CDPP v O'Connell [2023] VCC 1741 (21 September 2023)

Last Updated: 20 October 2023

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00620

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
v
DWAYNE O'CONNELL

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2023
DATE OF SENTENCE:	21 September 2023
CASE MAY BE CITED AS:	CDPP v O'Connell
MEDIUM NEUTRAL CITATION:	[2023] VCC 1741

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence

Catchwords: Use a carriage service to procure a person believed to be under the age of 16 years – possess or control child abuse material, obtained or accessed using a carriage service

Legislation: Crimes Act 1914; s16A (2), s17A, s20 (1)(b)(ii)
Cases Cited: Worboyes v The Queen [2021] VSCA 169

Sentence: Convicted and sentenced to six months imprisonment with a two-year recognisance order.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms Z. Hough	The Commonwealth Director of Public Prosecutions
For the Accused	Mr D. Thomas	Victoria Legal Aid

HIS HONOUR:

1. Dwayne O'Connell, on 21 September 2023 at the County Court of Melbourne or Victoria sitting at Melbourne, you pleaded guilty to two charges on Indictment CR 23-00620:

Charge 1, use a carriage service to procure a person believed to be under the age of 16 years. This charge has a maximum penalty of 15 years' imprisonment;

Charge 2, possess or control child abuse material, obtained or accessed using a carriage service. This charge also has a maximum penalty of 15 years' imprisonment. You have no criminal history.

The Circumstances of Your Offending

2. The prosecutor tendered a prosecution opening for plea. It was undated but its contents were read into the record of the court. It was marked Exhibit “A”. At the time of your offending, you were 31 years of age. You are now 32, soon you will turn 33.

Charge 1

3. You used Chat IW and Snapchat applications to transmit conversations to a person, “Lucy”, who you were led to believe was a 14 year old girl. In fact “Lucy” was an undercover police officer. You transmitted those communications with the intention of procuring “Lucy” to engage in sexual activity with you. On
   5 July 2022 Detective Senior Constable Jade Flynn with the Victoria Police Joint Anti-Child Exploitation Team, was conducting covert online duties under the guise of a 14 year old female identified as “Lucy”. On that date you were using Chat IW account, “Marrryd_Ddy”, sent a private message to “Lucy”. You asked “Lucy” what she had been up to and she responded that she was on school holidays. “Lucy” asked you how old you were and where you were from. You responded that you were 31, you were from Melbourne,
   south-eastern suburbs, and asked, 'What about you? How and where from?' “Lucy” then responded that she was 14 and was in Cranbourne.
4. You then go on to ask “Lucy” what she looks like. She responded that she had brown hair, blue eyes and was slim. You have responded, “What a shame you're so young. A bit older and we could have so much fun”, and similar conversations. You then asked “Lucy” if she wanted to be bad. You go on to ask her if she has Snapchat and you told her that you hoped she can keep a secret. “Lucy” asked you, “A secret about what?” And you have responded, “Well, anything we might do to have fun, ha ha”.
5. This conversation then proceeded on Snapchat. You sent an obscured image of yourself and asked “Lucy” if you could have one back. “Lucy” sent you an image of a 14 year old girl with a cat filter with the text, “Heyyy”, and you told her, “You are cute af btw”. You then go on to try and organise meeting “Lucy” the next night. You introduce a topic of having sex with her. “Lucy” told you that she had never had sex before and that she is nervous. You told her that she can learn and that if she prefers, she can, “just suck my cock”. (That is you saying that). You continue in the conversation to get “Lucy” to meet you the next evening at Central Parkway. That is the tenor of the conversation. You proceeded to send “Lucy” an image of a street map with the location of Central Parkway playground and stated, “that that one near the main road”. “Know where that is?”. “Lucy” responded that she does and asked why you were meeting at a park. You told her, “Less people, that's why. Must have thought we wanted no one to see us”.
6. The conversation then continued.

“Lucy”: Hey, they tell us - you - us to be careful in school.

You: 'Ha ha, because it can be risky and they don't want you to fuck me yet, hehe.

“Lucy”’: Okay. Will you drive? Wat car so I know it's u?

You: I drive a Mitsubishi x.

“Lucy”: K colour? Is that fwd?

You: Red.

You have then said, “Now can I see what your wearing RN. After all, I mean I do hope to undress you hehe”. “Lucy” then sends you an image of a female’s body wearing blue bra and black underpants. You respond, “Oh, sexy as x. Made my cock hard. I loved it'. “Lucy” then responds that she tells you she was going to bed, to which you replied, “Sure. Blow me a kiss” and asked for one more snap. The majority of your messages were sent via the feature of Snapchat, not in that chat log, which allows you to place a timed viewing image on each message. This method allows for messages to be automatically deleted after they are viewed and not saved within a chat log. This method can be used to avoid a record of the chat and its contents being saved.

7. On 6 July, that is the very next day, your children were dropped off at your mother's house to be cared for as per the usual arrangements. You were rostered to work at JB Hi-Fi until 9 pm. At approximately 10 pm your red Mitsubishi vehicle was observed in the driveway of your home.

Charge 2

8. On that day, 6 July, the police executed the search warrant at your home at around about 10 o'clock pm. You were arrested. The police reviewed your mobile phone and found four images of child abuse material. There was one image of Category 1 rating, and three images of Category 2 rating. You participated in what was described as a field record of interview. On that day, 6 July 2022, you stated you could not recall the exact conversation with “Lucy” the night before but said you were potentially going to meet her at a park. The following questions and answers were given by you.

You were asked what was going to happen when you met up with “Lucy”?

To which you responded, ‘We were just going to meet up'. You then stated you did not know if “Lucy” was under 16 and that you thought she was 18. You then went on to say that “Lucy” told you she was under 18 but you did not believe that that was true. You stated, “I had no evidence to suggest she was or was not. From a conversation I had no evidence either way”. When you were directly asked “if she said she was 14 to you and her username is or has the number, 2008, a reasonable person, do you think, would believe maybe she's telling the truth?” To which you responded, “I think a reasonable person would question someone going on to an anonymous chat site as to whether or not the person is or is not being truthful”. You have then stated that there was “nothing confirmed to meet or not meet” and there “was not a specific plan”. You later stated that you were “potentially going to have a conversation today, meaning 6 July, to confirm” if you were going to meet.

9. You have then stated that when you were to meet that you were “open to having a bit of fun”. You were then asked what you meant by fun, to which you answered, “Oh, obviously what you would do in another adult, intimate. When portions of the chat were put to you directly you stated you could not recall it. You then stated the images located on your device, which contained children under 18, that you obtained them from “individuals online sharing or sending images through conversations”.

Your Personal Circumstances

10. You are 32 years old, soon to turn 33. You are the only child of your parents. After your birth you remained with your mother and were raised by her and your stepfather. You were raised in a stable family setting and have three younger stepbrothers. Each of them has provided very supportive references to you. They are part of Exhibit 6.
11. You completed Year 12 and commenced a Bachelor of Arts after that. You withdrew from your studies to support your family after the birth of your first child in February 2014. You and your wife had a second child in March 2015. You have had a number of sales related jobs in retail and also for energy companies. Your last job was at JB Hi-Fi, which had been for a period of approximately
    five to five and a half years. You lost that employment on being charged with these offences.
12. In 2020 your marriage ended in your wife leaving the family home. You remained and were caring for your two young children who were then aged six and five. You continued to work. In the period of your relationship, you have been described by your referees as the principal carer for your children and a very good father. As a result of these charges your children were removed from your care and an intervention order was put in place in respect of them and your estranged wife. Your contact with your children initially was once a fortnight by phone but I have just been told this morning that you have no contact with them as a result of a Family Court order.
13. After becoming unemployed you have commenced a Bachelor of Business at Swinburne in 2023. This course is done online. Your ambition is to conduct your own business in the future. You seek to retain custody of your children and support them into the future.
14. You have been assessed by Dion Gee, a Forensic Psychologist. His report is dated 2 August 2023 and was Exhibit 2. You were tested by Dr Gee, and he has formed the opinion that you a “moderate” risk of reoffending sexually in the future. He notes that you have a diagnosis of depression and general anxiety. Dr Gee recommended that you continue to receive psychological treatment and also sex offender treatment.
15. In late 2022 you were diagnosed with sleep apnoea and require the use of a CPAP machine to treat that condition. At present you live with one of your brothers and you receive Centrelink support and, as I say, have returned to study at university. You are otherwise unemployed.

Sentencing Considerations

16. The two charges before the court are Commonwealth charges in respect of child sex offences. Section 20(1)(b)(ii) of the Crimes Act 1914 (Commonwealth), referred to as the Act, is a relevant provision in this sentencing process and I will return to that. Section 17A of the Act provides that a court shall not pass a sentence of imprisonment for a Federal offence unless it is satisfied, after having considered all other available situations, that no other sentence is appropriate in all the circumstances of the case.
17. Section 16A(2) of the Act, sets out a non-exhaustive list of factors a court is required to consider when sentencing a Federal offender such as yourself. Some of those matters include the following:

(a) the principles of general deterrence;

(b) the nature and circumstances of the offending, including your moral culpability for them;

(c) the maximum penalties applicable to the charges that you have pleaded guilty to;

(d) if the offence forms part of the course of conduct, consisting of a series of criminal acts. This is not a relevant matter in this case;

(e) the fact that you have pleaded guilty to the charges;

(f) the degree to which you have cooperated with the law enforcement agencies in the investigation of the offences themselves;

(g) the deterrent effect of any sentence or order under consideration may have on you personally, that is specific deterrence;

(h) the need to ensure you are adequately punished for your offending;

(i) your character, antecedents, age, means and physical and mental condition;

(j) there probable effect of any sentence or order under consideration may have on your family or dependents;

(k) your prospects of rehabilitation and

(l) the fact that prison is, as I said before, a last resort in your case.

18. You are a man without a prior criminal history. Section 16AC of the Act also requires a sentencing court to take into account the level and degree of assistance and cooperation you have given the authorities. You have participated in a “field record” of interview at your arrest and made admissions to investigators. You have pleaded guilty to these charges at the earliest time in this proceeding. Your plea of guilty and cooperation with police indicate and demonstrate remorse on your part and I accept that you are remorseful for your offending. You have expressed remorse to Dr Gee and I accept your remorse is genuine.
19. Your plea of guilty also has utilitarian value. You have allowed for the orderly administration of justice to take place. There a certainty of outcome and resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
20. You have no prior criminal history and are otherwise a man of good conduct and character.
21. The Court of Appeal in Worboyes case reported at [2021] VSCA 169, set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic and its sequelae. That is the ongoing delay. These considerations were reinforced in the Court of Appeal in the case of Rossi v The Queen reported at [2021] VSCA 296, which recited passages from the Worboyes case. I am not going to read them all out.
22. The Worboyes discount, as it is referred to, has particular operation in your case because you had been on bail for the whole of the time since you have been arrested and charged. The Court of Appeal simply said:

“Although a sentencing judge need not quantify the extent to any discount, he or she must ensure that a plea of guilty results in a perceptible amelioration of sentence”.

23. You are entitled to the ‘discount’ in this case.
24. As a result of being charged with these offences two significant changes were forced upon you. The first is that the two children that you were the primary carer for in the two to three year period of separation from your wife were taken away from you immediately. An intervention order was imposed limiting your contact with them to a phone call once a fortnight initially and now nothing.
25. The second immediate change was you were sacked from your employment which you had been engaged in for some five to five and a half years. You were out of the family home. These forced changes or punishments are outside the criminal justice system but nevertheless are consequences of your offending.
26. Since your arrest and the forced changes to your life to which I have just referred, you have engaged in psychological treatment with psychologist, Dr Jane Bretherton. Your treatment with Dr Bretherton has involved cognitive behavioural therapy and reflection by you on the reasons for your offending and the effect of your offending. In total you have seen her on 21 occasions.
27. You have also enrolled in a business studies course at Swinburne University. This is to assist you in gaining skills to run your own business and to re-engage with employment. The above two matters combined with your strong family support from your mother, who is present in court, your step-father and your three brothers, one of whom you live with, lead me to assess your prospects of rehabilitation as very good. You have activated and driven the rehabilitation process since your arrest to the present time, under the cloud of the prospect of incarceration.
28. Your moral culpability for both of these charges is considerable. In respect of Charge 1 you did not know “Lucy” was an undercover police officer. You communicated with “Lucy” on one day with a number of explicit sexual matters to a person that you were told was a 14 year old girl. You made tentative plans to meet in a location and you transmitted a map to “Lucy”. You never made or fixed a time and day. You told police you were possibly going to meet.
29. The offence of procuring a child for sexual activity is a serious offence. The maximum penalty for it of 15 years clearly sets that fact out. In your case, taking into account there are no explicit images transmitted during those conversations, or a specific time and date for the meeting involved in your offending, and it is limited to one day, that is a communication limit to one day, places it at the lower level of offending of this kind.
30. In respect of the prosecution of child abuse material the prosecutor conceded this was at the low end of offending for that offence. That is not to take away from the seriousness of the offence. The possession is of four images: one image in Category 1; three images in Category 2. The primary sentencing consideration in offences of online for possession of child abuse material is general deterrence. Whilst it is not alleged that you have made a financial gain by this offending, you have never-the-less contributed to creating a market for the continued corruption and exploitation of children.
31. Specific deterrence has a lesser role to play in your sentencing process. I refer to the factors relevant to your prospects of rehabilitation which are also relevant to the specific deterrence in your case. There I am referring to the matters that immediately happened to you upon being charged.
32. The legislation requires a finding of exceptional circumstances to be made if a term of actual imprisonment is to be avoided by you in this sentencing process. Your counsel submitted a combination of factors were relied upon to make a finding of exceptional circumstances.
33. I accept that the following matters when considered in combination amount to exceptional circumstances in your case:

(a) you have no prior convictions and are otherwise a man of good character and I rely upon Exhibit 6 to make that statement;

(b) you have provided an early plea and have done so when the courts are still dealing with the delays caused by the COVID-19 pandemic;

(c) you have voluntarily entered into psychological treatment to deal with your problems;

(d) you have good prospects of rehabilitation. I say they are very good prospects;

(e) you are generally remorseful for the offending; and

(f) you have been specifically deterred by these proceedings, including, as

I have said before, the loss of your children and your employment.

34. The principles of general deterrence, denunciation of your criminal conduct and protection of the community and just punishment dictate that a term of imprisonment for these two offences is appropriate. However, for the reasons expressed in respect of the specific deterrence, rehabilitation and my finding that exceptional circumstances apply in your case, it is appropriate to order as follows:
35. On Charge 1 you are convicted and sentenced to a term of four months' imprisonment to commence on 21 September 2023.
36. On Charge 2 you are convicted and sentenced to a term of imprisonment of three months, which is to commence on 21 December 2023.
37. That is a total effective sentence of six months' imprisonment.
38. I order that under s21B of the Crimes Act that you are to be released forthwith on a $1,000 security and you are to be of good behaviour for a period of
    two years.
39. I further order in those conditions that you are to be under the supervision of the Deputy Commissioner Community Corrections Services Offenders Management or his or her nominee for a period of one year. That you are to attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce sex offending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee, and that you are to undertake such treatment or rehabilitation programs as this person or their nominee reasonably directs, and that you are to attend and receive psychological treatment from
    Dr Jane Bretherton or her nominee for a period of one year commencing today, 21 September 2023. I think that is it.
40. MR THOMAS: As the court pleases.
41. HIS HONOUR: Is there anything further? From the Commonwealth it is always difficult to get the order right. Do you understand what I am ordering?
42. MS HOUGH: Yes, Your Honour, I do.
43. HIS HONOUR: Thanks.
44. MS HOUGH: Your Honour, there is just another further issue. The Commonwealth is just seeking a forfeiture order of the two phones that were seized.
45. HIS HONOUR: Yes. There would be no objection to that? Sorry,
    Madam Prosecutor.
46. MR THOMAS: There is no objection. The only thing I just have to say is that one of those phones is not actually his. It is a work phone.
47. HIS HONOUR: What, JB Hi-Fi?
48. MR THOMAS: That is right. So, I do not have any objection to it but I cannot consent to it as such.
49. HIS HONOUR: You cannot consent to it, all right.
50. MR THOMAS: There have been discussions behind the scenes of obtaining some personal data from that phone, photographs of Mr O'Connell's children, and that will take place prior to any forfeiture, but we do not oppose the application.
51. HIS HONOUR: All right. Could I ask, Madam Prosecutor, has that been sorted. what he requires?
52. MS HOUGH: The informant has advised that she is happy to download the relevant photos from the phone and provide them to the offender before the phones are disposed of.
53. HIS HONOUR: Destroyed, yes.
54. MS HOUGH: I have a s23D of the Crimes Act 1914 does state that forfeiture of devices involved in child abuse material offences is mandatory, like there is no discretion.
55. HIS HONOUR: Yes. No, I will make the order for forfeiture.
56. MS HOUGH: Yes.
57. HIS HONOUR: I just wanted to make sure - - -
58. MS HOUGH: The informant has advised defence that she is happy to make those downloads available.
59. HIS HONOUR: All right, thanks.
60. MS HOUGH: I do have a draft order to hand up.
61. HIS HONOUR: Have you got the forfeiture orders? Thanks. What about
    JB Hi-Fi? Did anyone ring them up and tell them they lost their phone? No?
62. MS HOUGH: No position on that, Your Honour.
63. HIS HONOUR: No, all right. I think there is a draft order.
64. MS HOUGH: And, Your Honour, can I just confirm that Your Honour will be making the - just noting the Sex Offender Registration Act.
65. HIS HONOUR: Yes, sorry. There are two further matters.
66. MS HOUGH: Yes.
67. HIS HONOUR: Section 6AAA, but for your plea of guilty I want to make it very clear I just would have sentenced you straight out for six months you would serve. The other one is Sex Offender Registration is a period of 15 years. That is based on the fact that you have been convicted of two charges of
    Category 2 offences under that Act, and I will just check about the - the draft order I will just hand down to the parties first to make sure they can check that off, get it right.
68. MS HOUGH: Your Honour, just one condition that I am not sure we included was the condition not to travel interstate or overseas without the written permission of the probation officer.
69. HIS HONOUR: No, I have not put that in.
70. MS HOUGH: That is a compulsory condition in accordance with s20(1)(b) of the Crimes Act 1914.
71. HIS HONOUR: All right, I will have that included.
72. MS HOUGH: Thank you, Your Honour.
73. MR THOMAS: No objection to that, Your Honour.
74. HIS HONOUR: Yes, thanks. Have you got a draft order that fits all those things in it? Because - - -
75. MS HOUGH: Yes, Your Honour. My instructing solicitor emailed one through to your associate over lunch time.
76. HIS HONOUR: All right. So a term of six months is in there somewhere.
77. MS HOUGH: Apologies, Your Honour. The draft was sent with the conditions before the order was read out. So that Your Honour's order could be inserted.
78. HIS HONOUR: Yes. Just whilst that is being sorted out, Mr O'Connell, I just want to impress upon you your obligations under the Sexual Offenders Act. You have to report - you read what you get very carefully, what you have to do because many people that this order is made about breach those orders and they carry imprisonment. The reason for the orders are basically people who offend as you have done are tracked and traced. So make sure you comply with each and every one of the conditions. I cannot impress upon you that enough. I just want to let you know that you have gone so close to going to gaol. You can take a seat. Madam Prosecutor, the order that has been sent through to me does not reflect what I want.
79. MS HOUGH: Yes, Your Honour.
80. HIS HONOUR: I will just read it to you. The order that the release of the defendant under this after serving six months of imprisonment should be, is sentenced to six months and then released forthwith.
81. MS HOUGH: Yes, Your Honour. The version sent through is just a draft one that did not have any period of time put through. If it says, 'after serving', that could just be crossed off and say, 'released forthwith'.
82. HIS HONOUR: All right. If he enters it, I will sign it. Mr Thomas, if you just want to give it - - -
83. MR THOMAS: Yes, thank you, Your Honour.
84. HIS HONOUR: And I will get the - you have got the sex offender's - yes, thank you. Does that order reflect everything?
85. MS HOUGH: Yes. The prosecution has no issues with the order, Your Honour.
86. HIS HONOUR: Yes, thank you. Counsel, thanks very much for your assistance in this matter. You are free to step out of there now.

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