Edward Robert Gundry, aged 38, appears for sentence, having pleaded guilty in circumstances in which it is agreed justify a 25% discount on any term of imprisonment for both the Commonwealth and State offences. The offender has pleaded guilty to;
1. Sequence 4, an offence of possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of ten years imprisonment.
2. Three offences of using a carriage service to access child pornography material contrary to s 474(19)(1) of the Criminal Code (Cth), in relation to sequences 10, 1 and 24. The offence carries a maximum penalty of 15 years imprisonment.
Four offences of attempting to use a carriage service to access child pornography material (sequences 28, 29, 30 and 31) are to be dealt with on a s 16BA Schedule: sequence 28 is taken into account on sequence 10; sequences 29 and 30 are taken into account on sequence 1; and sequence 31 is taken in to account on sequence 24. The matters on the s 16BA schedule will be dealt with, as the Crown submits, in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters in relation to State offences (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).
The offender was in custody, bail refused, following his arrest on 20 August 2019 until 14 November 2019 when he was granted bail. He has been on bail since that time. Any term of imprisonment should commence on 20 August 2019 to take account of that time in custody.
The significant debate in this sentence proceeding, which has taken place over three days, is whether the objectively serious nature of the offending, when balanced against the powerful subjective case on behalf of the offender, is such as to lead to a term of full time imprisonment or not. The resolution of that essential debate requires detailed examination of the facts, evidence, and submissions. The Court has received lengthy written submissions from the Crown and the offender which will all be marked for identification in the proceedings.
The agreed facts show that in March 2012 the authorities in the United States were provided with information about a child exploitation website. That website offered images and videos accessible only to registered members. It operated through a computer server in Moldova. In December 2018 Australian Federal Police were provided with information relating to Australian members of this website and their individual purchases.
The offender was shown to have purchased a product for $US97 in February 2018. He made two similar purchases within the next month. They included, on examination, 2,485 images of females aged between 6 and 15 years in sexually suggestive poses; 3,767 images depicting children between the ages of 4 and 15; 3,382 images and six videos of a similar description. The material ranged in severity from category 1 to category 5 on the CTS scale.
In August 2019, Police had a telephone conversation with the offender and arranged to attend their family farm at Tarago to conduct a firearms audit. When they attended they executed a search warrant and found computers and other material, as well as a small female child's one piece swimsuit under the bed of the accused.
The offender was recorded on video making a number of admissions, namely that child pornography was stored on his laptop and on three USBs wrapped in tape and hidden under a cup in the kitchen were his. He said he had put them there because he wanted to get rid of them. He said he had accidently brought home the child's swimwear in his suitcase after a joint holiday to Bali, and they belonged to a friend's daughter.
He was arrested and taken to Goulburn Police Station.
Sequence 4, relates to numerous images and videos of child pornography on an iPad seized during the search. I will refer to the detail of it when I refer to the submissions.
The Commonwealth offences (sequences 1, 10 and 24) relate to the three instances when the offender purchased various products through the website. In total he purchased 87 videos (totalling more than 14 hours of viewing) and there was a total of 26,618 images of various classifications from 1 through to 6 on the CTS scale.
Investigation of his bank account showed that he used his Westpac account to pay for the products and he continued to buy products up to ten days before police executed the search warrant.
The agreed facts assert that at the time of their preparation, further charges may be laid against the offender but the Crown has confirmed today that no further charges will be laid against the offender in relation to this matter.
In total, between 29 January 2017 and 10 August 2019 the offender contributed $AU2,654 and $US293, to entities profiting from the sale, significantly contributing to the supply and demand for the global production of child abuse material and sexual exploitation of children.
He has no criminal record and his good character will be taken into account.
The subjective case is contained in a number of reports of medical practitioners, references, and evidence from the offender and his brother Henry.
The report of an eminent forensic psychiatrist Dr Richard Furst summarises a history which was confirmed in evidence. He was born in Goulburn, and grew up on his parents' property. He attended Tudor House at Moss Vale and then the Kings School in Sydney, where he completed year 12.He was an average student.
He said he was the victim of bullying at school, especially in year 8 and 9. He developed gynecomastia during puberty. His unusual appearance was a further reason for the bullying. Investigations revealed that he had Klinefelter's Syndrome which is a genetic disorder in which males have at least one extra X chromosome. He became increasingly depressed and despondent, including threatened suicide when he was 15 or 16. He did not receive any counselling but he said he gave up and was struggling in relation to his identity and did not apply himself.
He describes some features of gender dysphoria, including being confused about his gender and feeling like a girl both emotionally and physically and wearing his sister's clothes for a period when he was 10 or 11.
He studied farm management and completed a diploma, and then travelled to the United States for seven months in 2005 on a working holiday. He returned to Australia at the end of 2006 and worked on a property at Moree, but he ended up feeling lonely, isolated and depressed. He returned to the family property of 5,000 acres at Tarago in 2007. He said he isolated himself in his room for about three months and was not functioning, which was a history suggestive of a more severe and melancholic depressive illness.
He subsequently worked as a truck driver for about three years.
He has never married and he has no children. He has had eight or nine girlfriends and the relationships have generally lasted between five and nine months. He says that his Klinefelter's Syndrome had severely affected his relationships with people and affected his libido.
He returned to the family property and worked there for several years. His father passed in May 2013 from the effects of metastatic prostate cancer.
He felt depressed after the breakdown of a relationship in August 2018. He said he was suicidal and saw his general practitioner and was prescribed an antidepressant medication which he took throughout 2019.
He then saw Sarah Brown a clinical psychologist. He initially saw Cathy Mathieson, psychologist, from September 2018 until his arrest in August 2019 over ten sessions, and then attended regular sessions with Sarah Brown from January 2020. He has also been seeing Dr Shen a psychiatrist in Goulburn who has prescribed antidepressant medications for a depressive disorder, as well as co-morbid ADHD, agoraphobia and social failure.
He has been under the care of his GP and specialist endocrinologist since his Klinefelter's Syndrome was diagnosed. He has been treated with testosterone and three monthly implants for ten years, and then injections. His current treatment is in the form of seven weekly injections of doses of 500 milligrams of testosterone, and his mood is adversely affected if he lowers it or does not have his medication.
When questioned as to his offending Mr Gundry told Dr Furst, "It's very depressing, I want to move on, I regret my decisions, I feel bad about it. It's terrible for my family". He was aware of the impact on child victims who are exploited in the production of child abuse material.
Dr Furst reviewed the material from the other treating practitioners, including Dr Stanton, the endocrinologist and the psychologist. He noted that Mr Gundry has spoken to the endocrinologist in relation to consideration of transgender therapy which would involve the cessation of testosterone therapy and the commencement of oestrogen therapy, but he notes that there were no active plans for the offender to transition.
Dr Furst diagnosed Klinefelter's Syndrome, recurrent major depressive disorder, gender dysphoria and paraphilia. Klinefelter's Syndrome is a condition which occurs in about one per 600 live male births but most cases go undiagnosed as symptoms are initially subtle and more obvious symptoms do not emerge until puberty.
He expressed a view, unchallenged by the Crown, that the offender was suffering from fairly severe depression in 2018 after breaking up with a partner. His Klinefelter's Syndrome, gender dysphoria and paraphilic disorder were also present during that period. He was of the view that those conditions were probably related to the offending in question with the offender viewing such child abuse material when depressed in an effort to make himself feel better, and was more likely to view such material in a depressed state, as was the case in 2018 and 2019. He said that sexual deviance was the primary cause of his actions in obtaining the child abuse material in question in the first place and his depressive disorder, chronic mood disturbance, and the effects of testosterone exacerbated his paraphilia.
He said that if he receives a custodial sentence, given his low risk of recidivism, he would be unlikely to qualify for treatment for a structured sex offender program. Applying academic studies Dr Furst said that he would be below the average risk and assessed that risk at 12% of recidivism. He said incarceration would represent a further psychological blow to Mr Gundry with the likelihood that it would exacerbate his depression. It is also associated with a higher rate of suicide, and it would remove him, at least while in custody, from the direct support of his current treating practitioners. He said also that his condition would pre-dispose him to being teased, bullied or ridiculed and would probably increase his risk of being sexually exploited or abused by other inmates, so that a custodial sentence would be more onerous for Mr Gundry than for the theoretical average inmate.
He said that supervision in the community on parole was generally beneficial in relation to gauging levels of compliance with conditions of supervision and treatment.
Psychologist Kris North conducted a lengthy consultation in September 2020 and her report in summary also suggested he posed a relatively low risk for engaging in future behaviour related to possession of child pornography and other sexual recidivism. In short, he had struggled with mental health, social and gender confusion issues from childhood, and continued to experience symptoms of anxiety and depression throughout adolescence and adulthood, in addition to gender dysphoria, which had likely contributed to the sexual problems related to sexual preoccupation and deviant interests. She said that his history of mental health and subsequent sexual issues were directly related to his diagnosis with Klinefelter's Syndrome. On a positive note he engaged well in sex offence specific treatments since January 2020 and presented as highly motivated towards addressing his risk for recidivism.
Ms North agreed that his underlying mental health and medical condition would indicate that he would be considered a vulnerable inmate, should he receive a custodial sentence. This may further exacerbate his mental health issues and disrupt his progress and treatment. He would benefit from continued engagement with a support network. She said that suitable treatment was available both in the community and custodial settings and included continuing engagement with the psychiatrist and psychologist, and engagement in the moderate intensity sex offender program, acceptance into which would depend upon the length of the sentence, a suitability assessment and risk level.
I have a lengthy report from psychologist, Sarah Brann, in relation to the 27 weekly treatment sessions that the offender had with her between January and September 2020, and which are ongoing. She said that over the course of treatment his suicidal ideation was becoming infrequent and more manageable. She currently delivers the MISOP treatment programs within custody and agrees that he would benefit if in custody from a referral to that program. She suggested he should continue to engage with a psychiatrist and the endocrinologist, and adhere to his prescribed medications.
She noted in her report of October 2020 that his suicidal ideation had been increasing as his sentence date approached. She said it is important to pass on that should he receive a lengthy custodial sentence he reported thinking about taking his life whilst in custody. She said he had recently been oscillating in his capacity to be positive about the future to quite despondent. She understands that it is standard protocol for Corrective Services to assess inmate's risk of self-harm upon entry into a custodial facility and would be prudent if this risk is flagged as existing to ensure that a proper assessment takes place by a psychologist should the outcome of his sentencing be a custodial sentence.
Her updated report of March 2021 confirms his continuing progress in treatment. The offender has continued to build insight into the links between his early formative experiences and psycho-social functioning, and the indirect relationship to this series of offending. He demonstrates increased control over his sexual urges and thoughts and is now engaging in healthier and more appropriate forms of sexual behaviour. He will need to continue to employ strategies to manage his risk into the future including after he completes psychological treatment.
She described him as open, forthcoming and insightful during therapeutic work. He describes being shocked looking back at the distorted way he was thinking and how he justified his behaviour at the time of the offending, and he has expressed, shame, remorse and regret. I accept without hesitation that he has developed insight and expressed remorse.
She notes that as she has worked therapeutically with Mr Gundry she is not able to provide a risk assessment and that should be done by an independent assessor, and such assessment would need to be undertaken to determine whether he has now reduced his risk to a degree that he would no longer be eligible for any Corrective Services programs.
I have a report from Dr Sarah Stanton the endocrinologist who confirms that there are no active plans for the offender to transition.
I have references, firstly from Ms Violet a long-time family friend and 63 year old registered nurse, who herself has a personal history of being sexually abused as a young child, and she never suspected or detected any sexual deviancy in the offender. He has spoken to her openly and at length about his offences and his deep remorse and expressed his disgust with his actions and taken full responsibility. She speaks in highly favourable terms of the family environment and support which is available to the offender.
His mother, Erica Gundry, speaks in similar terms about the lengthy conversations that she has had with the offender about what he has done and how he is ashamed of himself and recognises the pain and suffering that he has caused his family. She says she did not know or understand the impacts of his medical conditions after his diagnosis as a teenager with Klinefelter's Syndrome, but after treatment over the last year or so she says she feels as though she has her son back. She is astonished at how diligent and determined he has been with his rehabilitation and treatment.
She says she is 73 years of age and although she needs him on the farm she supports his wish to plead guilty and accept his punishment as he fully understands most sincerely who the innocent victims are and he speaks about this often and is incredibly remorseful and his torment at what he has done will never leave him.
His 40 year old brother Henry, who lives nearby the family farm and operates a business, says the day of his arrest will be forever etched in his mind. He was initially incredibly angry and horrendously upset and shocked that his brother had acted in such an out of character way, but his brother has chosen to be very candid with him as to his offending and he is convinced that his rehabilitation is producing significantly positive results.
Henry gave evidence in support of his reference and noted that he had become a bit more distant from the family a few years before his arrest. He had became a bit more aggressive, and that they were really thrust into the deep end after losing their father. He said after his arrest he had a very open candid conversation about it and he saw his brother as a very fragile and weak young man, and he wanted to hold him and protect him. He told him that everything would be okay because they are family.
He said he is proud of how he has handled his situation in custody and held it together. He describes him as being like a new person given the treatment that he has undergone.
He recognises the appalling nature of the material involved and he is absolutely concerned about the prospect of losing the connection with the support functions that he has if he is returned to custody.
His sister Charlotte, who lives near Orange, also provides a detailed reference as to her brother's character. She says that throughout his 20s, the family noted to a degree that he struggled a little with mental health. The family assumed that was due to his diagnosis of Klinefelter's and he would be able to get through it with the right medical treatment, but she says what is now abundantly clear is that from his teenage years onwards he was in a constant state of confusion around his gender and sexuality and that has led to him suffering anxiety and depression. While she quite properly acknowledges that that is not an excuse for his behaviour, she says it may provide insight into the spiral that he found himself in. She says that over the years she, to a certain extent, walked on eggshells around her brother to avoid confrontation. She has been encouraged by the way that he has opened up to her and expressed his shame and regret since his arrest, and she assures the Court of the family support for his continued rehabilitation.
The offender gave evidence before me when the sentence proceedings commenced on 30 March 2021. He described being suicidal at aged 15, and being bullied immensely at school. He said he really did not know who he was and had gender identity issues. He said that he was having treatment with the psychologist Cathy Mathieson while he was still receiving downloads from the server in Moldova containing the offending material.
He said that most of the material that was seized by police was the product of the downloads that he had received, that is 99% of the material was from that website. Or in other words 99% of what was in his possession, which was the subject of the possession charge, was the same as the material that had been provided by the server. As Mr White of counsel put, that evidence goes towards a submission that there should be almost complete concurrency between the State and Federal offences.
He accepted that the possession was part of his sexual interest in children at the time. He said that at the end of 2018 he was unable to have stable relationship with friends, or intimate relationships, he blamed his condition on the way he was feeling. He was escaping those thoughts by using pornography. He said he tried to stop what he was doing, and he stopped on multiple occasions. He tried to delete material off his computer as best he could. He felt immense shame and guilt that he was committing these offences behind closed doors. He was lying to his family and to his friends. He felt like he was destroying himself. He said that he knew that it had to stop and he recognised that for the victims involved in the child pornography it was horrendous.
He described his period in custody as a period when he had never been as scared in his life. He said he received threats from inmates, and even prison guards right from the word go, to make his life hell. He said that on his introduction to Goulburn Gaol that the guards told him what was going to happen. They said "If we put you in the general population the inmates will probably stamp on your head like a trampoline, and if they don't do it, we will". He said he heard continual threats behind his back, stuff about his cell mate "bashing me". He was kept in the Protection Unit. He received his medication after an almost two week delay for both the testosterone and the antidepressants.
He said that he was terrified of the prospect of going back to gaol but he said that his physical stature he felt did help him in custody. The only thing that let him down was his moods. I conclude from the evidence that despite the threats that he heard he survived as best he could by virtue of his physical stature and being in protection.
He acknowledges that his treatment has to be a long-term thing, and he is keen to receive treatment from everyone that he possibly can to help him move through life and not re-offend. He said his relationship with his family has gone from strength to strength and it is amazing how much support and love they have given him.
He manages the day to day operations of the family farm in conjunction with his mother. He expressed his insight into the offending by saying, "It is very shameful that I contributed to the production and distribution of child pornography, and what child abuse does to the child, by having things done to them without their consent, their knowledge, and their understanding", and that due to the treatment that he has undertaken with the psychologist he recognises that it is a terrible thing and he feels very shameful and guilty that he contributed money to that industry. He confirms that he never wants to do it again and his mental space that permitted him to commit that offending is something he has eliminated.
The Crown conceded that he is in need of intensive rehabilitation for the paraphilia which is a condition which occupied much of the Crown's attention during cross-examination and submissions.
I turn to the written submissions of the Crown. In short, it submits that having regard to the objective seriousness of the offences, the nature of the offences and general and specific deterrence, the only appropriate penalty is a sentence of full time imprisonment with a period to serve. The Crown points out, in standard form, the matters that must be taken into account under Part 1B of the Crimes Act 1914 (Cth) when sentencing for the Commonwealth offences, and the purposes of sentencing set out in the s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and as to the way in which the State offence is to be dealt with.
As to the general principles of sentencing for child pornography offences the Courts have noted that the Internet has provided an accessible and anonymous means of accessing, obtaining and distributing child pornography around the world, and the offending is difficult to detect and becoming increasingly prevalent.
The offences are not victimless crimes, and it creates a market for the continued corruption, abuse and exploitation of children. The harm done to exploited children is profound and is exacerbated by indefinite circulation of the material on the Internet. So there is paramount public interest in promoting the protection of children.
The Crown refers propositions in the authorities to the effect that general deterrence and denunciation are primary sentencing considerations in offences of this type, with correspondingly less weight given to subjective matters, personal to the offender. Ordinarily a term of immediate imprisonment will be imposed for such offending, although the proposition that exceptional circumstances must be found for not following that course was expressly disavowed by the Commonwealth in DPP v Garside [2013] VSCA 74.
Taking account of the factors relevant to the assessment of objective seriousness set out by RA Hulme J in Minehan v R [2010] NSWCCA 140, which were expanded upon in R v Hutchinson [2018] NSWCCA 152, and also the additional propositions set out by Johnson J in R v Porte [2015] NSWCCA 174 as to the objective seriousness of the possession offence, the Crown summarises it as depicting new born babies, toddlers, young children up to the age of 15 years, engaged in penetrative sexual activity with adult males as well as other depraved acts including newborns with semen on their faces, babies sucking on an adult penis, objects inserted into their vagina or anus, babies and children being urinated and/or ejaculated upon.
The Crown submits that the state matter is towards the middle to high range having regard to the images being in a high level of depravity. There are two images of the offender holding his penis with the image of a pre-pubescent female about seven years old posed naked on his television screen. The material was stored in eight different storage devices, some of them were concealed within the house. They are not victimless crimes as the vast majority of the files depict real child victims, and the degree of depravity is extremely high as the victims include new born babies being sexually abused.
As to the Commonwealth offences, the facts show that on twenty separate occasions between 29 January 2017 and 10 August 2019 the offender used his phone to purchase a total of 17000 images and videos and the largest proportion of them were of children being sexually penetrated by an adult. Again the Crown submits that it is towards the middle to high range having regard to the time over which the offending occurred, namely ten months, six months and three months respectively. The conduct was not isolated; it occurred over a period of two and a half years. There were 17,000 images; many were of the worst level of depravity. The crimes are not victimless and the offender contributed money to entities profiting from the sales.
The Crown acknowledges that pleas were entered at any early opportunity and the offender should receive an appropriate discount, for both the State and Commonwealth offences.
The Crown submits that general deterrence is the paramount consideration in this type of offence and that specific deterrence must play a significant role in sentencing for offences of this kind. The offender's submission, relying upon DPP (Cth) v De La Rosa [2010] NSWCCA 194, recognises that a mental condition it may be reduce or eliminate the significance of specific deterrence, as in this case.
The maximum penalties are of course yardsticks in the sentencing process to be taken into account.
As to prospects of rehabilitation the Crown initially relied upon the proposition that he declined to participate in a record of interview as in some way going to those prospects, but on being challenged, the Crown recognised that there was no basis for that assertion.
The Crown annexed to its initial submissions a schedule of cases with a summary of each case, being R v Porte [2015] NSWCCA 174, R v Wagner [2018] NSWCCA 124, R v De Leeuw [2015] NSWCCA 183, DPP (Cth) v Guest [2014] VSCA 29, Minehan v R [2010] NSWCCA 140 and Fitzgerald v R [2015] NSWCCA 266 as intermediate appellate decisions, and a decision of Lakatos DCJ in R v De Novo (unreported, NSWDC, Lakatos DCJ, 26 February 2016) and I take account of the facts and the sentences in each of those cases, having read each case in detail to ensure the summary provided by the Crown was correct, having discerned significant error in the Crown's assertion as to the outcome in Minehan in the summary.
Mr White's initial submissions in reply note that the offender acted alone and not in a collaborative network of like-minded persons. The offender had no direct association with the organisation bringing the material into existence on the server in Moldova. He was not proximate to the activities. His possession of the material was for his own use and not for sale or dissemination. There was no risk of the material being seen or acquired by others.
Having noted what the Court said in DPP v Garside [2013] VSCA 74, that caution must be exercised in assessing objective gravity by reference purely to its categorisation, the defence submission was that all offences are below mid-range. In my view, for the reasons set out, the offences are towards the mid-range of objective seriousness.
As I have indicated, evidence was led in relation to an element of duplicity in relation to the criminality. While Mr White accepted that obtaining and possessing are separate offences, when the material which is possessed is the same as the material which is obtained the offending conduct is similar and the motives in obtaining it and keeping it are the same.
As to contrition, it is noted that this is an unusual case in which he had sufficient insight into his offending behaviour as early as 2018 during the commission of the offences to seek treatment, even though he did not disclose his offending conduct to the psychologist. There has been no suggestion of any further offences being committed since his release on bail. He demonstrated contrition by his early plea and, as I have indicated, in evidence and in statements to medical professionals. He has accepted responsibility and expressed remorse and displayed significant insight.
He co-operated with police in relation to the search and assisted in obtaining relevant devices where material was contained as shown in the agreed facts.
As to general deterrence, the Court said in DPP (Cth) v De La Rosa [2010] NSWCCA 194, at [77],
"where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed."
I accept that those principles are applicable in this matter given the diagnosis of Klinefelter's Syndrome, recurrent major depressive disorder, gender dysphoria, and paraphilia, by the psychiatrist and the psychologist, and their opinions to which I have referred, as to the direct causal connection between those conditions and the offending behaviour.
As Dr Furst said sexual deviance was the primary cause of his actions in obtaining the child abuse material in the first place and his depressive disorder, chronic mood disturbance, and the effects of his testosterone exacerbated his paraphilia. For those reasons his moral culpability should be reduced accordingly.
As to his character, age, antecedents, means, and physical and mental conditions, I have set out the evidence of the conditions which have been diagnosed and the treatment that has been undertaken and continues to be undertaken.
As to his prospects of rehabilitation, I have indicated that I accepted that his prospects of recidivism are extremely low, particularly given his intensive engagement in treatment before and after his arrest.
Section 16A(2AAA) of the Crimes Act 1914 specifically deals with this type of offending and that the Court must have regard to the objective of rehabilitating the offender and in determining a sentence the Court is to include sufficient time for a person to undertake a rehabilitation program.
In DPP (Cth) v De La Rosa [2010] NSWCCA 194 the Court also referred to how a person with a mental condition may experience more onerous conditions in custody than someone without such a condition in which circumstances the length of any term of imprisonment may be reduced. There is evidence of a risk of suicide if the offender is admitted into custody, as I have referred to in the reports of Ms North and Dr Furst.
As to moral culpability Mr White refers to what was said by Simpson J in R v Henry [1999] NSWCCA 111, namely that
"… in an appropriate case, rehabilitation might outweigh other sentencing factors. In order for those circumstances to provide a reduction in sentence however there would need to be strong evidence of real progress towards actual rehabilitation."
As I have indicated, the evidence here establishes real progress towards actual rehabilitation.
A significant amount of time has been devoted by the parties and the Court to the question of statistics and supposedly comparable cases. Mr White initially conducted an analysis of the statistics. Bearing in mind what was said by R A Hulme J in Why v R [2017] NSWCCA 101 at [60] - [64] as to the enhanced data behind the statistics, Mr White pointed out since the sentencing reforms in September 2008 in relation to the use carriage service offence, there were 25 offenders, of whom 15 received full time custody, and of those the sentences ranged between 12 and 54 months, 93% of the sentences were between 12 and 36 months, and non-parole periods ranged from 6 to 36 months.
In relation to such offences with offenders who have no prior criminal history and pleas of guilty there were six offenders, three of whom received a Conditional Release Order. Those who received full time custody were sentenced to 18 months imprisonment.
In relation to the possess offences there were 29 offences in total, of whom 23 received full time custody, the range between six months and five years. Most of the sentences were between 12 months and 42 months, and the non-parole periods vary from six months to 42 months, with most being between six months and 24 months.
In relation to the possess offences for offenders without a history and with a plea of guilty, five of six received full time custody between 12 and 36 months, and non-parole periods ranging between six and 18 months.
Mr White acknowledges that statistics are a blunt tool and provide limited assistance to the Court but they supported the submission which he put as to the ultimate outcome in light of the proposition that a considerable proportion of offenders who commit those offences do not necessarily receive a term of full time custody. His ultimate submission was, and remains, that the Court should impose an aggregate sentence with a forthwith release on recognizance on the Commonwealth offences, and that the period of custody for the State offences should equate to a non-parole period in a sentence.
That submission provoked a lengthy written reply from the Crown asserting that the approach urged by counsel for the offender invites the Court to fall into appealable error by imposing a manifestly inadequate sentence and that non-custodial options would fail to give effect to the paramount considerations in sentencing for such offences.
It was put that counsel for the offender had put a gloss on the correct approach to assessing the objective seriousness of the offences, but the Crown was unable to identify what was mean by gloss and there was nothing inappropriate about the submissions put by Mr White in relation to objective seriousness in my view.
The Crown in reply submissions largely reiterated the submissions put in initial written submissions.
The Crown asserted that the offender's explanation that he wanted to get rid of the child abuse material was an explanation which beggared belief notwithstanding any challenge to it when he gave evidence. The Crown described the case of having features of very great heinousness.
The Crown acknowledged that the purposes of sentencing are several, and sometimes they point in different directions and cannot be considered in isolation when determining what is an appropriate sentence in any particular case. In accordance with Veen v The Queen (No 2) (1988) 164 CLR 465, the Crown's submission is that the subjective factors advanced by the offender should not be afforded such weight as to overshadow the competing considerations of general deterrence and denunciation. The Crown submits that to do so would be contrary to authority but as Mr White pointed out cases such as De La Rosa indicate the possibility of modifying general deterrence in appropriate cases.
As to the evidence concerning the time in custody already served by the offender before being granted bail the Crown submitted it was not unusual for offenders to become depressed and suicidal. The Crown submitted that the evidence given that inmates and Corrective Services harassed him when on remand was self-serving and unsubstantiated. That is a submission unworthy of the Commonwealth Crown given that there was no challenge to his evidence on this point.
The Crown also submitted that the offender had blatantly lied to Dr Furst about the circumstances that led to his initial acquisition of the child abuse material and this led Dr Furst with a view to making the doctor believe that the offender had been entrapped. Again that is a submission unworthy of the Commonwealth Crown. It is a very serious allegation to put, and completely unfounded in the evidence, and his evidence was unchallenged as to the history.
I reject the Crown's submission that there is a logical flaw in the argument that gender dysphoria is the cause of the offender's attraction to child abuse material given the unchallenged history and diagnoses.
I also reject the submission that the offender acquired child abuse material because he was sexually attracted to pre-pubescent girls not because he has gender dysphoria, Klinefelter's Syndrome or depression, again given the unchallenged evidence as to the causal connection between those conditions and the offending.
The Crown set out lengthy extracts from cases in relation to paedophilia to no apparent effect.
The Crown ultimately submitted that the possession of almost 27,000 child abuse images and videos is objectively very serious. The images and videos were highly distressing. The Crown also submitted that the material was almost all new, that is the children depicted are new victims of sexual exploitation. Once again, unfortunately unchallenged, the Crown acknowledged that there was no evidence to support that submission and withdrew the submission.
The Crown asserted that one of the points arising from De La Rosa was that it may be that because of a person's mental illness they present more of a danger to the community, and in those circumstances considerations of specific deterrence may result in an increased sentence. There is no evidence that this offender presents any danger to the community and no basis for the application of that proposition.
After the second day in the sentence proceedings the matter was adjourned so that the parties could consider some of the cases which were behind the statistics set out in the Judicial Commission website. That explanation was consistent with what was said by Hulme J in Why where he implored practitioners to read the "Explaining the statistics" document before relying on any statistics, and that obviously led to the generation of a number of first instance sentencing decisions by judges of this Court.
It is true, as the Crown notes, that the High Court has said in R v Pham [2015] HCA 39 at [28], "consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts". However in my view, given the urging of the Court of Criminal Appeal to look behind the statistics on the Judicial Commission website, it is appropriate to at least take into account District Court sentences as the Crown acknowledges as a less persuasive form of the yardstick which may be taken into account when considering the possible range of sentences against which a proposed sentence may be compared.
The Crown's submission, after review of many cases, was that they do not support the non-custodial sentence as submitted by Mr White. The Crown relies upon the proposition that the offending here was over a period of two and a half years, whereas a number of the cases referred to covered offending on only one occasion up to a period of two and a half years in the matter of R v O'Keefe (unreported, NSWDC, Wells DCJ, 11 December 2018).
All the cases which are available, and have been reviewed by counsel are summarised in detail in the written submissions for both the Crown and the offender which are marked for identification in the proceedings and need not be repeated.
The Crown points to the proposition that only one of the offenders in the matters listed paid for the child abuse material, that is the matter of R v Wray (unreported, NSWDC, English DCJ 19 June 2020) in which a sentence of 18 months imprisonment for possess and three and a half years with an 18 months non-parole for pornography accessing was imposed.
The Crown ultimately submitted that having regard to the statistics and the cases referred to behind those statistics, the process of instinctive synthesis to be undertaken by the Court involves identifying all the factors relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the cases, as the Court has said in cases such as Markarian v The Queen (2005) 228 CLR 357 and Muldrock v The Queen (2011) 244 CLR 120.
Mr White's submission in relation to the cases behind the statistics acknowledges that no two cases are alike and some features are in sharp contrast to the offender here. A large proportion of the offenders were repeat offenders including prior criminal offences generally, prior sex offences, and prior child pornography offences. Some of the offenders were on parole for the same offences, or were otherwise subject to conditional liberty. A large proportion of the offenders were subject to child protection orders and the charges arose out of police enforcement of these orders.
While some of the offenders were suffering from mental illness either at the time of the offence or at the time of the sentence, none of them, except the case of R v Compton (unreported, NSWDC, Jeffreys DCJ, 21 August 2019) dealt with by Jeffreys DCJ, was one where there was a causal connection between the offender's psychiatric conditions and his offending conduct, and this is relevant to moral culpability in the ways that I have indicated.
The ultimate submission was that, for the reasons advanced in detail, this is an exceptional case, and when applying instinctive synthesis and the Court should exercise its discretion in not returning the offender to prison. While Mr White expresses regret that the Crown has failed to acknowledge the exceptional subjective case of the offender I have referred to the salient parts of the submissions on those issues.
I have had regard to the circumstances and the outcomes in each of the cases which are referred to in the submissions.
I also have regard to evidence given by the offender today as to a matter which Mr White puts should also be taken into account as extra-curial punishment. Following the matter last being listed in court an article appeared in the Daily Telegraph on 9 April which is headlined, "Cattle farmer Edward Gundry admits to possessing child abuse material". The offender said in evidence today that without any other apparent reason, on the Monday following that publication his bank accounts were cancelled or closed by Westpac, a bank with which he and the family had been banking for some 26 years.
He received a letter almost two weeks after this occurred. In the meantime he had been into the bank and contacted them attempting to ascertain the reason for the accounts being closed but has been unable to obtain any satisfaction in relation to those enquiries.
It is an inference which I accept on balance, as put by Mr White, namely that someone within Westpac decided to take action on his accounts after such a long relationship as a result of publicity about these cases. However he acknowledges that the family are able to operate the business banking account and it is a matter that I take into account to a minor degree as a degree of extra-curial punishment.
I am ultimately persuaded that given the significant objective seriousness of the offending, notwithstanding the powerful subjective case, it is appropriate to impose a further term of full time custody.
The orders that I make are:
[2]
State (NSW) Offences (Sequence 4)
1. The offender is convicted of the offence.
2. Taking into account a 25% discount for the plea of guilty, I impose a term of imprisonment of 12 months commencing on 19 March 2021.
3. I impose a non-parole period of 5 months, expiring on 18 August 2021.
[3]
Commonwealth Offences
1. The offender is convicted of each offence.
2. The indicative sentences are:
1. Sequence 10, taking into account sequence 28 on s 16BA schedule: 12 months;
2. Sequence 1, taking into account sequences 29 & 30 on s 16BA schedule: 12 months;
3. Sequence 21, taking into account sequence 31 on s 16BA schedule: 12 months.
1. I impose an aggregate sentence of imprisonment of 18 months, to commence on 19 February 2021.
2. Pursuant to ss 19AC and 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released after 5 months, on 18 July 2021 on the condition that the offender enters into a recognisance, self, in the sum of $100, subject to the following conditions:
1. The offender is to be of good behaviour for 13 months;
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
1. Pursuant to s 23ZD of the Crimes Act 1914 I order the forfeiture of the items listed on the Forfeiture Order filed by the Crown.
I note that non-publication orders dated 11 December 2019 apply for a period of 5 years in relation to any information that may identify any website associated with the proceedings that may be associated with child abuse material.
To make that clear having regard to questions of totality and accumulation, and the evidence to which I have referred, the Commonwealth offence commences on 19 February which takes into account the period in custody already.
The Sate offence commences one month later and is it is accumulated by one month, and the non-parole period in the State offence expires on 18 August 2021.
Anything further Ms Crown?
GILSON: No, your Honour.
HIS HONOUR: Mr White?
WHITE: No, your Honour.
HIS HONOUR: I am required to explain the sentence to you, Mr Gundry. The sentence for the State offence is 12 months with a non-parole period of five months. It is backdated to 19 March. The non-parole period will expire on 18 August, about three months from today.
The sentence for the Commonwealth offence starts one month earlier than that to take account of the time you've already spent in custody, and the non-parole period expires before the State offence non-parole period expires.
Note - These extempore remarks were revised without access to the court file.
[4]
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Decision last updated: 08 June 2021