Delzotto v The King [2024] HCA 8Trinh v R [2024] VSCA 61
Judgment (6 paragraphs)
[1]
Solicitors:
Hannigan (Crown)
D Glowrey (Offender)
File Number(s): 2023/00118068
[2]
Judgment
The offender has pleaded guilty to one offence of use carriage service to access child abuse material contrary to section 474.22(1) of the Criminal Code (Cth). This offence carries a maximum penalty of 15 years imprisonment and has a minimum penalty of 4 years imprisonment.
As this is a Commonwealth offence, the Court must sentence the offender in accordance with Part 1B of the Commonwealth Crimes Act. Section 16A(1) of that Act requires the Court to impose a sentence that is of a severity appropriate in all the circumstances of the offence. In addition to any other relevant factors that appear on the material before the Court, that requires the Court to take into account the matters listed in section 16A(2), to the extent that they are relevant. The factors listed in that provision include the circumstances of the offence and requires me, in the first instance, to have regard to the facts of the offending and to make an assessment of their objective seriousness.
The facts of the offending are found in the statement of agreed facts and are as follows.
Between about 1 February 2022 and 22 March 2023, the offender used a mobile phone to search for, and then download, child abuse material. In total he downloaded 16 images constituting child abuse material onto his phone.
This material is categorised according to the Interpol Baseline Scale. On this scale, material falling within category 1 represents real children who are prepubescent and perceived to be under 13 years of age involved in a sex act, witnessing a sex act or the material is focused or concentrated on the anal or genital region of the child.
Category 2 on this scale includes other illegal content involving children under the age of 18 years of age and which does not fit within category 1. It may include images of children likely to cause offence to a reasonable adult where a child is subject to sadism, torture, bestiality or humiliation. It may depict a child as the person conducting the activity or observing other persons and it includes animated media, text of children and photoshopped media.
Of the images downloaded by the offender, 12 were in category 1 and four were in category 2. Examples of the images are described as follows. The first image depicts a naked prepubescent male about five years of age with an adult penis inserted into his anus. The fifth image depicts a naked prepubescent female and male about seven years of age with the female masturbating the naked male. The ninth image depicts a naked prepubescent female about the age of 10 years. The 12th image depicts a naked prepubescent male of about 10 years of age. These are all in category 1. The 14th image is in category 2 and depicts a cartoon of two prepubescent males and one prepubescent female. One male is having oral sex performed with the other male masturbating while sitting on top of the female.
On 22 March 2023, the police executed a search warrant at the offender's home and seized his mobile phone. They then cautioned the offender and had a conversation with him. He made the following admissions during the conversation:
1. When asked about an earlier assertion to police that he had looked up child abuse material online a number of times, the offender agreed that he had.
2. When asked what device he used he said, "Just on my phone, my mobile phone."
3. When asked what website he went to he said, "Could be anything you just punch in words and it comes up … Junior pictures or something like that."
4. He admitted to using incognito browser in Google.
5. He agreed he had been looking at children aged "anywhere from about 8 to 16."
6. When asked if that satisfied his sexual desires he said no he was just bored.
7. He said some of the children were naked and some were doing sexual acts.
8. He said, "All I know is I'm going back to jail."
9. When asked how long ago he looked up he said, "couple months… Six or seven times, could be any time, day and night."
10. When he was asked if he saved anything he said he did but then he deleted them.
On 22 March 2023, the police extracted data from the mobile phone and saved the resulting report on a USB flash drive. The police then reviewed the report and identified a total of 16 images of child abuse material using the scale outlined above. On 13 April 2023, the police arrested the offender and took him back into custody.
The offender participated in a record of interview in custody during which he made the following admissions:
1. He owns the mobile phone that was seized and no one else had access to that phone as far as he knows.
2. He used Google incognito to search for anime.
3. The anime websites would then take him to different websites.
4. He looked at child porn pictures online. The children in the pictures were in different sexual positions, acts and were naked and they could have been anywhere from 6 to 16.
5. He accessed the child abuse material over the last 12 to 14 months. He said he would "have a look at it, probably take a picture of it and delete it.
6. When asked whether he wanted to say anything further he said "Just that I've done it and been caught. Done."
7. He denied being attracted specifically at the children just "Attracted to the human body….Kids, adults, whatever."
8. He stated he would "End up back in jail."
At the time of the offending the offender was aged between 54 and 55 and lived alone in his residence. Importantly, he has relevant prior convictions. In 2009, he was convicted of rape of an indecent act with a child under 16. In 2018, he was convicted of Commonwealth child pornography offences in the County Court of Victoria. The 2009 offences were state or territory registrable child sex offences within the meaning of section 3 of the Crimes Act, and the Commonwealth child pornography offences in 2018 were Commonwealth child sex offences within the meaning of that same provision. For those reasons, the requirements of section 16AAB(1)(b) of the Crimes Act have been met and, subject to conviction for the current offence, section 16AAB applies to the sentence to be imposed subject to one matter. I will return to that in due course.
[3]
Objective Seriousness
The following factors are relevant to the assessment the objective seriousness of the offending:
1. In two of the images actual children were used in the creation of material;
2. The content of the material was of varying gravity;
3. Image one obviously depicted an act that must have been painful to the victim, but there was no other evidence of distress or torture;
4. While there were at least five separate children involved, it is a relatively very low number of images for offences of this nature;
5. The material was for the offender's sole possession;
6. There was no dissemination or transmission to other people or payment or benefit obtained, there was no proximity to those responsible for bringing the material into existence, no real degree of planning and the offender acted alone;
7. There was no risk of the material being seen or acquired by vulnerable people, especially children;
8. There is very limited risk of the material being acquired by other people.
Although all child pornography cases are serious, this is not a particularly serious instance of this type of offence and it falls towards, although not at the bottom, of the range of offences.
[4]
Subjective matters
The subjective circumstances of the offender contain both mitigating and aggravating circumstances. First, as I have said he has a criminal history of child sex offences. In addition to those outlined already, he is permanently registered as a child sex offender and has been convicted of breaches of the obligations imposed on him by reason of that registration. There are a number of consequences of that.
First, it speaks to an underlying and persistent sexual interest in children which will impact upon the prospects of his rehabilitation and of reoffending. Secondly, it denies him any leniency in the sentencing process. Thirdly, one of his convictions took place during the course of the current offending and, even though his penalty was a Community Correction Order which, amongst other things, required him to be of good behaviour, he nevertheless continued to offend. Thus, he breached the conditions of his liberty. Fourthly, given that the offending commenced shortly after he was released from custody in Victoria for similar offending, it raises questions about his insight into his own character and offending.
By contrast, the offender's deprived background and his mental health do present mitigating factors as they lower his moral culpability to some extent.
The evidence of the offender's background is primarily contained in the report of psychologist Anica Spatz.
In broad summary, Ms Spatz says that the offender's childhood was marked by isolation, bullying and sexual abuse which shaped his emotional and psychosexual development and continues to influence his life today. In addition to his own particular experience, there is further family history of sexual offending in that the offender's father apparently sexually offended against the offender's sister, giving rise to concerns of genetic factors of intergenerational trauma and the possibility that maladaptive traits have been passed down and displayed by his father in particular.
I accept that these circumstances mitigate the sentence because the offender's moral culpability is less than that of an offender whose formative years were not marred in a similar way.
Similarly, the offender's mental health has impacted upon his offending in a way that mitigates against sentence. According to Ms Spatz, the offender meets criteria for major depressive disorder and generalised anxiety disorder and he has been dealing with these issues since growing up. Indeed, he was diagnosed with a major depressive disorder in 2015.
There are a number of ways in which the offender's mental health will impact upon the appropriate sentence. First, I accept that it reduces his moral culpability to some extent. Secondly, it also means that the purpose of general deterrence is reduced in weight, and it also means that a custodial sentence will weigh more heavily upon the offender than it may on a person without his mental conditions. The impact of the offender's mental health does reduce, to some extent, also the significance of specific deterrence. However, conversely, the offender's mental illness and the role that he displayed in his offending means that he presents as more of a danger to the community.
The third element in the offender's subjective case which mitigates against sentence is that he has already suffered additional hardship in custody. He has been attacked twice while on remand in custody and, according to Ms Spatz, has suffered lasting effects from the head trauma incurred as a result of one of those attacks including ongoing headaches, neck pain and blurred vision. I note that the offender has contracted Covid-19 in custody and was held in isolation during his recovery. This added to the hardship of being in custody but it is difficult to know how much because there is no evidence of how long he was in isolation.
The fifth matter in the offender's subjective case that mitigates against sentence to some extent is his plea of guilty and assistance to the authorities. This will have two direct consequences on the appropriate sentence. First, each of these indicates to some extent a sign of his contrition for and insight into his offending. That forms part of the material that I must synthesise in order to determine in the first place whether a term of imprisonment is required and secondly, if so, the length of that term of imprisonment. Secondly, I will assess the utility of each of those matters and reduce the appropriate sentence in light of them. I will discuss that second stage later in these reasons.
That, said, the evidence of the offender's contrition is mixed. The offending only came to an end when it came to the attention of the police and while he immediately made admissions and was largely frank with the police about his offending, what he said to the police was in effect a reflection that he had been caught and the evidence against him was almost insuperable. The exception to that is his admission that it was his phone and he was the only one with access to it. Nevertheless, given that he lived alone at the time, even that admission was not of enormous assistance to the police.
Further, contrary to what he told Ms Spatz, the author of the sentence assessment report suggested that he displayed an ambivalent attitude towards his offending behaviour and minimised his responsibility, citing supervision and child protection register conditions as a factor to his offending. The author noted that he appeared to lack accountability for his offending. Thus, while I accept that the offender has shown some contrition, I do not give it considerable weight.
It is also important for me to assess, as far as possible, the risk of the offender reoffending and his prospects of rehabilitation. For this purpose, he has undergone numerous psychological assessments with varying outcomes. For instance, for the purpose of the sentence assessment report, he was assessed according to the Level of Service Inventory-Revised as being a medium risk of reoffending. However, community corrections changed that assessment to a high risk because of a previous assessment by a correctional services psychologist in May 2023. In that assessment he was found to be at a high risk of reoffending according to the sex offender supervision assessment.
Ms Spatz on the other hand, who assessed the offender on 29 February 2024 over the course of a 2.5 hour interview, found according to the Static-99R instrument that the offender fell within the average risk range of sexual reoffending and within the moderate risk range of sexual recidivism, applying the STABLE-2007 instrument.
These assessments were, of course based upon the offender's answers to questions. It appears that those answers varied between assessments. For instance, Ms Spatz reported that there was no evidence of an abnormal sex drive, sex as coping or any deviant sexual preferences and that the offender did not regard sexual activity as a priority. Those responses are difficult to reconcile with the report of the corrective services psychologist who noted that while he first denied being sexually attracted to children, the offender later disclosed that he was curious about the way they looked when naked and that he referred to his addiction to pornography. Further, the psychologist said that he provided evidence of a preoccupation with sex and a high sex drive and that he enjoyed looking at "weird porn across the board". I note that the offender has been convicted of contact sexual offences with a 12-year-old female in Victoria and has previous convictions for possession of child abuse material, consistent with a sexual interest in children.
In those circumstances, I cannot accept that the offender does not have deviant sexual preferences or that he does not regard sexual activity as a priority.
Having regard to his offending history, his attitude to his current offending as disclosed in the sentence assessment report as well as the corrective services psychologist report, I consider that there is a significant risk of the offender reoffending and that his prospects of rehabilitation are poor.
[5]
Synthesis
In order to determine the appropriate sentence I must consider each of the relevant matters I have referred to in summary above. I also must have regard to any legislative guideposts to sentencing and the purposes for which sentences are imposed. Before I set out my reasons taking this approach, I must first address one issue of principle.
In its written submissions, the Crown submitted that ordinarily the Court may only impose a sentence of imprisonment if, after having considered other available sentences, the Court is satisfied that imprisonment is the only appropriate sentence: section 17A(1) the Crimes Act. However, due to the application of a mandatory minimum head sentence, a non-custodial sentence is not available in this case. By contrast, the offender submitted that the process for sentencing under section 16AAB is first to determine whether a sentence of imprisonment is to be imposed as opposed to an order for immediate release under section 20(1)(b) of the Crimes Act. That submission was based upon the recent High Court decision in Hurt v The King; Delzotto v The King [2024] HCA 8.
The issues resolved in that case concerned first, the transitional provision relating to that section; and secondly, on the assumption that the minimum sentence provision did apply, then the operation of that section. There were two judgments given: the first being the joint judgment of the Chief Justice and Justice Jagot; and the second, the joint judgment of Justices Edelman, Steward and Gleeson. I will refer to the latter as the plurality. In each judgment, the conclusion was reached first that the provision did apply to the facts of each appeal and secondly that section 16AAB has a double function: first, of restricting the sentencing power to the minimum period of imprisonment subject to exceptions; and secondly; providing a yardstick, the opposite of the maximum term of imprisonment for the exercise of the sentencing discretion.
In the joint judgment, the broader question which was in dispute in the written submissions of the parties in this case was directly addressed. The Chief Justice and Justice Jagot expressly held that section 16AAB(2) presupposes both conviction and that the Court has decided, first, to impose a sentence of imprisonment (thereby excluding section 19B and section 20(1)(a)) and second, that the sentence of imprisonment is not to be subject to any direction under section 20(1)(b): See [35] and [39]. That approach was expressly referred to by the Court of Appeal in Victoria: see Trinh v R [2024] VSCA 61 at [40] and [42].
The plurality did not address the issue in the same way. At [98] their Honours recorded the arguments relating to sections 19B, 20(1)(a) or section 20(1)(b) of the Crimes Act but said that the issues did not need to be resolved on the appeals. In the following paragraphs, [99] to [101], they explained that those provisions, if applied, meant that section 16AAB(2) did not apply. Although it is not entirely clear to me the result of both the judgments appears to be the same. That is, that the minimum period of imprisonment referred to in section 16AAB only applies once the Court comes to the view not only that there must be a conviction but also that there must be a sentence of imprisonment. That is an approach that allows for a harmonious construction of the whole of Part 1B of the Crimes Act, including the important provisions of sections 16A and 17A. In short, that means that the yardstick that is presented by the minimum sentence only applies to the length of the term imprisonment. That yardstick, in the words of the Chief Justice and Justice Jagot, represents the Commonwealth Parliament's view of the "least worst possible case warranting imprisonment against which the case before the Court at the time can be measured.": See [39].
Turning to the first question then, it is important to have regard to the principles that apply in sentencing for offences involving child abuse material. Firstly, it is usually a primary sentencing consideration that there be general deterrence against such offending. This is heightened because offending is difficult to detect because of the anonymity provided by the Internet. It goes without saying that it is a paramount public interest to promote the protection of children. These offences are not victimless crimes; children are sexually abused for the purposes of supplying the market which involves people who, like the offender, use the product for their own purposes. It must be borne in mind that these images are readily published and stored around the world for years and this constitutes a re-victimisation of the abused children.
As I have said, because of the offender's personal circumstances particularly his deprived background and mental health issues, there is in this case a reason to reduce, to some extent, the weight to be given to general deterrence and to increase the need for his rehabilitation. However, there is a countervailing consideration of the need to protect the community from his further offending which I have found to be a very real risk. As he recognises himself, he must be punished and all of these factors taken together means that the punishment can only be in the form of a sentence of imprisonment.
That conclusion then brings into play the yardstick of the minimum sentence which in this case is 4 years imprisonment. Regard must also be had to the maximum term of imprisonment which is 15 years. Having regard to those matters, the offender's personal circumstances, my assessment of the objective seriousness of the offending and giving effect to the purposes of sentencing, the appropriate commencement point is a term of imprisonment is 5 years and 6 months.
As I have said, the next step is to consider what discounts ought to be applied, if any, to reflect the utilitarian value of the plea of guilty and the assistance given to the authorities. I accept that that plea of guilty has considerable utilitarian value and that it is appropriate to apply at 25% discount to the sentence to reflect that value. However, I do not accept that the assistance given by the offender has much value. Nevertheless, there should be a recognition of that assistance not only for what the offender has done himself but also to serve as an encouragement to others to assist the authorities in the future. I assess the appropriate discount for that assistance to be 5%.
After taking into account the discount for the plea of guilty and assistance and with some minor rounding, the appropriate head sentence is 3 years and 10 months.
In the circumstances I must impose a non-parole period. In this respect, the offender has in the past not had the benefit of any extended supervision in the community and I find that that will assist in his rehabilitation. That is particularly so given the assessment of the likelihood of his reoffending and the prospect that any supervision will be on the basis that he is at a high risk. The appropriate non-parole period is 2 years and 6 months which will leave a balance of 1 year and 4 months.
The offender was taken into custody on 13 April 2023 and that is the appropriate date at which the sentence should commence.
In addition to the sentence I will also make, by consent, a forfeiture order pursuant to section 23ZB of the Crimes Act relating to the Samsung phone confiscated taken by the police under the search warrant.
The orders of the Court are as follows:
1. The offender is convicted of the offence of using a carriage service to access child abuse material.
2. The offender is sentenced to a term of imprisonment of 3 years and 10 months commencing on 13 April 2023 with a non-parole period of 2 years and 6 months expiring on 12 October 2025, and a further period of 1 year and 4 months expiring on 12 February 2027.
3. The offender will first be eligible for release on parole on 12 October 2025.
4. Pursuant to section 23ZD of the Crimes Act 1914, the Samsung A12 - exhibit number X0001698459 is forfeited to the Commonwealth.
Finally, I recommend that the report of Anica Spatz dated 24 April 2024 accompany the sentence papers and be provided to the New South Wales Corrective Services for the purposes of assessing the appropriate treatment of the offender, if any.
[6]
Amendments
03 July 2024 - Consistency of Naming
03 July 2024 - Formatting
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Decision last updated: 03 July 2024