R v Major [2016] ACTSC 161

Crimes Act 1900 (ACT) s 65

Crimes Act 1914 (Cth) ss 3AL, 3E, 23ZD

R v Booth [2009] NSWCCA 89

R v De Leeuw [2015] NSWCCA 183

R v Porte [2015] NSWCCA 174

Commonwealth Director of Public Prosecutors (Crown)

1. Christopher Major, you entered pleas of guilty in the Magistrates Court to two offences. The first is an offence of accessing child pornography material between 5 June 2014 and 21 July 2015. This is contrary to s 474.19(1) (a)(i) of the Criminal Code Act 1995 (Cth) (the Criminal Code). The maximum penalty for this offence is 15 years imprisonment and/or a fine of $153,000.

2. The second offence is one of possession of child pornography material between 5 June 2014 and 21 July 2015 contrary to s 65 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is seven years imprisonment and/or a fine of $105,000. I note that you adhered to your pleas of guilty in this Court.

3. On 20 July 2015, a s 3E search warrant and a s 3AL order, both under the Crimes Act 1914 (Cth), were granted at Canberra by a magistrate. At 6.55 am on 21 July 2015, Australian Federal Police Child Protection Operations members attended at an address in Monash where the search warrant was executed. You were present. Also present was your mother with whom you resided.

4. You were cautioned and afforded your full legal rights in accordance with Part 1C of the Crimes Act 1914 (Cth). Conversations with you were recorded. During those conversations you made the following admissions and statements:

(a) you admitted to possessing child pornography material and directed police to a HP Pavilion laptop located in the garage of the premises;

(b) you admitted the laptop belonged to you and no other person used it;

(c) you supplied police with the password associated with the HP Pavilion laptop as well as the passwords to email addresses associated with you;

(d) you said that you used peer-to-peer software on a daily basis to download and view child pornography, namely, eMule and BitTorrent; and

(e) you said that you would search for files using search terms such as "young", "PTHC", meaning pre-teen hardcore, and "PTSC", meaning pre-teen softcore.

5. You also said that you preferred to look at images or videos of girls anywhere from 13 to 18. You told police that you had been downloading child pornography for a year and would view "a couple of child pornography videos for half an hour, or something like that" each day. You admitted that you obtained sexual gratification from viewing child pornography.

6. When asked whether you were addicted to child pornography, you said, "Yeah, I think so." You estimated that there were "probably hundreds" of child pornography files on your HP Pavilion laptop. You said that you did not sort your child pornography files in any way. When a file was downloaded, you would move the file to the desktop of your laptop. You told police that you felt really guilty watching child pornography material and understood that "it is not right". You also said you were aware that the viewing and downloading of child pornography was illegal.

7. Police subsequently seized five devices from the house in Monash, including the HP laptop and a number of other devices. Due to the time required to analyse and categorise the amount of child pornography material found in the seized devices forensic analysis was ultimately confined to the HP laptop. The other devices were not subject to complete analysis.

8. Analysis commenced on 31 July 2015 and concluded on 11 January 2016. With respect to the HP laptop, forensic examination identified one user-created account named Bob. Although you told police during the recorded interview that the HP laptop was password protected, forensic examination revealed that the Bob user account was not password protected and as such any user with physical access to the laptop could access its files.

9. Police analysed and classified the child pornography images seized using the Child Exploitation Tracking System (CETS). The child pornography material giving rise to the access charge is the same material giving rise to the possession charge. The details of the material giving rise to the access and possession charges are summarised in a table which is set out in the Statement of Facts.

10. In total there were 35,674 images and videos. The vast majority of the materials on the computer were images, accounting for 35,619 of the files. Of those, again, the vast majority were at the CETS level 1 scale, with 34,724 images falling within that scale. With respect to the images, 239 were found to be in the level 2 scale, 209 were found to be in the level 3 scale, 386 were found to be in the level 4 scale and 61 were found to be in the level 5 scale. Turning to the videos, 18 were found to be in the level 1 scale, six were found to be in the level 2 scale, three were found to be in the level 3 scale, 14 were found to be in the level 4 scale, and 14 were found to be in the level 5 scale.

11. The ages of the children depicted in the child pornography material ranged from 12 months old to 15 years old. The material predominantly featured prepubescent female children. The number of child victims depicted in the material was estimated as at least 280. Some of the files constituting child pornography material contained highly descriptive titles, clearly indicating the files depicted child pornography of a graphic nature.

12. I will turn now to Count 1, the charge of accessing child pornography between 5 June 2014 and 21 July 2015. Forensic examination of the HP laptop identified 35,674 unique child pornography images and video files which had been stored on your laptop between 5 June 2014 and 21 July 2015. During the recorded interview you admitted that the sole method you employed to search for child pornography was through searching and downloading such files from eMule or BitTorrent. The child pornography files were therefore accessed by use of a carriage service. Forensic analysis also revealed that you entered numerous search terms to search the peertopeer file sharing application known as eMule for image or video files to download.

13. With respect to Count 2, the charge of possession of child pornography, between 5 June 2014 and 21 July 2015, forensic examination, as I have said, revealed 35,674 unique child pornography files stored on the HP laptop between 5 June 2014 and 21 July 2015. Of those unique child pornography files, you manually moved 24,464 files from the default folders in which eMule downloads were stored to the desktop of the account user Bob.

14. A PreSentence Report was tendered at the sentence hearing. I note that you are 34 years old and you were raised in a loving and stable environment. You continue to have a close relationship with your mother, with whom you still reside. You also continue to have a close relationship with your father, who currently resides in a care facility due to the effects of dementia.

15. You completed Year 10 at school. The author of the Report noted that you had difficulty with social interactions at school. After leaving school you commenced a career in retail and you continued employment in that field since that time. The author of the Report noted that you said that you had little or no personal friendships outside of your work and family.

16. I note that the Report indicates that there are no alcohol or drug issues that need to be addressed. The Report indicated that you are in good physical health and that you have been attending a psychologist from 27 July 2015; that is, just after these offences were discovered. You described to the author of the Report a sense of shame and disbelief regarding your offending. You accepted, I am satisfied, full responsibility.

17. The author of the Report assessed you as at low risk of general reoffending. The author considered that further assessment was required in relation to determining your risk of sexual reoffending, but you are currently considered at high risk of sexual reoffending.

18. A Report from the psychologist, Marshall O'Brien, was provided to me. He saw you on 27 July 2015 following a referral from your General Practitioner. You attended for a further seven sessions between that date and 11 November 2015, which is the date of the Report. You told Mr O'Brien that you started accessing Internet pornography at school and your usage increased over the years as you became more isolated.

19. You told him that in recent years you developed a fascination with bondage sites, and you said that you sought out sites with bondage themes and that these sites often included images of children, but you were not attracted to them. You claimed that you were not attracted to sites based on their offering of under-aged models.

20. Mr O'Brien diagnosed you as suffering from depression and anxiety, with low selfesteem and poor social skills, leading to a life of social isolation. You became addicted to pornography sites as providing a sexual outlet and your addiction escalated over time. Based upon the information you provided to Mr O'Brien he opined that you are not a paedophile. He recommended that you continue treatment for social anxiety and isolation.

21. Subsequently, Mr O'Brien was provided with a copy of your record of conversation with the police and commented on your statements recorded in the interview. Mr O'Brien noted that, whilst you admitted to police you were sexually attracted to children you also told them that you were primarily attracted to girls between the ages of 13 and 18. Mr O'Brien maintained his opinion that you do not meet the diagnostic criteria for a diagnosis of paedophilia.

22. I will digress at this point to note that Mr O'Brien was apparently not provided a copy of the Agreed Statement of Facts. If he had been provided with a copy of that document he would have been aware of the vast number of child pornography images that you had in your possession, that the ages of the children ranged from 12 months old to 15 years old and that the material predominantly featured prepubescent female children.

23. It is ultimately of little consequence to sentencing whether you meet the diagnostic criteria for a diagnosis of paedophilia, except to the extent that the decision to provide only selected material to Mr O'Brien may cast some doubt on his treatment recommendations.

24. What is important for sentencing purposes is to consider the nature of the child pornography in question, the degree of depravity revealed and the quantity of the material. The possession of child pornography is not a victimless crime. The possession of this material creates a market for the continued corruption and exploitation of children. In R v Booth [2009] NSWCCA 89, which is a decision of the New South Wales Court of Criminal Appeal in 2009, Simpson J said at [39] - [44]:

A number of previous decisions of this and other appellate courts have found that, in respect of offences of child pornography, general deterrence is, at least, a significant element of the sentencing process: R v Gent; Assheton v R [2002] WASCA 209; (2002) 132 A Crim R 237; Mouscas v R [2008] NSWCCA 181. In Assheton, indeed, general deterrence was said to be "the paramount consideration". This view was endorsed in Gent.

I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which the notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.

In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.

It is for that reason that this is a crime in respect of which general deterrence is of particular significance.

25. These principles were recently reaffirmed in R v Porte [2015] NSWCCA 174. In another recent case, R v De Leeuw [2015] NSWCCA 183, the New South Wales Court of Criminal Appeal said at [72]:

Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:

(a) unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted;

(b) the objective seriousness of the offending is ordinarily determined by reference to the following factors:

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

(ii) the number of items or images possessed;

(iii) whether the material is for the purpose of sale or further distribution;

(iv) whether the offender will profit from the offence;

(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

(vi) the length of time for which the pornographic material was possessed;

(c) general deterrence is the primary sentencing consideration for offending involving child pornography;

(d) less or limited weight is given to an offender's prior good character;

(e) offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;

(f) offending involving child pornography is difficult to detect given the anonymity provided by the Internet;

(g) the possession of child pornography material creates a market for the continued corruption and exploitation of children;

(h) 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; [and]

(i) the fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.

(Citations omitted.)

26. The vast bulk of the child pornography material which was in your possession was found to be within the CETS scale level 1. That is something which is quite routine in offences of this nature. This does not mean that the material is innocuous. This material ranges from simple nudity to suggestive sexual posing and emphasis on the genital area.

27. The sample of the material tendered at sentenced revealed material at the upper end of the seriousness under the level 1 classification. In addition, of course, you were in possession of significant numbers of images in the CETS level 2 to level 5 categories. You had lesser, but not insignificant, numbers of videos in these categories, particularly in the level 4 and 5 categories. I accept that there is no suggestion that the material was in your possession for the purposes of sale or distribution, nor is there any suggestion that you were to profit from possession of this material. This is not a mitigating circumstance; it is simply the absence of circumstances that would have made the offences more serious.

28. The number of children depicted in these images and videos was estimated to be not less than 280. I do not accept the suggestion that you came to possess this child pornography material as an unintended byproduct of an interest in adult bondage pornography. The quantity of material involved, the ages of the children depicted and the nature of the searches you undertook make that suggestion untenable.

29. The inevitable inference is that you targeted this material, and that you did so because you found it sexually stimulating. It may be that you initially sought out adult or young pubescent pornography, but I am satisfied that you have developed a sexual attraction to prepubescent females, and that was the motive for you collecting this material.

30. I take into account your pleas of guilty with respect to these charges. I accept that they were early pleas. They evidence remorse, and the plea with respect to the possession charge also had significant utilitarian value. I will reduce by approximately 25 per cent the sentences I would otherwise have imposed in order to reflect your pleas.

31. Whilst the Crown case against you was strong, it was not overwhelming. I also note that part of the reason for the strength of the Crown case was the admissions that you made to the police. You cooperated with law enforcement agencies by participating in a recorded interview with police, in which you made full and frank admissions. You also provided assistance by way of providing passwords and other information to the police.

32. Your counsel accepted, and I think rightly, that you face a term of imprisonment, but submitted that an Intensive Corrections Order would be appropriate. I find that I cannot agree with that submission. An Intensive Corrections Order involves an extension of significant leniency compared to a sentence of fulltime imprisonment. The objective seriousness of the present offence makes any such leniency inappropriate.

33. I accept that you have reasonable prospects for rehabilitation, especially if you continue treatment for depression as recommended by Mr O'Brien. The evidence does not establish any causal connection between your mental health and these offences. I will, nevertheless, consider your mental health as part of your subjective features. I also take into account and give significant weight to the evidence which was given of your improvement generally, not only in terms of your mental health but also in terms of your social functioning, since you were arrested and charged with these offences.

34. Unfortunately, your subjective circumstances cannot justify a sentence which does not adequately reflect the objective seriousness of this offending. The offences of accessing child pornography material and possessing child pornography material largely, but not entirely, overlap. Some degree of accumulation of sentences is appropriate.

35. For the offence of possession of child pornography, I record a conviction and you are sentenced to 21 months imprisonment, commencing today, 16 June 2016, and expiring on 15 March 2018. I will set a non-parole period, commencing today and expiring on 15 March 2017.

36. For the offence of accessing child pornography material, I record a conviction and you are sentenced to 22 months imprisonment, commencing on 16 March 2017, but I order that you be released after serving six months upon entering into a recognisance in the sum of $500 to be of Good Behaviour for a period of one year and seven months. It will be a condition of that recognisance that you are to accept the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service, particularly concerning participation in counselling and/or programs for mental health issues and sex offending.

37. I also make the forfeiture order under s 23ZD of the Crimes Act 1914 (Cth) which was sought by the Crown and which was not opposed by your counsel.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns