HIS HONOUR: The prisoner John William Collins appears today for sentence in relation to a number of offences committed approximately between 1 February 1979 and 31 December 1980 in relation to a then young male victim, hereinafter to be referred to as XX or 'the victim'. He also appears for sentence in relation to an offence committed whilst on bail in relation to the matters with which I am concerned relating to the victim from 1979 and 1980. The detail of the charges with which I am concerned and for which the prisoner is to be sentenced today is as follows.
Firstly, count 1 on the indictment, to which the prisoner pleaded guilty, alleges an offence committed between 1 February 1979 and 31 December 1980 of indecently assaulting the victim, a male person. This is an offence contrary to s 81 of the Crimes Act 1900 as it then stood which then carried a maximum penalty of five years' imprisonment. Naturally, it had no standard non-parole period.
The second offence on the indictment is an offence allegedly committed or in the indictment between 1 November 1980 and 31 March 1981 at Allawah in the State of New South Wales of the crime of "buggery" upon the victim. This is an offence contrary to s 79 of the Crimes Act 1900. It carries a maximum penalty of 14 years' imprisonment.
There is to be taken into account in relation to count 2, the buggery charge, four offences on a Form 1. The first offence is an indecent assault contrary to s 81 upon the victim committed in the same period of time pleaded in relation to count 1. There is another offence of act of indecency with a male pursuant to s 81A over the same period of time upon the same victim. As I understand it as at 1979 and 1980 the maximum penalty in respect of an offence contrary to s 81A Crimes Act 1900 was two years' imprisonment. There is a further allegation of buggery pursuant to s 79 Crimes Act committed between 1 January 1981 and 31 March 1981 at Hurstville upon the victim and a further charge of attempted buggery committed between 1 January 1981 and 30 April 1981 at Randwick contrary, according to the Form 1, s 80 Crimes Act 1900.
The further matter for sentence is an offence of greater contemporaneity. That is an offence of possess child abuse material contrary to s 91A(2) Crimes Act 1900. This offence carries a maximum penalty of ten years' imprisonment. There is no standard non-parole period. This offence is an offence committed in the pleadings between 27 May 2016 and 12 October 2016. The prisoner was arrested and charged in relation to this matter apparently in January 2017 after I had refused bail on 14 October 2016. The prisoner has been in custody since that latter date and of course all time in custody will be taken into account.
The prisoner committed the relevant offence, the facts of which I will outline later, in a period of time which includes the period of time between pleading guilty to the matters on indictment and my refusal of bail on 14 October 2016. I point out in the context of pressing the seriousness of the breach of conditional liberty that this offence was ongoing over a period of time when I was considering whether or not I would revoke or refuse the prisoner bail after his pleas of guilty on the application of the Crown.
I do not propose to go into the detail of what occurred, but, in summary, after the prisoner pleaded guilty and the Crown made application for him to be refused bail I spent a number of days, the precise number I do not have a record of at the present time, considering Mr Collins' situation particularly in light of the circumstances of his mother, as she is described, or his "aunt" and allowed him to be on bail in that period of time to make arrangements for her wellbeing.
With regard to the matters of 1979, 1980 and 1981 there is what is called a draft agreed statement of facts before the Court. The document that was actually tendered and received in evidence is signed by the learned Crown Prosecutor, but not signed by the prisoner. There are matters that were raised with me from the outset on behalf of the prisoner, who did not give evidence in the sentence proceedings, of "dispute". These matters primarily related to not the character of the offending, but the character of the relationship between the prisoner and the victim.
The victim was born on 11 March 1970 and the background of his childhood was that he went to Coogee Public School until about year 3 and 4 and played rugby union as I would understand it from the age of six or seven. He played for a team described as "Clovelly" in junior rugby union between 1977 and 1981.
The evidence is, in the context of the matters raised on behalf of the prisoner and some independent evidence from the victim's mother, that the prisoner had an association with the Clovelly club, the victim believing that, at the relevant time the offender committed the offences on indictment and on the Form 1, the prisoner was his coach. There is some independent evidence to establish that the prisoner coached a team in 1977, an under 17 team, but only for one year, although the prisoner may have had a continuing association with the club after that period of time.
The significance of this aspect of the purported "dispute" as I would understand it, although it was never expressly addressed in the final submissions, seemed to me to reflect upon the issue of whether the prisoner was in some sort of position of "authority" or held a position of "trust" in respect of his relationship with the victim. Of course, I appreciate even if he was established beyond reasonable doubt to be the victim's coach at relevant times, issues of "breach of trust and authority" would be matters of debate. But ultimately I have concluded although the prisoner and the victim had a connection dating back to the victim's association with the Clovelly Rugby Club the evidence available to me, albeit in a draft "agree facts" statement and the like, leaves me with the conclusion that whatever be the character of the circumstances in which they came to know one another at relevant times, the prisoner did not have a position of "authority" nor was in breach of any "relationship of trust" in respect of the victim at relevant times.
That is not to say, of course, that the prisoner when the victim was in his presence, particularly occasions that the victim was being driven around Sydney whilst the prisoner went about his job, did not have some responsibility for the care of the victim. That is self-evidently so. I do not believe there is a requirement for me to examine that matter in any greater detail.
I hasten to say as will be self-evident when I deal with the legislative matters that are relevant to this sentencing exercise, that at the time of the commission of these offences the character of the offending with which the prisoner was concerned was covered by what can be described now as "primitive" penal provisions. It is quite obvious to anyone who has any understanding of the current state of the Crimes Act that there is a far more sophisticated and detailed array of offences that could have been charged in relation to these matters with identical offending had these offences been committed in recent years.
Matters such as being under the authority of a particular person at a relevant time can be circumstances of "aggravation" which would be pleaded as elements of the offence and, of course, we now have a complex provision, s 21A Crimes (Sentencing Procedure) Act 1999, which details particular aggravations of criminal conduct and mitigating factors that can be taken into account both in respect of the objective offending and the subjective circumstances of the offender.
In sentencing the prisoner at this point of time I am required in retrospect, if it may expressly be stated, the provisions of s 21A to offences which at the time of the offending did not require the consideration of s 21A simply because it did not exist. The precise history of s 21A I need not dilate upon, but the Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as 'the Act', actually became the law in New South Wales shortly after I became a Judge and came into force in 2001.
The original act had a form of s 21A, or certainly had a form of s 21A within a few months of the enactment of the original Act, but the current Act in its sophistication and in its detail has evolved from a time around about 2003. But, as I have said, I am required to apply it to all the offending, noting, as I have said earlier, that there are some matters that could not be pleaded as circumstances of aggravation when the offending occurred.
It is part of the facts which I accept for the purposes of sentencing the prisoner that the prisoner in his initial contact with the victim developed a relationship with him which commenced with some inappropriate touching. Those matters in themselves were not matters of significance but for, of course, what then followed.
Count 1 of the indictment is an allegation of indecent assault on a male and this involves the accused asking the victim at a particular point in their association with one another, in a place that is not described in the facts, to take his shorts and underwear off and the accused touching the victim's penis for a short time whilst the prisoner was driving his motor vehicle. The prisoner told the victim that it was all right and the victim felt that the prisoner was acting as a type of father figure at that time. I should point out, as I understand the evidence, the victim lived with his mother, but did not have a father at that particular time.
The second matter on the Form 1 reflects the next offence in time, as does the third matter on the Form 1. These are allegations of indecent assault and an act of indecency with a male. The next time the prisoner was driving the victim he asked the victim to take his shorts off and rubbed the victim's penis. As I would understand it, this would be the allegation of indecent assault. While he was doing this he pulled his own football shorts down and exposed his penis to the victim and said to the victim, "Look how big this penis is." The victim saw the prisoner's penis and later on is able to say that the accused was circumcised. He says this conduct occurred on two further occasions.
There is an alleged contact at Clovelly Public School when the victim was in year 6 which apparently is in some form of dispute, but it is a matter that forms only part of the contextual evidence and is not of itself a matter of great moment.
The facts state that after training one night the prisoner asked the victim's mother if the victim could come to work on his truck with him at the time the prisoner was a truck driver. In this respect there is some dispute, again not the subject of evidence from the prisoner, concerning whether in fact he asked the mother for the victim to come to work with him on the truck or whether the victim in fact of his own motion came to be with the prisoner in the truck. Not attending school when he should have. To my mind this issue is a matter of no moment in proper context.
The prisoner is said in the course of their relationship to have often asked the victim to pull his pants down and the prisoner touched his penis. Count 2 is an allegation of buggery. This occurred when the victim and the prisoner were travelling around in the prisoner's truck. It was during the summer period and the victim remembered driving through the St George area and eventually driving to what, as I understand it, was a horseshoe shaped street where the prisoner parked outside a block of apartments. They went up to the unit block and up the stairs and went into a unit, the ownership of which is not described in the facts.
The prisoner asked the victim to come into the bedroom. It would appear that nobody was present at the time. The victim recalls the prisoner looking "scared or nervous". The bedroom contained female clothing and other female items. The prisoner looked through various drawers and told the victim to sit on the bed. The victim sat on the edge of the bed. The prisoner asked him to move over. He sat next to him. He rubbed the victim's penis on top of his clothing and then asked him to pull his shorts down. He did this, because he was asked to by the prisoner and he believed the prisoner was acting as a kind of father figure. The prisoner stroked the victim's penis and pulled his own pants down, exposing an erect penis. He cuddled the victim, played with the victim's penis and started massaging the victim's legs and body and tried to turn him over.
The victim turned on his stomach so the prisoner would stop touching his penis. The prisoner got on top of him. The prisoner touched the victim's bottom from behind. The victim turned on his side to see what the prisoner was doing and, naturally enough, the victim was scared as he did not know what the prisoner was doing. The prisoner put his penis between the cheeks of the victim's bottom and stroked the bottom of the victim with the end of his penis and then inserted his penis into the victim's anus, thus committing the offence of buggery. The victim reports that this was "the worst pain (he) had ever experienced". He tried to wrestle away from the prisoner. However, the prisoner continued with the intercourse.
The victim, afterwards, was in shock and eventually the victim was allowed from underneath the prisoner. The prisoner did ask the victim a number of times if he was all right but the victim was, to use the word in the statement of facts, "in shock". The prisoner is said to have tried to comfort him and they eventually went back to the truck without taking anything out of the unit. The prisoner tried to assure the victim over the rest of the afternoon and the victim was dropped off at home. The victim had blood in his excrement and on toilet paper, and had sharp pains in his lower stomach and anus for three days after the offence.
There is no evidence before me, and the prisoner has not assisted this Court in any way in this regard, as to the connection the prisoner had with the unit at Kogarah or Rockdale where this offence is said to have occurred. My understanding of the matter is that the prisoner was an inhabitant of the eastern or south-eastern suburbs of Sydney.
The victim did not travel with the prisoner for some weeks after this. About a month later, however, the victim was back travelling around with the prisoner in his truck and they eventually one day went to 5 Treacy Street, Hurstville. This was a house identified by the victim after he came forward to police in 2014. The house was identified in 2014. The prisoner, when they came to this address, went in the house. The victim remained in the truck. Eventually the prisoner came out of the house and waved the victim to come in and the victim thought that the prisoner needed someone to help him carry things.
Eventually when the victim came into the premises, he found himself in a bedroom and the victim was pushed down to lay down on the bed. The victim was lying next to a window. At this point the prisoner was not wearing a shirt. He took off his clothes and became completely naked; rubbed the victim's penis through his shorts, removed the shorts and underwear, told the victim to touch his penis, which the victim refused to do, then grabbed the victim by the shoulders and rolled him onto his stomach and placed his penis into the victim's anus. This was "more painful than the previous time". The victim describes this as "the worst pain he has ever felt". The victim again tried to force the prisoner away and the penetration continued for about ten minutes. The victim was eventually able to get free. The victim does not know if the prisoner ejaculated, however, the facts quote, "He did not ejaculate in the victim's anus".
On this occasion when the victim got off the bed, he was crying and his bottom was sore. The prisoner again tried to comfort him. The victim pulled up his pants and rushed out of the door, and the prisoner followed him. It would seem on the facts available to me, although the prisoner sought to comfort the victim, he carried on as if nothing serious had happened. The victim again suffered discomfort, blood excreted from his anus in the days following.
On the Form 1 there is another allegation concerned with anal penetration but this allegation is one of attempted buggery. On this occasion the prisoner drove the victim to his "parents" house at Randwick. The prisoner lured the victim into the house on the pretence that he wanted the victim to meet his parents. He told the victim when they went inside the house to go into the first room on the right, which was a bedroom. The prisoner returned after being absent for a period of time and went into the bedroom where the victim was, closed the bedroom door and again the prisoner undressed. He had an erect penis. He pulled the victim's shorts down past his knees. laid the victim on the bed, stroked his penis, laid on top of him and then tried to insert his penis in the victim's anus. He tried for some period of time but was unsuccessful in penetrating the victim's anus. The victim got off the bed eventually, got dressed and tried to leave the house, and eventually the victim was driven home.
On this occasion the victim recalls the prisoner did not try to console him as much as he had previously. None of this was reported to the victim's mother, for obvious reasons.
The victim, after this occasion, never travelled with the prisoner on his truck again. Eventually after many, many years of struggle, reflected in the victim impact statement, the conduct of the prisoner having a profound impact upon the victim and his life quality, the victim came forward in July 2014 spoke to a solicitor about the matter and was advised to report the matters to the police. At this time, he also told his wife what had happened.
The victim's mother Ms Morris made a statement to police. She confirmed certain aspects of the victim's contact with the prisoner, the association of the victim with the prisoner, and the fact that the victim had worked with the prisoner on his truck. She says that the prisoner did not speak to her about this aspect of the matter. The prisoner, when interviewed in relation to these matters, admitted certain aspects of the victim's story, particularly aspects of his connection with the victim. She, the mother, remembered the victim after the last sexual contact with the prisoner, although she did not know it was sexual conduct but certainly at a time when the victim said he did not want to work with the prisoner anymore, being in a trance-like state. She made inquiries of the prisoner's mother as to why the prisoner was picking up her son and she reported that the prisoner's mother said that she would have a word with the prisoner. In August 2014, no doubt with great trepidation, the victim told his mother what had happened to him as a child.
The statement of facts also deals with matters of history relating to the prisoner's indecent treatment of other children subsequent to the offending with which I am concerned. I will go through the prisoner's criminal history shortly but there was another victim for which the prisoner was sentenced in 1991. That victim was eleven years of age. The victim with whom I am concerned at the relevant times was either nine but more likely ten or eleven, given the generality of some of the particulars. This eleven year old victim was indecently assaulted in particular ways and the prisoner showed the victim a number of pornographic "books", as they are described.
Another victim, for which the prisoner was sentenced in 1991, was nine years of age when he was indecently dealt with by the prisoner.
In 2000 the prisoner pleaded guilty to offences relating to a victim who was fourteen years of age, and precise details of that offending are not summarised in the Crown's statement of facts.
I have said earlier that in relation to these matters I have read the victim impact statement. It sets out the history of the matter in terms of context as remembered by the victim and he speaks of the considerable effect upon him of the prisoner's conduct, the way it has affected his quality of life, his relationship with other males, difficulties he had with his mother and the emotional and physical turmoil that he had suffered as a consequence. He noted that he would wish to get his "life back", taken from him in the circumstances set out in his victim impact statement, by the conduct of the prisoner.
The other offending with which I am concerned is the offending relating to his possession of child abuse material. In respect of that matter, there are two related offences flowing from that offending on a Form 1 by being in possession of child abuse material. The prisoner was in breach of his obligations under the Child Protection (Offenders Registration) Act 2000, that is a failure to comply with "reporting obligations" as an offence on the Form 1. There is another offence on the Form 1 of disseminating child abuse material over the same period of time, that is, between 27 May 2016 and 18 June 2016. That offence carries a maximum penalty of ten years imprisonment when dealt with on indictment. In respect of this matter, there is an agreed statement of facts. It could scarcely be disputed in the context of what is alleged in the facts.
With regard to the prisoner's registration under the Child Protection Register, that occurred after his convictions in 2001. He was reminded of his obligations in relation to that legislation again by police on 20 July 2016. The failure to comply with reporting conditions was the fact that the prisoner had an e-mail address; "bigballs1092@hotmail.com", that he did not register to police in accordance with his reporting obligations.
With regard to the dissemination of child abuse material, police on 18 November 2016 received information that the offender was using a number of aliases or had used a number of aliases to upload images depicting a naked prepubescent male in a sexual position with an adult male to Facebook on 18 June 2016. This image is classified now as category 1 on the Interpol Baseline:
"(an image depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child)".
I just interpose to point out that this is the first case that I have had where this new method of seeking to categorise child abuse material has come before me. It is a relatively recent change in the categorisation of this material. As recently as a few months ago, having dealt with many cases of this type, both Commonwealth and State prosecutions, the categorisation of material followed what I understood to be the CETS categorisation which involved a number of levels of material, from memory now 1 to 6, showing different categories in what I would call ascending seriousness, at least from category 1 through to category 5. Now it is the proposal of the prosecution to produce to courts one of two Interpol 'Baseline' categorisations. I am not familiar with what category 2 is but based upon what I have seen in relation to this matter, it will become more common for Judges, or Magistrates in the appropriate case, to view the relevant material to have a clear understanding or even a basic understanding of the category of material. Obviously, the description I have given of "category 1" on the Baseline is so generally worded as to not provide much assistance in understanding precisely what the images are.
It was explained to me by the learned Crown Prosecutor that this change by the New South Wales Police, at least, has been brought about by the emotional damage and suffering and impact of viewing this material that police have been subjected to in their hard work and excellent investigative undertakings, pursuing people that possess or disseminate this type of material. What effect the reviewing of this material is going to have on Judges is another issue. It must be said, although it has got nothing to do with this case, I had to view once a thirty minute video of a grown man having penile/vaginal intercourse with a three year old girl, in the knowledge that the little blond-headed boy sitting in the background was to be killed by the man once the film ended. It is a matter that has stuck with me for some period of time. I have an understanding of the impact upon police of this material.
It is further said in relation to the dissemination of child abuse material that the prisoner uploaded images depicting either the genitals or the anus of prepubescent males to Facebook on 27 May 2016. Again with this "category 1" to which I refer. These Facebook images were originally reported to the "Cyber Tipline of the National Centre for Missing and Exploited Children Unit", who then reported the images to the AFP for further investigation. Those images have not been brought to my attention.
I did, however, see a cross-section of the child abuse material in the possession of the prisoner. The police had received information the prisoner had uploaded forty video files to the Dropbox application, that is:
"an application downloaded onto devices so that photos, documents, videos and other files can be backed-up, accessed and shared on all of the user's devices".
Police have since examined the fifty video files and found that forty-five of those files were child abuse material that fall into the category 1 on the Interpol Baseline to which I earlier referred. All forty-five video files contain child abuse material depicting prepubescent males involved in sexual acts with an adult male, or another prepubescent male, or with themselves. Some of these prepubescent males were toddlers. The names of those various files, as I understand it, taken from the prisoner's computer or hard drive, I need not read onto the record. But each of them by their description depict obviously challenging, to say the very least, disturbing and deeply offensive subject matter. One such file, for an example, is titled "Boysuckmancum". In order to understand the material, I viewed the material in court when the matter was last before me. I placed on the record, after viewing the material, what I had seen. I do not have a transcript of the last proceedings before me but that transcript, I think, fairly, as the Crown and defence acknowledge, set out what I had observed. At this point, all I need say is I saw images of very young children apparently drugged, or at least one child drugged. I saw images of three pubescent or prepubescent boys involved in sexual activity, one with the other, including anal penetration and fellatio. I saw grown men performing fellatio and other sexual acts upon children.
Whether this material was paid for by the prisoner or uploaded on some basis where he had access to it through people that he knew, I do not know. It does not really matter very much. It does not matter whether it was paid for or was provided to him for free. But it is clear, as I have said on a number of occasions, and I am sure many other judges have said far more eloquently than I can portray the material, that each of these images, grossly confronting as they are, show a victim, perhaps a victim in another country or another continent, but a victim nevertheless, being debased and abused. It does not matter whether it is a still image or a video image, what we are seeing is only part of the picture. We are denied what has brought the child, in the case of a child being abused, to that position and we know not what has happened to that child after they have been used for the sexual purpose that the video shows. Anyone who viewed that material should, acting reasonably, be deeply, deeply disturbed and upset at that situation. People like this prisoner allow the situation to exist where young people, some very young indeed, are drugged and abused in many ways. How anyone could get any sexual enjoyment or satisfaction out of viewing such material is very difficult to understand.
The video files that contain child abuse material were uploaded between 16 July and 12 October 2016. So the prisoner was actively uploading some of this material when he was appearing before me and I was struggling with the issue of whether I should permit him to remain on bail. I must say that, putting aside my view of the correctness of my decision at the time, by placing the prisoner in custody at least to some extent I limited the prisoner's access to this material and further uploading of the relevant material. The matter was not expressly addressed in submissions by either of the parties, but there can be, in my mind, no doubt that the prisoner's activities in this regard were interrupted by being refused bail and being placed in custody.
The prisoner, it should be pointed out, according to the AFP records, used a number of online aliases to obtain this material. Both the images to Facebook that were uploaded and the forty-five video files that were uploaded to 'Dropbox'. The prisoner has been linked to these online aliases by the Hotmail account to which I refer, which has been identified by intelligence analysts of the Australian Federal Police as being linked to the prisoner at the address where he lived. The "IP" address which is set out in the facts was used to log into the Hotmail account on various occasions between 16 July and 12 October at his home address, and the relevant account is registered in his name. There is a statement attached setting out some details in relation to that material. I will say more about the objective seriousness of that offending shortly.
The prisoner was born on 4 September 1956. It is to be noted that at the time of the commission of the offences in 1980/81 against the victim to whom I earlier referred, the prisoner had two findings of guilt in respect of matters of dishonesty. He was convicted of stealing in April 1975 and bound over for four years, placed under Probation and Parole supervision, and there were four further counts of "larceny" dealt with on the same day in the Sydney District Court for which he was bound over for four years, again subject to Probation and Parole Service supervision. That supervision would have finished in April 1979.
He was convicted in the course of the offending with which I am concerned, precisely when in relation to that offending I cannot say, in respect of offences of make false entry and a number of counts for forgery and uttering, which were dealt with in the Local Court. Again, he was given the benefit of a recognisance to be of good behaviour for three years. Some of the offences were dealt with by a sentence of rising of the Court.
Certainly I am prepared to accept that he was at the time of the historical offending a person without prior convictions for violence or sexual offending against children. I could not conclude on the basis of findings of guilt in the District Court for larceny that he was necessarily a person of "good character", although that offending was quite different from the offending with which I am concerned.
However, more pertinent to the offending of possessing child abuse material, in terms of the sentencing exercise with which I am concerned, are his subsequent appearances at court. He was convicted at the Bathurst District Court in November 1991 in respect of two offences of committing an act of indecency upon a person under the age of ten years and committing an assault upon a person with an act of indecency and, in respect of each offence, was placed on a recognisance to be of good behaviour for five years.
He then was convicted in 1995 for an offence committed in 1994 of "violent disorder" and fined $600. He had further convictions for dishonesty at the Waverley Local Court in December 1995. He was initially sentenced to six months imprisonment for nine counts of larceny as a clerk. He appealed against his conviction. The appeal was dismissed but the learned judge who dealt with him, Judge Gibson QC, substituted for the gaol sentence a recognisance to be of good behaviour for three years.
In 1999 he was convicted of a mid range prescribed concentration of alcohol offence, for which he was placed on a recognisance for eighteen months. He was subsequently convicted of other driving offences at the Downing Centre Local Court, not of great moment, although he was driving whilst suspended on different dates.
In May of 2000 he was convicted in the Local Court, for reasons best known to the prosecutors at the time, of aggravated indecent assault upon a person under the age of sixteen. Three such counts, as I would understand the matter from the criminal history in respect of which I should say he was placed on a s 9 bond for five years under the Act. In respect of two other counts of aggravated indecent assault of a person under the age of sixteen years he was imprisoned for nine months but that was suspended pursuant to s 12 of the Act. These offences were committed, as I would understand the matter, in March 1999.
He was convicted in the Sydney District Court on 21 October 2011 for an offence committed on 17 October 2010 of producing, disseminating and/or possessing child abuse material. For this offence, he was sentenced to twenty-seven months imprisonment, commencing from 14 November 2011 with the non-parole period of twelve months. Thus, as I would understand it, there was a finding of 'special circumstances'. He was required on release to obey all directions concerning psychiatric treating including medication, he was directed to destroy "DVDs and Dell hard drive and computer".
He had a conviction for failing to comply with reporting conditions relating to the fact that he was a registered sexual offender. That conviction was recorded at the Downing Centre on 7 June 2015, and he was placed on a good behaviour bond for seventeen months, as I would understand it, from that date and to receive counselling, education and other advice from what was called "Probation and Parole" for some period of that bond. As I would understand it, judging from the chronology of the matter, if that bond was entered in June 2015, he would have been subject to that bond at the time of the commission of the offence with which I am concerned of possess child abuse material. I also should note in respect of the appearance at the District Court there were related offences of use carriage service to access child pornography, for which he received concurrent sentences.
There is a presentence report from Community Corrections setting out his prior contact with the organisation in its various forms. He is said to have completed the relevant supervision "satisfactorily".
Whilst in custody from 2011, he completed the CUBIT sex offender program and was compliant with supervision. He also was subject to the s 9 bond to which I referred. That purportedly expired on 16 November 2016. It is said by the Community Corrections Service, "His response to this order was consider satisfactory."
Obviously, Community Corrections were not relevantly informed of his offending in respect of the possession of child abuse material with which I am concerned.
His background, as is set out in this report and in the psychological report obtained is not controversial. The lady who has prepared a reference for him that he describes as his mother, the person about whose welfare I was so concerned about late last year, is really his aunt. His birth father passed away when he was three years of age and his birth mother died when he was nine years. What impact upon his later development these events and the circumstance of being raised by his aunt and uncle, I cannot say, but he claims a positive upbringing. There is nothing to suggest that anything done by his aunt or uncle of his birth mother or his birth father has directly contributed to his offending.
He retains a close relationship with his adoptive mother who is elderly and has many health difficulties. His uncle or adopted father passed away in 1998. According to the history in the Community Corrections Service, he was in a sexual relationship, apparently, with a woman for 12 years, ending in 1991 and has two children, aged 25 and 31. His eldest child, however, is unaware of the matters before the court. His children have not attended court; not that I hold that against him. But they have not been present in these proceedings.
He has had various employment since leaving school. I note his criminal history reflects dishonesty towards some employers. He has worked as an accounts clerk which would have given him the opportunity to have committed those offences. I know he worked as a truck driver. He was unemployed for a short period of time before being taken into custody in October last year. He has some modest tertiary qualifications. He is not an abuser of drugs and alcohol, nor are there claimed to be any mental health issues as such in the Community Corrections report.
It is known to the Community Corrections Service that he has a history of sexual offending highlighted, or set out, in my view, through his criminal history. He has obviously an attraction to pubescent and pre-pubescent boys. He reported, it would seem candidly to Community Corrections, continuing "sexual attraction to young boys".
He has been referred for an assessment by a Corrective Services psychologist. It was noted in that report, based on the Static S99R 'risk assessment tool' that he was found to be at moderate to high range of risk of sexual re-offending. The prisoner showed little contrition in his attitude to the offending which with the court is concerned, particularly, as I would understand it, the offending committed against the victim from the eastern suburbs. He "denied committing the offences". He claimed that he pleaded "guilty to the offences as part of a plea bargain".
In another statement the Community Corrections report states that as
Mr Collins maintained his innocence, "issues of remorse could not be explored". Clearly, the identified criminogenic need in his case was "sexual offending".
According to the actuarial risks/needs assessment tool used by Community Corrections, he was assessed as a "high risk of re-offending".
I should point out that I have read the report from the Corrective Services psychologist. I do not need to go through the detail of that and the factors that were identified as relevant to the assessment. The psychologist noted continuing "deviant sexual preference". The prisoner "continued to report sexual attraction to young boys". It noted also that the prisoner had "very limited social support". His only pro-social influence was his "mother".
The factors that apparently worked in his favour in the assessment undertaken by the psychologist was that he was able to negotiate a stable relationship for a period of time with, I assume, the mother of his children and his compliance with directions from Community Corrections officers. He will undertake a specialist sexual offender program whilst in custody, one would expect. In fact, he would not be considered for release to parole until he completed that program.
A point I want to make, however, about the report produced by Community Corrections, bearing in mind it was prepared on
21 November 2016 before the prisoner was charged with the relevant offence, is that it would seem that the psychologist was unaware of the prisoner's possession and dissemination of child abuse material. What difference that would have made to the assessment is a matter of speculation but it is clearly the case that the prisoner is a real risk, notwithstanding the fact that he had endeavoured to undertake treatment, presumably in accordance with earlier directions of the court in the period of time between 2001 or 2013 when he was released from custody and the time he went back into custody last year.
There is a psychologist's report produced by the defence. It is a very "thin" report in my view. There was limited psychological testing, in my view, compared to many other reports I see including reports I saw this morning. It notes some matters of history that I should just mention.
The prisoner had sought assistance from a psychiatrist, he prescribed him testosterone lowering medications and he said that while he was on that medication he did not have any urge to act upon his impulses.
I should state that it is to be noted that since his release from custody earlier this century there is no evidence of him committing direct offences towards other children. But, of course, there are offences of possessing child abuse, showing his disturbing interest in sexual activity with children and his very unhealthy interest in the exploitation of young children.
He claimed to the psychologist that he was "bisexual". He told the psychologist that he was no longer permitted to see his grandchild of his daughter due to the charge.
He was assessed in relation to matters of depression and anxiety. In my view, undertaking such a test while a person is in custody and having been in custody for six months awaiting a substantial term of imprisonment is an exercise in "stating the obvious". He shows symptoms of some depression and anxiety but, ultimately, in this particular case, the results reflected him to be within the "normal" range at the present time.
It was claimed by the psychologist, without further information, that his history and "symptoms" warrant a "diagnosis of non-exclusive paedophilic disorder", as outlined by the American Psychiatric Association. This is obviously taken from the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).
He claimed to the psychologist some remorse for his actions and claimed to understand the severity of his situation. He claimed that he required treatment from psychiatrists to help ensure that he will not re-offend. It was noted that reoccurring behaviours of paedophilia will decrease with age, one would expect, with the lowering of sexual urges and the like.
The psychologist asserted that the prisoner should seek treatment from a psychiatrist, clearly that is so, and that he should undertake counselling and other therapies, which is self-evidently so. It will be a matter for the Parole Authority to supervise that for a period of time but clearly he will need close monitoring when he is released to the community to ensure that he continues counselling and receives such medication that might be available to blunt his sexual urges.
He did participate, up until September 2016, in a Corrective Services Community Maintenance Program and he had been attending at that program on a fortnightly basis since 10 May 2016. During that time he possessed child abuse material.
As I said, I have noted the medical condition of his mother but arrangements for her welfare are matters that had to be attended to before he came into custody and there are no exceptional circumstances relating to her situation, as much as one may have sympathy for the fact that she is now, as I would understand it, 87 years of age and is a person of not good health.
I have also taken into account the prisoner's letter of apology to the court. The prisoner's apology and the other matters that he raises directly in his letter to the court have to be considered in the context of the attitude that he expressed to Community Corrections in November last year.
The survey of the material available to me, however, does not end with the material that is pertinent to the offending and the circumstances of the prisoner. I will come back to the significance of the evidence in a moment, in the context of dealing with the submissions of the parties.
One matter of significance and of complexity, it must be said, is assessing an appropriate sentence for the prisoner in relation to what I call "the historical sexual offences". It is undisputed, as I understand the way the matter was conducted from the bar table according to the authorities of the Court of Criminal Appeal cited that it was proper for this Court to take into account, as best as can be concluded, the sentencing practices of the Court of Criminal Appeal and the relevant jurisdictions, particularly the District Court, concerning the character of the offending at the time that the offending with which I am concerned occurred. Particularly if the practice has moved adversely to the prisoner (R v NJR [2002] NSWCCA 129, particularly at [69], [71]-[105].)
In respect of the offences of buggery and indecent assault pursuant to s 81, sentencing practices, primarily because of changes to the categories of offending and related increases in maximum penalties for particular acts that the prisoner admits to committing in the period pleaded, have moved "adversely to the offender". Many of the acts the prisoner admits to having committed against the victim, if committed in recent years, would potentially attract much greater penalties, although I have not been favoured with a precise analysis of the extent to which this is so. Many of the judgments brought to my attention, however, discuss this matter in greater detail than I need to now.
To assist me in this difficult task, the learned Crown Prosecutor most helpfully provided a great many cases, providing a range of information. Many of the cases are decided, certainly as they are summarised, in the period of time between 1970 and the mid-1980's as well as many decisions since 2000, some in the District Court and some in the Court of Criminal Appeal, where judges have sentenced for historical sexual offences that occurred at about the time that the offences with which I am now concerned. The Crown also provided most helpful statistical information in relation to such sentences. One of the judgments provided to me was in fact a judgment of my own.
In respect of the offence of buggery, the range of penalty where terms of imprisonment were imposed, which almost always happened, was considerable, although the statistical information does not tell me if it includes sentences for offences that were then criminal but are no longer criminal. It should be pointed out, of course, there are some categories of "buggery" that involved sexual activity between consenting males. This is, of course, not such a case. The crime of "buggery" in the non-consensual sense, would cover a multitude of "sins". Offences committed when offenders were sexually assaulting, in this particular manner, small children, teenagers or adults.
The heavier sentences, one would have thought, reflected the comparative youth of the victim apropos that of the perpetrator, in circumstances of forced sexual intercourse, where, if it occurred with a female, would have been described then as "rape". Of course, in relation to intercourse between males, full sexual intercourse could not be charged as 'rape' by definition, but many incidents of "buggery" involve anal sexual intercourse without consent.
It is clear that the circumstances of this matter show sexual intercourse with the victim, in using modern terminology, or attempted sexual intercourse with the victim, where there could not be said to be any informed consent on the part of the victim. The victim was first of all sexually assaulted in this manner, when taken to the premises at Kogarah/Rockdale, in circumstances where he had no reason to expect what happened to him and, of course, on each occasion, suffered considerable pain. It is clear that even if he realised what was about to happen to him there was no suggestion of any informed or any other form of consent on his part. Clearly, on the facts, the prisoner, on each occasion, forced himself upon the victim on any objective view.
In relation to indecent assault matters, the range of activities contemplated by s 81 was, by definition, relatively wide. The range of sentences where terms of imprisonment were imposed in the cases I examined is explained largely by the character of the maximum penalty. The greater maximum penalty for buggery to that of indecent assault has provided the opportunity for a greater range of sentences to be imposed.
Of the material I have read some material was far more pertinent to the exercise of the task that I have undertaken. The material providing the greatest assistance, of course, is that concerned with the sentencing of offenders for offences committed over the same general time period, that is the late '70's and the early 1980's.
The material that I have had regard to includes:
1. Statistics for sentences for s.79 buggery matters in the period of time between April 2009-2016. Bearing in mind, of course, the offence of buggery was abolished by the legislature to be replaced by other offending in the late 1980's. These statistics are taken from the Judicial Commission database.
2. The table of cases that are set out in the judgment of Judge Finnane in McIntosh [2011] NSWDC 160 and in the review of that decision by the Court of Criminal Appeal, [2015] NSWCCA 184. The schedule in the latter decision for indicative sentences in respect of McIntosh committed between 1977 and 1983, in the re-sentencing exercise by the Court of Criminal Appeal is of some assistance. I appreciate Mr McIntosh was sentenced for a great many more offences than this prisoner and, of course, he had committed other offences after 1983 for which he was to be sentenced. Before I leave McIntosh, Judge Finnane QC provided in his judgment a schedule setting out cases to which he had regard and many of them are worth noting because of some similarities, both as to the character of the offending and the period of time over which it occurred.
3. Court of Criminal Appeal decisions of Roberts [2003] NSWCCA 309; Barry [2001] NSWCCA 304; unreported decision of Barrett from the Court of Criminal Appeal of 3 March 1997, it does not have a neutral citation; the decision of Throw from the Court of Criminal Appeal of 26 April 1985 and Hill of 11 July 1999. Each of those decisions involving some analysis of historical sentencing practices has provided some assistance.
4. The Public Defender's Sentencing Table in respect of 'buggery' and 'indecent assault' offences between 1970 and 1980, with sentences imposed both at first instance and on appeal, both contemporaneous with the offending and at later time.
5. Judicial Commission data from the District and Supreme Court in respect of decisions for sentencing in relation to buggery in the period of time between 2009 and 2015, of which there were 25 cases, I assume all applying the principles laid out in MJR and a similar collection of data in respect of indecent assault offences contrary to s 81 over the same period, of which there were 10 cases.
6. The decision of PWB [2011] NSWCCA, particularly the judgment of R S Hulme J at [22]-[93] and the schedule or the table prepared by his Honour which discusses the increases in maximum penalties in respect of offending over the period of time that the offender was committing criminal offences. In respect of the offences for consideration by comparison, many of the offences identified in the schedule, of course, date from the mid-80's through to the 1990's, but there were three or four offences committed in the early 1980's covered in the table prepared by his Honour from previous cases.
7. R v Cable [2015] NSWDC 93. This is, of course, a case involving a Marist brother who had 19 victims, with offences committed over two decades and in total dozens and dozens of offences either dealt with on indictment, by committal for sentence and/or on a Form 1. It included, in relation to the matters for which he pleaded not guilty, offences of buggery in respect of four counts I have had regard to the indicative sentences fixed by his Honour at first instance.
8. Another District Court decision to which I was referred was R v Denham [2015] NSWDC 21, which included two counts of buggery and 18 counts of indecent assault, with 23 matters on a Form 1. This was a case again involving a person in 'holy orders' as a priest, with offences committed largely between 1975 and 1979.
9. There is also the decision of Anning [2014] NSWDC 359, a decision of my own and a relatively recent decision of the Court of Criminal Appeal of R v Brown [2012] NSWCCA 199 concerning an Anglican priest or minister, with 27 counts for sentence and 20 matters on a Form 1, including two counts of buggery, many acts of indecency and indecent assault on males aged between 10 and 18, committed between 1974 and 1996, with 20 victims. The facts are extensively set out, I hasten to say, at [16] in that judgment. Grove J, in his usual erudite way as he regularly pronounced judgment in the Court of Criminal Appeal and the Supreme Court, went through the facts in considerable detail. But in that matter, although it was an aggregate sentence which was overturned and increased, there was no table provided by his Honour as to the indicative sentences.
1. Other District Court judgments again dealing with offences committed in the late '70's, early 80's, including R v Fox [2011] NSWDC 250 and Jacobs [2011] NSWDC 34.
Of course, in considering indicative sentences or sentences imposed, either more recently or contemporaneous with the offending, there are a raft of differences between the relevant offenders to which I have referred as well as other offenders in other judgments that I need not cite. Differences between this offender and those offenders in terms of age, in terms of responsibility for the victims, in terms of the number of victims, the character of the acts, the number of acts and the multitude of matters that are required to be taken out in accordance with 'Markarian' principles.
The purpose of looking at these sentences gives the court some idea of a range of sentence that was current at the relevant time, but one must be careful to ensure that, in understanding other sentences passed, there were many other considerations beyond simply the objective facts.
It should be said about the offending with which I am concerned in relation to this prisoner, by reference to the "comparative" cases, as they may be described or the indicative range of sentences set out in judgments, that this prisoner was relatively young at the time of the offending. He was born in 1956 and, thus, he would have been 24 years or 25 years of age at relevant times and I have already noted the fact that he, at that point, had no prior convictions for indecently dealing with children.
The prisoner's mother's reference, I should point out, I have read. It is clear that in her difficult circumstances she still thinks of her son fondly and she desires that when he is released from custody that he should live with her and that she will support him on his release from custody. Whether she is alive when he is released from custody is another matter.
Counsel for the prisoner provided written submissions, dealing with the maximum penalties and the range of offending and I have already made some comments about aspects of his criminal history and his age and the like and the circumstances of the relationship with the prisoner with the victim reflecting upon the matters raised with me by the parties in submissions.
With regard to the concession made on behalf of the prisoner, it is acknowledged that his conduct was wrong, which goes without saying, in so far as it relates to the treatment of the young victim many years ago and it is acknowledged, at least on behalf of the prisoner, although he does state so as well in his apology to the court, that there has been hurt and harm caused to the victim.
The matter that concerns me was the matter that is identified as "attribution" in the written submissions. This was the subject of specific submissions by Mr Santisi who skilfully represents his client's interests. This relates to the assertion that the prisoner "attributes his conduct to his diagnosed illness" and that "he too was a victim and that these sexual urges ... are more controlled with medication and medical intervention".
In relation to that aspect of the matter, it brings into sharper focus the consideration of the principles that were summarised by the Chief Judge at Common Law, Justice McClellan in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177]-[178].
In that judgment, the learned Judge, in dealing with one aspect of that appeal, it was a complex appeal that raised many important issues in sentencing Commonwealth offenders, summarised the relevant principles at that time, to be applied in respect of the sentencing of an offender who has a proven mental illness or mental abnormality causally connected to the offending.
I pause for a moment to acknowledge that, accepting for the moment the "diagnosis" of a "psychologist" that the prisoner has a "paedophilic disorder", I accept that that disorder has a "causal" connection with the offending. But the critical issue is whether a paedophilic disorder is relevantly a mental disorder or a mental illness. Although nobody has ever described it in evidence to me as a "mental illness". Is it to be contemplated to be addressed as one that would warrant the diminution of the weight to be given to general deterrence in the sentencing of offenders for child sexual abuse offences of the type with which I am now concerned?
In this particular matter, the first point to be made is, firstly, that this attitude expressed on the prisoner's behalf that he is a "victim" too reflects obfuscation and denial for responsibility which is reflected in the report prepared by Community Corrections. That he acts upon urges over which he has no control is one thing, but to describe oneself as a "victim" because of this, in circumstances where the urges lead to the destruction of other peoples' lives or the damaging of other people or the abuse of other people, is to, in my view, avoid responsibility for one's actions.
The matters about which McClellan CJ at CL was principally talking, of course, were mental disorders or mental illnesses that contribute to the offending of a particular offender largely in circumstances where the offending is not necessarily the inevitable consequence of the mental illness or mental disorder.
For example, an offender with an intellectual disability is not naturally driven to commit crimes. A person suffering from a mental illness such as bipolar disorder of "schizophrenia" is not necessarily going to commit crimes because of that particular disorder.
Of course, I can see the logic of a "diagnosis" of a particular disorder, such as a paedophilic disorder, contributing to the offending behaviour. But it seems to me, without any empirical evidence to support the proposition, that largely speaking people with paedophilic disorders are going to act upon that disorder and are highly likely to commit crimes directly related to the disorder because of the character of the disorder. It is a disorder that causes adults to have sexual interests in children which are prohibited by the law. Most of the mental disorders and mental illnesses contemplated by McClellan J could not be so categorised.
It is a moot point. I am not in a position to resolve it. One would need a great deal more empirical data and evidence in order as well as focused submissions to come to a concluded view. However, it should be fairly said that even if there was some weight to be given to the argument skilfully put by counsel for the prisoner in this narrow regard, noting the particular matters identified by the learned Chief Judge at Common Law from a range or authorities, it is also the case that in circumstances where a proven mental illness or mental disorder is causally linked to offending and does warrant the diminution of weight to be given to general deterrence, where the disorder makes the person a danger to the community or a danger to other individuals, there may be a need for greater weight than otherwise required to be given to personal deterrence. If it could be said that some diminution may be attributed to the weight to be given to general deterrence but certainly not swept away, on any view of the argument that was put or on any rational analysis, it would appear to me that such diminution as would be given would be counterbalanced by equally or, at least, greater weight being given to personal deterrence in the circumstances of this case.
This offender, since he committed these crime, has committed crimes, as I understand it, against three separate victims over a number of years. He has, on two separate occasions, possessed child abuse material. I have seen some of the child abuse material he possessed in 2016. I have already categorised it as disturbing, disgusting and reflecting a, very unhealthy interest in sexual contact between adults and children or a very unhealthy interest in sexual conduct between children. Of course, the child abuse material reflects sexual conduct between children that is not mutual or spontaneous, but clearly coerced. No one could, ever argue that 12 and 13 or 14 year old foreign boys (if that is what they are), committing various sexual acts upon one another before a camera, are doing so because they like to do it or want to do it.
As I said, the true picture behind or the true story behind those images cannot be known to us. But we can draw our own conclusions pretty readily from that.
It is true, in the context of the matter I am discussing, just assuming for the moment that the prisoner has a paedophilic disorder, that the prisoner has sought some counselling in relation to the matter. He attended upon a psychiatrist over a period of time, not abundantly clear in the material available to me, and he has been prescribed some medication. But whatever he has done in this regard has not stopped him, since the last time he sexually assaulted children, on two separate occasions possessing and disseminating child abuse material. This reflects, it seems to me, much the same urges and interests that would compel him to commit direct sexual assaults upon children. This is to be borne in mind.
The fact that he should commit the offence of possess child abuse material at the very time that he was appearing before me, at the very time that I was indulging his wish to look after his mother, reflects very adversely upon him in terms of any favourable consideration being given to his prospects of rehabilitation.
Of course, the matters of which I speak, in the context of the submissions that were made by Mr Santisi, are very much rolled up in the consideration that I must have under s 3A of the Act of the purposes of sentencing. Whatever can be said about the relationship of his "condition" and the circumstances of the offending with which I am concerned, both the historical offending and the more recent offending, I am to ensure that he is adequately punished. I am required to prevent him committing further offences and endeavour to deter other persons from committing similar offences.
The point about less weight being given to general deterrence in the case of a mental disorder is that it is a matter of considering whether the particular person with the particular mental disorder is an "appropriate vehicle" for the message of general deterrence, to paraphrase words falling from more learned lips from mine.
The courts must ensure that those with the condition that the prisoner has do not succumb to their urges the way this prisoner has and thus the salience of the disorder, so far as considering the matter of diminution of general deterrence, is nowhere near as great as it might be in considering the sentencing of a person with an intellectual disability. Certainly, the sentencing of a person with a significant intellectual disability is a very different exercise indeed in terms of consideration of the extent to which any sentence imposed upon that offender may deter others from committing similar offences.
Be that as it may, I am required to protect the community from the offender. I am required to promote his rehabilitation and I propose to do that in the way I structure the non-parole period. I have to make him accountable for his actions. I feel that the prisoner has not taken full account of his actions. I see little in the way of apology for his possession of the child abuse material in the letter that he wrote to me or anything in the nature of a genuine apology to the victim. I am required to denounce his conduct and particularly recognise the harm done to the victim of the historical offences, as well as the harm done to the community, in my view, by his involvement in the uploading and dissemination of child abuse material. Those various purposes of sentencing in their various ways all have a part to play in both categories of offending.
With regard to the pleas of guilty, I am mindful of the history of the matter, which is referred to again in some detail in the written submissions of counsel for the accused. I have listened carefully to the submissions put by both parties. I accept that the plea of guilty in relation to the matters on indictment was late; in fact after the matter had been listed to start a trial. I am mindful of the fact that what is before me in that regard involves a considerable amount of plea negotiation, as it is described, with which I had no involvement.
But I do acknowledge the utilitarian value of the plea of guilty, even as late as it is. A utilitarian value, I hasten to say, that soon will not be capable of being recognised with legislation proposed by the government. He has spared the victim the burden of having to give evidence and that is a matter to be recognised I propose, in all the circumstances, in accordance with the guideline judgment of Thomson and Houlton to give him the benefit of a
15 per cent discount upon the otherwise appropriate sentence for the offences on indictment, taking into account the matters on the Form 1.
In respect of the possess child abuse material, this issue is more straight forward. He pleaded guilty at the Local Court and was committed for sentence. I propose to give him a discount of 25 per cent upon the otherwise appropriate sentence for that offence, taking into account the matters on the
Form 1, given the timeliness of the plea and the fact that he was committed for sentence.
With regard to other matters that have been raised in the written and oral submissions put on behalf of the prisoner, so far as his antecedents at the time of the historical offending I have already noted that. However, in relation to the more recent offending for sentence, there are different considerations. In my view, the fact that he had previously been convicted of possessing child abuse material, that he had previously been convicted of sexual assaults against children, leads me to a conclusion that the record of previous convictions of itself represents an aggravating factor pursuant to s 21A(2) of the Act in respect of the 2016 offence for sentence.
It is an aggravating factor, even with offenders with lengthy histories, that I am reluctant to identify. Although in many of those instances one would readily conclude that the person's record does not entitle them to any particular leniency. But here, in the circumstances of his prior criminal history, the facts are that his previous record of possession of child abuse material and sexual assault offences is an aggravating factor.
However, the most serious aggravating factor, as I have already pointed out, is the fact that that offence and the matters on the Form 1, closely related, I hasten to say, were committed whilst the offender was subject to conditional liberty. I have already commented upon that in two separate ways and that is a very significant aggravating factor indeed.
I must say, in relation to the child abuse material, I am fully aware, from many cases that I have done, of people being in possession of far greater quantities of such material. Hundreds or thousands of still images, hundreds or even thousands of videos of various types, a cross-section of which I have sometimes been required to watch.
If one were looking at the possession of child abuse material charge just by reference to the quantity of videos that were in his possession, one could say that the offending compared to other offences the court sees of this type reflect a quantity of material that has been seen to be dwarfed by other cases. But the quantity of the material is only one factor to be taken into account. The quality of the material is another matter to be taken into account. The images that I saw, if a cross-representation, are grossly offensive images, particularly in the context of the prisoner having this paedophilic disorder that the psychologist opines upon with a prior history of actually sexually abusing young children.
Many offenders who come for sentence in relation to similar charges can claim, properly so, on the evidence available to the court, that they have not acted upon the urges that may cause them to view such material. Whilst this prisoner has not acted upon those urges to assault children since 2001 or perhaps a little earlier, the prisoner cannot claim historically that he has not ever acted upon such urges that would lead him to possess such material.
In any event, it was a clearly contemptuous, if I could use that expression loosely, act of defiance of the responsibilities he had by being granted bail whilst he appeared before me that he committed that offence or continued to commit that offence. I appreciate that offence began before he actually pleaded guilty.
That is no consolation for him, because pleading guilty recognises the fact that he must have known throughout that period of time that he committed the 2016 offence that he was, in fact, guilty of the historical crimes alleged against him.
A mitigating factor that is relevant to the objective facts of the 2016 offence and the historical sex offences, applying current, law is that the offences were not part of a planned or organised criminal activity. I pause for a moment to just point out, in respect of the possess child abuse material, the uploading and downloading of such material is, I would expect, a relatively simple matter for anybody with any basic computer skills.
I appreciate, of course, that the organisation of young children to perform these disgusting acts in the presence of adults or against one another is conduct that can be the product of, no doubt, criminal organisations who are producing such material for profit or for self-satisfaction or self "enjoyment". But there is no evidence before me that the prisoner is part of such an organisation although he is a beneficiary of it.
With regard to the first series of offending, dealing with some 'mitigating' factors pursuant to s.21A(2) of the Act if I may, the prisoner, at that time, did not have, in my view, a significant record of previous convictions, but I could not conclude that he was a person of good character then.
Certainly, it must be said that he is now not a person of good character when he comes for sentence now in relation to all offences. I cannot conclude now that he is unlikely to re-offend and, contrary to the urges of his counsel in the written submissions and the oral submissions, I cannot conclude that he has good prospects of rehabilitation.
As I say on occasions in sentencing, as I was moved to say this morning in another matter, often the 'proof is in the pudding' and, despite the counselling he received and the medication he has received in the past, he was still able to commit offences in 2016 whilst on bail for matters awaiting trial.
I could not conclude in relation to any of the offences with which I am concerned the prisoner has relevant "remorse". I have noted his apology, his expressions of shame and the like, but I have also noted what he said to the Community Corrections officer, failing to take responsibility for his conduct.
His counsel suggested that his client was not a "completely hopeless case" and he was a person who could not be regarded as "not capable of rehabilitation". Well, that may be true but he is a man who will need close monitoring by the authorities for many years to come.
There was a submission made on his behalf that I should make a finding of 'special circumstances' pursuant to s 44 of the Act. I propose to do that. In part, because of the character and timing of the sentences I impose there will be some degree of partial accumulation to reflect the totality of his criminality and because he will need an extensive period of supervision to adjust to community living and to be directed as to means to avoid further offending. This is a step to be taken, not just for his protection, but for the protection of the community in my view.
Many of the matters raised by the learned Crown Prosecutor in his helpful written submissions I have already dealt with before. Matters relating to characterisation of the offending, the reflection upon the significance of committing offences whilst subject to conditional liberty, the discounts to be applied for the offending.
The Crown very properly put that the offending in 2016 could not be regarded as "a sudden aberration". The Crown put in specific terms that the mental condition identified by the psychologist was "not a disorder", that relevantly affected the weight to be given to general deterrence and ultimately, as I have said, if it had any effect upon general deterrence favourable to the prisoner, that advantage is outweighed by the considerable weight to be given to personal deterrence. He cited Engert as one such case, a decision of Gleeson CJ from 1995, dealing with that particular matter and acknowledged in the findings of McClellan CJ at CL.
So far as the purposes of sentencing are concerned, of course, as was held in Veen (No 2), they can sometimes point in opposing directions, but here they generally, it must be fairly said, point in one direction.
Taking into account the matters on the Form 1, in respect of the indictable matter and the matters on the Form 1 in respect to the committal for sentence matter, I have had regard to Attorney-General's Application (No 1) of 2002, (2002) 56 NSWLR 147. In taking into account matters on the Form 1, the Court of Criminal Appeal held in that particular guideline judgment and it has been held subsequently in other judgments of the Court of Criminal Appeal, that usually greater weight should be given to the need for personal deterrence and the community is entitled to extract retribution. The "entire point of the process" is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence sentence stood alone.
It was wrong to suggest that the additional penalty should be small, sometimes it will be substantial. However, the court noted that the sentencing process is only concerned with the principal offence, not to determine appropriate sentence for matters listed on a Form 1 or to determine an overall sentence that would be appropriate or all the offences and apply a discount, giving appropriate weight to the matters to be taken into account.
In increasing the sentence for the primary offence, the court observed that there were matters that limited the extent that this will be so and it was rarely appropriate, the court said, for the sentencing judge to "attempt to quantify the effect on the sentence for taking into account Form 1 offences". (See generally [18]-[44].)
I note that their Honours observed that the offences included on a Form 1 will have a significant lower salience in the sentencing processes for various reasons, however, a judge must be careful to assess whether it is appropriate to proceed to sentence on that basis, as there may be cases where the administration of justice would be properly brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a "manifestly inadequate, unduly narrow or artificial basis".
In this regard, I simply say that the matters on the Form 1 in relation to the buggery offence are much more significant in the sentencing process, by reason of greater weight being given to personal deterrence and denunciation, than the offences on the Form 1 relating to the possess child abuse material. Those latter matters are intimately bound up with the principal offending. But it is to be borne in mind that the Form 1 matters in relation to the buggery matter are concerned with quite separate offending and, in fact, in some instances, offending of equal seriousness to the principal offence.
The other matter to be acknowledged, of course, is recognition of the need for totality of sentencing in the sentences that must be imposed for substantive offending requiring discreet penalties to be imposed. I note the decision of the High Court of Australia in Mill v R (1988) 166 CLR 59, particularly at [62]-[63], but also the judgment of the majority in Pearce v R (1998) 194 CLR 610, particularly at [45].
As their Honours noted, in order to have transparency in sentencing, it is appropriate for the court to fix an appropriate sentence for each offence and then, having done that, turn its mind to issues that are concerned with accumulation or concurrence, to reflect the issue of totality, notwithstanding, as their Honours pointed out, that the primary question asked by the prisoner him or herself will be "how long" is the sentence. These matters are reflected in the structure of the sentences.
I should note, of course, the plea of guilty in each instance is a "mitigating factor". But of course the prisoner receives a discreet discount in respect of the pleas that have been entered by him.
In relation to the historical offences, I have not identified any particular "aggravating factor" pursuant to s 21A(2). Of course, I appreciate from the material available to me, allowing for what the Act and what the Court of Criminal Appeal has said about the receipt of victim impact statements, they remain untested and the like, but the harm to the victim obviously must be regarded as substantial. But I am not proposing to find that as an "aggravating factor" under the terms of s 21A(2). In my view, the harm to the victim is adequately catered for in consideration of the matters that arise under s 21A(1) as accepted as an inevitable consequence of conduct of this type.
Could you stand up, please, Mr Collins?
In relation to the matter for which you were committed for sentence, that is the possess child abuse material matter, you are convicted. I have accorded you a 25 per cent discount on a sentence of five years imprisonment, noting the 10 year maximum penalty. The sentence I have fixed has regarded those aggravating factors that I have identified, which are of considerable significance.
You are sentenced to three years, nine months imprisonment to date from 14 October 2016 and to expire, on my calculation, on 13 July 2020. For reasons associated with the other sentences I have to impose, I decline to fix a non-parole period in respect of that sentence.
In relation to count 1 on the indictment, that is the offence of indecent assault, bearing in mind the 15 per cent discount and it is the first offence in time committed against the victim, you are convicted. You are sentenced to one year and three months imprisonment commencing from 14 December 2018, expiring on 13 March 2020. Again, I decline to fix a non-parole period because of the sentences imposed in relation to count 1.
In respect of count 2, taking into account matters on the Form 1, you are sentenced to a term of two years, nine months imprisonment by way of non‑parole period to date from 14 June 2019, expiring on 3 March 2022. That is the date you will be eligible for release to parole.
The balance of sentence in relation to that term of imprisonment is two years and nine months and that term of imprisonment expires on 13 December 2024. You can take a seat.
I was incorrect in the earlier statement I made. The total sentence imposed upon you is eight years and two months and the effective
non-parole period is five years and three months.
METCALFE: Sorry, your Honour, I've made - I didn't get a full note. For the indecent assault that's on the indictment, one year and three months commencing on what was the date?
HIS HONOUR: 14 December 2018, expiring on 13 March 2020. So it is two years and two months into the sentence for possess child abuse material.
METCALFE: And the last one I didn't get, I do apologise.
HIS HONOUR: The balance of the sentence in relation to the last matter is two years and nine months.
METCALFE: And that expires, that's the date.
HIS HONOUR: That is a total sentence, in effect, of five years, six months and that expires on 13 December 2024, starting on 14 June 2019. I initially said "eight years" to the prisoner but it is eight years and two months.
Any other matter, Mr Crown?
METCALFE: Two years and nine months non-parole for the count 2?
HIS HONOUR: That is exactly right, with a balance of sentence of two years and nine months. That is a finding of special circumstances, both by reason of the partial accumulation of one sentence, or two sentences, one upon the other. That sentence is accumulative on the indecent assault matter to the extent of six months.
METCALFE: So effectively the first time that he may well be eligible for parole would be some time in 2022?
HIS HONOUR: 13 March 2022, yes. Do you understand the sentences,
Mr Collins? Non-parole period of five years, five months, dating from the date you came into custody, a total sentence of eight years and two months.
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Amendments
08 March 2018 - Formatting amendments made to sentencing remarks
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Decision last updated: 08 March 2018