STATE OF TASMANIA v STEPHEN CHARLES MUNDY 13 AUGUST 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Mundy, the defendant, has pleaded guilty in the Magistrates Court to one count of making a communication with the intention of exposing a young person to indecent material. I am also dealing with his plea of guilty to a summary charge of possessing a bestiality product. The communication the subject of the indictable offence was made between mid-September 2018 and mid-October 2018. The complainant is a male, then aged 13. About six months earlier, the defendant met the complainant’s parents. They became friends. Some time after, the complainant and the defendant became Facebook friends and started to communicate by way of a Messenger application. They exchanged typed messages and would also “video chat”. From benign conversations, the defendant started to send inappropriate messages. This culminated in him asking the complainant for photographs of his penis, asking him to stay over at the weekend, and suggesting sexual activities. The defendant repeatedly asked the complainant to send photographs of his penis to him. Because of the defendant’s persistence, the complainant did so. The photographs were of the complainant’s naked body including his face, as well as of his erect penis, and he also sent a video of himself masturbating. The complainant told the defendant that because he, the complainant, had sent photographs, the defendant needed to reciprocate by sending photos of himself. The complainant said he did this so that “had something on” the defendant. The defendant sent about two photographs of erect penises to the complainant. The Crown cannot say whether they were photographs of the defendant’s penis, but other material before me would suggest it was not. The matter came to light when the complainant was staying at a friend’s home and received a video call from the defendant. As the complainant was behaving inappropriately, the friend told his mother who, in turn, told the complainant’s mother. On 16 October 2018 police searched the defendant’s home. The defendant’s mobile telephone was taken and examined. That revealed what had happened. A laptop computer was also taken. It was later found to contain 163 images of bestiality. When interviewed, the defendant essentially admitted his conduct towards the complainant, saying he had done a terrible thing. He said he was inebriated on the particular night, and blamed alcohol and prescription medication. He said he had deleted the images the complainant had sent him. He said he knew the complainant was nearly 14 years old, and denied being attracted to him. I have a victim impact statement from the complainant’s mother. She says the complainant started getting into trouble during the relevant period, both in and out of school. He ultimately lost seven months of schooling and had to transfer schools. The complainant reports that he no longer feels safe sleeping alone and has regular nightmares. He has become very withdrawn, apparently due to friends discovering what had happened to him and bullying him about it. He feels ashamed of what happened, and until recently was convinced that he had done something wrong. He sees the defendant in and around the area, and that triggers anxiety and depression.
The defendant is now 58 years old, 57 at the time. He has no relevant recorded history of offending, but he has three drink driving convictions between 1992 and 2011. His use of alcohol has some relevance in these proceedings. I have detailed submissions from counsel and the benefit of a home detention assessment report dated 6 August 2019. They reveal the following matters. The defendant had a disrupted upbringing. His parents separated when he was 5, his father being described as an alcoholic and a very violent man. Family violence was prevalent. He stayed with his mother until he was 11, and then lived with his father until he was 16. He was educated to grade 8, but reports being bullied by his peers about his sexuality and weight. However, he has an excellent industrial record having worked with the one company for 30 years before, unfortunately, being the victim of a robbery and serious assault. That left him with physical injuries and exacerbated his long battle with depression and anxiety. At about that time, he was diagnosed with bipolar disorder and he started abusing prescription medication. He says his mental health deteriorated significantly, and on two occasions he attempted to take his own life, with subsequent admissions to a mental health facility. This situation significantly worsened in February 2018, upon the death of the defendant’s partner of four years, a person he had known for 20. His daily drinking reached extreme levels, and he was taking 12 times the prescribed dose of a benzodiazepine, in addition to abusing another sedative and his antidepressant medication. After being spoken to by police, I am told the defendant realised he had made a terrible mistake and needed to change his ways. He has very substantially reduced his alcohol intake. His use of medication is as prescribed, although he now does not need any sedative medication. He feels his mental health is now stable.
I take into account the pleas of guilty; that to the indictable offence was entered on the defendant’s first appearance. As to the indictable offence, given the defendant’s situation at the time, and lack of relevant recorded history, I am satisfied that the conduct was out of character. I take into account the significant and successful efforts at rehabilitation in terms of the abuse of alcohol and medication. At the same time, the sexualisation of young people is a serious matter. The defendant is, though, only to be sentenced only for sending the two images. He is not to be sentenced for the prelude including eliciting images from the complainant, although all of that is relevant context. It might be said that defendant was pressured by the complainant to send the images, but the defendant created the situation and, broadly speaking, the age difference and position imbalance must be recognised. As to the possession of bestiality images, it seems that he acquired the laptop computer from a friend who had placed the images on it. He was aware of their presence, but asked his friend to delete the material because he did not know how, and thought that had been done. He accepts that he knew they were there in 2015 when he got the laptop, and accepts that he should have ensured that they were no longer there. I am satisfied that he had and has no interest in them. The Community Corrections report addresses the risk of sexual recidivism. Based on the results of an assessment guide, the long term risk was identified as being in the average range. The defendant was assessed as not being suitable for a home detention order.
Mr Mundy, I have set out what I see to be the relevant facts and considerations. As to the indictable matter I have decided in the end that a suspended term of imprisonment is the appropriate penalty, and, given that I will be putting your name on the Community Protection Register, there is no need for any additional sanction having a more immediate effect on you. All of that will mark the seriousness of the offence, but recognise the matters that operate in your favour. You are convicted and sentenced to five months’ imprisonment the execution of which is suspended on condition you commit no offence punishable by imprisonment for a period of two years. On the summary charge, given the circumstances, I am prepared to dispose of the matter by dismissing it without recording a conviction. The law requires me to order that your name be placed on the register under the Community Protection (Offender Reporting) Act, unless I am satisfied that you do not pose a risk within the meaning of that Act. Notwithstanding my acceptance that the offence was out of character, on the Community Corrections assessment I cannot be satisfied that there is no risk. Your name will be placed on the Register and you will have to comply with the reporting obligations for a period of three years.