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DPP (Cth) v D’Angelo [2020] VCC 1097

sentence — using a carriage service to procure a person under age of 16 years to engage in sexual activity offence contrary to s 474.26(1) of the Commonwealth Criminal Code, using a carriage service to transmit indecent communication to person under age of 16 years offence contrary to s 474.27A of Commonwealth Criminal Code — additional state summary offences uplifted to County Court from Magistrates’ Court — guilty plea — s 16A(2)(g) — early pleas of guilty which have significant utilitarian value, particularly as criminal trials have been suspended from March 2020 due to the COVID-19 pandemic — pleas show willingness to facilitate the course of justice and have saved the time and expense of a trial — nature and circumstances of the offence — s 16A(2)(a) — Court accepts offending occurred in context of low period of offender’s life following break-up of relationship and in context of offender having struggled on and off with anxiety and depression over some 20 years — offender not medicated for anxiety and depression during period of offending but relied upon increased usage of alcohol — this can never excuse such offending — offender should be in no doubt about the seriousness of offending — offences are prevalent and difficult to detect — notwithstanding undercover police officer recipient charge 1, offence is no less serious than if the person had in fact been a child  — offending only ceased because victim ceased responding to offender and because offender was arrested respectively — though deeply concerning, offending not as extensive in gravity as one often sees in these types of cases — no aggravating features of bullying or intimidating conduct or threats to blackmail a child with indecent photographs of themselves — used own name and number, demonstrating not experienced, sophisticated predator upon children — general deterrence — s 16A(2)(ja) — emphasis must be placed upon general deterrence so that others who are minded to act in a way that debases children by crudely treating them as sexual play things before they have the maturity to deal with such conduct will know that they will be appropriately punished — specific deterrence — s 16A(2)(j) — specific deterrence as offending overall took place over 2.5 months — concerning lack of response from the person with whom you were communicating on charge 1 coincides with you beginning to communicate with your victim on charge 2 — contrition — s 16A(2)(f)(ii) — offender somewhat minimised offending stating they “got sucked in by the undercover operative” and nowhere has offender acknowledged potential adverse impact of offending upon victims — although offender accepted responsibility for offending by pleading guilty and sentencing judge accepted offender truly ashamed and has some remorse, offender should undertake a Sex Offenders Program to increase insight — to offender’s credit they expressed willingness to undertake such offence specific treatment — character — s 16A(2)(m) — no prior criminal history — nature of this serious offending is such that less weight given to prior good character than might otherwise be the case — rehabilitation — s 16A(2)(n) — mental condition — s 16A(2)(m) — lack of prior offending relevant to prospects of rehabilitation — excellent vocational history and close supportive family — since offender voluntarily engaged in counselling and compliant with mood stabilising medication — together with reduction of alcohol intake, resulted in Persistent Depressive Disorder with anxious distress moving into early remission — in sentencing judge’s view, that is significant rehabilitative step which gives Court some comfort offender likely to have good prospects of rehabilitation — hardship to the offender — given offender 41 years old with no prior or subsequent involvement in criminal activity never served immediate custodial sentence, sentencing judge considered offender will find serving term of imprisonment challenging — likely to have far more punitive effect upon offender who has suffered long term psychological fragility in terms of anxiety and depression — sentencing judge held very real fears offender is type of person who may well be crushed by a prison environment if incarcerated for significant time, not only may their mental health deteriorate but rehabilitative gains offender have made may be lost — COVID-19 — offender taken into custody for the first time during more onerous conditions of imprisonment during the COVID-19 pandemic — offender endured 14 days of isolation, and prisoners were locked in their cells for 23 hours each day following detection of an active case of COVID-19 in order to try to contain the spread of the virus — offender’s prison is one of two prisons which remains in lockdown indefinitely — onerous way to serve imprisonment — availability of rehabilitative programs in custody very significantly reduced and face-to-face programs are almost non-existent — from 8 July Victoria under lockdown and at time of imposing sentence there is no end in sight for more onerous conditions of imprisonment associated with the pandemic — aware that a medication offender was taking to manage psychological state is not prescribed in prison and likely offender will need period of readjustment — sentence — imposed 23 months’ imprisonment to be released after serving period of 4 months upon recognisance release order — s 6AAA — but for guilty plea, would have imposed 4 years’ imprisonment with a 3 year non-parole period
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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