosecution submitted that a recognisance release order was within range but that it was necessary for a period of the recognisance release order to be served in order to reflect the need for general deterrence and the serious aspects of the offending in your case.

58 A number of cases were referred to in support of the submission. In addition to the cases referred to in the table that form part of Exhibit B, Mr Tiwana, on your behalf, referred me to a number of other cases for consideration at paragraph 11 of his outline (Exhibit 1). He also referred me to the case of DPP(Cth) v Boyles [2016] VSCA 267.

59 Having considered all of the matters before me and the range of cases referred to I have concluded that whilst a modest term of imprisonment to be served as part of a recognisance release order would be within range in your case, it is also within range to impose a sentence which does not require immediate incarceration, and in your case there are good reasons to do so.

60 These include; your personal circumstances, including your childhood experiences and their psychological sequalae; the matters referred to in

Ms Mathews' report regarding suicidal ideation and the burden of imprisonment; your early plea and the significant utilitarian value attaching to it particularly at this time; your remorse such as I have found; your good prospects of rehabilitation; your previous good character; my findings as to the circumstances of offending, its place in the range, and the degree to which your conduct offends against the legislative objective of protecting children from being targeted by on-line predators; and the exigencies of custody when experienced in the COVID-19 pandemic.

61 Having regard to all of the matters, I am satisfied that general deterrence and other sentencing considerations can be met with you being sentenced to imprisonment and released upon a recognisance release order forthwith as well as a community correction order in relation to Charge 2.

63 On Charge 1, use a carriage service to groom a person believed to be under 16 years of age, you are sentenced to be imprisoned for two and a half years.

64 You are to be released forthwith upon a entering a recognisance of $500 on the condition that you be of good behaviour for a three-year period.

65 It is also a condition of this recognisance release order that you undertake to complete the Sex Offender’s Program and be the subject of supervision for a period of two and a half years.

66 On Charge 2, use a carriage service to solicit child pornography material, you are sentenced to a community corrections order of two and a half years duration and you must perform 150 hours of community work pursuant to the order.

69 HIS HONOUR: The effect of these orders is that you have been sentenced to two and a half years jail, Mr Minney, but you are being released upon recognisance immediately with the condition to complete the Sex Offender's Program.

70 You must complete that program, or you will be in breach of your recognisance and you will be brought back before me to be dealt with for the breach and you may be re-sentenced. That process could end in you being jailed. If you reoffend during the operational period of three years you will also be brought back before me to be dealt with and you may be re-sentenced. The prospect of you having to serve the two and a half years imprisonment or a portion of it will then arise.

71 Similarly, in relation to the community correction order, if you do not complete the hours, or you reoffend you will be brought back before me. The consequences could be that you are jailed in place of the community corrections order.

72 Charges 1 and 2 on the indictment are class 2 offences under the Sex Offenders Registration Act 2004 (Vic) and are registrable offences. As you have pleaded guilty to two Class 2 offences you are required to report pursuant to the legislation for 15 years. I direct that this be entered into the records of the court. Shortly you will be given some documentation to that effect.

73 Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty to these offences, I would have imposed a sentence of three years to be released on recognisance after serving two years.

76 HIS HONOUR: I always want to ensure it is technically correct when I am dealing with unfamiliar territory which it should not be for me given the number of matters I have dealt with recently but it never becomes second nature. Mr Tiwana is there anything that has come to your attention?

78 HIS HONOUR: What is happening now, Mr Minney, is the recognisance release order has been prepared, I have signed it. You will be asked to sign it. The community correction order is also being prepared. I will allow Mr Tiwana to speak to you briefly about that and you will then be asked to indicate your consent by signing it and then I will sign it and then the conditions of that community correction order are clear about reporting and I believe you will also be given the Sex Offender Registration Act document in relation to your reporting obligations.

79 You've heard what I have said, Mr Minney, particularly someone with your background and experience and work history I expect the strictest of adherence to both of these orders otherwise you will be back before me facing the consequences.

County Court of Victoria

DPP v Minney [2020] VCC 1769 (27 October 2020)