R v Honeyman [2016] ACTSC 2

[2016] ACTSC 2

See [67] to [71] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offender to be sentenced for Commonwealth and ACT child pornography offences - roughly 1,300 images involved, 92% at CETS 1 - images collected over three years - offender's attitude to offences - treatment sought after child pornography found by police - reports from psychologists - references - prior good character - pleas of guilty - comparable cases - whether NSW Court of Criminal Appeal decisions require full-time custody irrespective of the objective seriousness of the offence - offender sentenced.

Crimes Act 1900 (ACT), s 65(1)

Crimes Act 1914 (Cth), s 20

Crimes (Sentence Administration) Act 2005 (ACT)

R v De Leeuw [2015] NSWCCA 183

R v Dummett [2013] ACTSC, Burns J, 30 October 2013

R v Forbes [2014] ACTSC 91

R v Harvey [2014] ACTSC 393

R v Kanawaza [2013] ACTSC, Murrell CJ, 2 December 2013

R v Morosi [2013] ACTSC, Burns J, 28 August 2013

R v Porte [2015] NSWCCA 174

1. Brenton Honeyman has pleaded guilty to two offences as follows:

(a) using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code 1995 (Cth) and carrying a maximum penalty including 15 years imprisonment; and

(b) possessing child pornography contrary to s 65(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including seven years' imprisonment.

2. These charges resulted from the police execution in July 2013 of a search warrant granted on the basis of information, received by the AFP from Interpol, relating to Australian citizens who had accessed a particular child pornography website. At Mr Honeyman's home, police seized two laptops and two portable hard drives, as well as a single DVD containing child pornography that Mr Honeyman had bought online. Child pornography images were found on both hard drives.

3. Police officers identified a total of 1,290 child pornography images on the two hard drives, of which 1,190, just over 92%, were classified as Level 1 on the CETS scale which I shall explain later. There were also a total of 25 videos on the hard drives. The possession charge covers all of those images as well as a further small collection of material as to which the access offence could not be established. Police estimated that at least 300 to 400 child victims were depicted in the material.

4. Investigation of the laptops produced a number of search terms that had apparently been used to find the pornographic images. Those search terms including terms such as those simply referring to boys of particular ages, and phrases such as "young boy masturbate" and "nude pre-teen boys" as well as far more graphic descriptions of particular topics.

5. There was extended discussion at the hearing of whether the search terms concerned had been deliberately typed in full, whether they were used as a result of accepting a search term suggested by the search engine after some characters had been keyed in, or whether they had shown up as a result of Mr Honeyman clicking on a link while searching for or viewing adult pornography.

6. The significance of this discussion was that the nature of Mr Honeyman's acceptance of the Statement of Facts was obscured by certain submissions made on instructions by his counsel, which can be summarised as to the effect that while Mr Honeyman conceded that he had accessed and saved child pornography, he did not concede that he had actively searched for such material, a discrepancy when compared with the Statement of Facts that had been pointed out by the pre-sentence report author. After a break during which defence counsel took further instructions and the prosecutor sought clarification from the relevant investigator, the issue was concluded by the provision of advice by the prosecutor, that the search terms quoted could have been "used" either by typing them in full or by accepting suggested search terms, and from defence counsel, that Mr Honeyman accepted this but could not remember using all the relevant terms.

7. There is a further complication in this issue, which arose from advice from the computer experts that "mainstream" search engines would block what were described as "child pornography results" (which seemed to be a reference to search terms likely to produce child pornography) from the automated suggestions offered as a search progresses. That is, for the identified search terms to have been used, either they must have been typed in full or Mr Honeyman must have been using a non-mainstream search engine, thereby avoiding the mainstream exclusion of any offers of child pornography search terms.

8. Either way, and irrespective of Mr Honeyman's apparent memory problems, I am satisfied that he did not obtain all the relevant child pornography material as a result of accident or naivety.

9. Although as noted most of the material was at Category 1 on the CETS scale, there were, disturbingly, 13 items involving Category 5 material, including one video, and a total of 30 items including 12 videos at the Category 4 level. The material stored by Mr Honeyman was stored under very graphic file names, of which "All Gay Teen Boys" is a relatively low-key example. There was no discussion about whether Mr Honeyman could recall naming any of the relevant files.

10. The prosecutor submitted that buying a DVD online involves a greater degree of "patience, determination and risk" before the child pornography material can be accessed. I accept that buying a DVD may be a more premeditated act, and may require a slightly greater degree of organisation, but I am not convinced that it is necessarily more serious than directly obtaining material online.

11. In interviews with police after the execution of the warrant, Mr Honeyman agreed that he had used the images obtained and saved for personal gratification, and said that he had never shown them to anyone else.

12. In May 2015, Mr Honeyman was summonsed to appear in relation to the offences.

13. He has spent no time in custody in respect of these charges.

14. As well as the agreed Statement of Facts, the following material is in evidence before me:

(a) a police statement prepared by the police officer who had accessed and classified the material, explaining the process by which he had undertaken that classification;

(b) a selection of the images possessed by Mr Honeyman; and

(c) a pre-sentence report dated 17 December 2015;

(a) a psychological assessment by Dr Michael Barry dated 28 August 2015;

(b) a psychological treatment report by Dr Linda Belich-Eric dated 7 December 2015;

(c) a treatment report by Dr Bruce Stevens dated 12 August 2015; and

(d) five references which I shall outline shortly.

16. I have viewed Exhibit C, which was the selection of images taken from the material possessed by Mr Honeyman. That collection was said by the police officer who created it, and accepted by the defence, to be a representative sample of the images possessed. I note that, with my leave, the exhibit was immediately thereafter uplifted by the police officer concerned and returned to police custody for safe storage.

17. All of the children shown in the images had a youthful rather than necessarily child-like appearance, although it may be that some of the boys were closer to adulthood than their faces suggested. The small number of girls shown were more obviously pre-pubescent.

18. The CETS 1 images generally fell towards the upper end of the CETS category which covers:

Depictions of children with no sexual activity - nudity, surreptitious images focussed on underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination.

19. All but one set of the sample images involved naked children, and only one set of them, a collection of images from a video of young boys, bare-chested but apparently wearing shorts or trousers and in not obviously suggestive poses, could have been mistaken for an image intended for a children's clothing catalogue.

solo masturbation by a child or non penetrative sex acts between children.

21. The sample images involved mainly pairs of young boys engaged in mutual sexual fondling, while the videos had a bias towards boys involved in solo masturbation.

Non-penetrative sexual activity between child(ren) and adult(s). Mutual masturbation and other non penetrative sexual activity.

23. The sample images under that category seem to be less graphic than the CETS 2 images, and involved no obvious compulsion from the adults involved (although I do not mean to suggest that the children were in any way willing participants).

Penetrative sexual activity between child(ren) and adult(s) - including but not limited to intercourse, cunnilingus and fellatio.

25. The sample of CETS 4 images showed clear penetrative sexual activity, although in a couple of cases it was not clear that any of the participants was in fact an adult.

Sadism, bestiality or humiliation ([including] urination [and] bondage).

27. The CETS 5 images mainly involved bondage (not obviously associated with sexual activity except in one series of video images), and in one case urination in company (although not directed at any other participant and not obviously involving humiliation). The bondage images were not of sufficient quality to indicate whether any of the participants demonstrated any distress about their restraints.

28. In commenting on the absence of evidence that the children were distressed by their roles in the activities depicted, I certainly do not mean to suggest that any of the children were willing participants, or were enjoying themselves, or that this would have been a mitigating factor. My comments reflect only a view that images in which a child's distress at the activity he or she has been forced into might be intended to enhance the sexual satisfaction to be gained from the images might be even more objectionable than those in which no such distress is evident.

29. In considering the objective seriousness of the offence, I have had regard to the following matters.

30. First, the courts have identified a variety of factors that are relevant in assessing the seriousness of a child pornography offence. Those identified as directly relevant here are:

(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity shown;

(b) the quantity of material involved;

(c) the number of children depicted and thereby victimised; and

(d) the length of time for which the material was held.

31. Two other factors, being whether the material was intended for sale or other distribution and whether the offender might profit from his activity, are not indicated by any evidence in this matter, although I accept that this does not as such mitigate the offences.

32. I have already described the sample of images I was shown, and commented on the nature and content of that material.

33. As to quantity, Mr Honeyman had stored a significant number of images, but a number that is nevertheless, in my experience, towards the lower end of the range (it is not uncommon to sentence people who have had thousands or tens of thousands of images, although I am also aware of cases involving a few hundred, or even fewer, images).

34. Analysis of Mr Honeyman's devices indicated that some of the material had been stored for up to three years before the police found it, and that his accessing and storing of child pornography was not an isolated event but a course of conduct. The prosecutor submitted that Mr Honeyman had invested a lot of effort in building his child pornography collection, noting that he had downloaded each image individually. I am not convinced that this is particularly significant in the context of what I have already noted was a relatively small collection which was put together over an extended period. Indeed, it may be less offensive than a practice of regularly downloading large volumes of material without any consideration, thus assembling a huge archive of material, especially since presumably the more material that is downloaded in total, the greater the perceived demand and therefore the perceived market for such material.

35. I also accept the proposition that child pornography is not a victimless crime just because particular victims cannot be identified.

36. The prosecutor submitted that Mr Honeyman was unwilling to admit the criminality in his conduct, citing such things as his denial that he was specifically looking for images of people under 18 and his questioning whether images of naked children as such could constitute child pornography. I accept that this suggests a reluctance to take full responsibility for his actions, but my own admittedly non-expert assessment is that this does not show a refusal to recognise the criminality of his behaviour so much as an inability to accept responsibility for conduct that he does recognise both as criminal and as entirely inconsistent with what he has described as both his intellectual and his faith position on child pornography.

37. Mr Honeyman's offences are, in my view, below mid-range seriousness, although not the least serious examples of these offences.

38. I have also had regard in this sentencing to Mr Honeyman's subjective circumstances.

39. Mr Honeyman is now 66. He has no criminal history. He is married with three adult children and four grandchildren from a previous marriage. He has apparently been very frank with his family and friends about the circumstances of the charges and his offending, and continues to be supported by his family and friends.

40. Before his arrest Mr Honeyman worked as a secondary school science teacher and more recently at Questacon, liaising with external stakeholders, as well as performing a role in leading worship at his Tuggeranong church. I accept that prior good character is a common feature of child pornography offences, and provides little mitigation of such offending, especially given the importance of general deterrence.

41. Mr Honeyman has been seeking professional help with matters contributing to this offending since these offences came to light in July 2013.

42. Within a few days after the police executed the search warrant, Mr Honeyman began attending Sexaholics Anonymous; he told Dr Stevens that he had been attending twice a week since then but, as the pre-sentence report author noted, the nature of this program meant that Mr Honeyman's attendance could not in fact be verified.

43. Around that same time, Mr Honeyman also sought counselling from a member of his church, and was in due course referred to Dr Bruce Stevens in March 2014, whom he continues to see.

44. Dr Michael Barry described Mr Honeyman's report of using adult pornography since his early 20s, gradually increasing that use especially after it became easily accessible through the internet, and over time broadening his interests to include some relatively explicit images of under-aged boys. This interest in pornography developed over the same period during which he increased his engagement with his church, including while he was involved with a program aimed at addressing "unhealthy" sexual interests; Mr Honeyman found himself "conflicted by his own hypocrisy" during this period.

45. Dr Barry concluded that Mr Honeyman presents a low risk of re-offending, having regard to the various kinds of support he continues to receive, but recommended some "more targeted psychological treatment "to assist him to identify and more systematically connect to his underlying values and beliefs". Dr Barry suggested in particular Acceptance and Commitment Therapy, to help Mr Honeyman to "be less reactive to unwanted urges and emotions ... and engage in values based behavioural choices".

46. Dr Barry noted that as a "vulnerable, unassertive and somewhat naïve man", Mr Honeyman may be at greater risk of exploitation and intimidation in prison than would a more assertive person of similar age and mental health.

47. Dr Linda Belich-Eric saw Mr Honeyman six times in September and October 2015 for the purposes of preparing a report about his psychological condition. She described Mr Honeyman expressing "remorse and disgust" about his behaviour and its inconsistency with the standards he has presented in all other areas of his life.

48. In accordance with Dr Barry's recommendation, Dr Belich-Eric provided Acceptance and Commitment Therapy to Mr Honeyman. As a result of a collaborative decision between her and Mr Honeyman, that therapy focused on addressing the distress and shame felt by Mr Honeyman about his offending behaviour, particularly because he perceived that behaviour to be contrary to the values he held as a "moral, responsible Christian person". This in turn appears to have raised issues to do with Mr Honeyman's sense of self-worth and his need to be perceived as perfect by achieving extrinsic goals. Dr Belich-Eric reported that over the six sessions, Mr Honeyman engaged well with the processes; by the end, his plans were to reflect on his progress, to engage in mindfulness and value-based living, and to be more open and honest in his relationships.

49. Dr Stevens reported that he had seen Mr Honeyman more than 10 times between March 2014 and August 2015, treating him for difficulties with sex addiction and the current charges. He has diagnosed Mr Honeyman with an Adjustment Disorder with mixed Anxiety and Depressed mood.

50. As previously mentioned, references were provided:

(a) by a couple who are close friends of Mr Honeyman through their church;

(b) by Mr Honeyman's son;

(c) by a senior scientist who has worked with Mr Honeyman at various times in the last 25 years on shared projects in the area of science communication;

(d) by another senior scientist involved with Questacon; and

(e) by a leader in Mr Honeyman's church.

51. These referees noted Mr Honeyman's willingness to be open with his family and friends about these charges, their view of him as a fundamentally good man, their sense that his actions were out of character and inconsistent with his real values, and their belief that he is determined to address the matters that have led him to this offending.

52. These are offences for which general deterrence is, as the prosecutor has said, of "paramount consideration"; on the other hand, I doubt that Mr Honeyman is in need of more personal deterrence than has been provided by his current encounter with the criminal justice system and all the consequences of that encounter. This is despite the prosecutor's submission that Mr Honeyman's apparent reluctance to take full responsibility for his offending suggests an ongoing need for specific deterrence; I consider that even if Mr Honeyman remains to some extent in denial about his actions, he has the capacity to recognise and avoid the risk of any repeat offending.

Plea of guilty/assistance to law enforcement authorities

53. Mr Honeyman pleaded guilty to these offences on the third mention of the matter in the Magistrates Court, after representations to the prosecution had been unsuccessful.

54. The prosecutor concedes that he is entitled to a plea of guilty discount on both sentences for his willingness to facilitate the course of justice and, on the ACT sentence, also for the utilitarian value of the plea.

55. On the other hand, the prosecution case would have been strong, albeit unpleasant to run at trial, and the plea of guilty discounts must recognise that fact.

56. I note, also, that Mr Honeyman co-operated with the authorities by taking part in a recorded interview with police. This will also be recognised in his sentencing.

57. As already noted, Mr Honeyman was summonsed to appear in court to face the current charges almost two years after the execution of the search warrant. The prosecutor could provide no explanation for the delay except "operational requirements", which seemed to mean that the AFP had other priorities.

58. No doubt, like most publicly funded organisations, the AFP is under-funded and needs to prioritise the use of its resources, and one can certainly sympathise with the individual employees on whom the burden of inadequate resourcing falls. However, it is necessary also to recognise the impact of inadequate resourcing on suspects and even admitted offenders.

59. The prosecutor advised that after the execution of the search warrant, Mr Honeyman "would have known that there would have been charges pending"; however, this does not mean that it was reasonable to leave him in a state of uncertainty for nearly two years, especially since the prosecutor's advice suggests that the delay was not related to deciding whether to prosecute but simply to do with actually preparing the paperwork and, in fairness, possibly to do with investigating the electronic material. On the other hand, the opportunity to seek rehabilitation help that was afforded to Mr Honeyman by the delay will not disadvantage him in this sentencing.

60. Defence counsel handed up several ACT cases said to be comparable including R v Harvey [2014] ACTSC 393; R v Kanawaza [2013] ACTSC, Murrell CJ, 2 December 2013; R v Morosi [2013] ACTSC, Burns J, 28 August 2013; R v Dummett [2013] ACTSC, Burns J, 30 October 2013; and R v Forbes [2014] ACTSC 91. He submitted that Mr Honeyman's commitment to dealing with his interest in pornography, as shown by his intensive engagement with various psychologists and counsellors over the last couple of years, and his willingness to be open about the charges with his family, friends, and professional and church associates, suggests he has very good prospects of rehabilitation and that his rehabilitation should not be put at risk by an immediate custodial term of imprisonment.

61. The prosecutor seeks an immediate term of imprisonment, on the basis that imprisonment is warranted by the objective seriousness of the offence and that, absent exceptional circumstances, some of that term should be served in full-time custody.

62. The prosecutor made this submission in reliance on the proposition that for child pornography offences, "unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted". She pointed to the New South Wales Court of Criminal Appeal cases of R v De Leeuw [2015] NSWCCA 183 and R v Porte [2015] NSWCCA 174, in which this proposition was said to have been "consistently stated" by appellate courts throughout Australia, although I note that a quick look at several of the appellate decisions from other jurisdictions relied on by the New South Wales Court of Criminal Appeal suggests that the proposition has not always been stated in quite such clear terms.

63. First, I do not see this proposition as an attempt to impose any kind of mandatory sentencing, given the inclusion of the qualifier relating to exceptional circumstances and the use of the word "ordinarily". That is, it continues to allow for the exercise of judicial discretion.

64. The proposition seems to be based on several premises, including:

(a) first, that prior good character, the seeking of psychological help with rehabilitation after the child pornography has come to light, and the absence of any need for personal deterrence, are common in cases involving the possession of child pornography; and

(b) secondly that, as already noted, general deterrence is the paramount consideration in sentencing for child pornography offences, and that the need for general deterrence may override both the rehabilitation needs of an offender and any other claims the offender might have to the court's sympathy.

65. On the other hand, the proposition relied on by the prosecutor does not seem to exclude the usual requirement that a sentence reflect the objective seriousness of the offence, and I cannot ignore the fact that in this case, the volume of images accessed and possessed by Mr Honeyman was at the lower end of the scale. It is worth pointing out that the two cases relied on by the prosecutor, in which:

(a) Mr De Leeuw was re-sentenced to three years imprisonment, with 21 months to serve, for four offences; and

(b) Mr Porte was sentenced to two years nine months imprisonment, with 18 months to serve;

were for two offences involving respectively over 32,000 images and over 34,000 images, the majority of which in each case were also CETS 1 images but which included significant numbers, and higher proportions than in the current case, of higher category images.

66. I am not persuaded that the New South Wales cases can be accepted as authority for the proposition that every child pornography offence, whatever its objective seriousness, requires an immediate custodial sentence.

67. Mr Honeyman, please stand. I record convictions on the charges of using a carriage service to access child pornography material and of possessing child pornography.

68. I now sentence you to imprisonment for 16 months for the access offence and seven months for the possession offence, accumulated so as to add two months, giving a total sentence of 18 months imprisonment.

69. Those sentences have been reduced from 22 months and 10 months respectively, involving a 25% discount to take account of your pleas of guilty and a further minor discount to recognise assistance to authorities.

70. In respect of the Commonwealth offence, I now order that you are to be released today, under s 20 of the Crimes Act 1914 (Cth), on giving security in the amount of $1,000 by recognizance that you will be of good behaviour for the next 16 months.

71. The sentence for the ACT offence will be immediately suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years. The good behaviour order is subject to the conditions:

(a) that you give security in the amount of $500 for your compliance with the good behaviour order;

(b) that for such period not exceeding two years as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate;

(c) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer;

(d) that during the next 12 months you perform 200 hours of community service; and

(e) that on or before Friday, 8 January, this Friday, you attend Corrective Services at Eclipse House to arrange your supervision.

72. You will be given written copies of the recognizance release order and the good behaviour order and they will be read to you by the court officials. But in short, the end result of these sentences is that for the next two years, you need to keep out of trouble, keep in contact with Corrective Services, and perform your community service. If you commit another offence during that time, or if you otherwise breach your recognizance or your good behaviour undertaking, you may find yourself back before this court to be re-sentenced for these offences, as well as possibly losing your security amounts and, depending on exactly how you breached the recognizance or undertaking, you could well find yourself serving some or all of that 18 months sentence in full-time custody.

73. If you have any questions about those orders, please ask the court officials or Mr Doig, who will be happy to explain them to you.

I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.