DPP v Zarb [2014] VCC 1517

County Court of Victoria|2014-09-04|Before: Mr P

1 Darren Paul Zarb, you have pleaded guilty to one charge of accessing child pornography and two charges of transmitting child pornography pursuant to s474.19(1) of the Criminal Code (Cth). Each of these offences carries a maximum penalty of 15 years' imprisonment.

2 The circumstances of your offending are summarised in the prosecution opening (Exhibit "A").

3 On 5 December 2013, a Queensland police investigator accessed an adult website as part of a controlled operation aimed at gaining evidence of offences involving child abuse and child exploitation material. The investigator engaged in a chat with you under your pseudonym "AussieMelbDad", which had a profile stating "Hard-core porn lover and always looking for others into taboo, no limits chat". In the course of the chat you stated that you have children who are girls, love the fantasy of fucking your daughter just to get back at your ex, and that age eight is a "hot age" because you "love them smooth". The police investigator and yourself exchanged user names to facilitate the exchange of child pornography images or videos by Yahoo Messenger.

4 You sent three child pornography images to the police investigator. According to the Child Exploitation System (CES) Scale, one was a Level 1 image (which depicts children with no sexual activity). Two were Level 4 images (which depict penetrative sexual activity between children and adults). You commented in relation to one of the Level 4 images "very cute lil girl cunt ... she's about eight ... your daughter's age ... niiiice". The transmission of these three images constitutes the offending on Charge 3.

5 On 11 March 2014, investigators from Victoria Police executed a search warrant at your residence. A laptop computer was seized. Forensic analysis of the hard drive of the computer located 415 child pornography images and one child pornography movie, which had been downloaded by you between 10 December 2012 and 10 March 2014. According to the CES scale, 310 of the images were Level 1 (depictions of children with no sexual activity); 15 of the images were Level 2 (solo masturbation by a child, or sex acts between children); 20 of the images were Level 3 (non-penetrative sexual activity between a child or children and adult or adults); 57 of the images were Level 4 (penetrative sexual activity between a child or children and adult or adults); 11 of the images were Level 5 (sadism, bestiality, humiliation or child abuse); and 2 of the images were Level 6 (anime, cartoons, comics and drawings depicting child or children engaged in sexual poses or activity).

6 In addition to the 415 images, forensic analysis revealed that you had used a peer-to-peer file-sharing program to search for and download other child pornography and had frequented and contributed to online chat forums with a variety of very obvious child abuse titles.

7 Your access to the 415 images and the other material to which I have referred constitutes your offending on Charge 1.

8 Further analysis of the hard drive of your laptop computer revealed that on 7 August 2013 you had transmitted three Level 4 images, two Level 1 images, and one Level 4 movie to one recipient, and four Level 4 images to a second recipient. Such transmission comprises your offending on Charge 2.

9 Prior to the analysis which revealed the offending on Charges 1 and 2, you had been arrested and interviewed by police on 11 March 2014. Amongst other things, you stated that you surfed porn sites casually, which is how you discovered the website on which the Queensland Police investigator had chatted with you on 5 December 2013. You claimed that you visit that website when you are on drugs or really drunk, and that you had been really drunk during the chats on 5 December and had no memory of the contents of such chats. You claimed that you did not know that that site was illegal, and you accessed it to look at pornography. You admitted that you had been on that site the night before the search warrant was executed on 11 March 2014. You admitted that you knew that it is illegal to access and transmit child pornography, and stated that you were "in a cycle of addiction and porn is an addiction".

10 You are presently aged 47 years, having been born on 31 August 1967. You come before the court with no relevant prior history. Your only previous court appearance was on 10 May 1994 at Prahran Magistrates' Court on a charge of resisting police. Without conviction, you were fined $350 for that offence.

11 In a plea on your behalf by Mr Morrissey of Senior Counsel, the court was told that you had had a difficult background, as detailed in the report of Mr Patrick Newton, forensic psychologist, dated 21 August 2014 (Exhibit "1"). Your mother had been an alcoholic and you had never known your father. You were subjected to aggression and neglect from your mother, as well as the adverse impact of multiple short-term relationships which your mother had with men, some of whom were violent towards her and yourself. Apparently you have five half-siblings, each of whom have different fathers to yourself.

12 When you were aged approximately 10 years, you and one of your siblings were placed in the care of your half-sister, Carole, and her husband, Paul. Carole is considerably older than you and has three children of her own. You became part of her family, and adopted the surname of herself and her husband. You had no further contact with your mother. You refer to your sister, Carole, and her husband as your parents. They and their children provided a secure and harmonious family environment for you. However, Mr Newton expressed the view that your chaotic early childhood had a profound effect upon your personality and behaviour. You manifested a range of disruptive behaviours at school and played "the class clown" and, from approximately age 10, began to engage in binge drinking.

13 In spite of your behavioural issues, you completed Year 12 and ultimately completed a Bachelor of Business Studies at RMIT, majoring in Industrial Relations and Human Resource Management. At an earlier time, you had apparently worked for some years as a plumber's labourer, during which you learned quite a bit about the building industry. This knowledge, together with your academic qualifications, enabled you to move into successful management roles in that industry. Your most recent employment was with a company called Programmed Property Services. You worked with that company for six years, and rose to become general manager of sales, earning a salary of $160,000 per annum.

14 Mr Morrissey stated that you worked very hard to support your wife, whom you had married in 1993, and your three children, a daughter, now aged 21 years, and twins, now aged 17 years. He stated that you were an anxious, driven person and you worked long hours, which included having to entertain clients and contacts in the industry. You handled the stress of the situation by drinking heavily and also by using drugs, principally cocaine and Ice. You, also, began to rely progressively on pornography.

15 According to Mr Morrissey, your family were aware of your problem with alcohol, but not your use of drugs and pornography. Your dependence upon alcohol and drugs and pornography reached the point where, most evenings after dinner, you would go into your study and close the door, and drink and use drugs and access pornography for hours and hours at a time. You had made attempts to engage with Alcoholics Anonymous. You successfully controlled your alcohol use by abstaining for some three or four years from approximately 2005, but, during this time, substituted drugs for the alcohol. Mr Morrissey stated that, by 2009, you felt that you could cease attending Alcoholics Anonymous because you were in control of your alcohol use, but then started to abuse alcohol again, in combination with drugs and pornography.

16 Following your arrest in March this year, you resigned from your employment with Programmed Property Services, and have not worked since. You accessed your superannuation in order to pay $35,000 for a 90-day inpatient detoxification program at the Raymond Hader Clinic in Geelong. A report from Isam Sansil, addiction clinician and senior counsellor at that clinic, dated 12 August 2014, was tendered on the plea (Exhibit "2"). He noted that you had a severe substance dependence which originated over 20 years ago. He stated that, over time, you had experienced an uncontrolled toxic intake of the drug, Ice, and, despite being aware of its negative consequences, could not stop using it. Prior to being admitted to the clinic, your average daily use was one gram. You also abused alcohol by consuming in excess of half a bottle of spirits four or five times a week and, often, used cocaine at the same time.

17 Mr Sansil stated that it is quite clear that you meet the criteria for a substance dependence disorder, and you need to abstain permanently from the use of all drugs, including alcohol. He stated that you fully participated in all aspects of the 90-day residential treatment program and became a senior resident of the recovery community by demonstrating leadership and supporting others in their recovery. He stated that you demonstrated great insight into your addiction and underlying issues. He noted that you were discharged to live with your "parents" (that is, your sister, Carole, and her husband) and would require regular self-help support groups, drug and alcohol counselling, and a psychologist.

18 Mr Newton's report, to which I have previously referred, was produced following an assessment which he conducted on 1 July 2014. He noted that, during the assessment you were in an emotionally labile state, but provided valid test profiles. He considered that your answers to psychological testing suggested the presence of moderate to severe emotional and behavioural difficulties, together with a relatively high risk of impulsive self-harm.

19 Following feedback from Mr Newton's assessment, you requested counselling. He referred you to Dr Mathew Barth, another psychologist at Mr Newton's practice, for cognitive behavioural therapy to address sex offence specific behaviours, increase insight, improve social skills and self-esteem, and reduce the risk of recidivism.

20 Mr Newton took a history that, since your disruptive childhood, you had had a pervasive sense of inadequacy and poor self-esteem, but had never sought professional treatment for these. He noted that you had first viewed pornographic magazines in secondary school, and your use of pornography had escalated markedly from about 2006 when you gained access to the high-speed internet. You linked the use of internet pornography to your abuse of alcohol and drugs, and told him that you found the material engrossing and it had become a regular way of "escaping from stress". He described you as becoming increasingly habituated to the material and compulsive in your search for novel material, such that you accessed increasingly deviant material and engaged in extensive online chat with individuals regarding a range of paedophilic and related content areas. You reported that you found the material compelling and sexually arousing and, even though you felt considerable guilt and shame over accessing it, you were unable to resolve to discontinue engagement with it. You have desisted since March 2014, but had not received any offence-specific treatment until after you consulted with Mr Newton.

21 Mr Newton stated that you showed no active symptoms of psychosis or thought disorder, your reality testing and moral reasoning are unimpaired, and your intelligence is in the high end of the normal range. He stated that, although you had expressed a clear orientation towards sexual interactions with adult women and were adamant that you had never participated in any form of actual sexual contact with underage individuals, your offending clearly raised concerns about your sexual adjustment. He stated that the deviant nature of the material you accessed, together with the extended duration of your involvement with it, and the progression of your behaviour to include extensive engagement with others via chat-rooms and other online venues "all point to the presence of wide-ranging diverse and entrenched deviant sexual cognitions." These were intensified by drug and alcohol abuse.

22 He noted that you acknowledged that you had been sexually aroused by a wide range of paraphiliac material. He considered that your engagement with child pornography went well beyond mere "escapist fantasies" or a secondary complication of substance intoxication and indicated the presence of "significant psychosexual pathology". He considered that your offending behaviour was sufficiently problematic to meet the DSM-V diagnostic criteria for an Unspecified Paraphiliac Disorder.

23 Mr Newton noted that there were no specific actuarial risk assessment tools for use with individuals charged with online offences. He stated that stable risk factors in your case indicate a relatively low risk for recidivism. These take into account your age, your good employment history, the lack of any prior criminal history, and your capacity to sustain a long-term marriage. However, he stated that a review of dynamic risk factors suggests that this estimate may well underestimate your level of risk. The main issues identified are the dysfunctional arousal patterns and deviant cognitions and, particularly, the diversity of your paraphiliac interests, together with the entrenched and compulsive nature of your online activities, which he described as "deeply concerning". He noted the strong role played by substance abuse, and considered that your social skills remain relatively poor.

24 Overall, Mr Newton stated that these dynamic risk factors raise your risk of recidivism beyond the low risk range to the moderate risk range. However, he did note that there were protective factors. These included participating actively in initial treatment and making good progress towards specific treatment goals. He considered that further participation in treatment, and sex offender registration, would most likely reduce your overall risk of recidivism which related almost entirely to your use of internet or other "virtual" offending. However, he noted that your treatment is at a relatively early stage.

25 Mr Newton noted longstanding depressive mood disturbance and severe interpersonal anxiety, and considered your current symptoms incorporate both chronic elements from your abusive childhood and more reactive elements derived from your current legal predicament. In paragraph 48 of his report he stated that you "would clearly meet DSM-V criteria for a 'Persistent Depressive Disorder (Dysthymia)'" (superimposed on prominent traits of "Borderline Personality Disorder"), yet he had earlier, in paragraph 36 of his report, referred to you having only "elements" of Persistent Depressive Disorder. He also stated that you had a "Severe Substance-Use Disorder" involving alcohol, cocaine and MDMA, but that was in the early stages of remission.

26 In conclusion, Mr Newton noted that you recognise the gravity of your offending and experience a deep sense of shame for your behaviour. He noted that your emotional response to your offending had been intense, to the point where your distress becomes a state of despondent brooding and you turn over morbid thoughts, including fantasies about the relief which death would bring. He noted you had experienced significant suicidal ideation at the time of your arrest, and that you have experienced this intermittently since then. He considered that you remain at an elevated risk of self-harm.

27 Mr Newton stated that, if you were to be given an immediate custodial disposition, it is likely that you would find the adjustment difficult, and that you would require relatively intensive professional support in the initial period, as you would be vulnerable to more intense and more frequent mood disturbance. He considered that you would likely find imprisonment relatively onerous, and your naivety about the prison environment, together with the nature of your offending, would contribute to some additional challenges in your experience of custody.

28 Oral evidence was given at the plea hearing by Dr Mathew Barth, to whom you had been referred for counselling by Mr Newton. He had first seen you in late July 2014 and you have attended him on a total of five occasions for treatment of your sex offending and depression. Dr Barth stated that, unlike Mr Newton, he did not consider that you have a persistent level of depression, but, rather, suffer episodic depression reactive to specific stressors in an interpersonal sphere. His diagnosis is of an Adjustment Disorder with depressed mood, which, at present, is severe, as manifested by a quite profound level of emotional distress during sessions with him, some intrusive suicidal thoughts, and generally feeling overwhelmed. Dr Barth stated he did not have enough information to proffer a diagnosis as to what your mental state was before your offending, but considered that you had a long history of low self-esteem and inadequacy.

29 Dr Barth stated that you have suffered a severe emotional reaction to your pending court appearance. His cognitive behaviour therapy has been focused upon dealing with your poor self-esteem and negative feelings to help you with strategies to cope with that and to address your sexual offending. He stated that you had engaged very well, and he would anticipate that you would continue to make good progress. He emphasised that the sex offender treatment which you were undertaking with him was at a very formative stage, where you are now "upping the ante" to address victim empathy and relapse-prevention strategies.

30 He described you as having been very compliant and motivated to address your offending, and as being at "a critical phase" of treatment for your sex offending. He stated that there is no cognitive behavioural therapy available in prison, as far as he is aware. The only immediate services available in custody would be that of a psychiatric nurse or psychiatrist, who have many demands upon them from the prison population, and there is a waiting list to do the sex offender program. Otherwise, the only treatment available in prison would be medication for your depression.

31 Dr Barth agreed with Mr Newton that you meet the DSM-V diagnostic criteria for an Unspecified Paraphiliac Disorder. He stated that this diagnosis applies where a person does not fit the full criteria for paraphilia or voyeurism, but, nonetheless, suffers an impairment. He said, in particular, you qualified for this diagnosis because of the frequency with which you accessed the deviant material and the divergence of the nature of the material which you accessed, together with the amount of time that you invested in the access. He had understood from you that, over a period of one or two years, you had spent much of the night accessing the material for six hours or more, remaining up till 3 or 4am.

32 He described your conduct as being of a serious addictive nature, such that, although it had an adverse impact on your relationship with your wife, you, nevertheless, continued your offending behaviour. He stated that it is a difficult condition to deal with therapeutically. He considers that you require, at least, another three months of weekly sessions to make inroads into your condition, but would probably recommend twelve months of solid treatment. He considered that your Adjustment Disorder had fed into your Paraphiliac Disorder. He stated that there is a need to continue to treat your depressive symptoms and build your self-esteem while you are undertaking the cognitive behavioural therapy to address your sex offending.

33 Dr Barth stated that the sex offender treatment which you have been undertaking with him is based on best practice around the world, and employs the same principles as the programs run by the Department of Corrections, except that it is run on an individual basis and tailored to the specific offender, rather than being group therapy as run by the Department of Corrections. He considered that your emotional and psychological state was such that you would need approximately three months of individual treatment before you could cope effectively with any group therapy.

34 He considered that you have some Borderline Personality traits, in that you have a low understanding of your own identity and suffer mood swings and impulsivity, but did not think that they were necessarily prominent, as Mr Newton had reported. He agreed that it would be unusual if someone, like you, who had functioned well at a high corporate level, as well as in a family setting, had very prominent Borderline Personality traits.

35 Dr Barth considered that your having completed a three-month inpatient rehabilitation program was a positive factor which reduced your risk of reoffending to the low-moderate level. He also noted that, although you had separated from your wife, she was still supportive of you (and in court, along with other family members, for this purpose), for which you were grateful. He noted that your children remained supportive, and that you were currently living with your sister, Carole, and her family. He considered that such ongoing family support, in combination with sustained treatment, are positive factors for rehabilitation.

36 Tendered at the plea hearing were eight written character references (Exhibit "3"). These were from your older sister, Carole, and her husband, Paul, your wife, each of your three children, two long-term friends (one of whom is the Business Development Manager of your former employer, Programmed Property Services), and a close personal friend of Carole and Paul Zarb.

37 A number of the references are very lengthy. However, all of the references give the court a picture of various aspects of your character which do not fit at all with the offending conduct for which I must sentence you. Your sister and her husband speak in graphic terms of the chaotic childhood you suffered in the care of your alcoholic mother and the pain your suffered through her unreliability, including separation from your younger brother, who was sent to a children's home, and, once you were left with your older sister, waiting for six years thinking that your mother would return. Your sister speaks poignantly of the complexity of you wanting to fit in at school and, hence, seeking to have her and her husband represented to the world as your parents. She states that it is only since you have been undertaking rehabilitation and counselling this year that you have ever had any help processing this complexity. She states:

"We now believe we should have allowed him to lead his life as my half-brother, being cared for and educated by us. He lead a lie really and we didn't know the impact it would have on him as an adult. Unfortunately, we love him as much as any of our children and can't change it now."

38 Your sister and her husband speak of your strong work ethic and dedication to family life. They mention that they have 12 grandchildren, aged from six months to 21 years, and have never experienced any concern that they would be in danger in your care. They speak of your struggle with alcoholism, but being completely unaware of your use of drugs, and noted that you worked hard with the increasingly busy and demanding job of National Sales Manager, which involved a lot of travel. They speak, also, of how you are full of self-loathing, shame and remorse about your offending conduct, but are firmly committed to rehabilitation. They express confidence that you will turn your life around.

39 The reference from your wife, from whom you are currently separated, states that you have been married for just over 21 years and how shocked and devastated she and your three children have been upon learning of this offending. She describes you as a wonderful provider, who often worked two jobs to ensure that the family was secure, and how you committed yourself to many community works, not only coaching your son's football team, but being on the church parish council and participating in charity fundraisers. Your wife speaks with distress over how you often spoke about breaking the family cycle of alcoholism and abuse which you had seen so graphically in your own mother. She states that, although you had visited Alcoholics Anonymous, you could not admit that your problem was uncontrollable and you ended up becoming everything that you ever hated. She states that you are full of shame and remorse and have taken full responsibility for your offending. She says that she has seen you broken down and torn apart as you analyse yourself going through intense therapy, and the fear of losing your family has made you never want to look at a computer again. She says that you are committed to rehabilitating yourself and making amends to the family.

40 The references from your three children are powerful testimony as to what a loving and devoted father you have been to them. They each speak, in turn, of the particular ways in which you have helped them in various aspects of their lives, whilst struggling with your alcohol addiction. They speak, too, of the contribution you have made to the community through many years of coaching and organisational activities with the football club with whom your son played, and the support that you have given to many people in work situations and elsewhere in the community. Your older daughter eloquently writes of your inability to see the impact of your destructive childhood and to seek help for it but, nevertheless, trying hard to overcome your alcoholism. With maturity, perhaps beyond her years, she expresses her forgiveness and ongoing support and admiration for the courage that you are showing in endeavouring to rehabilitate yourself.

41 Your two younger children, the twins, speak of how inspired they have been by your commitment to intensive therapy and rehabilitation, but also how distressing it has been for them, as Year 12 students, seeing you and their mother separate, your intense emotional distress and shame, and your inability to work, forcing you to be financially reliant upon your sister.

42 The references from your two long-term male friends and the close friend of your sister, Carole, and her husband, echo the themes of a community-minded and generous person, who is dedicated to his family. They all state that your offending is very out of character with the person they know. Unfortunately, this particularly distasteful and harmful offending is often committed by people of apparently good character, and that factor is of little weight in the sentencing process.

43 Mr Zarb, it is very difficult, indeed, to reconcile the sterling qualities of a loving, caring and hardworking family man and generous community-spirited person with the vile nature of the offending for which I must sentence you. In recent years, the maximum penalties for the offences to which you have pleaded guilty were increased in order to reflect the community's concern with the pernicious nature of child pornography, which has become more and more prevalent with the sophistication of the internet and computer technology. The laws which you have breached are aimed at trying to halt the spread of child pornography, which represents such a sickening perversion of the joy of childhood. In sentencing for these offences, the court must denounce your conduct, and the principle of general deterrence must be emphasised. This is so that everyone will be aware that those who expose children to conduct which is destructive of their innocence, particularly when it is of a perverted nature, will be appropriately punished.

44 I have viewed samples of the offending images in this case. They depict real children, some of whom appear to be as young as three to seven or eight years of age. The Level 1 images show children posing in a sexually alluring fashion which disturbingly mismatches their very young age. The worst of the images show children being humiliated by sexual abuse of a truly repulsive nature. It is difficult to understand how any person, particularly a person who has daughters of his own, should desire to look at such images, much less receive any sexual arousal from them. Were it not for people like you, who access and transmit such images, then those criminals who actually abuse and exploit children by taking the images would have no market. There are real victims in this case.

45 Your offending on Charge 1 took place over a 15 month period, so there is a need for emphasis upon specific deterrence as well as general deterrence. However, I do take into account the rehabilitative factors which have occurred since your arrest. Although the transmission charges (Charges 2 & 3), occurred on two isolated dates and involved a relatively small amount of material, it was predominantly Level 4 imagery and the children were young on Charge 2 (between approximately 8 & 13 years) and very young on Charge 3 (between approximately three and seven years).

46 There is no doubt that your offending is serious and would justify a term of imprisonment. I have anguished over the sentence to be imposed in your case. I take into account the following factors in your favour:

(i) When police arrived at your home on 11 March 2014, you co-operated with them in their execution of the search warrant and participated in a record of interview in which you made admissions.

(ii) You pleaded guilty at the earliest opportunity. Indeed, your plea has come on for hearing within six months of your arrest.

(iii) I am satisfied that your pleas of guilty are truly and deeply remorseful ones. This is attested to in the psychological reports and references which have been tendered. I accept that you are not simply sorry for finding yourself in this legal predicament. Through therapy, you have come to the realisation that there are real young children who are being abused and exploited in the images which you have used to entertain yourself. Your shame was readily observable as you sobbed in the dock throughout much of the plea hearing. I have no difficulty in accepting the description of various members of your family about the extent of your contrition in terms of you "breaking down" and "falling apart". My overall impression of your situation is that you are remorseful to an almost debilitating degree and are consumed by self-loathing, which Mr Newton has described as "a harshly self-punitive inner narrative such that you expect rejection and criticism from others".

(iv) You have had a painful and tumultuous childhood which has left you emotionally vulnerable. I accept the analysis of Mr Newton and Dr Barth, that you were left with fragile self-esteem and identity issues, which meant that you lived with a level of anxiety and a need to be accepted by others. This appears to have driven you to work exceptionally hard, try to be a model father, and devote time to the community and, ultimately, the stress seems to have become too much for you. I accept that you appear to have had little insight into the reason for your emotional state and, over many years, adopted inappropriate and illegal strategies to deal with it by excessive use of alcohol, illicit drugs and pornography. This explains, albeit does not excuse, your offending behaviour. However, it is significant that you have now taken steps to understand your behaviour and to rehabilitate yourself.

(v) After having engaged sporadically with Alcoholics Anonymous prior to the offending you, soon after being charged with these offences, undertook a three months' residential rehabilitation program to detoxify from your substance abuse. I have no doubt that this was confronting and difficult, but it is to your credit that you completed that inpatient rehabilitation program and have not touched alcohol or illicit drugs since. It is also to your credit that, since being released from the inpatient program, you have apparently regularly engaged with Alcoholics Anonymous and Sex & Love Addicts Anonymous.

(vi) You sought assessment for your anxiety/depression and aberrant sexual tendencies from Mr Newton and have engaged in cognitive behavioural therapy with Dr Barth. I accept that you have ongoing issues with anxiety, depression and self-esteem which need to be addressed, as well as your sex offending. The indications from Mr Newton and Dr Barth are that you have shown high motivation to understand and address your sexual offending. I consider that it is a significant feature in your favour that you candidly acknowledged to Mr Newton and Dr Barth that you have been sexually aroused by a wide range of paraphiliac material. Whilst this is obviously concerning, it is also an indicator that you are not fooling yourself, as some offenders do in child pornography cases, by trying to rationalise their conduct as being that of a "collector" or simply a by-product of substance abuse. I regard this as a positive factor in assessing your prospects of rehabilitation, even though the entrenched, wide-ranging and compulsive nature of your offending is of grave concern.

(vii) Although it is early days, the extent to which you have engaged with Dr Barth's therapy concerning your sexual offending gives considerable cause for optimism. This is particularly so in the sense that both Mr Newton and Dr Barth consider that your depression/anxiety/Adjustment Disorder "fed into" your Paraphiliac Disorder. In a relatively short time, you have made very determined inroads into your substance abuse problem (which both psychologists consider to be related to you attempting to "soothe" your underlying emotional distress). That factor gives greater optimism for your sexual offending being effectively addressed than if you were still struggling with being not able to abstain from alcohol or illicit drugs, even though I appreciate that such abstinence has only occurred since March this year in the context of long-term addiction.

Dr Barth, in his evidence, considered that your sustained abstinence reduces your current risk of offending to the low to moderate category Although Mr Newton considered that your dynamic risk factors increased the risk of recidivism relying on stable factors from low risk to moderate risk, overall, he also stated that participation in treatment and the protective factor of sex offender registration is likely to reduce your overall risk of recidivism.

It is important to note that your risk of recidivism is assessed as relating to internet or other "virtual" offending. Indeed, in the initial chat with the covert Queensland police investigator, you made it clear that you did not have experience with actual physical sexual abuse of children but, rather, loved to fantasise about same. Neither Mr Newton nor Dr Barth proffered the view that you were at risk of your offending escalating to indecent assaults or sexual penetration of children.

47 Overall, I assess your prospects of rehabilitation as being good. Not only because you have acknowledged your offending and taken steps to address its causes, but, also, because you have a number of protective factors, including a solid work ethic and pro-social values but, most importantly, the ongoing support of your family. This includes your wife, even though you are currently separated, your sister, Carole, and her husband, and her wider family, and your own three children.

48 My assessment is that you are so ashamed of what you have done, and have invested so much so quickly in your rehabilitation, that you would be deterred from offending again out of the fear of losing the family support which you value so much.

49 I have wrestled with the sentence to be imposed in your case. The prosecution has urged that the gravity of your offending is such that only a term of imprisonment with an immediate custodial component can adequately reflect the gravity of that offending. Looking at the factual matrix in support of the prosecution case, by itself, that may well be so. However, I must take all factors into account, including the factors put in mitigation, and before I could impose a custodial sentence I must be satisfied, after taking into account all of those factors, that the only appropriate sentence is one of imprisonment.

50 On balance, I have decided that I cannot be so satisfied. Although comparing other cases of child pornography offending is of limited assistance, I do note that, although the period of offending on Charge 1 is 15 months, the overall number of images accessed was not extraordinarily high (415) and, of those, 57 images were Level 4, 11 images were Level 5, and two images were Level 6 (anime, cartoons, comics and drawings depicting child(ren) engaged in sexual poses or activity). Also, although the imagery transmitted by you is serious, in that there were seven Level 4 images and one Level 4 movie on Charge 2, and four Level 4 images on Charge 3, the number of images is not extensive and there were only two isolated episodes of transmission, which took place four months apart, in the context of accessing child pornography over the 15 month period on Charge 1.

51 Thus, although the offending, by its very nature, is serious, and the volume of images is not the single determinant, doing the best I can, I consider that, overall, your culpability is below the median for these types of offences, which can involve many thousands of images being accessed and transmitted to a substantial number of people. In your case, the transmission was not to a significant number of persons. Charge 2 involved two recipients and Charge 3 was the one recipient, the covert Queensland police operative. Also, there are not the aggravating features of selling child pornography or seeking to profit from the offending, which are sometimes present in the higher levels of offending.

52 I consider that your very deep remorse and your intensive and impressive commitment to your rehabilitation since your arrest in March this year are quite exceptional. Thus, although the emphasis upon general deterrence in sentencing for offending of this type would generally require a custodial sentence, in your particular case I have concluded that a fairly lengthy Community Correction Order is a just and appropriate sentence, which can serve the purpose of general deterrence. I have received a report from the Office of Corrections dated 28 August 2014, which assesses you as suitable for a Community Correction Order. I note that the report assesses your general risk of re-offending (as distinct from specific sexual offending) as being low according to VISAT (Victorian Intervention Screening and Assessment Tool).

53 The gains which have been made by treatment since your arrest somewhat lessen the extent of the emphasis in sentencing which, otherwise, would need to be placed upon specific deterrence, although this is still definitely a factor which requires some emphasis, particularly given the length of the period of your offending on Charge 1. However, I consider that the sentencing objective of specific deterrence can be served by you undertaking a Community Correction Order. It seems to me that, for a person like yourself, who has achieved to a high managerial level in your work and been well regarded by colleagues and the community generally, to be compelled to engage in a Community Correction Order for a reasonably lengthy period of time is likely to have a deterrent effect, as well as permitting the progress which you have made towards rehabilitation to continue.

54 In arriving at this conclusion, I have taken into account that your emotional reaction to your legal predicament has been a severe one coming, as it does, on top of already fragile self-esteem and anxiety. I note that you have suffered suicidal ideation and I am satisfied that a sentence of imprisonment would weigh more heavily upon you because of your depression/Adjustment Disorder, and that there is a serious risk that imprisonment would have a significant adverse effect on your mental health. I consider that a term of imprisonment is very likely to jeopardise what rehabilitative gains you have made since your arrest and I particularly take heed of Dr Barth's opinion that you are at a critical phase in the treatment of your sex offending.

55 Section 20AB of the Crimes Act 1914 (Cth) and Regulation 6 of the Crimes Regulations enable this Court to order a Community Correction Order in accordance with Part 3A of the Sentencing Act 1991 (Vic). As indicated, after carefully weighing up all of the circumstances of your case, I consider this to be the appropriate disposition on these charges. In structuring the sentences which I intend to impose, I have taken into account the need for proportionality and totality.

57 On Charge 1, accessing child pornography, you are convicted and ordered to undertake a Community Correction Order for a period of two and a half years commencing from today. The following terms are attached to the order:

(a) that you must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment;

(b) you must comply with any obligation or requirement prescribed by the Regulations;

(d) you must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force.

(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;

(f) you must not leave Victoria, except with the permission, either generally or in relation to a particular case, of the Secretary;

(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

58 The following conditions are attached to the order:

(1) that you perform 150 hours of unpaid community work over the period of the order;

(2) that you undergo treatment and rehabilitation by way of:

(a) assessment and treatment (including testing) for drug abuse as directed by the Secretary;

(b) assessment and treatment (including testing) for alcohol abuse as directed by the Secretary;

(c) mental health assessment and treatment for anxiety/depression/ Adjustment Disorder either with Dr Barth or as directed by the Secretary;

(d) programs to address your offending behaviour and, in particular, that you undergo a sex offender advice and treatment program either by continuing such program with Dr Barth or by undertaking the program run by the Office of Corrections;

(e) that you be supervised, monitored and managed as directed by the Secretary.

59 Charge 2 and Charge 3 are both offences of transmitting child pornography, which are part of a series of offences of the same or a similar character. Pursuant to s40 of the Sentencing Act, I consider it appropriate to order one Community Correction Order in respect of those two offences.

60 On Charge 2 and Charge 3, you are convicted and ordered to undertake a Community Correction Order for a period of three years with the same terms and conditions as those applying to the Community Correction Order imposed on Charge 1.

61 Pursuant to s41(1) of the Sentencing Act, where a court makes separate Community Correction Orders, the conditions of those orders are concurrent unless the court otherwise directs. I direct that the condition that you perform 150 hours of unpaid community work, attached to the Community Correction Order imposed on Charges 2 and 3, be cumulative upon the condition that you perform 150 hours of unpaid community work attached to the Community Correction Order imposed on Charge 1. Thus, it is the order of this Court that you should perform 300 hours unpaid community work in total.

62 Pursuant to s38(2) of the Sentencing Act, I order that the Community Correction Order imposed on Charges 2 and 3 commence on 4 December 2014. Thus, the orders imposed by this Court mean that, overall, you are required to undertake community correction for a total of three years and three months.

63 Mr Zarb, are you prepared to consent to the Community Correction Orders with the terms and conditions which I have just announced? You need to be aware, Mr Zarb, that if you do not comply with the orders, then you will have committed another offence for which you will be brought back before the court. Your failure to comply may result in the imposition of a pecuniary penalty order, or the court may revoke the sentence imposing the Community Correction Orders. In this event, you may then be sentenced to a term of imprisonment. It goes without saying that, if you were to submit to temptation to access child pornography, you will have committed another offence, and that definitely breaches the order. If that should occur, it is inevitable that you will be sentenced to a term of imprisonment.

65 All three offences of which you have been convicted are Class 2 offences as specified in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic) rendering you a registrable offender under that Act. Pursuant to s34, you must comply with the reporting obligations of the Act for the rest of your life.

66 Mr Zarb, my Associate will hand to you a document which sets out the reporting obligations under the Sex Offenders Registration Act. Would you please acknowledge receipt of that document with your signature.

67 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, I would have imposed a total effective term of imprisonment of two and a half years with release upon a Recognisance Release Order after serving one year and three months.

Offenders Registration Act 2004

At a glance

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Before

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Judgment (89 paragraphs)

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Legislation Cited (1)