R v Falzon [2015] ACTSC 104

CRIMINAL − Sentence − Particular offences − crimes and offences against children - possess child pornography material

Crimes Act 1900 (ACT) s 65

Crimes (Sentencing) Act 2005 (ACT) s 35

Arthur v Batterham [2011] ACTSC 158

Minehan v The Queen [2010] NSWCCA 140

R v Cooper [2012] ACTCA 9

R v Lee [2013] WASCA 216

Commonwealth Director of Public Prosecutions (Crown)

1. The offender entered a plea of guilty at the earliest reasonable opportunity to the offence that on 31 January 2013 he possessed child pornography material contrary to s 65 of the Crimes Act 1900 (ACT). The maximum available penalty is seven years' imprisonment and/or a substantial fine.

2. The offender was charged in late 2014. In January 2015 a plea was entered in the Magistrates Court and the offender was committed for sentence to this Court. The plea was entered in the face of a strong Crown case. Nevertheless, the plea has significant utilitarian value. Having regard to the considerations in s 35 of the Crimes (Sentencing) Act 2005 (ACT) an appropriate discount for the plea is 25%.

3. On 31 January 2013 police executed a search warrant on the offender's residence in McKellar. The offender was generally cooperative with the search and volunteered some information, albeit limited information, to the police. The police seized six electronic devices. They found child pornographic material on the internal hard drives of two computer towers, a DVD disc and an external hard drive.

4. The total number of child pornography images found was 2206. Forty-one child pornography videos were found, bringing the total number of child pornography items found to 2247. In addition, police located more than 5000 adult pornography files.

5. The items were classified according to the Child Exploitation Tracking System (CETS) classification scale. The result of that classification was that 95% of the images were CETS 1. There were a number of images that fell within CETS 2, 3, 4 and 5. Only four of the total (less than 1%) fell within CETS 5. A total of 28 of the 41 videos seized (or 68%) fell within either CETS 3 or CETS 4. There were no CETS 5 videos.

6. CETS 1 relates to images such as those that involve nudity or suggestive posing. CETS 2 relates to solo acts by children or nonpenetrative sex acts between children. CETS 3 relates to nonpenetrative sexual activity between children and adults. CETS 4 relates to penetrative sexual activity between children and adults. CETS 5 is the most serious category, relating to activities such as sadism, bestiality and humiliation.

7. The estimated age of the victims was between two and 17 years. The majority were prepubescent females. Twenty-three of the items were cartoons. The remaining material involved actual child victims. It is estimated that there were 40 different child victims.

8. The offender had obtained the child pornography material by searching an online network. He had used search terms that included "10yearold" and "Asian".

9. The decision in Minehan v The Queen [2010] NSWCCA 140 provides a check list of matters that is useful to consider when determining the objective seriousness of an offence of this nature. Of particular relevance in this case is the content of material, including the age of the children depicted and the nature of the activity. I have referred to the age range and the focus on prepubescent females, which is a factor that tends to aggravate the seriousness of the offence. If children are prepubescent they are less able to resist exploitation. I have also referred to the nature of the activities depicted. With respect to the images, it was towards the lower end of seriousness. The videos included activity of a higher level of seriousness.

10. I have referred to the number of images. However where actual children have been used, it is important to consider the number of those victims.

11. As far as the other features identified in Minehan, no feature is particularly important in this case. There is no suggestion that the purpose of possession was for dissemination. There is no suggestion of payment being made or received. The offender was not involved in the creation of any material; he was not proximate to the source of the child abuse. It is not suggested that he was doing anything other than acting alone.

12. I note that the offender has been charged with possession on only one day. He is to be sentenced on that basis. On the other hand, the activity ceased only because of police intervention.

13. As is frequently observed by sentencing courts, an offence of this nature is not a victimless crime. In this case, there were about 40 actual victims. Although the accused was not the direct perpetrator of the abuse, the victims were abused at the time of the creation of the material. They have been and will be abused every time that the material is accessed. The images will probably remain on the internet and accessible forever. Apart from the abuse of the immediate victims of this offence by the offender and others, engagement in accessing or possession of child pornography, (even where no money is exchanged) fuels the child pornography market. That is why this is such a serious offence.

14. The offender is 54 years of age. He has been single and has resided by himself for the past 15 years. He has no relevant prior convictions. In that respect, it has not infrequently been observed that prior good character is a common feature of persons who commit offences of this nature. Therefore less weight may be given to prior good character than is the case for other types of offending. In R v Cooper [2012] ACTCA 9 at [46], the Court observed:

The weight to be attached to an offender's good character will depend, of course, on circumstances of the offending. However...in cases involving the possession of child pornography, the need for general deterrence will frequently operate as a strong, and indeed sometimes overwhelming, countervailing factor, and thereby render nugatory any submission as to prior good character, or, at least, of limited weight.

15. I will follow this general approach, although I am not convinced that it is correct to weigh good character against general deterrence. General deterrence is a sentencing purpose as opposed to a subjective feature.

16. The offender has worked in the public service for many years. Most recently, he worked for the Department of Defence for a period of 20 years, obtaining Australian Public Service classification 5. At that level the offender required a security clearance. He resigned from his employment in September 2014 because of the charge brought against him. He has had no employment since that time. He wishes to return to the workforce in the future. His prospects of employment are limited, especially given his health issues (referred to at [17]). Having left his employment, the offender moved to an apartment which he owns outright. He is financially secure.

17. The offender suffers from type 2 diabetes, for which he takes medication. In 2014 he underwent major heart surgery; a quadruple bypass, and he takes medication for his heart condition.

18. The offender has attended counselling at least every month since immediately after his arrest in January 2013, when he was referred to the counselling psychologist by a workplace psychologist. The counselling psychologist has helped the offender to gain insight into his offending behaviour and to develop strategies to deal with it. The psychologist has also assisted the offender to cope with feelings of depression.

19. The offender said in evidence (and there is other material to support his assertion) that he feels a high level of shame. Associated with those feelings, he has experienced suicidal ideation.

20. To his credit, the offender has openly admitted that he has been attracted to pre-pubescent girls and has sought images of such girls, as well as other images, for over 10 years. From time to time he has attempted to cease the behaviour and has deleted child pornography images. At one time he was abstinent for about 12 months. However he has always resumed the behaviour.

21. The prosecution submitted that the offender has little insight into his behaviour and the reasons for it. I agree that the offender's insight is far from complete, but it is very rare, in cases such as this, for offenders to have a high level of insight. That is undoubtedly because people do not want to admit that they engage in such behaviour. They know that it is shameful behaviour and they do not even want to admit it to themselves.

22. The offender is described as a shy, socially awkward man who lacks confidence. Throughout his life, he has had few friends. He was bullied at school, partly because of his Maltese background and foreign appearance. He has lacked the self-confidence to seek out real and appropriate sexual contact or to initiate intimate contact generally. Dr William Knox, a consultant psychiatrist, says that the offender suffers from Avoidant Personality Disorder, paedophilia, and depression and anxiety of a moderate degree of seriousness.

23. With respect to offences of this nature, general deterrence has a high priority as a sentencing purpose. The prosecution referred to the decision of R v Lee [2013] WASCA 216. At [33] McLure P observed that, ordinarily, in Western Australia offences such as possession of child exploitation material will result in a sentence of immediate imprisonment.

24. Offences of this nature are insidious and difficult to detect. In this case, similar conduct occurred for a decade before it was detected. In such cases, there is a need to impose very significant penalties so that others who might be minded to engage in similar conduct may be deterred.

25. Specific deterrence is a relevant sentencing objective. However I suspect that, regardless of the sentence imposed, the fact that the offender's conduct has been discovered will provide a strong personal deterrent.

26. Rehabilitation is always problematic in these cases. However it is a relevant sentencing purpose if one can make a determination as to the prospects. This is not easy. In answer 14 to the schedule of questions, Dr Knox says:

Paedophiliac patterns of behaviour tend to continue, although I would judge in Mr Falzon's case that his timidity and shame would make it highly unlikely that he would resume viewing child pornography.

27. In Dr Knox's view, Mr Falzon would benefit from a minimum of a further 20 sessions of counselling. Each of those sessions carries a significant cost. The offender will have to bear the costs.

28. Other relevant sentencing purposes include the recognition of harm to the victims and to society in general. There is a need to protect the community and to address the sentencing purposes of punishment, accountability and denunciation.

29. I agree with the observations made by Burns J in Arthur v Batterham [2011] ACTSC 158 to the effect that the partial suspension of a sentence for a significant period of time, during which the offender is subject to a good behaviour order, may provide the community with the best protection from future offending conduct.

30. I have referred to the ACT Sentencing Database. This contains a limited number of similar matters. It indicates that, while a significant number of offenders receive fully suspended sentences, the majority receive sentences of fulltime imprisonment or partiallysuspended sentences.

31. The difficulty in this case is to craft a sentence that both protects the community by containing a significant suspended sentence, but also addresses the sentencing purposes of general deterrence, punishment, accountability and denunciation.

33. The starting point for the sentence was 18 months' imprisonment. I have reduced that period by 25% to 13 months' imprisonment. The offender will serve the first two months by way of fulltime imprisonment from today, 23 April 2015 to 22 June 2015.

34. The remaining 11 months of the term of imprisonment will be suspended upon the offender entering into a good behaviour order for a period of two years from 23 June 2015. The good behaviour order will be subject to the following additional conditions:

(a) That the offender report to ACT Corrective Services at Eclipse House within two working days of his release from custody.

(b) That the offender submit to the supervision of ACT Corrective Services for as long as ACT Corrective Services considers necessary, including undertaking any treatment and programs that are recommended and, if recommended, continuing with psychological counselling at the offender's expense.

35. I direct that the offender's file be marked as "prisoner at risk" and I request that a copy of Dr Knox's report of 1 April 2015 accompany the offender, noting that the offender has experienced suicidal ideation.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.