R v Gerard Loreto

Category 1 material

1. The phone contained 90 images that fall within Category 1 of the CETS scale.

Category 2 material

1. The offender's phone contained six images and six videos that fall within Category 2 of the CETS scale. The videos and the duration of each clip detected on the offender's phone which fall within Category 2 are as follows: Video Duration Description (min:secs) 1 4:49 This video depicts two sisters aged approximately four and eight who undress to a state of nakedness on webcam before kissing each other and rubbing one another's genital region. 2 4:01 This video depicts the same two sisters in Video 1, still aged approximately four and eight. They again undress, kiss each other and rub each other in the genital region. 3 2:38 This video depicts a girl aged approximately 12 or 13 years old, masturbating. 4 2:00 This video depicts four girls all aged approximately seven or eight years old. The four girls all undress to a state of nudity and then one of the girls begins masturbating. 5 1:15 This video depicts a girl aged approximately six or seven years old masturbating. 6 0:45 This video depicts a girl aged approximately 11 or 12 years old, taking her clothes off until she is naked and touching her vagina.

Category 3 material

1. The offender's phone contained ten images and one video in this category. Video Duration Description (min:secs) 7 0:30 This video depicts an adult male masturbating and ejaculating onto the face of a female child aged approximately four to five years old.

Category 4 material

1. The offender's phone contained eighteen images and ten videos falling within this category. The videos and the duration of each clip detected on the offender's phone which fall within Category 4 are as follows: Video Duration Description (min:secs) 8 4:49 This video depicts a girl aged approximately five to six years old performing fellatio on an adult male and licking his scrotum. 9 0:45 This video depicts a girl aged approximately six to seven years old performing fellatio on an adult male. 10 0:19 This video depicts an adult male having penile - vaginal intercourse with a female child aged approximately four to five years old. 11 0:39 This video depicts an adult female performing cunnilingus on a female child, aged approximately three to four years old. 12 3:53 This video depicts a girl aged approximately ten years old performing cunnilingus on another female aged approximately 14 years old 13 0:56 This video depicts a girl aged approximately five to six years old performing fellatio on an adult male. 14 1:44 This video depicts a female child aged approximately six or seven years old having penile - vaginal intercourse with an adult male. 15 7:33 This video depicts a girl aged approximately six to seven years old being digitally penetrated by a male child aged approximately three to four years old. The children are then given instructions over a webcam and the two children engage in penile - vaginal intercourse. 16 0:52 This video depicts an adult male having sexual intercourse with a girl aged approximately 14 to 15 years old. 17 1:05 This video depicts an adult male inserting his penis into the mouth of a girl aged approximately five or six years old and then ejaculating.

Category 5 material

1. Four images were located on the offender's phone that fall within this category. Amongst the four images was an image of a girl aged approximately six years old naked and sitting on a toilet in handcuffs with a ball gag in her mouth.

COUNT 2 - DISSEMINATION

1. The offender's phone had also revealed that he had been involved in disseminating child abuse material. The offender used an instant messaging application called "KiK Messenger." The following exchange occurred on KiK between the offender and a male named "Brad H":- Brad H: "Sorry, wasn't on, u wanna trade?" Offender: "Was hoping you had a group up?" Brad H: "Don't anymore, but I have plenty of vids." Offender: "Sure." Brad H then sent the offender four Category 4 child abuse videos before saying: "Ur turn (sic)." The offender then sent Brad H four Category 4 child abuse videos in return. Brad H then sent a further three videos back to the offender.

LEGAL PRINCIPLES

1. In R v Porte, Johnson J [3] cited with approval the factors to be taken into account in the assessment of the objective seriousness of matters of this kind, as set out in the decision of Minehan v R [4] stating: "[94] Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence. [95] This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness."
2. In R v De Leeuw, Johnson J [5] added "[70] This Court has recently made general observations concerning the sentencing of offenders for Commonwealth and New South Wales child pornography offences: R v Porte [2015] NSWCCA 174 at [51]-[81]. Topics covered in that judgment included: (a) the different vices addressed in the Commonwealth access offence under s.474.19 Criminal Code (Cth) and State possession offences, such as s.91H(2) Crimes Act 1900 (NSW): R v Porte at [55]-[56], [157]; (b) the increased maximum penalties for these offences enacted by the Commonwealth Parliament (in 2010) and the New South Wales Parliament (in 2008): R v Porte at [57]-[58]; (c) general sentencing principles concerning child pornography offences which have emerged from decisions of intermediate appellate courts throughout Australia, where emphasis has been placed upon the paramount importance of general deterrence and denunciation, and the limited weight to be given to prior good character, together with the need to consider the objective gravity of the particular offences and to keep in mind that these are not victimless crimes: R v Porte at [59]-[72]; (d) the fact that prior good character and positive personal antecedents, and a reduced or absent need for personal deterrence, are relatively commonplace amongst offenders in possession of child pornography and that significant weight is to be given to general deterrence and correspondingly less weight to matters personal to the offender: R v Porte at [126]; (e) the fact that a common feature on sentence for this class of offence is the tender of material concerning steps taken with respect to counselling and treatment in aid of rehabilitation - whilst this aspect is important, undue focus should not be placed upon it at the expense of other legitimate and important sentencing considerations including denunciation and general deterrence: R v Porte at [71]-[72]; (f) the use to be made, in an assessment of objective gravity, of the CETS scale, relevant statutory definitions and an examination by a sentencing court of sample images: R v Porte at [73]-[81], [113]-[122]; (g) the importance of attention being given to issues of accumulation, concurrency and totality when sentencing for Commonwealth and State child pornography offences: R v Porte at [96], [98]-[100], [157]; (h) the importance of ensuring reasonable proportionality between the objective circumstances of the offences and the sentences actually imposed, with the offender's subjective circumstances not being allowed to overshadow the objective gravity of the crimes: R v Porte at [128]; (i) the need for care in avoiding the inappropriate use of an ICO for serious child pornography offences where the appropriate form of punishment should involve immediate incarceration: R v Porte at [129]-[130]."

OBJECTIVE CIRCUMSTANCES

1. It is not in issue that Count 1 involved the use of actual children, with some as young as three or four years of age. The majority of the material, including a number of images/videos, were in Category 1 (90 out of a total of 146 pictures and 17 videos). However, the videos by proportion fall into a more serious category, with ten videos in Category 4. I was not requested to view any of the material, but rather I relied on the agreed descriptions provided. On those facts I am unable to determine the number of children involved.
2. The Crown concedes that there may be duplication amongst the images and videos, but notwithstanding this, a number of the items in the material have multiple children depicted. The Defence concedes that although the majority of the images were in Category 1, there were example of images and videos within Categories 2, 3, 4 and 5 on the CETS scale. It accepts that the videos within the other categories involved children of a young age and can be described as "depraved" to the extent to which they depicted sexual activity between children of ages ranging from three and four, and up to 14. The Defence further accepts that there was a degree of overt humiliation and degradation present in a small number of the videos.
3. On Count 2, the dissemination involved one person. Nevertheless it is clear that the child abuse material was being traded with that person who had videos and had previously had a group up and was interested in trading. There is no evidence of financial profit or possession for the purpose of sale.
4. Again I was not requested to view any of the material but rather, to rely on the agreed descriptions provided. The number of videos, although small, fell within Category 4 on the CETS scale. The dissemination took place on one occasion with after the offender received material in the first instance. I accept that the videos were traded in a closed and not a public forum. The Defence concedes that once the material was traded, no limits on their use could be ensured by the offender. The Crown concedes that there was no evidence that there was a risk that vulnerable persons would have had access to the material on the offender's phone. Even so the Crown submits that the offender's involvement appears to have been in the context where he was actively seeking to participate in a collaborative network of like-minded persons although was not in fact involved in one at the time of the offences. The Crown further concedes that there was no evidence that the offender was proximate or had direct knowledge of the actual production of the material.
5. The Crown concedes that there were no aggravating factors [6] engaged in the current offences.
6. The Crown conceded that the number of photos and videos involved was at the lower end of what is possible with modern digital storage technology and there was an absence of profit motive. However it argued that the material tended towards the more serious end of the scale and its subject matter certainly could not be at the lowest end. In summary, the Crown submitted that the offence(s) were not the most serious example of its kind but nor could it be found to be at the lowest end.
7. On the offender's behalf it was submitted that Count 1 fell toward the lower end in terms of objective seriousness having regard to the comparatively low number of images and the majority of those being in Category 1 of the CETS scale. It was submitted that the Court ought not to count the criminality covered in relation to Count 2 as an aggravating feature of Count 1 as the criminality involved would be accounted for within the sentence for Count 2.
8. Overall bearing in mind all the objective features of the offending, I am satisfied in both instances, the offences fall below the middle range of objective seriousness but not at the lowest end.

SUBJECTIVE CIRCUMSTANCES

1. The offender is aged 36. He was born in Sabah, Malaysia and is of Filipino origin. His father arrived in Australia in 1983 and his family followed. The offender started school at the age of five, and did not repeat any years at school, or have any form of remedial education and did not report any conduct problems whilst at school.
2. He was interviewed by Dr Nielssen, psychiatrist, by audiovisual link on 30 August 2016 for the purposes of a report which was admitted into evidence in the Defence case. The report is dated 31 August 2016.
3. Dr Nielssen obtained a history of the offender that indicated that he was quiet at school, and the subject of bullying for which he saw the school counsellor. He completed schooling at the HSC level and thereafter attended a number of TAFE courses in science, information technology, administration and hospitality. He stated he was brought up in a stable family and that his upbringing and school performance was normal. Dr Nielssen opined that from his educational background, he gained that the offender was of below average intellectual performance.
4. Dr Nielssen noted no history of suicidal attempts, admissions to psychiatric hospitals or treatment with psychotropic medication. He did not report any contact with mental health services in prison, including individual assessments or counselling or referrals to any sexual offenders counselling program.
5. The offender did have a previous conviction under s 91H(2) of the 1900 Act, in respect of which he was imprisoned for a total term of 15 months, with a 7 month non-parole period. The sentence for that offence concluded on 1 March 2014.
6. Whilst on parole in relation to the previous offence, the offender was required to report to Community Corrections once per week and attend a sex offender counselling program. However, the offender told Dr Nielssen that he was referred to see a counsellor in private practice. Dr Nielssen reports that the offender saw a psychologist on a number of occasions but could not remember her name and he could not afford to continue the sessions. Although he was apparently invited to participate in an offenders' group at the practice, he did not do so.
7. Dr Nielssen diagnosed a "probable disorder of abnormal sexual interest." However, he made this diagnosis on the basis of a limited amount of information available about the content of the material on the offender's computers at the time of the first offence and during the most recent offence. Whilst Dr Nielssen noted that the offender denied having a specific attraction to children, he opined that: "… in the absence of reliable information to confirm the presence of other sexual outlets, the material referred to in the recent offences suggest that Mr Loreto is aroused by images of children." [7]
8. The offender for his part denied to Dr Nielssen that he had become addicted to pornography and stated that he was bisexual in orientation. He denied an attraction to children and stated that his collection of images were a "morbid curiosity" and was not using the images for sexual gratification. So far as his use of the KiK messaging service, he denied using it for sexual gratification or re-offending as a reaction to the limitations imposed on him by the Sex Offenders Registration to which he was subject. Needless to say these assertions were inconsistent with his conduct on the KiK messenger service in which he had expressed interest in joining a group. I accept the Crown's contention that the fact that he had made the request was inconsistent with the kind of idle curiosity, but rather, more consistent with actively seeking out the material.
9. Whilst Dr Nielssen opined that there was a "possibility of an underlying or emerging psychotic illness," [8] he found that the offender's denials, absence of delusional beliefs, good performance in employment and being able to live independently prior to arrest, was not consistent with any disabling psychotic illness.
10. The Crown submits that in the circumstances, the Court cannot make positive findings that the offender is (a) unlikely to reoffend, [9] (b) has good prospects of rehabilitation [10] or (c) is remorseful. [11] The Crown also draws attention to the fact that the offences occurred whilst the offender was subject of registration under the 2000 Act, reflecting poorly on his likelihood of not re-offending.
11. The Defence submits that the following is relevant to the offender's prospects of rehabilitation: "(a) Dr Nielssen detailed what may be submitted as being a considerable work history on the part of Mr Loreto. In addition Mr Loreto has the offer of future employment upon release; [12] (b) Dr Nielssen assessed Mr Loreto as having a comparatively low risk of further offending based on the Static 99R test; [13] (c) Dr Nielssen noted that Mr Loreto did not report extensive counselling and was vague about the details of past counselling sessions; [14] (d) Dr Nielssen noted that Mr Loreto does not perceive that he as a sexual attraction to children nor a problem with being addicted to child pornography; [15] (e) Mr Loreto has a very limited criminal record and one prior offence of this kind." [16]
12. Despite the fact that Dr Nielssen found that the offender had a comparatively low risk of further offending based on the actuarial risk assessment, Mr Loreto does not appear to accept that he has a sexual attraction to children or an addiction to pornography. His guarded response to obtaining treatment does not give me much optimism as to his prospects of rehabilitation. On this question, Dr Nielssen expressed his view as follows: "Mr Loreto did not report extensive counselling and was vague in his answers about what was covered in the counselling sessions he did attend, adding to the impression of a person with limited capacity for self examination in a counselling setting. However, he appears to have a pattern of sexual interest that is often longstanding and for which long term counselling is indicated, including counselling to help him to gain awareness about the possible reasons for his interests and assistance in developing acceptable sexual outlets. His longer term prognosis would appear to depend on his engagement with a suitable counsellor after his release." [17]
13. The offender has expressed no remorse and in all the circumstances I am unable to make positive findings as to the offender's prospects of not reoffending or rehabilitation.

CONSIDERATION

1. In line with the principles discussed above and the purposes of sentencing set out in s 3A of the 1999 Act, in sentencing for offences of this nature I must have particular regard to the importance of general deterrence and denunciation. [18]
2. The Crown concedes that the circumstances of the material being found on the offender on the occasion subject of the earlier offence with which the offender had been dealt with was of relatively greater gravity, in that a larger volume of material was involved. The Crown properly concedes that the prior criminal record is not a matter which in itself, is aggravating, but one which disentitles the offender to a leniency that the offender might have otherwise received.
3. The Defence concedes that the offender's previous conviction for a s 91H(2) offence, increases the need for specific deterrence to be given weight in the sentence for the current offences.
4. Both the Crown and the Defence accept that a sentence of full time imprisonment is required in order to address the principles I have referred to above.
5. The offender entered a plea of guilty in the Local Court, pre-committal, in relation to both offences. Both parties submit that the offender should be entitled to receive the maximum discount. [19] In my view, it is appropriate to do so, to the extent of a 25% discount, in line with the decisions in R v Thomson; R v Houlton [20] and R v Borkowski. [21]
6. Both the Crown and the Defence submit and I accept that it would be appropriate to impose a degree of accumulation in relation to the sentences imposed for Counts 1 and 2, to reflect the differing elements of criminality involved in possessing and disseminating the child abuse material.
7. Bearing in mind the findings I have made, I am not satisfied that it is appropriate to vary the relationship between the non-parole period and the balance of term, except to preserve the relationship under s 44(2) of the 1999 Act [22] and to round off the cumulative effect of the sentences. For this purpose and to achieve partial accumulation, it is unnecessary to set a minimum term in respect of Count 2 and I decline to do so.
8. The offender has been in custody since 23 October 2015 and it is conceded that it is appropriate to take the period that has elapsed to date into account

SENTENCE

1. For the reasons discussed above, the offender is convicted on both counts, and I sentence him as follows: 1. On Count 2, taking into account the plea of guilty, the offender is sentenced to a fixed term of imprisonment of 14 months commencing on 23 October 2015 and expiring on 22 December 2016; and 2. On Count 1, taking into account the plea of guilty, the offender is sentenced to a non-parole period of 1 year and 1 month commencing on 23 April 2016 and expiring on 22 May 2017, with a balance of term of 7 months expiring on 22 December 2017. This makes a total term for Count 1 of 18 months.
2. Effectively the offender is to be released on parole on 23 May 2017 and thereafter serve a balance of term for Count 1 on parole until 22 December 2017.

Endnotes

1. Hereinafter referred to as the "1900 Act"
2. Hereinafter referred to as the "2000 Act"
3. [2015] NSWCCA 174 (Johnson J with Leeming JA and Beech-Jones J agreeing)
4. [2010] NSWCCA 140; 201 A Crim R 243, 260 - 261 [94] - [95] (RA Hulme J with Macfarlan JA and Johnson J agreeing)
5. [2015] NSWCCA 183 (Johnson J with Ward JA and Garling J agreeing)
6. s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), hereinafter the "1999 Act"
7. Report of Dr Nielssen dated 31 August 2016 at p 5
8. Report of Dr Nielssen dated 31 August 2016 at p 5
9. s 21A(3)(g) of the 1999 Act
10. s 21A(3)(h) of the 1999 Act
11. s 21A(3)(i) of the 1999 Act
12. Report of Dr Nielssen dated 31 August 2016 at p 2
13. Report of Dr Nielssen dated 31 August 2016 at p 6
14. Report of Dr Nielssen dated 31 August 2016 at p 6
15. Report of Dr Nielssen dated 31 August 2016 at p 2
16. Defence Written Submissions dated 1 September at 11
17. Report of Dr Nielssen dated 31 August 2016 at p 6
18. R v De Leeuw [2015] NSWCCA 183 at [70] (Johnson J); and R v Porte [2015] NSWCCA 174 at [59] - [72] (Johnson J)
19. See also s 22 of the 1999 Act
20. (2000) 49 NSWLR 383
21. [2009] NSWCCA 102; 195 A Crim R 1, 9 - 10 [31] - [32]
22. Flynn v R [2010]NSWCCA 171 and Wakefield v R [2010] NSWCCA 2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2016