[2015] ACTSC 363

Effective sentence of 22 months' imprisonment: five months full-time imprisonment and 17 months suspended upon entering into two-year recognizance release and good behaviour orders.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence -Commonwealth and ACT sexual offences - use carriage service to access and transmit child pornography - intentionally possess child pornography - lower objective seriousness - maximum penalties - general and specific deterrence - rehabilitation - comparable cases - late guilty pleas

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35

Crimes Act 1900 (ACT) s 65

Crimes Act 1914 (Cth) ss 16A, 20

Director of Public Prosecutions v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477

R v De Leeuw [2015] NSWCCA 183

R v Falzon [2015] ACTSC 104

R v Forbes [2014] ACTSC 91

R v MB [2014] ACTSC 399

R v Minahan [2014] ACTSC 168

R v Porte [2015] NSWCCA 174

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Defendant)

1. On 31 August 2015, the date fixed for trial, the offender entered pleas of guilty to the following offences:

(a) Count 1: 17 December 2012, use carriage service to access child pornography material;

(b) Count 2: 23 January 2013, use carriage service to access child pornography material;

(c) Count 3: 28 January 2013, use carriage service to transmit child pornography material;

(d) Count 4: 16 February 2013, use carriage service to transmit child pornography material;

(e) Count 5: 17 March 2013, use carriage service to access child pornography material; and

(f) Count 6: 3 December 2013, intentionally possess child pornography material.

2. Counts 1 to 5 are offences against s 474.19(1) of the Criminal Code Act 1995 (Cth). Each offence carries a maximum available penalty of 15 years' imprisonment. Count 6 is an offence against s 65 of the Crimes Act 1900 (ACT). It carries a maximum available penalty of seven years' imprisonment.

3. Following his arrest, the offender spent four days in custody. He has been in custody since 4 September 2015, when the matter was last before the Court. Consequently, the sentences should date from 31 August 2015.

4. On 3 December 2013, police executed a search warrant at the offender's premises. The offender informed police that he was the sole occupant of the premises, having moved there four or five months earlier.

5. Police seized the offender's laptop computer, his iPhone and a USB stick which they found in the offender's bag in the dining room. The offender provided police with the passwords for the iPhone and two Skype accounts.

6. A forensic examination of the offender's laptop revealed criminal conduct.

7. On 14 August 2012, the offender created the Skype account "a.wesome.lover". He used that Skype account to communicate with "jdovell96". There was a discussion about the possible exchange of child pornography videos.

8. The offender used the Omegle website and social networking to obtain links to child pornography images.

9. On 17 December 2012, the offender used the laptop for two minutes, accessing 12 child pornography images. The images have the Child Exploitation Tracking System (CETS) classifications 1 (five images), 2 (one image) and 4 (six images).

10. Exhibit 2 contains a sample of the images. Police located the images in the temporary Internet folder on the offender's laptop. They had not been deliberately downloaded. There is no evidence that the offender knew that the images were retained in the temporary Internet folder.

11. On 30 December 2012, the offender used his "a.wesome.lover" Skype account to conduct partially parallel communications with "jason.dennis20" and "jdovell96", including a video call with "jason.dennis20".

12. On 23 January 2013, the offender used his Skype account "a.wesome.lover" to access two videos containing child pornography material. The user "tobyldn" transmitted both videos to the offender. After the first video was transmitted to the offender, the offender told "tobyldn" that he was interested in boys aged nine to 16. When "tobyldn" transmitted the second video, he said that the boy depicted was aged eight. There was a further text conversation between "tobyldn" and the offender, which I will not repeat. The offender saved the two videos, but renamed the first "snow trip". The first video is classified CETS 4. The second video is classified CETS 3.

13. Using his "a.wesome.lover" Skype account, on 28 January 2013, the offender transmitted the second (CETS 3) video to another user, "Cameron.payne14".

14. Using his "a.wesome.lover" Skype account, over a two-minute period on 16 February 2013, the offender transmitted the two videos to another Skype user, "jdovell96". There was a text discussion about how similar material could be procured. As noted above, on 14 August 2012, the offender had communicated with "jdovell96" about their shared interest in child pornography.

15. Via his "a.wesome.lover" Skype account, on 17 March 2013 the offender had a Skype text conversation with "jason.dennis20", in which the offender asked whether "jason.dennis20" had child pornography. The offender then received and accessed a third child pornography video (CETS 4) from "jason.dennis20". The offender asked whether "jason.dennis20" had any more material. "jason.dennis20" agreed to show the offender video clips via a video call. The offender stated that he would like to engage in sex with a young boy in real life.

16. Exhibit 3 contains a sample of the images on the first, second and third videos.

17. When the search warrant was executed on 3 December 2013, the offender possessed 13 child pornography images and 39 child pornography videos.

18. All the videos and nine of the images were located on the USB stick. The 48 files on the USB stick had been placed there on 30 August 2013. The nine images were classified CETS 1 (4 images), CETS 2 (2 images) and CETS 4 (3 images). The 39 videos were classified CETS 1 (1 video), CETS 2 (2 videos), CETS 3 (7 videos), CETS 4 (27 videos) and CETS 5 (2 videos). Exhibit 4 contains a sample of the images found on the USB stick.

19. Four images were located on the iPhone. The iPhone images were classified as CETS 1 (3 images) and CETS 2 (1 image).

20. Between approximately 5 September and 16 November 2013, nine image files and 39 video files had been opened on the offender's laptop.

21. The age of the children depicted in the child pornography material ranged from babies to young adolescents. Predominantly, they were male children. Few of the images depicted the same child, i.e. there were multiple victims.

Classification under the Child Exploitation Tracking System (CETS)

22. A summary of the CETS classification system is as follows:

(a) CETS 1 material depicts non-sexual activity, including nudity and sexually suggestive posing.

(b) CETS 2 material depicts solo acts or sexual acts between children.

(c) CETS 3 material depicts non-penetrative sexual activity between children and adults.

(d) CETS 4 material depicts penetrative sexual activity, including activity between children and adults.

(e) CETS 5 material depicts sadism, bestiality and child abuse such as humiliation.

(f) CETS 6 material uses cartoons, comics and virtual images.

(g) CETS 7 material depicts non-illegal activity, e.g. circumcision.

(h) CETS 8 material depicts any pornography that is not child pornography.

23. The offender is a 30-year-old single man, who grew up near Wangaratta in Victoria. His father is Aboriginal. The offender is keenly aware of his Aboriginal heritage.

24. The offender has no relevant prior criminal history. Other than in relation to these offences, the offender has never been imprisoned.

25. In relation to this matter, between December 2013 and September 2015, the offender was on strict bail conditions which became more relaxed over time.

26. When the offender was seven years old, his father deserted the family. Thereafter, the offender had no contact with his father until, when the offender was 19 years old, he traced his father. There is no ongoing contact. This is a source of emotional distress to the offender.

27. The offender disclosed to the authors of the Adult Sex Offender Program Pre-sentence Assessment Report (Sex Offender Report) that he had been the victim of child abuse. This matter should be investigated through future treatment.

28. The offender enjoys strong support from his mother and sister (who has two young daughters).

29. After completing Year 12, the offender held jobs in the service and hospitality industries in the Wangaratta area, and as the Program Officer in a Shepparton prison. He then worked as an Aboriginal Administration Officer for a health organisation. While he was living in the Wangaratta area, the offender held significant community positions, representing the Indigenous community on many committees that had been established by local, state and Commonwealth governments. Primarily, this was in the areas of health, art and Aboriginal heritage.

30. In 2012, the offender moved to Canberra to work as the butler at the British High Commission. During this period, he also studied a full-time course that was based in Melbourne.

31. After these offences, in March 2014, the offender moved to Victoria and enrolled in a Bachelor of Arts degree in Indigenous Studies through Victoria University. He boarded with friends and received a study benefit. He worked casually in the hospitality industry. The offender was the first member of his family to enrol in university.

32. The offender informed the authors of the Sex Offender Report that he would one day like to get married and have children. These statements may reflect the offender's inability to fully acknowledge the nature of his sexuality.

33. The offender has a history of depression. He was first diagnosed with depression in 2010. The offender reported an attempted suicide earlier this year, associated with the charges before the Court and the death of his grandfather, to whom the offender was very close. In late 2014 and early 2015, the offender participated in four sessions with a psychologist. Upon entering custody on 4 September 2015, the offender was admitted to the Crisis Support Unit within the Alexander Maconochie Centre. He was discharged on 8 September 2015. The offender reports current suicidal ideation and may be placed on medication.

34. The offender tendered character evidence, which showed that he was a person of otherwise good character and a person of considerable talent. However, after the circumstances of the offending conduct received publicity in September 2015, one of the referees wrote to the Director of Public Prosecutions stating that "the charges as represented to me by Josh in no way reflected the seriousness, frequency, number of charges or their utter depraved nature" and that, in those circumstances, while the referee could confirm that the offender had "academic and social skills aplenty", she no longer felt able to provide insight into the offender's personality and rehabilitation prospects.

35. To his credit, after pleading guilty, the offender advised his family and friends about the offences. Prior to pleading guilty, the offender had advised only very close family. I do not know whether the offender willingly disclosed the full circumstances of the offences.

Attitude to offences and prospects of reoffending

36. Because the offender's prospects of reoffending were unclear, on 4 September 2014, the Court adjourned the sentence proceedings for the purpose of obtaining a Sex Offender Report. That Report was provided. Using the LSI-R test, the offender was placed in the low risk category for general offending. The risk of reoffending by committing child pornography or child sex offences was not assessed as there is no appropriate tool for doing so.

37. The offender's explanation for why he did not plead guilty from the outset was that, because of his standing in the Indigenous community and his affection for his family, he was frightened of humiliation, shame and stigma. However, having spoken to his counsel prior to the commencement of the trial, he decided that he should accept responsibility for his own actions. In addition, he wanted to spare the jury and the Court the ordeal of viewing child pornography images.

38. I accept this explanation as genuine. I am reinforced in this view by the opinion of the authors of the Sex Offender Report, who stated that the offender's remorse "appeared to be legitimate".

39. On the other hand, the authors of the Sex Offender Report noted that the offender minimised his personal accountability. When the offender gave evidence at the sentence hearing, he also minimised his personal accountability. He gave a confused account about why the offences had occurred. He said that he had started using Grindr and similar networks in an attempt to link with members of the gay community and that, initially, he was naive in relation to the use that others made of such networks. He said that, when he was accessing child pornography, he did not fully appreciate the extent to which child pornography involved real victims. He also said that he gained no gratification from child pornography material and that it was only a means to connect to other gay men; his sexual gratification was caused by the arousal of the other user. This is also the account that he gave to the authors of the Sex Offender Report.

40. The chat conversations establish that the offender did gain enjoyment from the child pornography material. However, I accept that, in part, the offender's involvement with child pornography was also a means to achieve sexual connection with other gay men.

41. I am satisfied that, at an intellectual level, the offender now appreciates the impact of accessing and using child pornography; that such behaviour fuels an industry that perpetrates abuse.

42. I accept that (as explained by the offender in evidence) the commission of the offences was partly related to the offender's underlying lack of sexual confidence and associated reluctance to seek out real partners in the real world. No doubt, the offender is usually a "buoyant" and outgoing personality, but his upbringing as a fatherless, Indigenous person growing up in the Wangaratta area is consistent with the asserted underlying lack of self-confidence.

43. The offender believes that he will not reoffend. He says that, while on bail he has not accessed social media and has not felt the urge to do so. As a result, he has "felt better". Nevertheless, the offender is willing to attend offence focused programs and would like to address his risks in treatment. He has been assessed as suitable to participate in the Adult Sex Offender Program.

44. In the period following the offender's arrest, despite being on bail, the offender sought no professional assistance in relation to rehabilitation. This behaviour is consistent with the offender's failure to fully confront his conduct. The offender continues to minimise his personal accountability. He is yet to fully confront his behaviour and gain full insight into why it occurred. Until he does so, his ability to identify and address the underlying issues will be impaired.

45. Count 1 involved viewing 12 images on the Internet over a two minute period. The images were in the CETS categories 1, 2 and 3.

46. Counts 2 to 5 involved receiving or transmitting one or two video files between January and March 2013. A total of three video files were involved, with CETS classifications 3 or 4.

47. Count 6 involved possessing four images on an iPhone, and nine images and 39 video files on a USB stick. The images were in CETS categories 1, 2 and 4. The videos were predominantly in CETS category 4, with a smaller number of files in categories 1, 2, 3 and 5.

48. Recently, in R v Porte [2015] NSWCCA 174 at [63] per Johnson J (with whom Leeming JA and Beech-Jones J agreed) and in R v De Leeuw [2015] NSWCCA 183 at [72] per Johnson J (with whom Ward JA and Garling J agreed), the NSW Court of Criminal Appeal reiterated factors that may be relevant to determining the objective seriousness of child pornography offending, including:

(a) The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

(b) The number of items or images.

(c) Whether the material is for the purpose of sale or distribution.

(d) Whether the offender will profit from the activity.

(e) The number of different child victims.

(f) The duration of the offence/s.

49. Applying these considerations to the offences in this case:

(a) Count 1: The offence occurred over a short period and involved a small number of images; 12 images were accessed over a period of two minutes. The images were classified mostly as CETS 1 and CETS 4; the latter category involves a high level of depravity. The offender did not deliberately download the images.

(b) Count 2: Like Counts 3, 4 and 5, this offence involved the use of a Skype account that had been deliberately created for such purposes. The offences of accessing and transmission did not involve the payment or receipt of money, although they were associated with the anticipated benefit of future exchanges. Count 2 involved accessing two videos during a private Skype conversation; the videos were classified CETS 3 and 4.

(c) Count 3: This offence involved transmitting one video classified CETS 3, during a private Skype conversation. Associated with such a transmission would be the reasonable expectation that the video might be forwarded to others who might themselves forward it. Consequently, the offence of transmission is generally more objectively serious than the offence of accessing child pornography, although an offence of accessing involves encouraging the transmission by others.

(d) Count 4: This offence involved transmitting two videos classified CETS 3 and 4, during a private Skype conversation. Associated with such a transmission would be the reasonable expectation that the video might be forwarded to others, who might themselves forward it.

(e) Count 5: This offence involved the offender accessing a third video, classified CETS 4.

(f) Count 6: This offence involved the possession of 52 child pornography files, 13 still images and 39 video files. The 52 files did not include the material the subject of Counts 1 to 5. The majority of the files, 57%, 32 of 52, were classified CETS 4, i.e. they showed sexual activity including penetrative sexual activity between children, or between adults and children. Two files were classified as CETS 5, sadism or bestiality. The photographs on the iPhone were in a photo "vault" and access required a four digit PIN number. Some of the files had been recently opened (most recently, two or three weeks before the search warrant was executed). The possession was for personal use.

50. Many different children were depicted in the images and videos, ranging from babies to adolescents.

51. The offences were part of a continuing course of conduct over a period of 12 months. However, within that period, the offender's engagement with child pornography was not intense. The evidence discloses only the above events, a relatively small number of events over the 12 month period December 2012 to December 2013. The material was not hidden in a sophisticated way; the images on the iPhone were stored in a photo "vault", but the majority of the images were on the USB stick. There was no real risk that the material would inadvertently be seen by others.

52. The possession, accessing and transmission of child pornography material create a market for vulnerable children to be exploited and abused. The identity of the children may not be known, but they are real victims. The abuse does not stop when an image is created; it continues for as long as the material is available on the Internet and can be accessed and traded. Offences such as those before the Court are always serious.

53. However, although the offences before the Court are serious in themselves, when compared to other offences of this type, both individually and collectively, the offences are towards the lower end of objective seriousness.

54. In relation to the Commonwealth offences, the Court's primary task is to achieve a sentence that is appropriate in all the circumstances: s 16A(1) of the Crimes Act 1914 (Cth). The Court must have regard to the considerations in s 16A(2) of the Crimes Act 1914 (Cth).

55. The maximum available penalty is always a critical sentencing parameter. It reflects the objective seriousness of offences of that type. In 2010, the maximum penalty for an offence against s 474.19(1) was increased from 10 years to 15 years' imprisonment. The associated Explanatory Memorandum referred to the fact that the distribution of child pornography had become a global problem, involving "pervasive and widespread" offending, which was "becoming increasingly destructive". In 2011, the penalty for the Territory offence of possessing child pornography was increased from five years to seven years' imprisonment.

56. The Crimes (Sentencing) Act 2005 (ACT) requires that, when sentencing an offender, the Court has regard to the sentencing purposes in s 7. Further, in so far as they are known and relevant, the Court must consider the matters in s 33. In relation to the plea of guilty, s 35 of the Act applies.

57. For both the Commonwealth and Territory offences, general deterrence is an important sentencing consideration. It is particularly important in the case of child pornography offences. In Director of Public Prosecutions v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477 per Harper JA (with whom Williams AJA agreed and Redlich JA agreed substantially), the Victorian Court of Appeal explained that general deterrence was important for such offences because the evil was great, and such offences were comparatively common and readily facilitated by modern technology, requiring that every effort be made to deter the commission of offences.

58. In the case of child pornography offences, less weight may be attached to an offender's good character. Unfortunately, such offences are often committed by persons of otherwise good character.

59. Section 16A of the Crimes Act 1914 (Cth) applies where a court is sentencing a person "for a federal offence". It requires the sentencing court to take into account the "fact" of a plea of guilty. In Cameron v The Queen (2002) 209 CLR 339, the High Court considered the question of a plea of guilty in relation to a state offence committed at a Commonwealth place. The Court discussed the requirement of equal justice that a person not be penalised for pleading not guilty. The majority (Gaudron, Gummow and Callinan JJ, with whom Kirby J agreed) observed that, while the utilitarian value of a guilty plea (saving the expense of a contested hearing) could not be taken into account, a plea of guilty could be taken into account both as showing remorse and acceptance of responsibility and as demonstrating a "willingness to facilitate the course of justice". In a dissenting opinion, McHugh J made a clear distinction between courts exercising federal jurisdiction (which could not award a "discount" for the utilitarian value of the plea) and courts exercising State (or Territory) jurisdiction.

60. I do not accept the Crown's submission that the offender's plea was motivated only by realisation that he would inevitably be convicted following a trial. I accept that he genuinely decided to plead guilty because he wished to accept responsibility for his conduct and because of a willingness to facilitate the course of justice, in the sense that he wished to spare a jury the unpleasantness of viewing the child pornography images. I have also accepted that the offender is genuinely remorseful. On the other hand, I have found that the offender has attempted to minimise personal accountability. In these circumstances, the offender should receive a relatively small degree of leniency in relation to the sentences that would otherwise have been imposed.

61. In this case, the personal deterrence associated with a sentence of imprisonment is of relatively little importance. The public shaming and humiliation that has already occurred has had a highly deterrent effect, and the offender's close relationship with family and friends who now know of the offences will provide ongoing deterrence.

62. Rehabilitation is an important sentencing purpose. The offender complied with his bail conditions, demonstrating capacity to comply with supervision. His strong family and community ties will be important to rehabilitation. He has indicated a willingness to undertake treatment and has been assessed as suitable to do so.

63. Counsel for the offender conceded that a term of imprisonment was the only appropriate penalty, but submitted that the sentence could be fully suspended.

64. The Crown submitted that full-time imprisonment was the only appropriate sentence given the objective seriousness of the crimes and an absence of strong subjective circumstances.

65. I have concluded that, for the reasons expressed by the Crown, part of the sentence must be served by full-time imprisonment, but that a substantial part of the sentence may be suspended on a supervised good behaviour order of significant duration, which will provide some protection to the community against future reoffending.

66. The Court was referred to decisions by this Court in somewhat comparable cases, including the decisions in R v Forbes [2014] ACTSC 91; R v Minahan [2014] ACTSC 168; R v MB [2014] ACTSC 399; and R v Falzon [2015] ACTSC 104.

67. The Court was referred to decisions in somewhat comparable cases in other jurisdictions. Some of those decisions are helpfully summarised in a table provided by the Crown. Of particular interest are the decisions of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; Edwards v The Queen [2013] VSCA 188; and Heathcote v The Queen [2014] VSCA 37.

68. The recent NSW decisions of R v Porte [2015] NSWCCA 174 and R v De Leeuw [2015] NSWCCA 183 are useful in that they set out the relevant principles. However, in each case, when considered in totality, the offences under consideration were much more serious than those the subject of these proceedings.

69. I intend to impose sentences that reflect the objective seriousness of the matters, emphasise general deterrence and take into account relevant considerations under s 16A of the Crimes Act 1914 (Cth) and s 33 of the Crimes (Sentencing) Act 2005 (ACT).

70. Taking into account those factors and the sentencing pattern demonstrated by comparable cases, it is my view that relevant sentencing purposes may be addressed by a short period of full-time imprisonment and that the remainder of the effective sentence may be suspended, with the offender to be supervised in the community.

71. The offender is convicted of each offence and I imposed the following sentences:

(a) In relation to Count 1 (access child pornography), the offender is sentenced to two months' imprisonment to commence on 31 August 2015 and end on 30 October 2015.

(b) In relation to Count 2 (access child pornography), the offender is sentenced to three months' imprisonment to date from 31 October 2015 and end on 30 January 2016.

(c) In relation to Count 3 (transmit child pornography), the offender is sentenced to four months' imprisonment to date from 31 December 2015 and end on 30 April 2016.

(d) In relation to Count 4 (transmit child pornography), the offender is sentenced to six months' imprisonment to date from 28 February 2016 and end on 30 August 2016.

(e) In relation to Count 5 (access child pornography), the offender is sentenced to six months' imprisonment to date from 30 April 2016 and end on 30 October 2016.

(f) In relation to Counts 3, 4 and 5, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), on 30 January 2016, the offender is to be released upon entering into a recognizance release order, upon giving security to the value of $50 without surety, and is to comply with the following conditions:

• (i) Be of good behaviour for a period of two years, ending on 30 January 2018;
• (ii) Report to ACT Corrective Services at Eclipse House within two working days of release;
• (iii) Accept the supervision of ACT Corrective Services, or their delegate, for the period of two years, or shorter as determined by ACT Corrective Services;
• (iv) Undertake any adult sexual offender program or participate in any counselling as directed by ACT Corrective Services, or their delegate.

(g) In relation to Count 6 (possess child pornography), the offender is sentenced to 12 months' imprisonment to date from 30 June 2016 and end on 29 June 2017.

(h) In relation to Count 6, the sentence is wholly suspended upon the offender signing an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT), for the period of two years commencing upon his release on 30 January 2016 and ending on 30 January 2018, with the following conditions:

• (i) Be of good behaviour for a period of two years, ending on 30 January 2018;
• (ii) Report to ACT Corrective Services at Eclipse House within two working days of release;
• (iii) Accept the supervision of ACT Corrective Services, or their delegate, for the period of two years, or shorter as determined by ACT Corrective Services;
• (iv) Undertake any adult sexual offender program or participate in any counselling as directed by ACT Corrective Services, or their delegate.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

72. This is an effective sentence of 22 months' imprisonment from 31 August 2015 to 29 June 2017. The first five months of the effective sentence is to be served by way of full-time imprisonment and the remainder of 17 months is to be suspended on the offender being of good behaviour for two years and complying with the obligations of the recognizance release order and good behaviour order.