R v Buchanan

OBJECTIVE SERIOUSNESS

1. When considering the objective seriousness of each of the offences consideration must be given to the principles enunciated in Muldrock v The Queen [2011] HCA 39. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

WEAPONS OFFENCE

1. The weapon described in the facts is a torch/ Taser device combined. Mr Buchanan maintained at the time that he was unaware it was a Taser device, however the description of the torch suggest that he was at best wilfully blind that it was a prohibited weapon. This is however an offence of below mid-range seriousness towards the lower end of the scale. There are no aggravating circumstances. Specific and general deterrence and the protection of the community are strong sentencing considerations in this type of offending. The provision of a standard non-parole period for this offence is a legislative guideline.

FAILURE TO REPORT

1. The offender's failure relates to a failure to advise the police of an online dating application. He had this on his phone for approximately two months when he was required to notify police within 14 days. This is a serious breach; a complete failure to advise of a specific requirement. The inclusion of an online dating app is significant, considering the type of offences he was originally placed on the register for. There was no excuse given. It is an offence of below mid-range seriousness, not at the lowest end.

DISSEMINATE CHILD PORNOGRAPHY

1. I will deal first of all with the actions of the offender and the nature of the pornography and the dissemination. The submissions of counsel for Mr Buchanan suggest that his moral culpability for this offence is reduced as a result of his psychological presentation. As stated in Muldrock v The Queen [2011] HCA 39 "the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence."
2. The High Court in Muldrock distinguished between a person's moral culpability and the objective seriousness of the crime. Assessing the objective seriousness of a particular offence involving child abuse or child pornography material offence is the most significant aspect of the sentencing exercise. In Minehan v R(2010) 201 A Crim R 243 the Court of Criminal Appeal identified the following factors as being relevant to an assessment of the objective seriousness of a range of offences including, possessing, disseminating and transmitting child pornography: 1. Whether actual children were used in the creation of the material. In the context of this case actual children were used rather than, for example, animations. This makes the offence more serious. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. The facts are silent on such issues as the number of children however such information as is shown is that a file contained 619 separate images and a folder of 7.51 GB is a substantial quantity of images. The example cited relates to children between 5 and 13 years of age where penile and anal intercourse was depicted and children in sexual positions. The two examples given are of a high range of objective seriousness for child pornography offences. This is a neutral consideration. 3. The extent of any cruelty or physical harm occasioned to the children. There is no evidence of this apart from the inherent cruelty associated with the abuse. This is a neutral consideration. 4. The number of images or items of material - in a case of possession. This is a case of distribution, but the number of children is still a relevant consideration. There is no information apart from the 4 children referred to in the facts. I accept that in many cases many more items are included as numbers of images and videos, however in my experience such of those matters frequently contain a repetition or a copy of images. No such information is provided here. In my view 619 images and videos is a significant number, especially when considering the dissemination of those images wider into the public arena. This is a consideration that marginally increases the seriousness. 5. In a case of possession, the offender's purpose, whether for his/ her own use or for sale or dissemination. Submissions from counsel is that in this regard are that care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. However it must be pointed out that this is a case of disseminating child abuse material. It appears from the facts that Mr Buchanan's motivation was to gain access to other of this type of material. So while it is the case that he was not disseminating information for profit he was disseminating information in order to obtain other pornographic images of this nature. The fact that he was attempting to gain access to this type of material in line with it is referred to as "his diagnosed paedophilic disorder" does not assist him. 6. In a case of dissemination/ transmission, the number of persons to whom the material was disseminated/ transmitted. There is no information as to the membership of the chat site. However, the organisation in such a way assumes that more than one recipient was involved. This is a marginal increase in seriousness. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/ transmission. See above para v. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. Not relevant. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. It is suggested that Mr Buchanan's offending is not sophisticated however has obviously taken steps to acquaint himself with the sites which he could access and distribute child pornography. It was far from an opportunistic or accidental offence. It is suggested that the dissemination of images in this way is unsophisticated however I disagree. Dissemination in this way is a sophisticated use of social media. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. Mr Buchanan's involvement in this network is by definition a matter that makes the offending serious. The submission that he is "not part of the sophisticated or organised collaborative network whose purpose was for the production possession or dissemination of child abuse material" simply flies in the face of the agreed facts, and is not accepted. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. Not applicable. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. Not applicable. 13. Any other matter. It is observed that Mr Buchanan was on good behaviour bond for drug possession is at the time of the commission of these offences, the bonds having been imposed on 19 December 2018. It is observed that the current offences are for different types of matters, but relevant, as the offender states there is a relationship between his substance abuse and accessing child abuse material.
3. It is also relevant that in 2014 Mr Buchanan was imprisoned for a period of two years for the offence of possess child abuse material. While this is not an aggravating matter his record of prior offending in this way must deprive him of leniency. I have read the facts in relation to those offences, which related to the possession of 51,000 images and over 1700 video files containing child abuse material, with classifications between 1 and 4 on the CETS scale of seriousness. The children were aged between 5 and 14 years. The material was located on a number of devices. The pornography was therefore of a similar nature to the current offence.

MORAL CULPABILITY

1. Counsel has relied on 2 psychological reports tendered in evidence. In addition I have available the forensic psychological report attached to the sentencing assessment report dated 6 November 2019.
2. The first report dated 11 August 2014 prepared by forensic psychologist Ms Carolyn HARE, was prepared for sentencing proceedings for the 2014 possession of child pornography offences. Her CV attached to the report states that she obtained a diploma in forensic psychology in 2008 in the United Kingdom and general registration in Australia as a psychologist in 2012. It notes apart from general training she has worked in private practice as a forensic psychologist. Her report was prepared after a 2 hour 40 minute meeting with Mr Buchanan and reading relevant court documents.
3. To Ms Hare, Mr Buchanan indicated a history which is uncontroversial. After an unremarkable childhood he moved to Sydney from the Dubbo area to gain full time employment as a firefighter, when 19 years old. He has been in financially independent since that time. He worked full-time as a firefighter until 2014 when he was suspended due to criminal charges. Ultimately he did not return to that employment. In referring to his psychosexual history he indicated that he had a wide circle of friends and identified himself as homosexual at about the age of 28 years after denying that inclination for some years prior. He denied any sexual problems or fetishes. He advised the psychologist that as technology developed he spent more time accessing pornography and that towards the end of 2013 he was spending approximately two hours per day dong so. He told her males aged between 18 and 23 years was the demographic he is attracted to.
4. In relation to his drug use he said he commenced using drugs methamphetamine and gamma hydroxybutane, substances he observed reduced his inhibitions and increased his sex drive. Prior to that he had experimented but not to any great extent and had drunk alcohol from about the age of 16 years. He said his use of drugs increased to cope with the symptoms he was experiencing as a result of work-related trauma.
5. It is reported that his trauma is associated with work he did in Japan following the tsunami in 2011. He described this experience as being particularly traumatic spending many hours in confined spaces recovering bodies which were buried. He struggled on his return to work in the firefighting units. He reported recurring nightmares and took a great deal of time off work. As a result of this self-report Miss Hare suggested that Mr Buchanan presented with symptoms of post-traumatic stress disorder. This is not disputed. Apparently he saw a psychiatrist, but I have not been provided with any report. He reported substance abuse was part by way of "self-medicating" to avoid overwhelming thoughts.
6. Ms Hare observed he also used drugs and alcohol to reduce his inhibitions and thus increasing his risk taking behaviour, such as offending of the current nature. Miss Hare also observed that on the sexual deviance scale Mr Buchanan reported that he had a relatively high sex drive compared to other males and endorsed accessing pornography as an emotional coping strategy. In addition he reportedly expressed a preference for younger males and that appeared to include males being below the age of 16 years notwithstanding he was fully aware of the legal age of consent. This observation is consistent with the age of the children accessed on pornography sites.
7. Ms Hare reported that due to his struggle to accept his sexuality he had not had the opportunities to develop meaningful long-term intimate relationships. She observed that this lack intimacy may be relevant to his descent into pornography, although it does not appear to explain his fixation with young children.
8. At the time of preparing the report Ms Hare observed that Mr Buchanan expressed a positive attitude towards engaging in interventions to address his problems, however she also observed that he had a history of failing to utilise treatment opportunities and therefore was likely to require regular support.
9. At the conclusion of her report Ms Hare included a series of recommendations which included: assistance for his PTSD for which she suggested an array of treatment regimens; assistance with his substance abuse; interventions aimed to target a moderate risk of sexual recidivism. She recommended the Forensic Psychology Services program which is run in Sydney for the time that he was under supervision of probation and parole. As an alternative she recommended treatment programs privately within the community and offered to assist in that regard. She is appropriately qualified.
10. The next psychological report dated 9 December 2019 was prepared by psychologist Miss De Santa Brigida. The qualifications for this report writer are stated to be an Honours degree in Psychology and a Masters in counselling. Her noted publications relate to addiction to opioids. She indicates that she has been a psychologist for "many years" but not continuously. I note she reports that she specialises in "fields of substance abuse" and "mental health". Her experience suggests clinical practice. Her CV does not include any specialist areas dealing with paedophilic behaviour. She notes a particular interest of dealing with children who are recovering from some form of trauma. She indicates she has "many years' experience running programs for gambling, anger management, substance abuse and conduct problems". She does not appear to be particularly well-qualified to give an opinion in relation to the serious nature of Mr Buchanan's offending.
11. Nevertheless she has prepared a report which was prepared after interviewing Mr Buchanan via AVL for 1 ½ hours, and ½ hour clinical testing. She has also read and refers to reports from Dr Nguyen, psychiatrist; Mr Manning, psychologist and some other clinical notes. I was not provided with those reports so do not know the context within which the observations are made. Ms De Santa Brigida states that Mr Buchanan on his self-report met the criteria for a "paedophilic disorder" as he admitted to being attracted to children aged 13 years or younger. However later in her report, she states that she accepts his attraction is to children 12 years or older. This apparent conflict is not explained. She does not seem to have challenged him on the facts relative to the 2014 and the current charges which note that children involved are aged between 5 and 14 years.
12. Ms De Santa Brigida's observations therefore appear to be somewhat confused and confusing. The offender's attraction to children well under the age of 13 years is obvious from the nature of the offences that is pleaded guilty to. The psychologist helpfully indicates that a paedophilic disorder is typically a lifelong disorder and she proceeded to undertake apparently a sexual risk assessment. The sexual risk assessment she undertook deals with sexual violence risk which is not particularly useful for the current offences, however notwithstanding that she assesses is him as being a moderate risk for committing future sexual violence offences. She contradicts herself by suggesting that Mr Buchanan has set realistic plans for the future as being protective against further offending including that his plans include returning to live with his family of origin and apparently working as a truck driver. This is not proven to be a protective factor in the past. She gives no reasoning for her conclusions.
13. During the course of her report Miss De Santa Brigida asserted that Mr Buchanan's access to child pornography is related to his PTSD and his abuse of illicit substances. That assertion is unsupported by any evidence or cogent reasoning, (or any reasoning at all). She asserted that his use of illicit substances (ICE, an amphetamine) may be partially affected by his previous diagnosis of ADHD, but again there is no reasoning, nor evidence to support this.
14. She observes that Mr Buchanan reported to having received some counselling from psychologist Mr Manning and has "done the St John of God Hospital program for the PTSD". She takes this observation no further.
15. Without any reasoning this psychologist then asserts that Mr Buchanan's history of PTSD and substance abuse is associated with his history of offending of accessing and disseminating child pornography images. She does not explain what that association is other than to say that his use of ice has "blurred his boundaries and he started to watch pornography and admitted to sexual attraction to boys aged 12 or older." This is yet another difficulty in the psychologist report. The accessing child pornography by Mr Buchanan on each occasion has been for children as young as 5. The psychologist then blandly recommends that treatment needs to focus on his history of ice abuse.
16. I find the report of Ms De Santa Brigida to be unhelpful. It is superficial and does not contain any substantive reasons for her conclusions as to the association between his PTSD and the accessing and dissemination of child abuse material other than the fact that ice is his drug of choice. It does not contain any helpful recommendations other than he "should address his drug use" The report as a whole is simply a series of observations concluding with a finding that is neither supported by qualified research or any reasoning. The conclusions do not stand up to scrutiny, and I can afford them no weight.
17. In any event an observation that the behaviour of the offender meets particular criteria that might be referred to in the DSM-IV or DSM-V is not particularly helpful. It should not be assumed that all the mental conditions recognised by the Diagnostic and Statistical Manual of Mental Disorders DSM (IV.), attract the sentencing principle that less weight is given to general deterrence: R v Lawrence [2005] NSWCCA 91. Spigelman CJ stated relevantly "Weight will need to be given to the protection of the public in any such case".
18. My observation is that the same might be observed with respect to a paedophilic disorder. This is not an offence that was committed because of an addiction to drugs. Even if the offender's drug use is in some way associated with his access to child abuse material, it is the case that since 2014 Mr Buchanan has received advice as to the appropriate ways of addressing both his drug use issue and his attraction to child abuse material. In his letter to the court Mr Buchanan expressed appropriate and acceptable remorse in relation to the commission of these offences, but still lacks the required insight to address his sexually based offending.
19. In previous explanations of accessing child pornography the offender stated his use of drugs was an "exhilarating" factor. Notwithstanding that knowledge, he again used drugs. Use of drugs at the relevant time cannot be excuse for the offending behaviour. His moral culpability for the commission of the dissemination of child abuse material is not reduced by anything related to his psychological circumstances; his PTSD and/or his drug use.
20. Those matters will be taken into account when considering his prospects of rehabilitation and the supervision required during the course of rehabilitation. Notwithstanding his genuine remorse at this stage it must be observed that he received advice from Miss Hare in 2014 as to the appropriate action he should take in order to avoid an escalation of his sexual based offending. He did not take that advice. His lack of action the past must therefore limit any enthusiastic finding as to his prospects of rehabilitation. I find his remorse now is genuine, and that is a good start.
21. The use of alcohol or drugs by an offender may be relevant in sentencing for one or more of a number of reasons. The origin or extent of a drug addiction (or any attempts to overcome it) may be relevant subjective considerations where such an addiction might:

• impact upon the prospects of recidivism.
• impact upon the prospects of rehabilitation.
• suggest that the addiction was attributable to some other event for which the offender was not primarily responsible - thereby removing personal choice.
• justify special consideration in the case of offenders at the "cross-roads. No such submission is made for Mr Buchannan, although I accept that at this stage his motivation is high.

1. While it can be said that the aim of rehabilitation needs to be taken into account, it is but one aspect of sentencing. Such offenders should not be placed in a special category for sentencing.
2. Submissions that Mr Buchanan's drug use or PTSD should be subjected to the principles enunciated in the case of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 are not supported by the evidence.
3. There is nothing before the court upon which a finding can be made that his mental health condition reduces the objective seriousness of the offending behaviour. Considering the offence is the second offence concerning child abuse material and that at the time Mr Buchanan was fully aware of the consequences of this offending for the children involved, this is an offence of objective seriousness at mid-range.

CORRECTIVE SERVICES FORENSIC REPORT

1. Of more relevance to his prospects of rehabilitation is the forensic report attached to the Sentencing Report, prepared by the forensic unit of Corrective Services. It draws on the observations of Ms Hare and contains a series of positive recommendations. I observe that some of the recommendations coincide with those in her report of 2014. It is unfortunate that the previous sentence imposed on Mr Buchanan was such that he had insufficient time to enable his participation in sex offender programs and that he was not required to attend the programs once he was released from custody. It seems that at that time Mr Buchanan was in some denial as to his sexual attraction to young children. On his release from custody, he returned to the Coonabarabran area and was therefore unable to participate in the programs which are city based.
2. The Corrective Services psychological report observes that Mr Buchanan appears to have "complex treatment needs in the medium risk range". His treatment needs include mental health and substance abuse and a recommendation is strongly made that sex offender specific intervention is indicated. A further assessment is required prior to intervention. It is observed that he has difficulties with "general self-regulation" and displays "poor coping and problem solving skills". It is observed that he may use sex as a way of emotional regulation. This is of significant concern as it is observed that his use of substances likely compromises his capacity for self-management, increasing his disinhibition and risk-taking. It is not the case however that his use of substances is a direct cause of his sexual offending.
3. It is also recommended that supervision by a responsible adult in the company of any children would be an appropriate risk management consideration and his use of the Internet ought be limited and appropriately reviewed. It is noted with concern that exposure to illicit substances in the transport industry may be a factor for future risk management. His stated intent to work as a truck driver again would need close monitoring.
4. The recommendations of the Department of Corrective Services relate to community and custody based specialist treatment programs. The observation that any community-based sentence would not be possible while he is resident in Coonabarabran gives the court significant cause for concern. This is a matter that I suggest probation and parole address at some length prior to his release on parole. If there is insufficient time for him to access the in custody programs, (which would be the best option), then they must address a suitable placement for him. If there are suitable alternatives then those alternatives must be properly qualified and assessed to deal with the current presentation of this offender.
5. Mr Buchanan has proposed a religious counselling organisation apparently recommended to him. I have no information as to the suitability of this program for his presentation. My observation is that Mr Buchanan requires his current excuses for accessing child pornography, to be challenged. I suggest he may also be assisted by appropriate assistance to form friendships and relationships within the prosocial gay community.

HARDSHIP IN CUSTODY

1. His time in custody is spent in protected area where he is classified with other offenders who have committed like offences. It is submitted that there is a degree of hardship encountered by Mr Buchanan. There is no evidence before the court that his current classification presents any special difficulty or hardship for him. However I do observe that in the letter from his mother she indicates that there are some difficulties in visiting him from the Coonabarabran area because of her health difficulties. I observe therefore that to some extent there are some difficulties and isolation from his family. This is not hardship as it is meant in the Act, however I request that if possible Mr Buchanan be placed at a custodial location in closer proximity to his family's home. This should not override the need to be placed in treatment programs.
2. While I observe and do not criticise Mr Buchanan's attempt to enrole in drug rehabilitation services with an organisation called Pastoral Counselling Institute, I note that these programs do not specifically address his complex needs as they present to this court. They may be of assistance in other ways.
3. While I accept that Mr Buchanan wishes to resolve his offending behaviour it is naive to suggest, as he seems to believe, that reintegration community and finding this job will solve the problem that faces him. He must undergo significant engagement in sex offender programs. While I accept that his regret is genuine, and his insight into the effects of the production and dissemination of child abuse material is superficially present, that is but the beginning of the rehabilitation process. However, I find that if afforded sufficient supervision and assistance he has reasonable prospects of rehabilitation.
4. When considering the sentence to be imposed, section 3A of the Crimes (Sentencing Procedure) Act requires the court to take into account many sentencing considerations some of which are in apparent conflict. The need to protect the community from behaviour such as this is of concern as is specific deterrence. The rather lenient sentence imposed in the past on Mr Buchanan clearly did not deter him from committing offences only a short number of years after his release. In addition it is obviously in the interests of the community and Mr Buchanan that he be given as much assistance as possible in order to rehabilitate himself. Offences such as this also require a strong consideration of general deterrence. Unless people who access child pornography and go on to distribute to others are fully aware that such behaviour can and must be dealt with by way of significant punishment then there is little deterrence. These offences are easy to commit and quite obviously very difficult to detect.
5. I observe that Mr Buchanan pleaded guilty in the Local Court and is entitled to a discount of 25% on the sentence that would have otherwise been appropriate. Also before the court are breaches of three community corrections orders made approximately two weeks before the commission of these offences. Those breaches relate to possession of prohibited drug matters and Mr Buchanan admits the breaches. He has been in custody on all matters since the 1st January 2019. I propose to deal with all matters by aggregate sentence. Notionally there should be some accumulation for each separate offence.
6. In so far as I have not referred to Mr Buchanan's personal circumstances I note that he is as at the date of sentence 37 years of age. He has a loving and supportive family in the Coonabarabran area prior to the commission of serious offences in 2014 was a person of good character.
7. I acknowledge that section 5 of the Crimes (Sentencing Procedure) Act requires the court to only impose terms of imprisonment where no other sentence is appropriate. Counsel for the offender did not suggest any other form of sentence is appropriate. I agree with that.
8. When considering whether to make a finding special circumstances I observe that Mr Buchanan will require significant supervision in the community however the sentence that must be imposed even after a discount is a sentence that will afford significant a period of supervision. I also observe that he will be required to maintain reporting conditions under the Child Protection Act as a registrable person.
9. There will be a limited finding of special circumstances to enable supervision in the community for a significant period. I recommend that he receive as much pre-release sexual offending counselling as is possible.

THE SENTENCE

1. The offender, NORMAN JOHN BUCHANAN, is sentenced to an aggregate term of imprisonment of 4 years, 10 months to commence on 1 January 2019 and expiring on 31 October 2023 with a non-parole period of 3 years, 4 months. The offender is first eligible for parole on 30 April 2022.

THE INDICATIVE TERMS Breach of Bond matters: The Indicative Term for 2018/00314571-001 (Possess prohibited drug) is 2 months. The Indicative Term for 2018/00314571-002 (Possess prohibited drug) is 2 months. The Indicative Term for 2018/00314571-003 (Possess prohibited drug) is 2 months. The Indicative Term for 2019/00000770-001 (Possession of weapon) is 1 year, 1 month. The Indicative Term for 2019/00000770-004 (Failure to comply with reporting obligations) is 1 year, 4 months. The Indicative Term for 2019/00000770-005 (Distribution of child pornography) is 3 years, 9

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