Gold, David Marcus v R

Introduction

1. On 12 April 2017, Judge Scotting sentenced Mr David Marcus Gold (the applicant) in the District Court of New South Wales for a number of offences involving the sexual exploitation of children.
2. The applicant had pleaded guilty to two counts of possessing child abuse material (sequences 12 and 13; contrary to s 91H(2) of the Crimes Act 1900 (NSW); maximum penalty of imprisonment for 10 years); one count of disseminating child abuse material (sequence 24; contrary to the same section of the same Act; same maximum penalty); and three counts of grooming a child for unlawful sexual activity (sequences 14, 20, and 22; contrary to s 66EB(3) of the same Act; maximum penalty with regard to sequences 14 and 22 imprisonment for 10 years, with a standard non-parole period of four years; maximum penalty for sequence 20 imprisonment for 12 years, with a standard non-parole period of five years).
3. With regard to sequence 20, a further seven counts of grooming a child for unlawful sexual activity were taken into account on a Form 1, pursuant to s 32 and s 33 of the Criminal Procedure Act 1986 (NSW). Three of those counts carried a maximum penalty of imprisonment for 12 years, and four of them carried a maximum penalty of imprisonment for 10 years.
4. In the event, his Honour imposed an aggregate head sentence of imprisonment for six years six months with an aggregate non-parole period of four years. I shall not detail now the indicative sentences provided by his Honour, and shall only do so to the extent necessary to understand the proposed grounds of appeal.

Grounds

1. The following grounds in support of leave to appeal against sentence were notified and pressed before us: Ground 1: His Honour erred in the way in which he took into account the offences on the Form 1. Ground 2: His Honour erred by failing to take into account the applicant's mental condition at the time of the offences. In particular, (a) his Honour failed to assess the applicant's moral culpability for the offences in light of his mental condition; and (b) his Honour failed to reduce the weight to be given to general deterrence by reason of the applicant's mental condition.

Background

1. The following is derived from those parts of the sentencing judgment that are not impugned by way of the grounds.

Discovery of the offending

1. The various offences committed by the applicant came to light as follows. In November 2015, the wife of the applicant used his iPad to download some documents into a particular document management application (Dropbox). During that process, she discovered numerous photos of small children engaged in sexual activities. She notified the police, who attended the premises, took possession of the iPad, and examined the images. Later, they arrested the applicant at his business premises and seized his mobile phone. A large amount of child abuse material was found.
2. The applicant engaged in a recorded interview, and made a number of admissions with regard to the following.

Objective aspects

1. Found on the mobile phone of the applicant was the same Dropbox application, and in it were 161 video files, entered into 10 separate folders. Of those, 114 relevant video files were located, all of which were categorised pursuant to the Child Exploitation Tracking System (CETS). Nine of those files were in level one of CETS, and showed children nude and in sexually suggestive poses. 53 of the files were in level two, showing non-penetrative sexual activity between children, or masturbation by a child on his or her own. One file was in level three, and showed non-penetrative sexual activity between children and adults. 43 files were in level four, showing sexual penetration between adults and children or sexual penetration between children. Eight files were in level five of CETS, and pictured sexual sadism or bestiality. These items underpinned sequence 12.
2. To give an example of the latter files, one was described as "prepubescent female being anally penetrated by adult male. Child can be seen screwing her face in pain and whimpering. Male ejaculate on child's face". Another was described as "prepubescent female, naked from waist down, wearing ripped stockings. Being anally penetrated by adult male. Female child appears to be in immense pain from her facial expressions."
3. Sequence 13 was underpinned by the following. Found on the laptop computer of the applicant were over 31,000 picture files, over 7,500 of which were examined, and 25 of which were found to be relevant to the investigation. Of those 25, 19 files were in level one of CETS, four files were in level two, and two files were in level four.
4. 1,891 video files were also found on the same laptop. Almost 1,600 of those were examined, and 29 were found to be relevant to the investigation. One video file was in level one, 19 files were in level two, eight files were in level four, and one file was in level five.
5. The estimation was that the laptop of the applicant contained somewhere between 57 and 151 picture files, and 29 to 40 video files, of child abuse material.
6. By way of example, one of the videos located on the laptop of the applicant "depicted a naked girl aged under eight lying on the bed while the dog licked her genitals".
7. Sequence 14 was underpinned by the following. For about three weeks in October 2015, the applicant engaged in online "chat sessions" with another person via a particular application. The other person stated that she was a girl aged 15. The sentencing judgment records that the two of them sent "sexually indecent pictures of themselves" to each other. The applicant sent a number of sexualised messages to the other user, including encouraging her to insert the handle of a hairbrush into her vagina, and asking her to send a photograph of herself with "Daddy's little whore" written on her thigh.
8. The following underpinned sequence 20. By way of the same application, the applicant engaged in chat sessions with another user, who informed him that she was a female aged 13 years. The applicant informed the other user that he was 24 years of age. The chat developed a sexual focus quite rapidly, and continued for a number of days.
9. As for the Form 1 offences that were taken into account with regard to the sentence for sequence 20, they were established by the applicant engaging in online chat sessions throughout October 2015 with a number of users who identified themselves as females aged between 12 and 14 years. On more than one occasion, the applicant encouraged the other user to provide a sexualised picture of herself. By way of example of a message sent by the applicant, on 18 October 2015 the applicant provided a description to an online user, who identified herself as a 14 year old female, of removing her underwear and performing oral sex upon her.
10. The following underpinned sequence 22. On 29 October 2015, the offender engaged in a chat session with another user, who informed him that she was 14 years of age. He sent her a number of sexual messages, including enquiring about the number of men with whom she had had penile/oral intercourse, penile/vaginal intercourse, and penile/anal intercourse.
11. Sequence 24 was underpinned by the following. The applicant used the same application to share child abuse material with others. Over the course of nine days in October 2015, he posted 11 separate videos of child abuse material on 29 occasions over 11 separate "chat threads". Five of the videos were within level two, three videos were within level three, and three videos were within level four of CETS.

Subjective aspects

1. Subjectively, the applicant had been born in April 1965, and was accordingly just short of 52 years of age when he stood for sentence.
2. He had never been convicted of a crime in his life (including, of course, any sexual offence against children); was free of addiction to drugs, alcohol, or gambling; and had not endured a grossly disadvantaged upbringing. Indeed, he had achieved significant success in his professional life, in that he had become the local CEO of a multinational firm based in the United States.
3. The mechanism whereby the applicant had come to commit these offences was explained, and accepted by the sentencing judge to be, as follows. Financial difficulties of the parent company of the employer of the applicant had led to enormous pressure being placed on him by his superior. As a form of stress relief, he became obsessed with playing a particular interactive video game, which dominated more and more of his time and energy, to the detriment of his relationship with his wife and children. His online activities then turned to accessing adult pornography, which in turn led to him meeting in person a woman whom he had encountered online, and engaging in a sexual affair with her. Eventually, he moved from accessing adult pornography on the internet to child pornography, and to the sexualised online chats with children.
4. More than one person who provided written evidence on sentence in support of the applicant described his state of mind at the time of the commission of the offences as "manic", and more than one spoke of him experiencing a "breakdown".
5. By the time of imposition of sentence, the applicant had lost his employment; was living separately from his family; had endured a period of incarceration between being charged and granted bail; and was continuing to obtain psychiatric and psychological help in an effort to understand what he had done.
6. Because of the focus of ground two, I proceed to summarise in some detail the two psychiatric reports placed before the sentencing judge.
7. The report of Dr Mark Hardy, a consultant specialist in addiction medicine, may be summarised as follows.
8. He described the applicant as having presented with a history of "process addiction" with regard to internet gaming, internet pornography, some of which related to children, and engagement in internet forums, in which some of the other users were children.
9. He recounted that the applicant had spent time as a voluntary inpatient at a private mental health hospital after his release on bail.
10. Dr Hardy spoke of the background whereby profound work stress led to excessive online gaming, which exposed the applicant to various chat sites, which in turn led to links to pornography. Dr Hardy explained the process whereby the applicant developed a tolerance to the enjoyment he derived from that pornography, whereby the applicant "needed more and more risky pornography and other material to achieve the same pleasurable experience. Such is the way with any addictive substance or behaviour".
11. Dr Hardy diagnosed the applicant as suffering from an anxiety disorder, and an obsessive-compulsive personality disorder.
12. Dr Hardy spoke of the applicant enjoying the benefit of a comparatively happy and settled upbringing in upstate New York, although it was marred by bullying of the applicant; the death of his mother in 1980 when he was 15; and the death of his father when he was 18. Dr Hardy also described a highly successful international business career; on the other hand, the intimate relationships of the applicant had been difficult and unstable, and by the time of the offending the applicant had been married three times, and was stressed by ongoing problems with his second wife.
13. Dr Hardy spoke of the progress of the applicant after commencing treatment in early 2016 as "astonishing". The expert provided details of all of the treatments that the applicant had readily undertaken; the considerable resolution of the symptoms of anxiety; the termination not only of the poisonous business relationship, but also any use of social media; and a denial by the applicant of any cravings whatsoever with regard to the diagnosed addiction. Dr Hardy also noted that, despite the nature of the offending, the applicant had been able to maintain a very strong relationship with his wife and family.
14. Dr Hardy concluded that the applicant had made "great inroads into his process addictions", and assessed the applicant as being at a low risk of re-offending. The report concludes with a treatment plan that Dr Hardy believed represented the best chance of avoiding relapse by the applicant.
15. A report prepared by Dr Jeremy O'Dea, consultant forensic psychiatrist, was also tendered in the defence case. Dr O'Dea recounted that the applicant was admitted under his care as an inpatient for one month. Thereafter, he received regular psychiatric treatment from that doctor every two weeks or so.
16. Dr O'Dea recounted the history that I have already briefly summarised; it included the applicant reporting that his parents were "supportive and loving". He also described the applicant's very high achievements as a young man, both academically and on the sporting field.
17. Dr O'Dea recounted that the applicant provided no history of problematic use of alcohol, prescription drugs, or prohibited drugs, nor prior psychiatric treatment.
18. In discussing the offence, the applicant informed Dr O'Dea that he had "lost my moral compass". The applicant provided no history of a previous sexual attraction to children.
19. The applicant confirmed to Dr O'Dea the steps whereby he came to commit the offences. As the stress from which he was suffering increased, the applicant explained that: "…the first port of call was "Celtic Tribes" [the online game]…the second port of call was social media…then Internet porn…and this sometimes lead to illegal porn…I would typically go straight to chat sites…including underage females sites…"
20. Dr O'Dea spoke of the applicant as candid, remorseful and contrite. He also spoke of him as having been able to modulate his anxiety and distress adequately. Dr O'Dea reported that "[n]o psychosis has been evident through our treatment program".
21. Despite the applicant being adamant that he had had no intention of meeting a female child in person, Dr O'Dea reported that he was "…receptive to considering the likely implications of his behaviours in relation to the index sex offences on female children involved in these Internet activities", and that the applicant maintained a focused commitment to addressing "his overall sexuality in a positive and therapeutic manner".
22. Dr O'Dea reported "I have not diagnosed Mr Gold as suffering from a major psychiatric illness".
23. In explaining the offences, the forensic psychiatrist placed emphasis on the death of the parents of the applicant in his teenage years; the increasing stress not only from the workplace, but also from ongoing conflict with his second wife; and the pathway to the offences through compulsive online gaming, compulsive online adult pornography, and extramarital sex.
24. Dr O'Dea spoke of the phenomenon of seemingly exclusively heterosexual men, who are married and have fathered children, nevertheless accessing child pornography on the internet, and taking part in sexual "chatting" with young girls, as "an increasingly recognised clinical problem". The expert spoke in terms of "neurochemical pathways…being postulated as underlying mechanisms for the development of these compulsive style behaviours", whereby the need for greater and greater stimulation by way of more and more transgressive activities can lead to "unmasking the adult male's potentially latent heterosexual paedophilic (involving prepubescent/peripubescent children) or hebophilic (involving post pubescent children) component to his sexuality".
25. Dr O'Dea made it clear that he had "not diagnosed Mr Gold as suffering from a personality disorder, but note his history of personality vulnerabilities, including, amongst other personality traits, his obsessionality".
26. Dr O'Dea went on to summarise the extensive treatment in which the applicant had enthusiastically engaged. Dr O'Dea also described the anxiety and depression of the applicant as having improved, "without the need for recourse to the prescription of psychiatric medication at this stage".
27. The report concluded by expressing the view that the focus of ongoing treatment would remain assisting the applicant to an understanding of his overall sexuality, including an acknowledgement of "the nature and extent of the hebopaedophilic component". Dr O'Dea spoke of the treatment progressing well, and noted the possibility of the use in future of various psychiatric medications. The final paragraph of the report put forward the proposition that the applicant could be managed in the community without placing its members at undue risk.
28. To conclude my summary of the subjective material on sentence, a very large number of members of the community, including his wife and one of his children, provided written references in support of the applicant, with full knowledge of what he had done.

Ground 1 His Honour erred in the way in which he took into account the offences on the Form 1.

Submissions of the applicant

1. This ground was based on the following portion of the sentencing judgment. Under the heading entitled "Objective Seriousness", his Honour said as follows: "In relation to sequence 14, the offending conduct took place over a period of about one month. The victim was 15 and the offender was 50 years of age. The age differential was significant and the offence involved significant exploitation of the youth of the victim. The content of the chat was highly indecent and involved substantial perversion. The chat included discussion about a meeting. The objective seriousness of sequence 14 is approaching the mid-range. In relation to sequence 20 the offending conducted took place over a period of five days. The offender progressed the sexual nature of the discussion after being told by the victim that she was 13. The age differential was significant and the offence involved significant exploitation of the youth of the victim. The offender procured a photo from the victim and asked for more. The offender lied about his age which was likely to result in the chat continuing. I must also take into account the offences on the form 1. They took place over the period of about one month and involved varying levels in an attempt to pervert young victims. The objective seriousness of sequence 20 is in the mid-range" (sentencing judgment (SJ) 16[2]-[3]).
2. The submission of senior counsel for the applicant was that an error of principle was committed by his Honour, in that he took into account the offences on the Form 1 in aggravating the objective seriousness of sequence 20.
3. Whilst accepting that the ground "is quite confined and in one sense technical" and that "[i]f we succeed there, we really need to convince you about ground 2 in any event" (appeal transcript (AT) 1.32), senior counsel for the applicant submitted that the error may have commenced in the written submissions of the Crown at first instance. It was noted that, under the heading "Assessing the Objective Seriousness," those written submissions had asserted that "[t]he attaching Form 1 increases the objective seriousness" of sequence 20.
4. The point was made that the assessment of objective seriousness of sequence 20 was "in the mid-range" (SJ 16[3]). Sequence 14, however, which involved a 15 year old girl, was assessed by his Honour as "approaching the mid-range". It was submitted that that differing assessment provided some support for the proposition that the Form 1 offences had been used to elevate the assessment of objective seriousness of sequence 20. That is because, it was said, comparison of the details of sequence 14 and sequence 20 shows that there was no real reason for that differentiation.
5. In oral submissions, attention was invited to the fact that the length of the indicative sentence pertaining to sequence 20 was substantially greater than that of sequence 14 and of others.
6. The point was finally made that nowhere in the sentencing judgment did his Honour explicitly refer to the correct approach to taking matters into account on a Form 1, discussed in the decision of Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515, (2002) 137 A Crim R 196.

Determination of ground one

1. Turning to my determination of this ground, it is quite correct that the written submissions of the Crown at first instance contained the portion to which senior counsel invited attention. But they also contained a lengthy discussion under the heading "Significance of Form 1 matters", which quoted at length from the seminal case (page 7, paragraphs 22 and 23). Taken as a whole, the content of the written submissions of the Crown on sentence do not support the proposition that his Honour applied a wrong principle.
2. Secondly, detailed analysis of the facts underpinning sequence 14 and sequence 20 and the resultant assessments of objective seriousness is of little moment, bearing in mind that the former was assessed as "approaching the mid-range", and the latter as "in the mid-range". And in any event, the sentencing judge detailed the facts underpinning each, including an aggravating feature that attached to sequence 20 that was not present with regard to sequence 14 (although the agreed facts are to the effect that the applicant procured a sexual photo from each victim, with regard to sequence 20, he lied about his age, thereby increasing the likelihood of the chat continuing; there was no evidence of such conduct in regard to sequence 14).
3. Thirdly, bearing in mind the presence of the serious offences on the Form 1 "attached" to sequence 20, it was inevitable that that sequence would be assigned a longer indicative sentence than sequence 14, and the fact that that indeed occurred does not assist the applicant.
4. Fourthly, there can be no doubt that the objective seriousness of the offences on the Form 1 was relevant to the sentence that would ultimately be imposed on sequence 20. And it was not an error for the sentencing judge to recount the objective attributes of those offences - that they took place over about a month, and involved varying levels of "an attempt to pervert young victims" - whilst assessing the objective seriousness of the offending of the applicant generally.
5. Fifthly and finally, this was an ex tempore sentencing judgment delivered with regard to a complex factual matrix of offending that was extremely grave. I do not believe that the "technical" aspects of the phraseology adopted with regard to the offences on the Form 1, and the role they played with regard to the indicative sentence - itself not amenable to appeal - that was to be imposed with regard to sequence 20, should found a successful ground of appeal leading to consideration of resentence.
6. For all of those reasons, I would reject ground one.

Ground 2 His Honour erred by failing to take into account the applicant's mental condition at the time of the offences. In particular, (a) his Honour failed to assess the applicant's moral culpability for the offences in light of his mental condition; and (b) his Honour failed to reduce the weight to be given to general deterrence by reason of the applicant's mental condition.

Submissions on behalf of the applicant

1. This ground is based on the following portion of the sentencing judgment. After recounting a number of reasons why general deterrence "is of significance in sentencing offenders for child pornography offences", his Honour said: "General deterrence may be attributed less weight in cases where the offender suffers from a mental condition because such an offender is not an appropriate person to be made an example of. The authorities do not mandate an entire disregard of specific or general deterrence by the sentencing judge. The extent of the reduction depends on the circumstances of the case. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender activity [sic; actively] acknowledges what they were doing and the gravity of their actions and whether the community requires protection from the offender by reason of the mental condition suffered. The offender has been diagnosed with an anxiety disorder, obsessive compulsive personality disorder and a process addiction. There is a direct causal link between the offender's mental condition and his offending conduct. The offender actively acknowledged what he was doing. He more recently has come to appreciate the likely effect of his offending conduct on the children depicted in the material and with whom he chatted. If left untreated, the offender's mental condition renders him more liable to commit these types of offences in the future and thereby he may represent a danger to the community. On balance, and having regard to the decisions of the intermediate appellant courts, it is not appropriate to reduce the weight to be given to general deterrence by reference to the offender's mental condition." (SJ pages 17-18)

1. The submission was as follows. Although it was accepted that, immediately after the impugned passage, his Honour referred to the need for specific deterrence to be substantially reduced, it was an error to decline to reduce the weight given to general deterrence as a result of the mental conditions of the applicant.
2. It was said that, having found that there was an "direct causal link" between the mental conditions of the applicant and his conduct, and having failed to make an assessment of moral culpability, it was appropriate for his Honour to reduce the role that general deterrence played in the sentence actually imposed.
3. It was said that the offending of the applicant had a powerful element of compulsion, indeed addiction, to it, and that it had occurred in the context of a breakdown suffered by a mature man of otherwise impeccable character.
4. In oral submissions, emphasis was placed on the diagnosis of an anxiety disorder, obsessive-compulsive personality disorder, and a process addiction. It was said that the evidence showing the severity of the mental condition that caused the offending came not only from the two reports of Dr Hardy and Dr O'Dea, but also from very many friends and relatives of the applicant. Emphasis was also placed on the explanation given by Dr Hardy of the neurological mechanism of addiction whereby the applicant progressed from an obsession with internet gaming, to accessing pornography pertaining to adults on the internet, to the transgressive stimulation of child abuse material, and finally to sexualised contact with children.
5. Senior counsel submitted that the conditions from which the applicant suffered should have led to a reduction in the assessment of his moral culpability, which in turn should have led to the sentence imposed upon the applicant being a less appropriate vehicle for expression of principles of general deterrence.
6. The final point made orally was that all of the other favourable findings made by his Honour - the low to medium risk of re-offending, the sound prospects of rehabilitation, and the reduced role of specific deterrence - also called for a reduced significance to be ascribed to general deterrence, bearing in mind the direct causal link found by his Honour in the extracted passage.

Determination of ground two

1. I do not accept the submission of senior counsel for the applicant, for the following reasons.
2. First, the assessment of the role that a psychological or psychiatric condition should play in mitigation of sentence is very much an evaluative judgment for a sentencing judge, taking into account all of the objective and subjective circumstances of the case.
3. Secondly, and relatedly, the law is clear that, even if mental illness short of exculpation is established, and even if it played a causative role in the offending under consideration, mitigation based upon it is a matter of discretion, and is not automatic or inevitable: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1.
4. Thirdly, the sentencing judge did not obdurately set his face against the conditions of the applicant playing a mitigating role; as I have recounted, the role of personal deterrence in the sentence was reduced. In other words, a discriminating approach was adopted in the sentencing judgment.
5. Fourthly, one may accept that at the time of the commission of the offence, the applicant was extremely anxious, obsessive, and in need of greater and greater stimulation online in order to relieve his stress. But it is patently clear (from the messages that were exchanged with children, and from the dissemination of the files to other persons sexually attracted to children) that he was quite aware of what he was doing, and soundly grounded in reality. His conditions were a very long way from a serious psychiatric illness; that is entirely consistent with the diagnosis provided by Dr O'Dea, and Dr Hardy said nothing to the contrary.
6. Fifthly, the gravity of the offending of the applicant - demonstrated by the examples that I have provided in my summary above - was itself a significant factor arguing against a reduction in the role that general deterrence, directed against others who may consider offending in the same way, was to play in the sentence imposed.
7. Sixthly, it has been confirmed for almost twenty years that the criminal law of New South Wales is that even dependence on a highly addictive drug such as heroin or crystal methylamphetamine (ice) is not, except in unusual circumstances, a mitigating feature on sentence: see R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346. If that be the case, it is very difficult to see how an addiction to child pornography could play such a role.
8. Seventhly, it may be accepted that his Honour said nothing explicit in the sentencing judgment about the moral culpability of the applicant. But the irresistible inference is that it was (correctly) assessed as profound.
9. Eighthly and finally, in a nutshell, after balancing up various countervailing factors, the sentencing judge came to the view that the conditions from which the applicant suffered at the time of the offending played a mitigating role for one purpose (with regard to personal deterrence), but not another (general deterrence). That evaluative judgment was, in my opinion, perfectly open.
10. I would not uphold ground two.

Orders

1. I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.
2. FAGAN J: I agree with Button J.

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