R v Harvey [2014] ACTSC 393

R v Forbes [2014] ACTSC 91

R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29

Crimes Act 1900 (ACT)

Crimes Act 1914 (Cth)

Crimes (Sentencing) Act 2005 (ACT)

Crimes (Sentencing Administration) Act 2005 (ACT)

Prohibited Weapons Act 1996 (ACT)

1. The offender, Rohan Benjamin Harvey, pleaded guilty at the first available opportunity, to three offences, and he comes before me today for sentence. There is one Commonwealth count and there are two ACT counts. The Commonwealth count is contrary to section 474.19(1) of the Criminal Code 1995 (Cth). It involves the use of a carriage service to access child pornography material, and is an offence which occurred between 10 January 2012 and 31 March 2014. It carries a maximum penalty of 15 years imprisonment.

2. The second count is one contrary to section 65(1) of the Crimes Act 1900 (ACT), that is, intentionally possess child pornography material, an offence said to have occurred on 28 May 2014. It carries a maximum penalty of seven years imprisonment, together with or alternatively to a fine of up to $7,700. The third is an offence of possess a prohibited weapon, also an offence said to have occurred on 28 May 2014. That involves a maximum penalty of five years imprisonment, together with, or alternatively to, a fine of up to $5,500 pursuant to section 5 of the Prohibited Weapons Act 1996 (ACT).

3. In May of this year, police identified an Internet service provider using a familiar file sharing network which suggested that the person using it was getting access to child pornography material. Their investigations took them to an address in Canberra where the offender was living. Police obtained a search warrant and went to his home to execute the warrant. He was cautioned, declined an offer to get legal advice, and cooperated with the execution of the search warrant. Police found a laptop under his bed. They viewed it and ultimately learned that it had been used by him to gain access to child pornography on the Internet.

4. The first charge to which I have earlier referred involved 29 child pornography video files which had been downloaded onto the laptop between 10 January 2012 and 31 March 2014. There is a well-known classification for child pornography known as the Child Exploitation Tracking System, or CETS. There is a table with five gradations, 1 being the least serious and 5 being the most serious. Of the files located in the offender's material, 10% was in classification number 1, 7% number in 2, 3.5% in 3, 72.5% in 4 and 7% in 5.

5. The second charge involved possession of child pornography. Police forensics identified 29 child pornography video files which had been downloaded onto the laptop and saved. They are the same videos accessed by the offender in the above access charge. Twenty seven of the 29 files were also duplicated onto a separate external hard drive owned by the offender. The pornography contained depictions of males and females of prepubescent and pubescent age range. The majority of the videos depicted penetrative sexual activity between children and adult males.

6. Other videos contained footage of prepubescent girls naked in change rooms and prepubescent girls sleeping whilst adult males performed various sexual acts on them. Police estimated that there were at least 30 female and eight male victims.

7. The prohibited weapon charge involved police finding three doubleedged throwing knives in a black scabbard in a wardrobe in the offender's room at the house where he was living in Canberra.

8. The Crown made very helpful submissions, setting out the maximum penalties and circumstances of the offences, and dealing in particular with the explanatory memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth). It noted, among other things, that the Internet is creating even greater demands for new material than ever and that offending behaviour is becoming increasingly destructive. There was reference in the Crown submissions, too, to Hansard from the ACT Legislative Assembly, noting the difficulty in bringing people to justice who obtain access to child pornography.

9. The Crown drew my attention to the strong need for general deterrence, and to well known authority, including in particular R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29. In Gent, which is a decision of the Court of Criminal Appeal of New South Wales, the court dealt with significant matters to be taken into account by a sentencing judge on a matter such as this. Those matters include the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed, the volume of the pornographic material, whether access was for personal use or further distribution, and whether the offender stood to profit from the activity.

10. The Crown also made helpful submissions about the subjective matters concerning this offender.

11. Mr Sabharwal for the offender tendered a number of documents including a psychiatric report from Dr O'Dea, several psychological reports from Dr Blake, and statements from family members and friends, including Dr McCarthy, a medical practitioner from Wagga Wagga.

12. Sentencing for possession of child pornography offences is always troubling for a sentencing judge. Often there is an attempt made in the course of the proceedings to find some reason why a person will go to the trouble of going onto the Internet and finding child pornographic material. Again, attempts are made to find a reason why people have a thirst for this sort of material. The fact is that some people do, and this offender is one of them. He explained that it was something which he had an interest in while he lived in Wagga and he had a greater interest in when he came to the ACT.

13. The offender grew up in the Wagga area. He apparently came from a happy family background, which was also a stable background; he had good schooling and loving parents. However he struggled at school and was thought to suffer from ADHD, for which he was given Ritalin. He had difficulties forming friendships. No doubt that was because of the ADHD. Mr Sabharwal submitted to me that the lack of friendships would have assisted to make him a bit isolated and perhaps to explain his background.

14. When these matters came to a head and the offender was charged, he saw Dr Jeremy O'Dea, who is a well known forensic psychiatrist, and Dr O'Dea interviewed him a short while ago.

15. Dr O'Dea noted that the offender had been born and raised in Wagga and had been prescribed Ritalin. He referred to the background of ADHD and (as is the fact) that he had no criminal convictions. The offender gave Dr O'Dea some background to his offending. Dr O'Dea did not diagnose him as suffering any major psychiatric illness or significant mental condition. He said that he is currently fit to appear in court.

16. He noted what he described as compulsive Internet pornography and Internet child pornography access, which he said was a common clinical problem in the recent past in adult heterosexual males of all ages. Some, such as Mr Harvey, he said, reported a progression from adult heterosexual pornography to Internet child pornography as a mechanism to maintain sexual arousal for extended periods. Dr O'Dea recommended the judicious use of medication such as Zoloft, or testosterone lowering medication.

17. He suggested ongoing management of anxiety and depressive symptoms. He considered such a program would be most appropriately and effectively organised within a community setting.

18. A psychologist in Wagga to whom I earlier referred, Dr Blake, has been seeing the offender for some time and it is his intention, if permitted of course, to maintain involvement in his treatment. He set out in his report a program of assistance. He said the offender appears to have developed an understanding now of his cycle of deviance, which led to his offending.

19. He said, "Like many voyeurs of child pornography, he seems to have encountered intimacy deficits, social and emotional isolation and dysfunctional patterns of communication. Mr Harvey seems to have developed some appropriate deterrent interventions and insights... he has worked consistently to acknowledge risk factors."

20. That the offender pleaded guilty and assisted the police when they spoke to him at his home and subsequently submitted himself to examination by a forensic psychiatrist and ongoing treatment by a psychologist, suggests to me that the offender has reasonably good prospects of rehabilitation. He was born on 31 March 1992, so he is a relatively young offender.

21. He has no criminal background. That is not unusual in cases involving offences of accessing child pornography, and as the Crown pointed out, it is often said that good character counts for less in these offences than in other offences. It does however, have some relevance, and I do take it into account.

22. Section 16A of the Crimes Act 1914 (Cth), requires me to take into account a number of matters, including the conduct and the need for special and general deterrence. I take those matters into account, as well as the pleas of guilty. Section 33 of the Crimes (Sentencing) Act 2005 (ACT) requires me to take into account similar matters, and I do the same, insofar as the ACT matters are concerned.

23. I find that there is no evidence that there was distribution by the offender to others, or that he downloaded this material for financial gain. I take into account the Crown's submission to me that there was, as it were, a seekingout of a particular age group and a particular sex, namely eight-to-16yearold girls. I take into account the number of victims and the number of images. Compared with some other cases, the number of victims, fortunately, was relatively small, although there was a significant number. Compared to other cases, the number of images was small. That is not to downplay them, merely to say that there are many gradations in these offences, and so far as I can see, comparing the number of images to those in other cases, the relatively low number here shows these offences are not at the highest level.

24. I have had regard for a number of cases, which the Crown has helpfully provided me with, where other offenders have been dealt with for the same or similar charges, including several ACT matters, in particular R v Forbes [2014] ACTSC 91. Some involve the imposition of terms of imprisonment, and the ordering of the release of the particular offender upon giving security.

25. I took the Crown to submit that the appropriate penalty in this case would involve a term of imprisonment which would not be suspended.

26. Having considered the submissions, the view that I have come to is that in respect of the Commonwealth and ACT pornography offences I should impose terms of imprisonment, but in the case of the Commonwealth matter, order the offender to be released immediately on entering into a recognizance, and as to the ACT matter, that he be released on entering into a bond.

27. People who access pornography may see themselves as lacking culpability, but they support a very large and damaging industry in this country. I am persuaded ultimately that the offender does appreciate that by contributing to downloading and accessing pornography he has contributed to that industry, and he has done some potential harm to children who are the victims of those crimes.

28. It is important, as the Crown pointed out to me, to denounce this conduct, both by specific and general deterrence. Having considered the alternatives, given particularly the youth of this offender and his family background, and my view about his prospects of rehabilitation, the orders I have proposed will, I consider, be appropriate punishment.

29. I make these orders. In respect of the section 474.19(1) matter, the Commonwealth offence, you are sentenced to a term of imprisonment of 18 months. I direct you be released forthwith on giving security by recognizance of $500 to comply with the condition that you be of good behaviour for 18 months pursuant to section 20 subsection (1)(b) of the Crimes Act 1914 (Cth).

30. As to the section 65(1) Crimes Act (ACT) matter, I sentence you to a term of imprisonment of 18 months, having deducted six months by reason of the plea of guilty: section 12 of the Crimes (Sentencing) Act 2005 (ACT). I make a suspended sentence order in relation to that sentence of imprisonment.

31. You are to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for 18 months from today, to contain the following obligations:

• to be subject to the supervision of the DirectorGeneral of Corrective Services for as long as he or she deems necessary;

• to undertake such treatment by psychologists or psychiatrists as is recommended by the DirectorGeneral, for paraphilia and depression; and

• not to access or use a computer or other device capable of accessing the Internet unless with the approval of the DirectorGeneral.

32. As to the offence under section 5 of the Prohibited Weapons Act 1996 (ACT), I find the offence proved. However there was evidence, which I accept, that the knives were gifts in New South Wales and that in New South Wales they were not illegal, whereas they are in the ACT.

33. So without convicting you of the offence, I order that that charge be dismissed. I am satisfied, given that you received the knives in, and brought them to the ACT from, a jurisdiction where possession was not unlawful, it is not appropriate to impose any punishment other than a nominal punishment.

34. I also make a forfeiture order for the weapons as requested by the Crown.

I certify that the preceding 34 numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.