R v Johnston [2020] ACTSC 46

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentence - using a carriage service to transmit an indecent communication to a person under 16 years - possessing child abuse material using a carriage service - when the sentencing judge should view a sample of the material - lower objective seriousness - no criminal history - sentence of imprisonment

Crimes Act 1914 (Cth), ss 3, 3LA, 16E, 17A, 19AC, 20, 23ZA, 23ZD

Crimes (Sentencing) Act 2005 (ACT), s 63

Criminal Code 1995 (Cth), ss 474.22- 474.24C, 474.25A - 474.29, 474.1

Adamson v The Queen [2015] VSCA 194; 47 VR 268

Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; 50 VR 800

Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; 46 VR 832

Edwards v The Queen [2013] VSCA 188

Kristensen v The Queen [2018] NSWCCA 189

Miao v The Queen [2017] NSWCCA 89

R v Aniezue [2016] ACTSC 82

R v De Leeuw [2015] NSWCCA 183

R v Hutchinson [2018] NSWCCA 152

R v KB [2019] ACTSC 136

R v Major [2016] ACTSC 161

R v Porte [2015] NSWCCA 174; 252 A Crim R 294

R v Verdins [2007] VSCA 102; 16 VR 269

Commonwealth Director of Public Prosecutions (Crown)

1. Glenn Matthew Johnston has pleaded guilty to three charges:

(a) Using a carriage service to transmit an indecent communication to a person under 16 years of age contrary to s 474.27A(1) of the Criminal Code 1995 (Cth) (CC2019/11277). The maximum penalty for this offence is seven years' imprisonment.

(b) Using a carriage service to transmit an indecent communication to a person believed to be under 16 years of age contrary to s 474.27A(1) of the Criminal Code (CC2019/12637). The maximum penalty for this offence is seven years' imprisonment.

(c) Possessing child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Criminal Code (CC2019/12638). Child abuse material is defined in s 473.1 of the Criminal Code. The maximum penalty is 15 years' imprisonment.

2. In February 2019 the offender used the direct messaging facility of the social media application 'Instagram' to communicate explicit suggestions to a 10-year-old child located in North Carolina, USA. The child's father became aware of this and reported the matter to the Australian Federal Police. The child's father then told the offender via the child's Instagram account that a police report had been made. The offender apologised and stated that his housemate had sent the messages. These are uncharged acts, but they provide context to the subsequent offending.

3. On 28 June 2019 the offender contacted a 10-year-old girl (the victim) via the direct messaging feature on Instagram. Her profile picture showed that she was a child. In a direct message conversation on 25 July 2019 the conversation was superficially innocuous except that the offender requested pictures of the child and then complimented her, "Love your eyes" and "Your stunning" [sic]. On 27 July 2019 the offender had a further conversation on Instagram with the victim suggesting that she "...send me some pic babe" and then he would send her some. He stated that they should be "of your body". The victim responded "No I am ten". He enquired whether she was alone. She said that she was not and that "My mum daddy my friend and my sister" were there. He then said:

I wanna send. A naughty pic but your parents might see

Do u have any pic of you in your swimsuit [heart emoji].

[Offender sent a photograph of his unclothed shoulder with a fraction of his head visible, resting on a pillow]

4. The communications on 25 July and 27 July 2019 give rise to count 1.

5. By his plea the offender has accepted that his communications with the victim were indecent according to the standards of ordinary people.

6. Following this conversation, the victim notified her friend's mother that she had received a message asking for a picture of her body. The matter was subsequently reported to police.

7. As a consequence, on 18 September 2019 police took control of the victim's Instagram account and continued the conversation with the offender in the guise of the victim. In that conversation the offender says that he would love to see her body, that he would show her his, that he was "horny and bored", that the victim should go away from her mother and that when she was alone he would send her some pictures then. The police officer in the guise of the victim says that she is at home with her mum, that her mum is making dinner and that she was in her school clothes.

8. On 21 September 2019 a further conversation occurred with the police officer in the guise of the victim. In that conversation the offender asks for a picture of the victim, says that he is 20 years old, asks whether she has her pyjamas on and asks whether they look cute. During the conversation the police officer in the guise of the victim says that she is 10 years old.

9. I observe that apart from responding as part of the conversation, the police officer did nothing to encourage the offender and made disclosures that would have reinforced the obvious point that the offender was dealing with a young child.

10. The communications on 18 September 2019 and 21 September 2019 give rise to count 2. Section 474.27A may apply where the recipient is a person who is under 16 years of age or a person who the sender believes to be under 16 years of age. By his plea the offender has accepted that he believed that the recipient was under 16 years of age.

11. On 16 October 2019 police executed a search warrant at the offender's residence. He was present. He complied with an order under s 3LA of the Crimes Act 1914 (Cth) to provide credentials for his electronic devices and online accounts. Examination of these devices revealed that:

(a) a Toshiba hard drive contained 112 images constituting child abuse material;

(b) an iMac computer contained six images constituting child abuse material; and

(c) a Huawei mobile phone contained 173 images constituting child abuse material.

12. 33 of those images were reviewed and classified according to the Categorisation Model for Child Exploitation Material of the Australian National Victim Image Library (ANVIL). Of the 33 images reviewed, nine were classified as category 1, five as category 2, nine as category 3, nine as category 4 and one as category 5. The possession of these images gives rise to count 3.

13. The offender participated in an interview with police on 16 October 2019, in which he denied knowledge of how the sexualised chats with the victim came to be on his Instagram account. He also denied knowledge of how the images of his face came to be on his Instagram account.

14. In R v Aniezue [2016] ACTSC 82 at [33] Refshauge J provided a useful non-exhaustive list of matters to be considered when assessing the seriousness of an offence under s 474.27A. They were:

• the nature of the indecent material communicated, including its explicitness;
• the offender's level of awareness and [sic] indecency and deliberateness in communicating;
• the age differential between the offender and the victim and the knowledge of that age;
• the nature of the relationship between the offender and the victim;
• the period of time over which the communication took place and the number of messages transmitted; and
• whether the person with whom the offender communicated is a child or a police officer or other adult impersonating a child.

15. The material communicated in the present case was not very explicit. It was in the nature of grooming behaviour which may have matured into more explicit communications had the offender continued to successfully manipulate the child. It was clearly a deliberate course of conduct on the part of the offender and he must have been aware of its indecency. The age differential between the offender and the victim was very substantial, he being 44 and the victim being 10. He knew that to be the case because the victim told him. There was no pre-existing relationship between the offender and the victim. Although the offending took place over four different days it was in each case relatively limited. The first two communications were with the victim, the second two were with a police officer that the offender believed to be the victim.

16. The Crown referred to statements that it can be presumed that such offending causes harm to the victim, citing the decision in Adamson v The Queen [2015] VSCA 194; 47 VR 268 at [47]. In my view, it would be more accurate to say that such conduct has a significant potential to cause harm. In some cases, this harm may be grave and long lasting. In others there may in fact have been no significant harm. Much depends upon the circumstances and psychological make-up of the victim. However, the grave potential to cause harm means that it is not essential in order to constitute objectively serious offending for the Crown to have demonstrated harm in an individual case.

17. Having regard to the wide range of indecent communications that may be the subject of a charge under s 474.27A, in my view, the offending in each case is at the lower end of the range of objective gravity for this offence.

18. So far as the contravention of s 474.22A is concerned, the objective seriousness will be primarily determined by the volume and nature of the material possessed. Other factors which may make it more serious (see R v De Leeuw [2015] NSWCCA 183 at [72]) such as an intention to sell it or further distribute it, the potential for the offender to profit from its possession, a large number of children being depicted and thereby victimised or possession over a long period are not demonstrated in the present case. The total amount possessed was 291 images. As indicated earlier, police undertook the exercise of categorising a sample of that material which demonstrated a range of categorisations according to the ANVIL scale.

19. The Crown's submission was that the court should view a sample of the child abuse material in order to assess the objective seriousness of the offending. However, in oral submissions counsel for the Crown said that there was differing authority as to the appropriateness of such a course. In written submissions provided following the conclusion of the hearing, the Crown identified the decisions in R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (Porte) and R v Hutchinson [2018] NSWCCA 152 (Hutchinson). I do not consider that these authorities are in conflict. In Porte Johnson J (with whom Leeming JA and Beech-Jones J agreed) said (at [76]) that it was appropriate "for sample images to be made available to the sentencing court... to allow an impression to be formed of the material and its degree of depravity". The judgment then quoted from a decision of the Western Australian Court of Appeal indicating that viewing of the material will ordinarily be necessary for the proper performance of the sentencing judge's duty as the relative perversion and debauchery of the pornographic material is a relevant sentencing factor. Later in his reasons Johnson J referred to the utility of viewing a sample of the material because that would provide more than a "formulaic classification, which may not communicate the true nature of the offending material".

20. In Hutchinson different judges took different approaches. Hulme J indicated that Porte was not binding authority that the viewing of a sample was essential in every case. His Honour indicated that "it is incumbent upon the prosecuting authorities to provide an adequate written description of the material". His Honour said that in the vast majority of cases that should be sufficient to assess the gravity of the material. In that case, because the description of the material in the statement of facts was reasonably detailed and the Crown did not contend that there was anything of importance that could not be gleaned from that description, his Honour was satisfied that it was not necessary to view the material. While Button J recorded his agreement with what Hulme J had said, he did indicate that he had in fact viewed the material in order to permit him to appreciate the gravity of the offending.

21. These two cases merely indicate that it is part of the judge's function to properly assess the objective seriousness of the offence and in a case such as this the "relative perversion and debauchery of the pornographic material". If there is a detailed description of that material contained within the evidence put before the court then the actual viewing of the images may not be necessary. However, if there are aspects of the gravity which cannot properly be appreciated from a written description of the material, or there is no detailed written description of the material, then the proper disposition of the case will require a viewing of at least a sample of the material.

22. In the present case the agreed statement of facts did not include a description of the material. Included in the evidence was a schedule of the material which simply classified the different files into the various ANVIL categories, which themselves were described in general terms. As a consequence, the only basis upon which to assess the gravity of the material is by reference to the description of the ANVIL scale which was annexed to the statement of facts.

23. In my view that was insufficient to properly assess the gravity of the material and as a consequence it was necessary to view the material. The booklet that was tendered and became exhibit 5 will be returned to the Crown following the delivery of these reasons.

24. Having observed the sample of the material, it was consistent with the classification made. The material emphasises the gravity of the offending involved in its production and hence the gravity of the possession of the material by the offender.

25. The key to the definition of child abuse material is that it is offensive by reason of it depicting or describing a sexual pose or sexual activity or certain parts of the body. The degree of offensiveness will be determined by the nature of the activity undertaken and the age of the child who is involved in its making. The degree of offensiveness will increase as the seriousness of the sexual conduct increases because that is likely to increase the harm to the child.

26. In the present case the volume of material is significant but not large when compared with the volume of material which can now readily be downloaded and stored electronically. The nature of the material is as described in the categories. I consider that the offending in the present case is at the lower end of the mid range of objective seriousness for this offence.

27. The personal circumstances of the offender are disclosed in a sentencing assessment report prepared by an officer of the New South Wales Department of Corrective Services. That also includes a case note of an assessment prepared by a New South Wales Department of Corrective Services psychologist.

28. The offender is 44 years old. Since being charged with offences he has relocated from the ACT to Wagga Wagga to reside with his parents.

29. He has been employed throughout his adult life. Most recently, for the past two years he was engaged in personal training in Canberra, specialising in work with disabled persons.

30. He attributed his offending behaviour to the breakdown of his domestic relationship as well as excess idle time between shifts. He accepted responsibility for his actions although was unwilling or unable to explain his motivations behind his offending behaviour. He expressed willingness to undertake treatment and intervention with psychologists, psychiatrists and other associated mental health practitioners.

31. He was assessed as being at a medium to low risk of reoffending, but this was increased to a medium risk because the static-99R actuarial risk assessment placed him at an average level of reoffending.

32. The offender tendered evidence that he has been referred by a general practitioner pursuant to a mental health care plan to a psychologist. Those documents also referred to being treated by a psychiatrist and taking medication prescribed by that psychiatrist. It indicates that the offender is receptive to the treatment that the psychologist would provide. Following the adjournment of the proceedings further material was tendered just prior to sentencing. This was in the form of two references and some supporting documentation.

33. The first was from the offender's aunt who has known the offender all his life. She indicated that the offender was diagnosed with ADHD and as a child struggled at school with learning difficulties and was bullied by other children. She indicated that at school he participated in the air cadets. He sat for the high school certificate twice and did not do well. He does not have close friends. His employment as a personal trainer was terminated in October 2019 due to the charges against him. The letter describes the offender's family circumstances. In particular it identifies that the offender's sister died tragically of brain cancer in 2011 when she was 32 years old. It also indicated that the offender's father has recently been diagnosed with bowel cancer and has had other health problems. Documentation from the Wagga Wagga Base Hospital indicates that the offender's father is booked in for a colectomy on 12 March 2020. His condition is serious and I take into account the fact that if the offender is sentenced to imprisonment he will be denied the support of his son during this period. The reference from the offender's aunt also discloses that his grandmother who is 88 years old has bowel cancer and is receiving palliative care. It indicates that members of his family have been diagnosed with Lynch syndrome, a genetic condition which appears to involve a genetic predisposition to certain forms of cancer.

34. The letter also describes the offender's past relationships, a marriage which ended in divorce, another relationship with a partner for five years and a shorter-term relationship with a work colleague. The letter indicates the offender's living conditions at the time of his arrest and expresses the opinion that at the time of the offending he was very lonely. It also refers to the treatment that he has had upon returning to Wagga Wagga and his training as a barista in order to assist him in gaining employment in the future.

35. The other reference is from a couple who have been friends of the offender's parents and who have known the offender for the whole of his life. The letter refers to the difficulties that the offender had at school but also the effort that he put in. It refers to the manner in which he cared for his sister when she was ill. It refers to the good example set for the offender by his parents. It describes the admissions of his offending made to them in November last year. It refers to his otherwise good character and decency.

36. The offender has no criminal history. The uncharged conduct referred to at the beginning of these reasons indicates that the offending was not entirely isolated.

37. The plea of guilty was entered at an early stage in the Magistrates Court. The early plea reflects an acceptance of responsibility and is consistent with a desire to facilitate the course of justice.

38. The offender spent 23 days in custody after his arrest before he was granted bail. Although the provisions of the Crimes (Sentencing) Act 2005 (ACT) do not have the effect referred to in s 16E(2) of the Crimes Act, s 16E(1) in combination with s 16E(3) are sufficient to permit the court to take that period into account. I will take into account pre-sentence custody by backdating the sentence in the manner that would be done under s 63 of the Crimes (Sentencing) Act in relation to a Territory offence. I will therefore backdate the sentences so as to allow for that period in custody.

39. I was referred to a number of decisions of intermediate courts of appeal in relation to contraventions of s 474.27A(1), similar offences and offences relating to the possession of child pornography. Clearly care must be taken in assessing these cases having regard to the different offences involved and their different maximum penalties. These cases were Kristensen v The Queen [2018] NSWCCA 189; Miao v The Queen [2017] NSWCCA 89; Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; 46 VR 832 and Edwards v The Queen [2013] VSCA 188.

40. The offender also referred to single judge decisions in this court: R v Major [2016] ACTSC 161 and R v KB [2019] ACTSC 136.

41. The Director of Public Prosecutions applied for a forfeiture order of certain electronic devices pursuant to s 23ZD of the Crimes Act. Each of these items was a forfeitable thing within the meaning of s 23ZA. Three of those items were items that contain the material that was the subject of the charge of possession of child abuse material. Three of them were not but are admitted to contain such material. The section applies where the Director of Public Prosecutions has applied to the court and the court "is satisfied that a Commonwealth child sex offence has been committed or that a person is or has been convicted of a Commonwealth child sex offence". The court must be satisfied that the things "are forfeitable things derived from, or used in connection with, the commission of the offence" and that they have not already become the property of the Commonwealth. Thus, the devices must be tied either to an offence of which the offender has been convicted or an offence that the court is satisfied has been committed.

42. It is therefore clearly open to make the order in relation to items 1, 2 and 3. In relation to items 4, 5 and 6, it is only open to make the order if the court is satisfied that a Commonwealth child sex offence has been committed. "Commonwealth child sex offence" is defined in s 3 of the Crimes Act to include ss 474.22 - 474.24C and 474.25A - 474.29. That would include s 474.22A(1). I am satisfied that the offender possessed the material on items 4, 5 and 6.

43. The offender did not oppose the making of the order being sought in relation to any of the items.

44. I will therefore make a forfeiture order in relation to all of the items in the terms sought by the Director.

45. In a case such as this general deterrence must be a very significant sentencing consideration. The pervasiveness of communication by social media and the difficulty of supervising the exposure of young children to the internet means that deterrence of adults from engaging in indecent communications is very important.

46. So far as the possession offence is concerned, the ease of commission of such an offence, the difficulty of its detection and the harm that it causes in creating a market for the appalling exploitation of children in order to produce it means that significant penalties are required in order to deter potential offenders.

47. The comparative sentences to which I was referred, and additional authorities specifically on the issue (such as Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; 50 VR 800 at [62]), are consistent with the proposition that a term of immediate imprisonment will ordinarily be expected for such offending.

48. In the present case, specific deterrence remains a sentencing consideration. While the offender has indicated a willingness to participate in psychological treatment relating to his offending, the picture painted by the pre-sentence report is that of an absence of a high level of motivation for rehabilitation, understanding of the offending or remorse. That picture is qualified by the additional references that were tendered which do indicate a greater degree of willingness to disclose his offending conduct and the potential to address it so long as he continues to have family support. The additional references also emphasise that the offender is coming from a background of some difficulties with relationships and a degree of loneliness and isolation. I consider that in light of that additional evidence there are reasonable prospects for his rehabilitation. I am not satisfied that any of the Verdins principles are applicable. The latest report of the psychologist indicated low mood and anxiety consistent with the understandable personal stressors facing the offender.

49. Having considered all other available sentences I am satisfied that no sentence other than a sentence of imprisonment is appropriate: s 17A Crimes Act.

50. On the first contravention of s 474.27A(1) the appropriate starting point is a sentence of imprisonment of eight months reduced to six months and 15 days on account of the plea of guilty. The same sentence will be imposed on the second count of contravening that section. Those will be made concurrent except as to one month to reflect the fact that although temporally separated, they involved a single course of offending with what the offender believed was a single individual.

51. For the offence of possessing child abuse material the appropriate starting point is a sentence of imprisonment of 14 months, reduced to 11 months on account of the plea of guilty. While that offending is unrelated to the other offending, considerations of totality require a degree of concurrency with the other sentences. The sentence will be cumulative as to seven months upon the previous sentences.

52. That gives an aggregate sentence of 14 months and 15 days' imprisonment. While the purposes of sentencing require that there be a period of full-time imprisonment, that need only be a relatively modest proportion of the overall sentence. That period will be four months backdated to take into account the earlier period in custody.

1. On charge CC2019/11277 the offender is convicted and sentenced to imprisonment for six months and 15 days commencing on 8 February 2020 and ending on 22 August 2020.

2. On charge CC2019/12637 the offender is convicted and sentenced to six months and 15 days' imprisonment commencing on 8 March 2020 and ending on 22 September 2020.

3. On charge CC2019/12638 the offender is convicted and sentenced to 11 months' imprisonment commencing on 23 May 2020 and ending on 22 April 2021.

4. Pursuant to ss 19AC and 20(1)(b) of the Crimes Act 1914 (Cth) the offender is to be released on a recognisance with security in the amount of $100 without sureties to be of good behaviour for 12 months after having served four months of these sentences with the following additional conditions:

(a) that he be subject to supervision on parole by the Director-General; and

(b) that he attend any courses or programs as directed to by the Director-General; and

(c) that he not travel interstate or overseas without the written permission of the Director-General.

5. Pursuant to s 23ZD of the Crimes Act 1914 (Cth) the following items are forfeited to the Commonwealth:

1. Black Toshiba hard drive (serial number Y7BUSQOGS0ZF)

2. Silver and black Apple iMac computer (serial number W89051EE0TF)

3. Black Huawei mobile phone (IMEI numbers 860251042388302 and 860251042333318)

4. Blue Huawei mobile phone (IMEI number 86418804376141)

5. iPhone 6S Plus model A1687 (exhibit number 3580683/006)

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.