R v Logan

District Court of NSW|2020-02-26

Counts 3 and 4 - Possess and Produce child abuse material

In R v Hutchinson [2018] NSWCCA 152, a list of factors relevant to the assessment of objective seriousness were set out.

i. Whether actual children were used in the creation of the material.

Here, the Crown says that the material produced and in the possession of the offender included material depicting actual children. She submitted this factor increases the objective seriousness.
Mr Fraser said that whilst there were a few cartoon images, the majority of the material involved actual children as the subject of the material. However, he submitted that this is commonly the case, and should not therefore be treated as aggravating the offending. Notwithstanding that submission, I take into account that actual children were used in the creation of the material.

ii. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

Ms Hughes submitted that with respect to the material produced by the offender (sequence 17), the age of the children involved is between 9 and 13 years. The children are not depicted performing any type of sexual activity and were apparently unaware of the recording.
In relation to the material possessed by the offender (sequence 12), the Crown conceded that the material included 'cartoon' and 'animated' material as well as images of children in their underwear that would fall toward the lower end of seriousness. However, she submitted that the material also included graphic and violent videos and images, including videos of infants being sexually assaulted and screaming in pain. This material was described by police as extremely confronting and would fall within the uppermost category of seriousness. The ages of the children depicted in this material range from 0-13 years.
On this point, Mr Fraser submitted that the age of the children varied. He accepted that images involving younger children would point to more serious offending. He also accepted that the material includes images and videos where the children involved were involved in varying acts of penetrative intercourse, and that images of that type are more serious than others involving sexual posing only.

iii. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

Ms Hughes noted that some of the material depicts infants being sexually assaulted by adult males by way of penile/vaginal intercourse, and that it was very likely that these assaults caused physical harm to those children.
Mr Fraser said that in some cases, the child abuse material has been classified according to certain categories of imagery, using the COPINE/CETS scales. [1] Those scales categorise images from erotic posing (category 1) to images of penetrative acts involving adults and children (category 4) and images of sadism and bestiality (category 5). A sixth category is reserved for cartoon images. Mr Fraser submitted that the facts in the present case do not attempt to categorise the imagery. However, the descriptions (in exhibit 1) make clear that there are a number of images which would fall into category 4, and therefore represent serious examples of child abuse material. There were not any images/videos of the category 5 type. He said that whilst the penetrative acts as described involve a degree of cruelty and might be expected to have caused some physical harm, there is no clear evidence of the extent of any such harm. That being so, he submitted that only limited weight could be placed on this factor. I find that some of the material demonstrated cruelty and harm to children.

iv. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.

The Crown said that with respect to sequence 17, there are videos produced showing 3 different young girls. Sequence 12 involves the possession of 35 videos and 119 images of child abuse material. She acknowledged that it is not uncommon in such matters for offenders to be in possession of tens or hundreds of thousands of photographs and images. She submitted that the quantity of material in this case would fall below the middle range.
Mr Fraser said that the number of images and videos were not insignificant, but relative to others seen by the court, they cannot be regarded as unusually excessive. He further submitted that whilst it is apparent that there is some doubling up, it remains that there are a number of separate children involved in the various images. This must be considered relative to other cases involving significantly more images, and presumably significantly more children. The submissions of the parties on this issue did not diverge.

v. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination.

The parties are agreed that there is no suggestion of the offender having sold or disseminated the material. Neither is there evidence of his intention to do so had he not been detected.

vi. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

This is not applicable.

vii. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

It is agreed that there is no suggestion of material or financial benefit.

viii. The proximity of the offender's activities to those responsible for bringing the material into existence.

The Crown said that with respect to sequence 17, the offender produced the material which increases the objective seriousness. With respect to sequence 12, there is no evidence that the offender was involved in the production of the material.
Mr Fraser submitted that there is no evidence that the offender was any more than a person who accessed and viewed the images stored on his personal electronic devices. Whilst the offender accessed and possessed child abuse material, with exception of the separately charged production offences, the evidence suggests he was completely remote from its production. I accept this submission.

ix. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

The Crown said that with respect to sequence 17, there was a significant degree of planning. The offender set up a camera in his bathroom in order to capture young girls showering. I find that there was some degree of planning but it was largely unsophisticated.
Mr Fraser said that there is no evidence of the offender utilising sophisticated means such as encryption devices or the dark web. The images were found stored on regular hard drives and USB drives. Neither was it suggested that it was stored in an unusually sophisticated manner.

x. Whether the offender acted alone or in a collaborative network of like-minded persons.

There is no evidence that the offender acted in a collaborative network of like-minded persons. The evidence discloses that the offender acted alone.

xi. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

Ms Hughes submitted that the offender had two daughters, who at the time of the offending were living with him full-time, and that there was a real risk that his daughters could have been exposed to this material.
Mr Fraser submitted that there was some risk of the offender's children inadvertently accessing the images. However, the available evidence does not point to a high risk of that eventuating. I agree with this submission.

xii. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

The Crown submitted that the offender had his two daughters living with him at the time of the offending, and often had his daughter's friends visiting the home. She said that there was a real risk that a vulnerable child (such as the victim in this matter) could have been exposed to the material. Mr Fraser said there was no evidence of this factor. In my opinion, whilst there may have been some risk of exposure, the facts do not disclose where the hard drives were located in the premises, and I make no finding in this regard.

xiii. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act bearing upon the objective seriousness of the offence.

Ms Hughes conceded that the offender has no history of similar offending.
The Crown submitted that count 4 (sequence 17) is aggravated given the offender was in a position of trust when the young girls showered in his home (s 21A(2)(k)). I note that this is not an element of the section 91H(2) offences. She further submitted that the children depicted in the images and videos for counts 3 (sequence 12) and 4 (sequence 17) were vulnerable by virtual of their age (s 21A(2)(l)).
The Crown submitted that the offending constituting both sequences 12 and 17 would fall somewhere in the middle range of objective seriousness.
Mr Fraser submitted that having regard to the factors above, the court should find that the offender's possession of child abuse material falls below the middle of the range of objective seriousness for offences of its type.
I take into account all submissions made by the offender and the Crown. In many respects their submissions overlapped. In my opinion, the objective seriousness of the possess child abuse material falls at the mid-range, primarily because of the graphic and severe nature of some of the images. As to the objective seriousness of the produce child abuse material, I find that it falls between below the mid-range, primarily because it was unsophisticated and was not disseminated and because it cannot be said that the offender in any way "lured" the girls into the shower, which would have significantly increased the objective gravity.

Plea of Guilty

The offender pleaded guilty at the earliest opportunity and he is entitled to a discount of 25% for the utilitarian value of his early plea, which is agreed between the parties.

General Deterrence and Denunciation

General deterrence clearly has a significant role to play, with respect to both the section 66C(4) and section 91H(2) offences. Indeed, it is of some paramount importance. So significant is this offending, taking into account that it involves children, that it requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. The sentence that I will impose will reflect those objectives.

Remorse

Mr Fraser submitted that the offender's remorse is represented by his early plea of guilty, his letter to the court and his comments to Mr Borenstein. Both parties acknowledge that the offender has expressed guilt, remorse and some insight with respect to the section 66C(4) offences.
The Crown, however, disputes that there is evidence of remorse and insight with respect to the section 91H(2) offences. She submitted that the offender does not acknowledge the harm caused by his actions in producing and possessing child abuse material and has not expressed insight into the effect that the offending has on the community. It is true that the offender does not specifically mention those words, but I am not so certain that he does not refer to them, at least obliquely. In fact, the offender's letter expresses regret for all of his actions to the victim (implicitly including sequence 12), and he speaks of his general regret for the "heinous" offences he committed and the remorse he feels "to all those affected" by his offending behaviour. I am prepared to make a finding, on the balance of probabilities, that the offender has expressed some remorse, that he has limited insight into his offending but that he is eager and motivated to address his offending behaviour.

Personal Deterrence and Prospects of Rehabilitation

As to specific deterrence and his prospects of rehabilitation, the offender's lack of a prior criminal history, and the evidence of his lack of understanding about why his offended, poses challenges for his prospects of rehabilitation. However, in my opinion, should he be offered intensive support upon his release, taking into account the protective factors of his daughters and his network of support of family and friends, he is likely to have some reasonable prospects of rehabilitation, notwithstanding my findings about insight and remorse above. I cannot accept, on the available evidence, Mr Fraser's submission that the offender has good prospects, and I cannot find that he is unlikely to re-offend, notwithstanding Mr Borenstein's risk assessment contained in his report.

Prior Criminal History

Whilst the offender has no prior criminal history for all intents and purposes, it was acknowledged by Mr Fraser that this factor would have reduced weight in the context of this offending.

Totality

A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [2]
This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.
It is not disputed by the Crown that in this case there ought to be some measure of concurrency, in particular between the sequence 9 and 10 offences. Mr Fraser said that that offending occurred over a relatively short period and constituted a single short episode of criminality. He submitted that the offences were not the most serious of their type and were committed as a continuing course of conduct, and thus that the degree of accumulation should be partial and limited. In my opinion, there ought to be some degree of concurrency between sequence 9 and 10, but less so with respect to the child abuse material offences.

Standard Non Parole Period

Given the terms of s54B(3) of the Sentencing Act (NSW), I indicate that my reasons for deviating from the standard non-parole period are that the offending was at the mid-range of objective seriousness and the existence of special circumstances.

Special Circumstances

The present offending is serious and the offender faces a custodial penalty. So much is conceded. I must, however, give consideration to the appropriate non-parole period to be imposed. It was submitted that are a number of factors which would permit a finding of special circumstances so as to permit a deviation in the ratio of the non-parole period. These include the fact that this will be the offender's first time in custody, that he was assessed by a psychologist as having a low-risk of offending, his prospects of rehabilitation and his need for ongoing and extended supervision to ensure that he engages with treatment on release. The Crown agrees with those submissions. I accept that special circumstances exist in this matter, and I make a finding of special circumstances, and set the ratio at approximately 61%.

Threshold

Having considered all the possible alternatives, I am satisfied that the section 5 threshold the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Form 1 Matters

As I indicated earlier, I have been asked to take two offences into account on a Form 1 basis when sentencing the offender for two sequences, the details of which I have already set out above. This has the effect of increasing the sentence that would otherwise be imposed for the sequence 9 and 12 offences. [3] The increase operates to recognise the need for personal deterrence and the community's entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. [4] I have taken these offences into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Sentence

I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given the offender's need for counselling and ongoing rehabilitation.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the factors referred to in s21A of the Sentencing Act. I have kept in mind the legislative guideposts: the maximum penalty for the s66C(4) offences of 12 years imprisonment and the statutory non-parole period of 5 years, and the maximum penalty of 10 years imprisonment for the s91H(2) offences. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.
As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, and after allowing for a 25% discount for the offender's plea of guilty, I impose an aggregate sentence of imprisonment for 6 years. I will backdate the sentence for time spent in custody from 13 November 2018, or 507 days.
As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows: 1. For the sequence 9 offence (taking into account sequence 11 on the Form 1), I would have imposed a sentence of 4 years, less a 25% discount bringing the sentence to 3 years and I would have imposed a non-parole period of 1 year 7 months. 2. For the sequence 10 offence, I would have imposed a sentence of 4 years, less a 25% discount bringing the sentence to 3 years and I would have imposed a non-parole period of 1 year 7 months. 3. For the sequence 12 offence (taking into account sequence 16 on the Form 1), I would have imposed a sentence of 3 years, less a 25% discount bringing the sentence to 2 years and 3 months. 4. For the sequence 17 offence I would have imposed a sentence of 2 years 6 months, less a 25% discount bringing the sentence to 1 year and 10 months.

Orders

Mr Logan, please stand.
You are convicted of the offences of: 1. Sexual intercourse with a child greater than the age of 14 years but less than the age of 16 years, under authority, contrary to section 66C(4) of the Crimes Act 1900; 2. Sexual intercourse with a child greater than the age of 14 years but less than the age of 16 years, under authority, contrary to section 66C(4) of the Crimes Act 1900; 3. Possession of child abuse material, contrary to section 91H(2) of the Crimes Act 1900; and 4. Produce child abuse material, contrary to section 91H(2) of the Crimes Act 1900.
You are sentenced to an aggregate term of imprisonment for 6 years. The commencement date is 13 November 2018.
I impose a non-parole period of 3 years 8 months, which will expire on 12 July 2022 when you will be eligible for release on parole.
Your head sentence will expire on 12 November 2024.
Mr Logan, do you understand the orders that I have made?

Endnotes

COPINE scale (Combating Paedophile Information Networks in Europe) / Australian National Victim Image Library (ANVIL) / Child Exploitation Tracking System (CETS).
Mill v The Queen (1988) 166 CLR 59 at [63].
Abbas & Ors v R [2013] NSWCCA 115 at [22].
Watts v R [2007] NSWCCA 153 at [4]; Attorney General's Application (No 1) (2002) 56 NSWLR 146 at [39]-[42]. 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: 05 November 2020

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