R v Legallant

MAXIMUM PENALTIES AND NEED TO ENSURE ADEQUATE PUNISHMENT S16A(1)

1. As I have observed more generally above, offences of soliciting and possessing or controlling child pornography for use through a carriage service, are serious offences as it is clear by the maximum penalties prescribed. Those penalties of course reflect the gravity with which the legislature views this type of offending and I will have regard to them in the ways that I have already indicated.

NATURE AND CIRCUMSTANCES OF THE OFFENCE S 17A(2)(a)

1. The Crown bundle sets out a statement of agreed facts in relation to both of the offences for sentence and extracts some other material that was obtained from the offender's devices. That puts the offending in a context in terms of considering the objective seriousness of the offences. The matters that are RA Hulme J identified in Minehan as being relevant to such an assessment include; 1. Whether actual children were used in the creation of the material and clearly here that is the case. 2. The nature and content of the material including the age of the children and gravity of sexual activity portrayed. I will return to that. 3. The extent to which any cruelty or physical harm occasioned to the children may be discernible from the material. Apart from general level of psychological cruelty and in some cases the physical harm that must have been occasioned by the insertion of adult penises into very juvenile anuses, for example, there is no particular evidence overt cruelty or sadomasochism as will sometimes be the case in images that these courts consider. 4. The number of images or items of material. In the case of possession, the significance lying in the number of different children depicted. I will return to that in due course. 5. In a case of possession of the offender's purpose whether it was for his or her own use or for sale or dissemination. Here there is material consistent with dissemination in both directions by which I mean in terms of count 2, material flowing to the offender and in terms of count 1, material possessed or controlled for purposes of sharing in a general fashion. As I have already observed, there is no indication of commerciality in relation to this matter. 6. In a case of dissemination transmission, the number of persons to whom the material was dissemination or transmitted. Here, because of the way in which the investigation was able to proceed given the material available, it is not possible to define the number of people that were either sharing material with the offender for purposes of count 2 or for whom material was controlled for transmission. In other words, there is nothing that the Court could move on to suggest there being multiple people involved. 7. Whether any payment or material benefit was made. There is nothing to suggest commerciality here. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. There is simply nothing that would guide the Court in relation to that matter. There will sometimes be cases where all the images are of children who are of non-Caucasian characteristics which it makes it more likely that the material was produced overseas and so there might be some greater remoteness to be inferred, but here, some of these children are Anglo-Saxon. I do not make any particular finding about that because I cannot. 9. The degree of planning, organisation or sophistication or deception employed by the offender in acquiring, storing, disseminating or transmitting the material. A search of the offender's devices made it clear that for the purposes of count 1, material had been possessed or controlled, subject to the use of a piece of software called ManyCam which was used, in terms of the interrogation of the offender's computer, solely for purposes of storing and or sharing child pornography. As I read the material before me, that material is designed with sharing in mind and makes detection of the possession of the material less likely. Material here at least for the purposes of count 1 shows at least some degree of planning and organisation just because of the use of the software involved and retention of relevant images. 10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relevant to the age of the offender. The offender is now in his early thirties and was in his late twenties at relevant times. There is no explicit material from which the Court is able to form any view about the ages of anyone with whom he was in communication for the purposes of either count 1 or count 2. 11. Whether the offender acted alone or in a collaborative network of likeminded persons. Once again there is no particular evidence about that. A reasonable reading of some of the material extracted for the purposes of count 2 which I will come to shows at least that there must have been a sharing between at least one other person of like mind and the offender given the material that forms the basis of count 2. 12. Any risk of the material being seen or acquired by vulnerable persons, particularly children. There is no particular evidence about that. There is some material in which the offender admitted to police that his devices were password protected which would be protective in relation to that matter. There is another section of the interview in which he says they were not password protected, which is less protective in relation to that factor but there is no explicit evidence on that and I will put that consideration to one side. 13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. It is implicit in count 2 that the material was being received by the offender from others for whatever purpose and it is implicit in the terms of count 1 that the material was possessed or controlled for the purpose of transmission. There is a common sense inference available that those by whom transmission was sought, are likely to be persons susceptible to act in the manner described or depicted given what must be understood be generalised interest in sexual images of children. 14. A catchall as to other matters that might bear on the objective seriousness of the offence, to my mind, that captures material in terms of the span for instance of the temporal length of the offending. In relation to count 1, which is an offence that was committed later in time than the offending caught by count 2 and over a much more extended period, the offender used sophisticated software to enable him to commit the offending without a record of transmission given the nature of the ManyCam software. The only files that were located in the ManyCam gallery on his devices were child pornography files. He had control of at least 387 child pornography images which involved actual children. About 70% of 271 of the images were in the higher category as being categories 4 or 5 on the CETS scale and involved actual penetration of the children by adults. The way in which the offender controlled or possessed the material enabled it to be shared via ManyCam with other users and also to facilitate an offence under s 744.19 being committed, that is the solicitation of pornography.
2. I find beyond reasonable doubt in the way in which the offender control or possessed the material he was contributing to the continuation and the existence of the child pornography market.
3. Within the images numerous young children were shown and it is implicit that each child depicted becomes a victim of the offence. Where children are of a younger age it is a factor that increases the objective seriousness of the offending. Here, I have had the benefit (if that is the right word for it), of viewing a selection of the images which I will ultimately be returning to the Crown for safe keeping, pending any review of this decision. It is unavoidable to arrive at a view which coincides with the view of the investigating authorities that some of the children photographed must be of the age of four and five and some of the children would seem to achieve teenage years, but early teenage years, if that.
4. The objective seriousness of the offending in relation to count 1 is above the mid-range but does not reach the high range given a relatively small number of images compared with some of the cases reviewed by intermediate courts of appeal.
5. In relation to count 2, across about a six week period in 2013 as I have observed predating the offending caught by count 1, the offender engaged in soliciting child pornography from other persons who one must assume shared similar interests in child pornography. In the material that is extracted as part of the agreed facts, it is clear that the offender was inviting receipt of material that can properly be described as being particularly depraved, including being invited to be supplied with "vids of young babies and boys being fuked" or "boys suking older or older suking boy cock."
6. In one extracted communication, an unknown person communicated with the offender about a, "nine year old boy getting fucked" and the offender wanted to see that material. Given the ages of the children described and some other matters that I will come to when I deal with the offender's level of insight and prospects for rehabilitation, the objective seriousness of the offending at count 2 is above midrange but does not approach high-range, partly because of the limited number of conversations and the relatively short duration of the offending.
7. In material that the Crown availably relied on to demonstrate the nature of the material possessed and controlled by the offender and to gain some insight into his particular proclivities, there is material that shows that file names of other files included, for instance, "3YO sucks cock, 13YO boys molested 8YO boy. Baby Tod (raped)."
8. I would need to observe that in relation to the images that I have seen, for purposes of count 1, some of the older children appear to imitate pseudo adult enthusiasm whilst being photographed in a way that is unnatural to their own sexual age. However some of the images involving children who would be in the early primary school age if that, present as being bewildered by what is happening to them at the very least.

GENERAL AND PERSONAL DETERRENCE S 16A(2)(j)and(ja)

1. General deterrence must be taken into account in determining the appropriate sentence. The sentences that are imposed must make clear to other likeminded persons that these type of offences are abhorrent and will be met with punishment of a severity reflecting the communities attitude to child pornography. The authorities make it clear that general deterrence is an important consideration in sentencing for these matters. Personal deterrence is also important. The situation is a little bit more complex here because of some factors that are personal to this offender, are the artefacts of his own personal life that probably led to this offending. It is important that he be personally deterred from wanting to behaviour in the future, particularly when it is clear that his offending took place across, in relation to count 2, six weeks and in relation to count 1, almost a year and a half.

CONTRITION AND GUILTY PLEA S 16A(2)(f)(g)

1. It is clear following on from Xiao v R [2018] NSWCCA 4 that it is appropriate in a federal case for the Court to identify the utilitarian value of a plea of guilty to be taken into account in sentencing. That is allied with traditional considerations in federal matters about the Court taking into account an offender's desire to assist in the administration of justice. I will say something more about contrition in due course but I accept that the pleas of guilty in this matter have some work to do in terms of assessing the extent to which Mr Legallant is sorry about the way in which he acted in 2013 to 2015. Although the Crown originally contended for a sentencing discount of 10 to 15%, Mr Jauncey who appeared for Mr Legallant contended that a 15% discount was appropriate because although the plea was not entered early, the plea obviated a lengthy trial. Mr Barrow who appeared for the Commonwealth on the last occasion, conceded that the sentencing discount of 15% was properly within my sentencing discretion. I have ultimately determined to deal with the matter by way of an aggregate sentence. I can indicate that I have applied a sentencing discount of 15% or thereabouts when I announce the indicative sentences for count 1 because of rounding, it is a discount slightly more than 15%. In the case of count 2 it is a discount of 15%.
2. Briefly, to understand the chronology that attracts the utilitarian discount, the offender was arrested and charged in March 2016. It is accepted that he has been on conditional bail ever since that date and he has never spent any time in custody relative to these two matters. He was originally committed for trial in May of 2017 in relation to a charge that was ultimately discontinued upon the Crown filing an ex officio indictment in September of 2017. In October 2017 the offender entered pleas of not guilty to the matters listed on that ex officio indictment and a trial was listed with a three week estimate to commence in September of 2018. In July of 2018 following negotiations between the prosecution and those who represented Mr Legallant, at something known as the Commonwealth super call-over before me on 20 July 2018, Mr Legallant entered his pleas of guilty.

PERSONAL CIRCUMSTANCES OF THE OFFENDER'S REHABILITATION PHYSICAL AND MENTAL CONDITION S 16A(2)(m)

1. In terms of the offender's prior character he has one irrelevant matter from 2006 of a totally discrete nature that attracted a fine. I am prepared as the parties asked me to do, to treat him as a person of prior good character. The offender relied on a range of subjective material. In terms of the material that was the subject of a forensic psychological assessment by a skilled practitioner in this area, Dr Emma Collins, I am in a position to put more weight on some of the things that Dr Collins found on the basis that the offender gave sworn evidence adopting the history that he provided to Ms Collins.
2. Ms Collins is a psychologist within the practice LSC Psychologists, which is understood to be one of the pre-eminent practices dealing with those dealing with sexual deviance. Given she had assessed Mr Legallant forensically, Ms Collins referred him for treatment with another of her colleagues at the same practice, Ms Sarah Brann. I have the benefit of a report from Ms Brann and I have recently had an update as to the progress of treatment with Ms Brann. He is assessed as a low risk of re-offending.
3. Apart from his sworn evidence that I will come to, I also have before me, a bundle of materials as exhibit 2 that were in relation to the sexual misbehaviour of a Dr Wadie Haddad, who at one stage when the offender was somewhere in a range between ten years and 12 years old, treated Mr Legallant. On my finding on the balance of probabilities, Mr Haddid misbehaved sexually towards the offender. Additionally, Mr Legallant relied on a supportive and detailed statement from one of his sisters, Mikalia Bayon and a statement from his very supportive friend, Mazen El-Hosni who gave sworn evidence adopting his statement of support and was cross-examined by the Commonwealth.
4. Both of the evidence of Mr El-Hosni and the statement of Ms Bayon indicate that those persons both consider that the offender's actions were out of the character of the person that they know. They were both in receipt of statements of remorse from him about the nature of his offending and I am able to give more weight to his expressions about that in the witness box because there is some independent corroboration of him communicating his remorse to other people. That assumes some importance given that among other observations of Dr Collins, Dr Collins observed that Mr Legallant would need to rely on sharing difficulties with his past abuse to make a good recovery from problems that arose from the way that Dr Haddad treated him. His communications with his sister and Mr El-Hosni fall into that category, although as I understand the evidence, it remains the case that Mr Legallant's parents, although understanding the broad nature of these index offences, have not been apprised of the abuse of him by Dr Haddad.
5. Apart from an absence of relevant criminal convictions, all the material before me demonstrates that putting these matters to one side, which is not lightly done, that the offender has a constructive pro-social life. He is somebody who suffered from some significant childhood illnesses that meant that he was at the effect of the need for lots of respiratory oversight. There is material before me that suggests he has had significant ill-health late last year and early this year that helps explain his very limited attendances for treatment on Ms Brann. The reason I make a comment about that is because, fairly extraordinarily for a case like this, I acceded to Mr Jauncey's request that the sentence proceedings in relation to Mr Legallant be adjourned for a period of some months to enable him to address himself to treatment in the community. This was particularly in circumstances where Ms Brann's report to the Court indicated that attendances should be regular and fortnightly and intensive and that it would take some significant period of time for Mr Legallant to understand the effects of his abuse and matters that she described as his sexual identity and issues relating to the offences. Although I accept his evidence supported by recent material tendered today that show that he has had some significant ill health, it is underwhelming in the extreme, after the Court gave him that insignificant benefit to try and commence some deep rehabilitation in the community, that he has attended for treatment on a total of four occasions.
6. On the basis of his evidence and the other material, as I have indicated, I am able to make a finding that he was sexually interfered with on repeated occasions by his GP at some time when he was around ten to 12 years old. There is a reference to another episode of sexual abuse in Dr Collins report but I am not able to make a finding about that on the balance of probabilities given the offender did not give any evidence about that.
7. I am satisfied that he has some remorse in relation to the offending, although I was left with an impression that he has more remorse about the situation that he finds himself in and concerns about damage to his career prospects and his reputation than otherwise. I do accept that, to the extent that he is remorseful for his misbehaviour in relation to these offences, that he is slowly drawing some understanding about the effect of the photographed on the victims and, the effect of the abuse that was occasioned to the children photographed in the images that he either saw, solicited or possessed or controlled as the case may be. He is able to draw some kind of parallel between the way in which he was treated and the way in which those children were treated.
8. The offender gave evidence that he engaged in these offences and this is my summary, and not a direct quote, to make some sense of what had happened to him during his own abuse. I asked him whether he had or had had any sexual interest in children. On both counts he denied that he had ever had any sexual interest in children.
9. Whilst I accept that there is no evidence at all that the offender has any interest in misbehaving toward actual living children, I reject his evidence that he does not have, nor ever did have, a sexual interest in children. Apart from his demeanour in the witness box, which was difficult to assay on this point, there are two reasons in particular why I reject his evidence on that point. First, when he was interviewed by police, although he made some limited admissions, he repeatedly said things that were inconsistent with the material garnered during the investigation and the subject of agreed facts. These included assertions that every file that he clicked on through his computer did not open so he did not think much of it, that he claimed to have purchased the two lap tops that were examined by the police from a man off Gumtree and that he met the seller at Auburn McDonalds at about December 2015 (after the end of each of the offending periods) and that the seller had the lap tops in the boot of his car. He gave the police inconsistent answers as to whether his lap tops were always password protected in one case and not always password protected in another case. Further he made an admission that he used an email address of super_21@msn.com which is relevant to the offending and later claimed that that email address was not his. He claimed that people that he saw in files accessed at gaybeast.com. with file names such as "boy jerks off dog and sucks his cock." "Vietnamese boy fuck dog and come," and "Young boy fucks donkey", did not appear to look like children.
10. He denied to the police ever accessing child pornography material and claimed that he had time to look at porn but not download it. Clearly, many of those assertions are inconsistent with the pleas that he makes to this court.
11. Relevantly, in particular, to my questions about a sexual interest in children, is one extract from communications with an unknown person extracted in the agreed facts for purposes of count 2 and relating to date of 6 June 2013. In the contents of the offender having earlier invited the unknown person to 'show me vids of young babies and boy being fucked' and later, 'boys sucking older men and or older sucking boy cock', the offender is recorded as saying, "I'm about cum", it just seems to me that that material is entirely inconsistent with somebody not having a sexual interest in children.
12. The offender was either being disingenuous because he thought it would improve his prospects before this court if the Court did not consider that he had or once had a sexual interest in children, or just as likely, he fails to understand whatever the pathology is that has arisen in him as a result of him being mistreated by Dr Haddad. I cannot resolve those possibilities in my mind but suffice to say that while ever he denies to himself and to others, a central plank of his offending, any assessment of his prospects of rehabilitation must be guarded. My guarded view about his prospects of rehabilitation notwithstanding his expressions of remorse and his apparent amenability to treatment is reinforced because of the limited approach that he has taken to undertake treatment in the community.
13. I accept that the people who love him, and know about these matters are supportive of him. He is somebody who will need an extended period of support and supervision in the community when he has his liberty. I say that because it is inevitable in my view, notwithstanding the matters that count in his favour in terms of the personal circumstances that he be sentenced to a period of imprisonment.
14. I was provided by the Crown with a range of potentially cases that may assist as potentially analogous in terms of the sentence. Some of those cases had features in common with this offending and some had other different elements as was conceded by the Crown. I did not follow those slavishly but they provided some assistance in terms of determining the appropriate range in relation to both offences, accepting that the offence of count 2 has not been the subject of determination on indictment.
15. I sentence him to imprisonment, understanding from Dr Collins's report that there are many factors that are protective of his risk against future offending that will dissipate upon him being imprisoned. Dr Collins assessed his family relationships, his pro-social lifestyle, his engagement in employment and the like as being protective factors that were likely to change were he to be imprisoned. That unsatisfactory consequence which flows from him being imprisoned however is not outweighed by the other considerations.
16. As I adverted to earlier s 17A requires the Court to be satisfied that there is no other possible way of properly dealing with the offender short of full-time imprisonment. Sadly, I am of that view in this case given the offending that I have described and some of the matters that I have traversed in these comments.
17. Stand up will you please, Mr Legallant. I have determined to deal with the matters by way of an aggregate sentence which is a sentencing option that is available in federal matters because of relevant provisions. What it means is that in relation to both of the counts I am going to announce an indicative sentence which has inherent in it, the calculation of the 15% utilitarian discount. I am then going to announce an aggregate sentence which is the effective sentence that you will serve.
18. On count 1, the appropriate starting point sentence in all the circumstances before discount would have been three years and the indicative sentence is two years and six months. In relation to count 2, given that it is earlier in time and over a more contracted period but still very serious, the starting point sentence before discount ought to have been two and half years and the indicative sentence is two years and six weeks. The aggregate sentence that is imposed pursuant to s 19AB(1) of the Cth Crimes Act is an aggregate sentence of three years and six months to date from today, 17 April 2019 and expiring on 16 October 2022. There is a non‑parole of two years and three months which means that the earliest date of release to parole would be 16 July 2021.
19. I have obviously had regard to notional totality in terms of partial accumulation and partial concurrence between the two indicative sentences in arriving at the aggregate sentence.
20. That concludes the remarks.
21. I will make the forfeiture order by consent and sign it now. I am just going to return the images and summaries I have noted that the image samples, should be retained by the Commonwealth DPP for provision only either to the District Court, the Supreme Court or Court of Criminal Appeal..

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