On 31 March 2020, Daniel Houweling provided his iPhone X and PIN code to New South Wales Police. He then went with them to his home in southern Wollongong, where a search warrant was executed. A number of electronic devices were seized. The contents of devices were downloaded by a device and process known as 'Cellebrite.' The contents of the devices led to two charges pursuant to the Commonwealth Criminal Code:
1. Sequence 1, use carriage service to possess child abuse material: s474.22A(1) Criminal Code Act 1995 (Cth) - maximum penalty 15 years imprisonment.
2. Sequence 2, use carriage service to access child abuse material 474.22(1)(a)(i) Criminal Code Act (Cth) - maximum penalty 15 years imprisonment.
Parliament on behalf of the community has said that a maximum penalty 15 years imprisonment is available both offences. While not determinative of any sentence that maximum penalty of 15 years is one indication of how Parliament, on behalf of the community, views such offences.
Houweling, accepted responsibility for the two offences and indicated pleas of guilty in the Local Court. He accepts that the material discovered was child abuse material. Although the terminology has changed, it is clear from the second reader speech for the previous incarnation of s473.1, (the definition section in the Code relating to this material), that Parliament intends the legislation:
"Cover all visual images both still and motion, including representations of children such as cartoons or animations...Material that does not necessarily contain actual images of children is covered by the definition because it may not directly involve an abused child in the production. Its availability can fuel further demand for similar material. This can lead to greater abuse of children in the production of material to meet this demand." Cited in Innes v R [2018] NSWCCA 90
R v Houweling [2021] NSWDC 293 | Case summary | Zoe
The possession of such material harms not just the children used to produce it but the community in general. Courts have a duty to enforce laws that are designed to shield the community and to protect children from exploitation: Gent v R [2005] NSWCCA 370.
In assessing the objective seriousness of offences involving the possession of such material, a number of factors have to be taken into account. These were helpfully set out by Hulme J in Minahan v R [2010] NSWCCA 140. They have application to Commonwealth matters: R v Hutchinson [2018] NSWCCA 152.
The agreed facts set out the basis for the matters for sentence. There are appropriate summaries of the material, which I have also viewed in thumbnail form.
Sequence 1 relates to ten images of child abuse material. Those items were downloaded and stored by the offender on his phone. They depict prepubescent females in various stages of undress. Some of whom, the agreed facts say, are engaging in "sexually explicit poses." Having viewed the material, I can say, some fit that description. Others would otherwise be regarded as holiday snaps. That said, it is clear from all the evidence before me that they were possessed and used for prurient purposes. Some of the children depicted may be as young as three years or under; a number are under ten years, and some are under 12 years. Some are posing. And, some images appear to be staged for a sexually provocative purpose.
The images are classified using Interpol Baseline Categorisation System presently in operation as a Category 2. That system, as I remarked during the course of proceedings, does little to assist the Court, as it contains only two categories for child abuse material. The Child Exploitation Tracking System (CETS) used previously with its seven scales or levels ascending from minor to very serious, was much more useful. But I am forced to apply the current categorisations.
Sequence 2 relates to 227 images and seven videos of child abuse material in animated form depicting children engaged in sexual intercourse. They were found in what are called 'cache' files. As it was explained to me, a cache file indicates a matter that was viewed by the offender but not downloaded by him. They were accessed over a two month period. The date each of the seven videos was accessed is set out. There is no indication that any of the 227 images or videos were stored by the offender. In his evidence today he said that he was able to access them using a Twitter account he'd set up in a false name. He used that account to view the material; some of which was brought to his attention by other Twitter users. All the images and videos are classified as category 2.
Most of the still images fall within the same categorisation as those that he chose to download, that I have previously described. The animations are not lifelike, but they are not stick figures. They are sophisticated cartoons depicting very young children being penetrated in various ways: in one video by multiple penises. One single image animation depicts an act of violence as a pistol is shown, pointing at the child.
In his frank evidence today the offender accepted that he has had a sexual interest in young children since puberty. He said that that interest coincided with non‑deviant sexual interest in same age peers. For a long period, he was unable to suppress his desire to access such material. He had, until about a year before his arrest, been able to keep his interest in young children solely within his mind. When he commenced accessing the material he said he tried to regulate his criminal behaviour by:
1. not engaging in or considering any actual sexual interference with children, and
2. by not accessing what are, frankly, freely available sites showing acts of intercourse with real children and other Category 1 type material.
There is no indication in the material before me to contradict his assertions. Nevertheless, as he was at the time, he committed these offences as a sworn police officer with a duty to uphold the law, he well knew the seriousness of what he was doing and the consequences of being caught.
Deviant though his thoughts might be, they are not crimes. But to act on those thoughts in the manner set out in the agreed facts is, as he was well aware, a serious crime.
The nature of the offences requires serious consideration being given to the imposition of full-time custodial sentences. This brings into play the considerations in 17A and 16A Crimes Act 1914 (Cth).
I have had the benefit of written and oral submissions from Ms Barnes, of counsel, who appears for the Commonwealth Director of Public Prosecutions (CDPP), and Ms Doosey, of counsel, who appears for the offender. We have had the opportunity to discuss the evidence and their submissions. I trust that the matters raised in this judgement do justice to them.
While every offence and every offender requires individualised treatment, courts must, in the exercise of their undoubted discretion, take guidance from a number of sources. They include here the maximum penalty, the decisions of other courts, particularly those designed to give guidance, and the purposes of sentencing set out in 16A. The guidance offered in the material prepared by the CDPP and put before me by Ms Barnes was helpful. I have taken it into account.
Objectively, Sequence 1, while it did involve the possession of child abuse material, had what would have to be regarded as the minimum number of images on it. And the images were, while used for prurient purposes, not otherwise distributed, and were used only by the offender. The nature of the images, while serious, did not appear to put them at risk of significant harm. And in all the circumstances I would not regard the line set by 17A has been crossed. A custodial sentence is not required.
Ms Wyzenbeek, forensic psychologist, who prepared an expert psychological report for the Court, and gave evidence today said the sequence 2 material reflects what she told me was an "escalation into illicit behaviour that indicates his actions were becoming more deviant." That escalation into deviance is borne out by the descriptions of the material and the thumbnails that I have seen. While, as should be obvious, the fact that no actual children were depicted places this material at a lower or a lesser level of seriousness than if actual children had participated in such acts that does not diminish significantly the seriousness of what occurred. But there is a difference and unfortunately, I have as a judge and barrister had to view such real-life recordings.
Beech‑Jones J noted in Martin v R [2014] NSWCCA 124, that a judge can characterise such fantasy productions as less serious than those involving sexual activity involving actual children. His Honour went on to say however that:
"There are undoubtedly situations in which the production and dissemination" - well, the production, the viewing of - he says, "Production and dissemination of material that does not involve the depiction of real children can still constitute an extremely serious breach of the state offence."
The same sentiments apply in relation to offences involving use of a carriage service. Although this offender was not involved in any way in the production or dissemination of the material, the animations showed serious, sexually violent behaviour towards children. He was prepared to access that material and he accessed it on a number of occasions. He did so putting into practise his long-standing paedophilic disorder.
The viewing of such material provides a rationale for its production. The production of such material leads to dissemination in the community of views, which somehow treat the sexual abuse of children as something that can be normalised or excused. The duty of the law is to punish such offences in such a way as to send the clearest of signals to the community that it cannot and will not be tolerated.
In her submissions, Ms Barnes took me to decision of Johnson J in De Leeuw v R [2015] NSWCCA 183, where his Honour, with the agreement of the court, noted that, "Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted."
Justice Johnson then stressed the need for general deterrence being a primary consideration, with a need for less or limited weight to be given to prior good character. He noted that as such offending occurs on the international level its increasing prevalence needs to be countered by harsh penalties. His Honour set out a number of important considerations including:
1. Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29].
2. The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].
3. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 52 [9]; DPP v D'Alessandro (2010) 26 VR 477 at 484 [23]
Following the guidance of the High Court of Australia and a number of cases, the intermediate courts of appeal have in recent years backed away from explicit directions to sentencing judges that require a certain sentencing disposition absent exceptional circumstances. They are referred to in Ms Doosey's submissions.
While the sentence must start and finish with proper reflection of the objective seriousness of what was done, a judge is given considerable discretion to structure a sentence in a way that meets all the objectives and purposes of sentencing. A judge has and retains an ultimate discretion to impose a sentence that appropriately punishes, recognises harm done, and is formulated with the ultimate aim of protection of the community.
That is referred to in 16A(2)(n) and 16A (2AAA) Crimes Act 1914 (Cth). Which, attention was drawn by Ms Barnes:
16A (2)(n) the prospect of rehabilitation of the person; …
16A (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a) when making an order - to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program.
As Ms Barnes noted, those new requirements do not displace or overriding the requirement that the sentence must be of severity appropriate to the circumstances of the offence:16A(1).
As I have noted, the offender gave evidence. I found his evidence to be frank. He did not appear to be dissembling. He expressed appropriate remorse. That remorse is in part reflected in the early plea of guilty. And, while that plea has other values, its utilitarian value must be taken into account. I will reduce the otherwise appropriate sentences by 25% to take into account its utilitarian value.
The offender adhered to what he told those who prepared reports on his behalf. He explained, as best he could, what appears to have been a summary in the Sentence Assessment Report of his attitude to his offending. It is clear from all the material before me that until significant stresses arose in his life, he was able to keep his paedophilic disorder in check, but in the 12 months prior to his offending he lost that restraint.
As a consequence, he has lost his job. He has lost his family. And his relationship with his children will be restricted and strained. Properly so. He does not deserve to have a job as a police officer. And his role as a father will be forever blighted by his condition, and more importantly, his acting upon it.
The report of Ms Wyzenbeek is comprehensive. It sets out the offender's family background, which is not controversial. It sets out his responses to a number of tests or measures used to assess potential for future risk. Ms Wyzenbeek reports that his sexual offending appears to have been a function of his long standing paedophilic sexual interest and is connected to his difficulties with sexual regulation and use of sexualised coping during periods of stress: Exhibit 1 at paragraph 57. She was examined by Ms Barnes about her results of her tests that indicate that he is at low risk of offending.
Although I appreciate that various models to assess risk are being developed, intuitively it seems necessary that I look at risk factors and matters that are protective of the offender and the community. Ms Wyzenbeek notes matters relating to the offender's potential for escalation in sexual violence and problems with stress or coping, given his long standing deviant sexual interests, consistent with a Paedophilic disorder: Exhibit 1 paragraph 69. She also noted that he has numerous strengths and protective factors, which may support or assisting him in desisting from sexual reoffending. She recommends that he engage in treatment specifically addressing that offending.
Ms Pratley's, report, Exhibit 2, sets out in detail the program he is presently undertaking. She concludes that; he is well engaged in treatment, he is seeking support, he is actively utilising the strategies which have been taught him to date and that he is an intelligent and thoughtful man which places him at an advantage in progressing through the program. She says he presents as motivated to gain insight and to progress. The prospect of re-establishing some sort of relationship with his daughters is an additional motivating factor. That treatment, she says, must continue.
A Sentencing Assessment Report also assesses the offender at a low risk of reoffending. It notes that a supervision plan can be put in place allowing for continued engagement with current programs and participation in a comprehensive risk assessment with a Community Corrections senior psychologist. He is suitable for community service, and community service can be made available to him.
The history given to other experts and their conclusions were mirrored in the report of Ms Mackerel, a senior psychologist with Wollongong Community Corrections. She notes his dynamic risk factors as intimate deficits, difficulties with self-regulation and difficulties with sexual self-regulation. She also notes risk factors if he; increases his sexual preoccupation, suffers an emotional collapse, or loses his current social supports. She says he is not eligible for any custodial programs but there may be some programs available in the community. She concludes it would be a benefit for Mr Houweling to continue to engage in, and complete, Dr Seidler's treatment program and that he would benefit from ongoing contact with a GP and perhaps a Mental Health Care Plan.
The reports reveal a dilemma; which is picked up in Ms Doosey's submissions. If the offender is placed in gaol, he will have his present treatment regime interrupted. He will be placed in a high stress environment. As a former law enforcement officer, be additionally vulnerable. There is a likelihood the sentence will be served on protection in more than usually onerous conditions of custody. These factors will interfere with his capacity to control his disorder and impede his demonstrated progress toward rehabilitation
While I am confident he will engage as directed in any orders the subject of a recognisance release order. Given the material before me, I am also confident that his pro‑social family and community support will continue while he is in custody, and more importantly, continue afterwards. But any interruption of his present excellent progress to rehabilitation and restoration to - if not a cure, far from it, should if possible be avoided. He suffers from a lifetime condition. His capacity to manage his paedophilic disorder in a way that does not offend the Crimes Acts of either the Commonwealth or New South Wales should not be interrupted.
I note that COVID-19 restrictions for prisoner's will mean that he will lose direct contact with those who support him.
In the circumstances, were an Intensive Correction Order available to me, I would embrace that sentencing option, but it is not: s 67(1) Crimes (Sentencing Procedure) Act 1999 (NSW). However, here the Crimes Act 1914 (Cth) allows me to a structure of an overall sentence that by its length indicates the seriousness of the matters, the maximum penalty, and the need for a general deterrent sentence but also the other purposes of sentencing, including those set out in s 16A(2)(n) and s16A(2AAA).
Given the damage he has inflicted upon himself and the impact of the offending on his relationship with his family and his career, personal deterrence is no longer a necessary consideration. Appropriate orders can be made that, if not met, would leave hanging over him the possibility of a custodial sentence. Orders can involve those suggested by Community Corrections and the performance of community service. In the circumstances, it is my intention to impose, so far as sequence 2 is concerned, a custodial sentence but to order its immediate suspension.
The proposed orders I have are those set out in the Sentence Assessment Report, continued engagement with current sex offender program, participation in a comprehensive risk assessment, and a hundred hours community service.
HIS HONOUR: Does anyone have any suggestions for other orders before I pronounce sentence?...Have you got any suggestions? He'll be supervised for a period of two years on the first bond.
BARNES: Nothing further.
[2]
Orders
Mr Houweling, in relation to sequences 1 and 2 you are convicted.
In relation to sequence 1, I defer passing sentence upon you. I order you enter into recognisance pursuant to 21A Crimes Act, yourself in sum of $400, to be of good behaviour for a period of two years from today's date, to appear to receive sentence as called upon to do so at any time in respect of any breach, to accept the supervision of the New South Wales Community Corrections for as long as they deem necessary, to continue engagement with your current sex offender program or such other program as is recommended, and not to disengage from such a program without the consent of Community Corrections New South Wales, to agree to participate in a comprehensive risk assessment with community corrections, senior psychologist, and engage in any programs or services recommended by Community Corrections New South Wales.
In relation to sequence 2, taking into account the utilitarian value of your plea of guilty, you are convicted and sentenced to a term of one year and six months imprisonment. I direct you be released forthwith upon your entering into a recognisance pursuant to 21B of the New South Wales Crimes Act, yourself in the sum of $400 without surety, and the conditions are the same as that earlier indicated with the additional condition of you performing 100 hours of community service. You are to report to the Wollongong office of Community Corrections within seven days.
On 25 February 2021 I received a note from the CDPP that the sentence for sequence 2 was in error as "a community service work order cannot be imposed as a condition of a s201)(b) Crimes Act 1914 (Cth) recognisance release order." This matter was then relisted on for further hearing pursuant to s43 Crimes (Sentencing Procedure) Act 1999 (NSW).
The CDPP relied on R v Shambayati [1999] QCA 102 and Dimech v Watts [2016] ACTSC 221. Having read those cases and the decision of the Full Court of South Australia in Adams v Carr (1987) 26 A Crim R 372, I expressed some scepticism that an error had been made. The reasoning Adams v Carr seemed more apposite to the legislative scheme for community service operating in NSW. However, as both Mr Barnes and Ms Doosey were adamant, on application of the CDPP and by consent of the offender, I amended the order I made on 19 February 2021 by extending the period of the recognizance and deleting the Community Service work component.
Amended orders to sequence 2 Use carriage service to access child abuse material:
1. You are convicted and sentenced to a term of imprisonment of 1 year 7 months.
2. I direct that you be released forthwith upon your entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 yourself in the sum of $400 with the following conditions:
1. To be of good behaviour for a period of 2 years from this date.
2. To appear to receive a sentence if called upon to do so at any time in respect of any breach within the said period.
3. Accept the supervision of Community Corrections for as long as deemed necessary.
4. Continue engagement with current sex offender program, or other program as directed, not leave without permission of community corrections.
5. Agree to participate in a comprehensive risk assessment with a Community Corrections Senior Psychologist.
6. Report to the Wollongong Community Corrections office within 7 days.
[4]
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: 02 July 2021
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Houweling
Legislation Cited (4)
orrection 1. On 25 February 2021 I received a note from the CDPP that the sentence for sequence 2 was in error as "a community service work order cannot be imposed as a condition of a s201)(b) Crimes Act 1914(Cth)