HIS HONOUR: The prisoner appears today for sentence in relation to two offences, one a breach of the Commonwealth Criminal Code and another a breach of the Crimes Act of New South Wales.
The Commonwealth offence alleges that the accused between 26 December 2014 and 9 February 2016 at Mt Pritchard in the State of New South Wales did use a carriage service to access child pornography material. This is an offence contrary to subs 474.19 (1)(a)(i) Criminal Code 1995 (CTH). I am informed by the learned Crown Prosecutor that it carries a maximum penalty of 15 years imprisonment.
The second offence alleges the accused "possession" of "child abuse material" on 9 February 2016. This is an offence contrary to s 91H(2) Crimes Act (1900) (NSW). It carries a maximum penalty of ten years imprisonment. Child abuse material and child pornography material essentially cover the same material and in fact the child abuse material in the State offence is the same "child pornography" material that the prisoner accessed over a period in excess of 13 months. There is an agreed statement of facts which I will summarise. Naturally I have taken it all into account.
The prisoner gave evidence before me. I have a body of documentary material including two reports from the Community Corrections Service and I have a number of testimonials and other material. I have extensive written submissions from the Crown. Very detailed in fact. As well as written submissions from the defence. Each of the parties have supplemented their written submissions with oral submissions, largely dealing with the matters contained within their written submissions, but in the case of the Crown, particularly on my questioning, addressing the issue "totality" of criminality as it is reflected in these charges and counsel for the accused specifically addressing with some supplementary material forwarded to me by email. The issue of the need or the requirement for a causal connection between a mental condition or disability and the offending behaviour in order to consider less weight being given to general deterrence.
I just pause for a moment. Sir are you representing the accused?
MCMAHON: …(not transcribable)..
HIS HONOUR: Yes it is. He's sitting in the dock.
MCMAHON: Yes I appear on instructions from Mr Hale.
HIS HONOUR: Well why didn't you come to the bar table?
MCMAHON: My apologies your Honour I haven't actually met the client so I wasn't familiar.
HIS HONOUR: What's your name sir?
MCMAHON: McMahon your Honour.
HIS HONOUR: Mr McMahon are you a solicitor?
MCMAHON: I am your Honour yes.
HIS HONOUR: Right who do you work for?
MCMAHON: LY Lawyers.
HIS HONOUR: Could you spell that for me please?
MCMAHON: LY Lawyers.
HIS HONOUR: LY Lawyers, just take a seat at the bar table. This matter was listed at 9.30, do you understand that?
MCMAHON: Yes I do my apologies your Honour.
HIS HONOUR: Well I accept your apology I've told you client what the position will be at the end of my remarks and I commenced to give my reasons. I have got other work later today, I don't have the luxury of just doing one case a day.
MCMAHON: Indeed your Honour.
HIS HONOUR: And going off to play golf or spend all day over at the coffee shop.
MCMAHON: I appreciate it your Honour.
HIS HONOUR: I just do not have the time to spare.
MCMAHON: Yes indeed.
HIS HONOUR: What I propose to do in relation to your client is impose a term of imprisonment, no greater than two years and I propose to refer him for assessment as to his suitability for an intensive correction order and I propose to list the matter before me on Friday 17 November, not before 2pm.
MCMAHON: Entirely suitable your Honour.
HIS HONOUR: Well to be frank I appreciate that I need to have regard to the mutual convenience of parties. I'm happy to negotiate the date for the parties if there's some particular problem, but the bottom line is by and large the parties generally have to try and fit in with the Judge its necessary. Sir I should also point out I am up to the point where I am about to deal with the "agreed statement of facts". I think I've wasted ten minutes of my time thus far that I cannot afford today I'm afraid.
In late December 2014 the police received information that the prisoner had accessed some "streamed video files" on a website called Pedoleaks. The particular web host for that site is known to the investigators as distributing child exploitation material which would include those child pornography and child abuse material. The name "Pedoleaks" as the prisoner somewhat begrudgingly conceded in his evidence speaks for itself in terms of its subject matter.
Investigations continued until the prisoner's address was located. He lived at Mt Pritchard with his family and the police were able to identify the internet protocol (IP) address of the email address used by the prisoner for the purposes of gaining access to the relevant website. A search was conducted and police attended the premises on 9 February 2016, hence the particulars in the breach of State Law with which I am concerned. To the prisoner's credit it must be said when police attended upon the premises before the search they asked the prisoner about items that may be found during the course of the execution of the search warrant and the prisoner said "Yes I won't lie I know why you're here, I have videos and pictures on my laptop".
So it transpired that the investigation revealed the breach of Commonwealth Law with which I am concerned. The police undertook a forensic analysis of the laptop computer of the prisoner and they located under a folder titled "Downloads" 22 subfolders within that folder. There was a particular sub file entitled "SM Index" which contained files which appeared to be like A4 advertisement pages. These showed photographs on the right hand side including photographs of naked prepubescent females posing in various positions with close ups of their genital area and the text on the left hand side set out details of what the photograph showed, as set out in the facts. The facts state that any person downloading these files would be able to browse through the photographs and choose either a female of whom they would like to view more photographs or a particular type of image that would like to view, such as various acts of intercourse.
The material has been the subject of assessment by reference to the child exploitation tracking scale (CET Scale). The categories are seven in number. Category 1 is sexually suggestive posing. Category 2 is non-penetrative, sexual activity between children or solo conduct by a child. Category 3 is non-penetrative sexual activity between adults and children. Category 4 is penetrative sexual activity between children or between adults and children. Category 5 is sadism, humiliation or bestiality. Category 6 is animated or virtual depictions of such matters and there is a Category 7, which is described as "material which is indicative of child pornography".
As far as the downloads folder of the prisoner was concerned the categorisation of the material is as follows; There were 23 still images falling within Category 1 and five video images. There were four still images of Category 2 material and eight videos. There were three still images falling within Category 3 but no videos. There were 14 still images falling within Category 4 and nine videos and there was one still image that fell within Category 5. I am informed that 27 of the files depict female children aged ten years and under. The files contain multiple different victims. There was a particular video accessed on 26 December 2014 and the facts describe the character of the conduct of a female child under the age of 16 in which the video footage pans around the child and focuses on her genitalia. Another depiction was of a male rubbing and penetrating a young female child's vagina with his thumb and later with his penis.
So far as the State allegation is concerned, the facts state, as I said earlier, the same images that relate to the Commonwealth offence relate to this offence. The prisoner possessed each file saved in the relevant folder to which I have referred within his laptop, described as a "Macbook". The prisoner was taken by police and participated in an electronically recorded interview and made various admissions about his conduct and the material that was later to be found, I would assume at the point of the interview, the full details of what was stored on his computer was not known to the investigators. He gave explanations as to how he came to gain access to this material. He conceded that a "few of the females in the images were under 14 years of age". Although he had initially gone to a particular site to look at pictures of girls under 18. That he had accessed the material out of "curiosity, but afterwards it became a pleasurer (sic) thing". He admitted downloading the photos to his laptop and he also had in his laptop another folder relating to persons over the age of 18 and he described how the images were stored and he described how he had looked at "one or two videos" relating to sexual activities of children. He understated the number of videos that were on his laptop. He explained his user name to access one of the accounts and admitted accessing the Pedoleaks site. He said that the youngest person that he had ever looked at was 'maybe ten or 11'. He said he was 18 when he first got onto the site and he knew that it was wrong to look at children underage but he did not have an urge to look at them, but he would do so when he felt like it. He had accessed one of the sites that he had used to view material a few days before the arrest of him by the police.
The prisoner, as I understand it, was born on 30 July 1996. He was thus at the end of 2014, 18 years of age and was 20 years of age at the time of the arrest. He was a student at University. He received a Youth Allowance benefit from Centrelink and he had no prior criminal convictions. He spent no time in custody prior to this offending.
Although ordinarily I would turn to the defence case after I had finished with the material in the Crown case I think in this particular matter it is worthwhile reflecting upon the evidence the prisoner gave before me when the matter was first listed. I should point out the matter came before me, if my memory serves me correctly, when I was about to go on leave with a number of other sentence matters. The prisoner gave evidence after the Crown had presented his material but the matter was adjourned because of a pre-sentence report had been ordered but was not able to be finished by the day the matter was listed. As I was away on circuit I had to adjourn the matter for a month or so before I could return to it, which I did last Friday. I do not have a transcript of last Friday's proceedings, although I have a transcript of the proceedings when the prisoner gave evidence.
He gave evidence in relation to the circumstances of the offending and he said in his evidence that the finding of the site from which the material was ultimately downloaded was something that he had "stumbled across". He found that after being on what he described as a "platform", which is I understand it was something in the order of a 'group chat' site. He said that he used an alias to gain access to the site because he did not think the site was "reliable". I take that in a computer sense, although he downloaded the images in the context of the facts he did not download the images individually. He said that there were 20 downloads in all.
In relation to the evidence he gave as to this aspect of the matter I generally accept his account. However, when asked why he did not delete the files he said that he was going to "in one go" when he cleaned up his computer. I found this last piece of evidence less than convincing. He said that the use of the word "pleasurer" was concerned with not getting pleasure from the material. But that the use of websites, particularly in the context of other pornography to which he gained access to which is not illegal to access, made it easier for him to "meet" people. This answer in the context of his other evidence reflected upon what seems to be his relative loneliness and seclusion of the time of the offending behaviour.
The evidence from the prisoner and in other respects establishes the prisoner was a relatively isolated individual. He was not socially mature and it would seem to me not sexually developed. He was having a great deal of difficulty establishing contact with people of the opposite sex for the purposes of establishing a romantic relationship. It would appear to me based on his evidence and history he gave to the psychologist that he was a sexually immature person, even by the standards of his age. In cross-examination he was properly pressed by the learned Crown Prosecutor about his interest in child abuse material or child pornography material, the character of his downloading and the purpose of it. The Crown submitted to him that his possession of the material reflected his desire to view such material for pleasure and he was questioned as to whether this was reflective of the specific interests that he had. The Crown pressed him as to whether he derived a sexual pleasure from the material and had a sexual interest in children.
Having regard to the evidence he gave and being able to reflect upon it in the transcript and the notes I made of the impression he made upon me in giving evidence I accept for the purposes of this sentence and on balance that at the time of the offending the offender, if not suffering from a major depressive illness, was in what could be called a "depressed state". That the inquiries that he made and the resultant downloads that he undertook were in the context of what I would regard as "experimentation" on his part rather than compelled by an urge to have sexual contact with children or to reflect a sexual interest in children. Whilst he would have appreciated obviously that it was wrong I do not believe that he had a full realisation of the seriousness of his misconduct. In part this was a reflection not just of his sexual immaturity but also his general immaturity. Obviously he knew that 'Pedoleaks' reflected an interest in sexual activity with or by children with the attendant features of exploitation and, dare I say it as it was repeated many times in the Crown's submissions, depravity referred to in those submissions. However on balance I accept that it was not the driving motivation on his part to derive the particular sexual pleasure or that he undertook these "inquiries" because of any compelling sexual dysfunction.
Apart from the access to the material which of course in isolation speaks of these things, there is no evidence that he has any form or sexual pathology that makes him a danger to others per se. The storage of the material of course has sinister connotations. But I note in relation to that aspect of the matter, for what it is worth that, notwithstanding the storage, there is no evidence of any further dissemination. No evidence of him sharing the material with people that claim to have a sexual interest in children. It is correct that the activity occurred over a period of more than a year. In that context there was, it would seem to me, ample opportunity not only for greater access than he has established, greater downloading that actually occurred, and also opportunity for him, if he wished, to share the material that he had a more prurient interest in the material than he said. I accept the evidence from him that at least some of the downloading occurred, if I could use the word, with 'automatic' saving of the particular file. But, of course, the saving of the material of itself must have been known to the accused to result in the downloading and clearly that was so given the organised fashion in which it was stored.
On the other hand I am not satisfied that the prisoner had regularly in respect of the files that he did download reviewed them or re-accessed them. I must say in relation to this matter from my understanding of the cases such as this and particularly a specific Commonwealth prosecution relating to an English drug importer where I presided over the trial, that many of these matters are capable of investigation from the metadata on the computer. From the facts available to me there clearly was an access a few days before the arrest of the offender, which is not in the same terms so far as the material is concerned as the matters that he identified in the interview. I have not been provided with the full version of the interview merely a summary of it. There was no objection to that by counsel for the accused.
In regard to the evidence of the prisoner I accept the oral and written submissions of apology from the prisoner and I am prepared to accept on balance in the context of his relative youth he is contrite. This is evidenced also by his pleas of guilty. Just dealing with one other aspect of his evidence which has been the subject of some concentration in the submissions by both parties I am mindful of the fact that the prisoner said he had an expectation that the matters with which I am concerned can be dealt with at the Local Court clearly, the matter was listed at the Local Court on the basis there was some understanding that he was going to be dealt with in the Local Court in August last year because a pre-sentence report was actually prepared for that Court.
However it is clear to me that the matters were properly referred to this Court. As I would understand the matter from the position of the Commonwealth DPP, whilst this State matter may have the potential to be dealt with in the Local Court, the Commonwealth matter could not in view of the Director. That there was a delay is a regrettable matter. I say publicly it is a constant source of exacerbation for me to find people waiting many, many months for their matters to be dealt with, both trials and sentence matters, and I find myself in the position of people complaining about the delay because the matter needs to be adjourned. My solution to this problem is to instantly declare myself part-heard so I can get on with it and deal with it in my own time and to ensure that undue delay does not occur.
I accept to some extent the delay has been a burden on the prisoner and I would imagine, having never been charged with a criminal offence, that awaiting the outcome of proceedings would be a burdensome circumstance. But this is an everyday occurrence in the criminal justice system. The delays in our Court, which are unacceptable are there and I personally would appear not to be able to do anything about it. I do not regard delay on this matter as a "mitigating factor" in the context of the various submissions that have been made to me. But I do accept, in the context of the reports that I have received that the delay, it might be described as a factor, for example between August and the current time, that has provided an opportunity to show some progress in the rehabilitation of the prisoner, some commitment by the prisoner to his rehabilitation by his undertaking counselling and also to show the capacity of the prisoner to avoid offending.
With regard to the pre-sentence reports, one dated 24 August 2016 a further report that I ordered dated 7 September 2017, the reports are almost identical in content. The prisoner was 19 years of age when the first report was prepared according to the material available to me. Although it appears to be dated after his birthday in July. He is an only child. He has had a stable upbringing and I am sure that his parents put a lot of time and attention into endeavouring to provide him with every opportunity in Australia.
Part of the background of this matter on the basis of the account given by the prisoner to the psychologist is that he felt over a long period of time that he was under considerable parental pressure to succeed. I think it is well understood that it is not an uncommon phenomenon, particularly with people that have come from overseas to this country from other societies where opportunities are not as great, parents are very concerned and are anxious for their children to seize opportunities that were not available to themselves. It would appear that this is such a case. The family reaction is one of shock now that the prisoner has been involved in this activity as I would understand it would appear that the interest that he reflected in the commission of the offences are completely out of character.
As I said earlier he had enrolled in a Bachelor of Business degree. I have seen his exam results. The Crown has pointed out during the time of the offending the prisoner was obtaining good results. This is not inconsistent with the isolation at which I refer. But what the results also showed to me was that there was a dramatic drop off in the results that he was obtaining during 2016 after his arrest. Which does reflect in my mind the impact upon him of the arrest. It is not something that he took lightly.
He said in relation to the offending that he understood that it was illegal to view child abuse material, however he did so out of curiosity. It seems to me that he understated in the pre-sentence report author the ages of the children that were shown in the images. He understood he said the relationship between viewing child abuse material and how that activity supports the production of child abuse material. However it is said that at the time of preparing the first report that the prisoner justified his actions but did not attempt to minimise his behaviour.
In relation to this aspect of the matter the subsequent report states the matter identically. For the preparation of the first report and not the second report he was assessed by Department of Corrective Services psychologists. This is a common practice and various actuarial tools were used and it is pointed out that there is no "actuarial assessment tool" that at this stage has been validated to use regarding what are described as "hands off sexual offences such as child pornography". In other words, the actuarial tools like Static 99R have to be adapted from their primary purposes which is the assessment of risk presumed by a person who has been actively involved in sexual assault of children to those persons who are committing offences "online", which are nearly all the child pornography offences charged nowadays. I will come back to the matters properly pointed out in the Crown's written submissions at several points regarding the way in which these offences are promoted or alternatively encouraged or sustained by people such as this prisoner.
So far as the assessment of the prisoner in terms of management of risk his criminal history suggests that he falls within a 'low risk' category of committing further offences. Dynamic risk factors such as intimacy difficulties may be present, but he has not developed, it is thought, entrenched sexually deviate interests. The report says that he can receive assistance from Corrective Services both in and out of custody and he should also seek intervention from a private treating psychologist.
With regard to the assessment of him in the final report he is noted as having family support, stable accommodation and full time study commitments. He appeared to recognise the impact of his offending behaviour upon the victims. However, admitted that he initially lacked insight into the seriousness of his actions. It is noted that he is currently engaged with a psychologist. That psychologist is Neil Ballardie who has prepared a report dated 14 August. I appreciate the prisoner has also undertaken some counselling in 2016 which was reported in that report.
The report runs to eight pages but perhaps the matter can best be dealt with, if I can use that expression by reference to the summary, was the view of Mr Ballardie that the offender met DSM5 requirements for "major depression, but did not meet the criteria for paedophile disorder." He noted that the prisoner had poor self-concept, negative ideations and "catastrophizing cognitive style". He was of the view that a depressive condition affected him at the time of the offending. Connected to this was his socialised life isolation, naivety and lack of life experiences compared to his peers. He had various fears and pressures entering university and the uncertainty about his career. Although I have said earlier up until his arrest his results at university were very good with at least one distinction. But his isolation was reflected and perhaps increased during the time of the offending. The psychologist referred to a lack of emotional maturity and what he described as "incomplete brain development", reflecting upon the development of the maturity of people beyond what we regard as the border between a childhood and adulthood, that is turning 18 years of age. There is a quantity of authority dealing with that particular matter in the sentencing context and I will come back to that shortly.
I note in relation to the background of the prisoner, the history of parental pressure is noted. The lack of contact with female company is referred to. The prisoner would appear to occasionally drink alcohol but has no problematic alcohol issues nor has he ever used prohibited drugs. There is some history about some pessimism in his life at the time of the offending.
With regard to the 'DSM5' categorisation of "paedophilia", it is regarded as a condition where there are intense and recurrent sexual urges towards and fantasies about pre-pubescent children 13 years or younger over a period of at least six months. Mr Ballardie says that a paedophilia disorder is a pattern, erotic attraction that typically begins to manifest itself in puberty and is stable over life. A person with this condition is usually unable to find satisfaction in an adult sexual relationship and sexual attraction towards children dominates their life. The psychologist did not regard him as having a paedophilic disorder.
So far as the presence of any depressive symptoms or disorder for that matter, at the time of the offending, of course Mr Ballardie is very dependent upon the history given by the prisoner. I am not going to suggest that he is necessarily an untruthful or an unreliable historian but that must be said in fairness to the prisoner he gave evidence about his thoughts over the time of the offending.
So far as Mr Ballardie is concerned he recommends a number of steps that can be taken in relation to the treatment of the prisoner. The prisoner already has obtained a Mental Health Care Plan and has seen Mr Ballardie for counselling sessions once a fortnight for at least five months. He has, in my view, complied with the requirements made of him by the psychologist, the believes that the offender has a low risk of re-offending, particularly given his high level of engagement during assessment and therapy, improvements in his mood during the time that he has been seeing the psychologist, the identification of possible causal connections between his mental conditions and other matters. He has continued goals of obtaining a higher level of academic qualification, absence of prior convictions and expressions of remorse to Mr Ballardie. He notes the impact of a custodial sentence may have weigh more heavily upon him.
I would have thought in the case of this prisoner that the impact of a custodial sentence will weigh more upon him. Not because of any particular mental condition from which he suffers, but particularly because of the character of his presentation, the type of "person" he is in the sense that he is not robust person who could look after himself. I must say when people are required to go to gaol, whilst that may be a relevant matter, it is not a significant matter in persuading a Court not to impose a term of full time custody.
I do accept, however, from the report of Mr Ballardie and the conduct and actions of the prisoner, that he has committed himself to seeking the assistance. Many people who possess access and/or disseminate child abuse material with substantial underlying psychological conditions that contribute to their offending directly, such as "paedophilia disorder" are incapable, usually, of responding positively to treatment.
I have a reference from his father stating his support and his surprise at the prisoner's behaviour. He reflects upon the hard work the prisoner put in to school, the fact that he is immature and is a "growing child". He notes the prisoner's expressions of regret to his family. He also notes the fact that he is a "kind" boy within the family context. He notes the prisoner has been seeking professional assistance and has reflected upon the symptoms that have been reported by Mr Ballardie. A friend of his from school has also given a reference. He speaks of the aspects of the prisoner's character of which is aware. He notes the prisoner has expressed contrition and feelings of "guilt" for his conduct. He notes some community service the prisoner has undertaken when at school. He calls him a person who has been very supportive and is a person who demonstrates a great level of "kindness" and "maturity". It must be fairly said the conduct of the prisoner in accessing this material reflects no kindness towards the victims of the people that are responsible for producing this terrible material.
The prisoner, as I said, has written a letter of apology in which I have taken into account which reflects upon the evidence that he gave. His counsel also provided me with some statistic sentencing in the Local Court, which is of no assistance to me whatsoever, and sentencing in the 'Higher Courts' presumably the District Court and the Court of Criminal Appeal in respect of both the State and Commonwealth offences. Statistics have considerable limitations. The High Court spoke of this in Hili. Spigelman CJ in Bloomfield (1998) shortly after he first became Chief Justice spoke of the inadequacies or the limitations of statistics for the purposes of re-sentencing on appeal I must say. We all know that the statistics barely provide much information that can be of assistance beyond generally giving some idea as to the range of penalties that are imposed in the Higher Court. But that having been said there are a number of authorities I need not cite that also reflect upon the fact that they may not even necessarily do that. The facts of the cases, the subjective circumstances of the offenders, the relevance of mental condition in offending and the like are never able to be divined from the statistics that are provided.
As I said both the Crown and the defence provided extensive written submissions and it would be impossible in the time available for this sentencing exercise to do justice to a set of submissions that have a hundred footnotes. Although I have read a number of the cases, both for this matter and in many other cases, I must sentence by reference to breaches of Commonwealth law and State law, eight, ten, fifteen people a year over the last five or six years for offences of this type. In fact I recently sentenced a person who was a paedophile and who had a sentence for historical sexual assault offences added to a term of imprisonment in respect of his possession of child abuse material under State Law, which was of homosexual character but involved children. In fact, I was required to view ten or more so of the videos that the prisoner had stored whilst he was on bail before me awaiting sentence in relation to the historical sexual assault offences. That was a very different case. The man had previously been convicted of such conduct and the prisoner had prior convictions for sexually assaulting children. He was a mature person in his later 50s early 60s at the time of sentence and with a maximum penalty of ten years I believe the starting point for the sentence for him was around five or six years. The child abuse material was limited in terms of its quantity, as is the case here, by comparison to the 'comparative cases' that I have been referred to by the Crown. But given his criminal history, he had to face the fact under State Law that his criminal history provided an aggravating factor to the offending and of course. He was also in breach of conditional liberty at the time of the offending. These matters do not arise in this case.
Be that as it may the Crown ultimately submits that a custodial penalty should be imposed and with that general submission I agree. The thresholds, if I could call them that under s 17A of the Commonwealth Crimes Act and s 5 of the Crimes (Sentencing Procedure) Act, herein after referred to as "the New South Wales or State Act" have clearly been passed.
The Crown points out and obviously it is so that I am required to under Commonwealth Law have regard to Pt. 1B of the Commonwealth Act and of course I am required to impose in relation to the Commonwealth offence a sentence of "a severity appropriate in all the circumstances of the case".
I am required to have regard to the various aspects of s 16A(2) set out. Likewise in relation to the State offending I am required to have regard to s 3A of the New South Wales Act. That is have full regard to all the purposes of sentencing; give proper weight to general deterrence and personal deterrence; denunciation of the offender; making him accountable for his conduct; adequate punishment; promoting his rehabilitation.
I do not believe in the context of the State provision that there is a need to "protect the community" from the prisoner at this point, because I do not believe, notwithstanding that this offending is serious, that he presents as a threat to the community in all the circumstances.
The arrest of the prisoner, the progress of the prisoner through the Court system, I expect would have some salutary effect upon him. One expects that all involvement with the Court should have that effect. We know from our own experience that time and time again that purported salutary effect of the court system has not worked and we see offenders coming back before us time and time again committing offences that they have previously committed in different contexts .
The Crown sets out, summarised by extensive footnotes, the general principles to be applied in child pornography offences. Generally speaking the subject matter set out at para 9 of the Crown's submissions, and elsewhere, has set out those principles.
I would like to concentrate if I may by reference to the Crown's submissions upon three or four cases of the New South Wales Court of Criminal Appeal which to my mind in totality, set out most of the relevant matters to be considered.
Those decisions include R v Leeuw [2015] NSWCCA 183, R v Gent [2005] 162 ACrimR 29. R v Porte [2015] NSWCCA 174 and another authority that is extensively quoted from the judgment of RA Hulme J, R v Minehan [2010] NSWCCA 140. There is a Victorian authority of similar character. Porte is a later case and Johnson J in that judgment added to the list of relevant factors to the objective assessment that are set out in Minehan. The principles that are set out in the different parts of the Crown submission overlap obviously Minehan and Porte and the other authorities that I have referred to speak of the same matters.
To perhaps quote from Minehan which is at para 29 of the Crown submissions: "Relevant factors to take into account always will be whether actual children are used; the nature and content of the children, the age of the children; the gravity of the sexual activity, the extent of cruelty or physical harm, the number of images and items of material and the number of different children depicted, the offender's purpose. The matters of aggravation of course will include the commission of further offences such as dissemination, whether there was payment made, although that would not be a "mitigating factor" if it does not occur, the relationship of the offender to those responsible for bringing material into existence."
Other factors include, direct relationship with the production of the material, the degree of planning and organisation and storage of the material, whether the person acted alone or within a collaborative network, the possibility of other people seeing the material or being acquired by people who are susceptible and other matters arising under s 16A of the Commonwealth Act bearing upon the objective seriousness of the offending.
Johnson J pointed out Porte that the distribution or dissemination material if it does not occur does not mitigate the penalty. He pointed out that the possession of child pornography material creates a market for continued corruption and exploitation of children and of course possession of child pornography is not a victimless crime.
I made the point myself without having to cite authority that every time one has to cast one's eye upon an image or a video, not only are you seeing the suffering of a victim, but what strikes me most particularly is what you do not see. What has happened beforehand to bring the child to the position where it is brutalised and/or exploited in a way in which the images reflect and what happens to the child after the event?
It is a constant source, I must say, of distress for me to think of the implications. Whether the prisoner had the maturity to think through the implications is very much a moot point. But certainly mature minds can easily see that that is so.
In relation to this aspect of the matter, the Crown very helpfully has cited at different points of its submissions a number of authorities that reflect upon this aspect of the matter. The moral depravity and wickedness of the conduct, the callous and predatory nature of the crime of possession.
It is pointed out in the decision of Booth, [2009] NSWCCA 89, that the Crown cites, quoting from the Judge at first instance, that in sentencing for such a crime it is well to bear it firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often these events are occurring in underdeveloped or disadvantaged countries which lack the resources to provide adequate child protection mechanisms. The use of the material is feeding upon not only the exploitation of the children, but exploitation upon their poverty or their deprived social circumstances. It is self-evidently so when one has the misfortune to view the material.
In relation to this matter in the context of the relevance of general deterrence, again in Booth, Simpson J pointed out that the decisions of the Court preceding Booth, emphasise that in respect of possession of child pornography or child abuse material, general deterrence is "at least a significant element of the sentencing process" and hence the various authorities that speak either of the usual imposition of the terms of full time custody and that a term of imprisonment would be expected, save for exceptional or special circumstances. These principles are clearly understood.
It is in this context however, that I need to turn to just a couple of aspects of the evidence and the way in which the matter was presented to me in the submissions by the parties. It seems to me obviously that there is required in this matter an element of general deterrence and general deterrence is a significant matter to take into account.
The live question that arose in the conduct of this matter is that having regard to the evidence of the prisoner and the evidence from the psychologist, the extent to which weight would be given to general deterrence. I had a very interesting discussion with counsel for the prisoner about this particular matter. I mistakenly expressed the view, which has been corrected by the subsequent judgments that she has provided to me, that I would have thought for a reduction of the weight to be given to general deterrence there would need to be established some "causal" connection between any relevant mental disability or disorder and the offending behaviour. I might reflect now that it would seem to me, by regard to the authorities that I have been provided, that that is not necessarily so. Although it seems quite clear to me that the lesser weight will be given to general deterrence the more significant the causal connection is between the mental disorder and the offending. The connection here is slight. It is a connection that is slight for two reasons. One is the "diagnosis" is not necessarily overwhelmingly established. Although it is likely that he was suffering some depressive symptoms. But also, because it would seem to me that any depressive symptoms that he had were related to other social factors. Lack of maturity and social isolation which of themselves independently brought upon his conduct. The matters I am discussing I appreciate are very much intertwined.
Perhaps a starting point in any discussion of this matter is consideration of the decision of DPP v De La Rosa (2010) NSWLR 194. There, at [177], [178], McClelland CJ at CL set out in those paragraphs a summary of his review of a number of authorities discussing the relevance of mental illness or disability in sentencing. He said [178] that the relevant condition need not be severe. These principles summarised are that a person's mental health if it contributes to the commission of the offence in a material way, may reduce the person's moral culpability. That particular principle makes clear the "causal connection".
He went on to say:
"It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction of the sentence which otherwise would be imposed,"
citing amongst other decisions a very important authority in this regard, R v Engert, a particular decision of Gleeson CJ from 1995 which is cited in the written submissions of counsel for the accused. I should point out, of course, that Gleeson CJ made the point that in the circumstance where the mental disorder has substantial connection with the offending, whilst there may be a greater reduction upon general deterrence, there may be because of the condition greater dependence or weight given to personal deterrence.
McClelland CJ at CL also pointed out that a custodial sentence may weigh more heavily on the person. It may reduce or eliminate the significance of personal deterrence. Although that does not seem to me to apply here. As his Honour points out, consistent with Engert, where the person remains a danger to the community specific deterrence may result in an increase to the sentence.
To correct my understanding of the matter, I was taken to a number of authorities. I was taken to Iskander v R [2013] NSWCCA 235, particularly [23]-[27]-[30]. In that case at [23], the Crown accepted that it was not necessary for the applicant to demonstrate a causal link between his depressive condition and his offending in order to have that condition taken into account on the issue of general deterrence.
In that particular case I hasten to say both Gleeson CJ and Allen JA from Engert were extensively quoted as was the relevant passages from De La Rosa to which I have referred. In a decision of Phanekum [2015] NSWCCA 295, at [24], the CCA held that the relevance of general deterrence when there is no causal connection between the offender's mental state and the offending, will therefore depend upon the particular circumstances. Their Honours upheld in that appeal the findings of the judge, that general and specific deterrence remained significant in that particular case.
The other decision to which I wish to refer just briefly is the decision of Ryan v R [2015] NSWCCA 209, particularly at [4]-[11] in the judgment of Hamill J. He noted, by reference to the principles in De La Rosa and by reference particularly to Muldrock v R (2011) 244 CLR 120 and Engert (1995) 84 ACrimR 67, that Gleeson CJ had made the point that an offender's mental condition could result in the reduction of sentence even where it was not causally connected with the offence. But that Gleeson CJ had referred in this context only to considerations of rehabilitation or the need for treatment outside the prison system as leading to this conclusion. In that case he held that the appellant's mental condition should be taken into account when considering the issue of general deterrence when sentencing, but it only had limited significance, noting what Allen J had said in Engert, because:
"Ordinary members of the community would not in my view expect a person suffering from a depressive condition of the kind from which Mr Kearsley suffered (but which did not play any significant causative role in his or her offending) to receive a significantly lower sentence for offences of the type in question that would otherwise be the case."
It is that analysis with which I agree in this matter in so far as the weight to be given to general deterrence is concerned. It is a matter that may slightly impact upon that weight. Although general deterrence as the Crown points out must still be taken into account, it is not a highly significant matter.
It is a matter however of course relevant in the overall context to the assessment of the accused's moral culpability. That brings me to another aspect of the defence submissions with which I agree and that is the relevance of the prisoner's immaturity, his age at the time between 18 and 20 when the offending occurred.
I am taken to a number of authorities. The decision of Miller v R [2015] NSWCCA 86, particularly [96]-[98], the decision of KT v R [2008] NSWCCA 51, particularly at [23]-[25] and the decision of R v BP, particularly the judgment of Hodgson JA in that latter judgment at [4]‑[5]. The late Hodgson JA reflected upon the science of which Mr Bellardie spoke, the available evidence of the fact that a person being an adult, but a young adult not having necessarily developed maturity for physiological and other reasons, being a relevant matter in assessing the moral culpability of the offender or alternatively for the weight to be given to the promotion of the prisoner's rehabilitation.
That, it seems to me, is a relevant matter in this case. That amongst other things warrants consideration of the imposition of a penalty that would permit his assessment for an Intensive Correction Order. So far as the Crown submissions are concerned the Crown reflects upon the volume of the material, the character of the offending with which I have already dealt with.
I must say when one has regard to the comparative cases amongst those cited by the Crown, one can see, although it is not ultimately determinative, the relevance of the consideration of the quantity of the material here by reference to other cases that are said to be comparative cases. For example, the particular case that the Crown referred me to of Porte which I have already cited as to principles enunciated by Johnson J, provides some guidance as to the range of offending of this type. In the matter of Porte, in fact, there is a very helpful schedule, at [52], which cites a number of decisions of the CCA dealing with the sentencing of offenders and where the sentences of course are greater than those to be imposed by me. Each involving exponentially greater and far more sinister quantities of material. A case such as Martin in 2014, 13,000 images, 47,000 prohibited files shared over six months; the case of Saddler, 36,500 images; the case of Guest (2014), 10,000 pictures, videos and text files of which 8,000 fell within category 1; the case of Linardon (2014), possession relating to 4,530 images and 40 videos and, of course, the decision of Porte itself.
The facts in relation to Porte showed that he was charged with quite a number of offences. He possessed 34,143 items. 2,260 videos, 88 videos in the category 3, 493 in category 4, 27 within category 5. In Porte's case, he not only possessed child abuse material and accessed child pornography material under State and Federal laws, but he committed other offences as well.
In that regard I also have had regard to the decision of Burbridge cited by the Crown, [2016] NSWCCA 128, which is closer in one sense to the character of this objective offending, but certainly where there was a far greater of number of files and a larger quantity of material possessed than by this prisoner.
In particular terms by reference to the matters identified by the prisoner, I have had regard to the nature and character of the offending as required under 16A(2) and the particular matters. Some of the particulars are identified by the Crown. I do not agree that it was a "sophisticated system of storage." The Crown concedes, because there is no evidence to the contrary, that the prisoner committed the offences for financial advantage or commercial distribution. It certainly does not mitigate the offending.
I accept that by being involved in the matter in which he was, he did contribute to creating a market for child pornography and the continued exploitation of children. I accept of course the relevant matter of importance is the period of time over which the offending occurred.
With regard to other matters that are required to be taken into account, the offence under the Commonwealth law represented a course of conduct. A number of downloads and accesses reflect that. The circumstances of the victims have to be taken into account. Obviously great damage is done to these children which we can never truly calculate. The plea of guilty is a matter to be taken into account.
With regard to recognition of the utilitarian benefit of the plea of guilt, I note the Crown's submissions in this regard. I accept under Commonwealth law one is required to give the consideration of the extent a plea of guilty facilitates the course of justice. In relation to the State offence course, one is required to apply what is sometimes said to be a different test in accordance with the guideline judgment of Thomson and Houlton (2000). In respect of the State offence I propose to give a 25% discount to reflect the utilitarian benefit of the plea of guilty.
So far as the facilitation of the course of justice required under Commonwealth law, I propose to give the same discount. I accept the Crown case against the accused is strong, but the plea in my view was entered at the first reasonable opportunity and ultimately I believe that is a fair discount to give in all the circumstances. I do not propose to get into an analysis of recent decisions. Particularly the recent decision of the Victorian Court of Appeal which seems to suggest there seems to be no difference between the two tests in reality. That is for someone else to resolve.
I deem that the prospects of rehabilitation of the offender are good. I believe that the prisoner has shown progress of his rehabilitation. In relation to this matter the Crown points out that in the context of considering his rehabilitation, in its submission the offending conduct was done for sexual gratification. Ultimately of course there would be an element of this, but I do not believe sexual gratification was the driving force behind the prisoner's conduct. Although he would get some sexual gratification from viewing the images or some of the images.
I accept as a fact that whether he got actual sexual gratification from all of the images I could not conclude. I could not conclude that he in fact initially involved himself in this conduct for that particular reason in the context of the evidence he gave.
So far as cooperation with the law enforcement authorities, I note his cooperation on their arrival at his home. His involvement in an interview. His admissions against interests and I also note the weight to be given to personal or specific deterrence. But in this particular case I do not believe there is a need for the prisoner to be imprisoned at this point to give full effect to that in light of what I said earlier.
I note he has no prior criminal convictions. I appreciate that there are many cases that say that this is of lesser weight in an offence of this type. Most offenders who come before us, in relation to this type of activity, are people with no prior criminal convictions, who are residing behind a mantle of respectability that they do not deserve. I do not believe that this prisoner falls into this category.
He is not a person of mature age conducting his life, or her life in rare cases, in a business or in a profession but in fact disguising a very dark and evil secret. As I have said his offending is less "considered" from that type of offending. I have taken into account his other antecedents.
I have dealt with the issue of delay. I have had regard to the comparative cases as I have said. To my mind the comparative cases cited by the Crown had very few common features if any really apart from the basic character of the offending with this particular offender. But they are illustrative of the range of conduct that might be dealt with by the Courts from time to time.
Having said that of course I see that myself frequently at first instance, both in breaches of State and Federal law. To pick up just some aspects of the Crown submissions that are also obviously referred to by the defence. I had regard to s 5 of the State Act and s 17A of the Federal Act as I have said. I am required to give effect to the totality of the criminality of the prisoner. I have determined there should be some slight accumulation of the Commonwealth sentence upon the State sentence.
I am mindful of the helpful submissions made by the counsel for the accused in relation to the issue of totality. Particularly the matters that arise in the context of decisions such as Hammoud (2000). The High Court in Pearce v R (1998) 194 CLR 610, particularly at [45], requires through the voice of the majority a Court to give an appropriate sentence for each offence and then turn to the issue of whether there should be partial accumulation or concurrency, particularly by regard to the totality of the criminality.
Counsel for the accused specifically referred me to the judgment of Hoeben CJ at CL in Laycock v R [2017] NSW 47, particularly at [98]. I have taken into account that extract as set out on pp 9 and 10 of the defence submissions.
So far as s 21A of the New South Wales Act is concerned, as it relates to the State offence, I have concluded that there is no particular "aggravating factor" that arise pursuant to s 21A(2). The relevant objective features of the case for the charge are reflected by what is required to be considered under s 21A(1).
With regard to mitigating factors that arise in relation to the State offence there are quite a number. I do not believe that the offending was "planned" or "organised criminal activity" on the part of the prisoner. The prisoner did not have any record of previous convictions. I accept that the prisoner was a person of good character before he commenced committing these offences.
I accept that the prisoner is unlikely to reoffend and as I have said he has good prospects of rehabilitation. I accept that the prisoner has relevantly shown "remorse" as required under s 21A(3). I accept the plea of guilty as a mitigating factor. He did provide some assistance, but it is not a matter requiring a discreet discount.
So far as being fully aware of the consequences of his actions because of his age or any disability, I could not conclude on balance that he was not "fully aware" of what his actions meant. But the full significance of what his actions meant I do not believe he completely appreciated, as I earlier pointed out.
With regard to the two offences both under State and Federal law, in categorising the objective seriousness of the offending and in the context of my examination of the supposedly comparative cases and the range of offending contemplated by each provision, I would see the offending objectively to be at the lower end of the scale, certainly not at the lowest end of the scale of offences of this type.
Primarily because of the motives of the prisoner and particularly in relation to the quantity of the material that was either accessed by him by use of a carriage service or alternatively possessed by him at the time that the police intervened.
In relation to the offender I point out one matter. It is picked up by counsel for the accused by reference to the decision of Lattouf which was adopted by Spigelmen CJ in Henry v R, the 1998 guideline judgment. But I cite what was said by King CJ of the South Australian Supreme Court that has been adopted in New South Wales and a number of authorities including the decision of Blackman and Walters [2001] NSWCCA 121, particularly at [44].
His Honour, the then Chief Justice of the South Australian Supreme Court, pointed out:
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an (offender) to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm".
In relation to this matter if you could stand up Mr Dieu. In respect of each offence you are convicted. I am satisfied for the reasons given that no penalty other than imprisonment is appropriate and that the sentence will be for a period of no more than two years.
You are referred for assessment as to your suitability for an intensive correction order as a means of serving the sentence. I refer you for assessment pursuant to the Crimes (Sentencing Procedure) Act 1999 and order the preparation of an assessment on or before, I foreshadow that will be Friday 17 November 2017?
MCMAHON: That is entirely suitable your Honour.
HIS HONOUR: Are you available that date Madam Crown?
HATCH: I'm not your Honour, but I can arrange to have someone else here.
HIS HONOUR: I'm sorry about that. That's the earliest date I can give you because I need six weeks.
HATCH: I have a sentence in Newcastle, but I can arrange for someone to be here.
HIS HONOUR: Yes, I'm sorry. I apologise I can't accommodate you, but I know there will be an able colleague of yours coming from the Directors office.
On or before Friday 17 November 2017. I continue bail on the further condition that you attend the Liverpool Community Corrections Service before 5pm on 27 September 2017 for the preparation of the assessment report to commence.
The matter is adjourned till Friday 17 November 2017, not before 2pm to enable the assessment report to be completed. Thank you, you can sit. You can leave the dock and take a seat behind your counsel. You will have to go upstairs and await the Registry to make sure the relevant paperwork is completed.
HATCH: Your Honour the Crown is seeking a forfeiture order as well. Would you be minded to--
HIS HONOUR: I will make that. I will make it when I make all the final orders whenever they may be. Is that suitable to you?
HATCH: It is suitable.
HIS HONOUR: It's in the possession of the police anyway isn't it?
HATCH: It is and I'll have the material there.
HIS HONOUR: Thank you I'll do it all at the one time if that's convenient Madam Crown.
ADJOURNED TO FRIDAY 17 NOVEMBER 2017
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Decision last updated: 10 January 2018