R v MB [2014] ACTSC 399

Crimes Act 1914 (Cth) ss 16A, 20, 23ZD

Fowler v Gualberto Jnr [2006] ACTSC 106

Minehan v R [2010] NSWCCA 140

R v Cooper [2012] ACTCA 9

R v Forbes [2014] ACTSC 91

R v Oliver & Ors [2002] EWCA Crim 2766

R v Lovi [2012] QCA 24

R v Minahan [2014] ACTSC 168

R v Walsh (1993) 69 A Crim R 579

R v Smith [2004] QCA 417

1. On 17 September 2014 the offender was found guilty by a jury of three charges of using a carriage service to access child pornography material contrary to s 474.19(1)(a) of the Criminal Code Act 1995 (Cth). The offences occurred on 7 November 2012, 3 December 2012 and 20 December 2012. Each offence carries a maximum available penalty of 15 years' imprisonment.

2. On 7 November 2012 the offender logged onto his notebook computer and accessed a free photo posting website. At about 11.09pm he typed the search term "boys" in the nudity section of the website. He thereby accessed pages containing approximately 25 child pornography images. The images depicted approximately ten different boys posing in a sexually suggestive way. The images were categorised on the Child Exploitation Tracking System (CETS) scale as 1.

3. On 3 December 2012 the offender logged onto his notebook computer. He accessed google.com.au, a search engine website. At about 11.23pm he accessed images of young men and boys without their shirts. At about 11.35pm he typed the search term "boys no undies" in the images section of the website. He thereby accessed pages containing approximately 15 child pornography images. The images depicted approximately ten different boys posing in sexually suggestive ways. The images are categorised as CETS 1.

4. The third offence occurred on 20 December 2012. The offender logged onto his notebook computer and accessed google.com.au. At about 11.47pm he typed the search term "boys first time" in the images section of the website. He thereby accessed pages containing approximately 234 child pornography images of boys. These images ranged from CETS 1 to CETS 4. Forty-eight of the 234 images were CETS 1, 41 were CETS 2, and 30 were CETS 3. The remaining 115 images were CETS 4; they depicted penetrative sexual activity between children or between adults and children.

5. The three occasions that were the subject of the charges were not the first occasions that the offender had accessed child pornography on the internet. He had done so on two prior occasions; 7 August 2012 and 6-7 November 2012. I am not sentencing him for that earlier conduct. However, it does indicate that the three offences were not entirely isolated. The two earlier occasions also provide perspective on the offender's statement, made on at least one occasion, that when he accessed child pornography on the occasions charged, he did so "recklessly" as opposed to deliberately.

6. On 9 February 2012, police executed a search warrant on the offender's premises and seized the notebook computer in question. Later analysis located the child pornography images in the internet cache of the user [MB], who was the offender.

8. The matters went to trial and the offender is entitled to no discount for guilty pleas.

9. The offender is a 40 year old single man with no prior criminal convictions. He was an Australian Federal Police (AFP) officer at the time that the offences were committed but he has since been suspended.

10. The offender is the eldest of two children. He had a happy upbringing. He completed Year 12. He went on to complete a Bachelor of Arts Degree. Later, he completed a Graduate Diploma in Conflict Resolution. He is now studying for a Master of Arts Degree.

11. The offender has been residing with his parents in Melbourne since these allegations came to light. They are relatively elderly and his mother suffers from poor health. The offender has assisted to care for her. He has not been working. He is close to his family. He enjoys few close or intimate relationships with others and has few friends. He has had girlfriends, although the relationships were not lengthy or particularly involved. He is described as a socially anxious person; introverted and quite timid.

12. The offender embarked on a career with the police in 1999. For some time he was an intelligence officer with the New South Wales Police Service. In 2004, after a falling out, he worked as a civilian analyst. He left the Service in about 2005. At that stage, he experienced what he has described as a nervous breakdown, for which he received treatment. In about 2006 he commenced working for the AFP.

13. The offender complains about the treatment that he received within the police services. He says that he experienced traumas, particularly during his period with the New South Wales Police Service, that have resulted in ongoing post-traumatic stress symptoms. He suffers from depression and anxiety. He has been on anti-depressants since earlier this year. He has been receiving counselling from a psychologist, Ms Steinhoff. He will continue to undertake counselling.

14. After coming to the ACT, the offender volunteered as a respite carer for parents who had difficult children. He worked as a respite carer for Barnardos, either in New South Wales or the ACT. At the time of the offences, he was working as a respite carer for Marymead in the ACT.

15. Initially, the offender maintained that he had accessed at least some of the images for the purpose of compiling behavioural charts in relation to children and/or to research into the behavioural problems of the children for whom he was providing respite care. More recently, he told the Victorian Correctional Services, who prepared the presentence report on behalf of the ACT Corrective Services, that he had accessed child pornography images "recklessly".

16. There is no doubt in my mind that the images were not accessed "recklessly". It was deliberate. There was a deliberate entry of search terms designed to produce the material that was in fact produced. Moreover, the three occasions that were the subject of the charges, were not the first occasions when the offender had accessed such material.

17. When commenting on the offender's assertion of "reckless conduct", the author of the presentence report observed that the offender appears to be in the denial stage in relation to his conduct. It is an observation with which I agree. However, it may be a little unfair to characterise it in that way because the offender has gained some insight into his offending conduct. This was probably assisted by the counselling with Ms Steinhoff. Ms Steinhoff says that she has been working with him on what she describes as "acceptance commitment therapy". The offender denies a homosexual orientation and denies an orientation towards children. Both assertions require further investigation and unpacking.

18. Counsel for the offender pointed to the offender's prior good character. Attention was drawn to the fact that all reporters said that there was a low risk of reoffending. Indeed, Ms Steinhoff was so bold as to assert that there was no risk of reoffending. I do not feel entirely comfortable with that assertion. However, there is no dispute that the offender is at low risk of reoffending. One of the reasons is that he enjoys good family support. Another reason is that he is gradually gaining insight into his conduct. Continued counselling will assist him to gain greater insight and thereby avoid future offending behaviour.

19. Counsel for the offender, properly submitted that each charge involved a small number of images. In the first two charges, the seriousness of the images was relatively low grade; they were CETS 1. In relation to the third charge, the images were more serious, both in terms of their quantity and in terms of their content. Half the images were classified as CETS 4. It was also pointed out on behalf of the offender that the viewing time was of limited duration. Further, one can infer that the viewing was for personal gratification. There is no evidence that there was any intention to share or distribute, let alone make any profit through accessing the images.

20. All of these matters (with qualifications in relation to count 3, as to the quantity and content of the images) establish that the offences are of low objective seriousness.

21. The Court is required to take into account the matters set out in s 16A of the Crimes Act 1914 (Cth). Section 16A(1) requires the Court to impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) of the Crimes Act provides that, in addition to any other matters, the Court must take into account such of the listed matters as are relevant and known to the Court. I will not enumerate all of those matters. I have had regard to them when sentencing the offender and I have already discussed a number of the matters.

22. One relevant consideration is the degree of cooperation with law enforcement authorities. In this case, there was no particular cooperation that merits particular leniency. Section 16A(2) of the Crimes Act also refers to personal deterrence. In this case I believe that the criminal justice process has had a deterrent effect on the offender. He is obviously very ashamed, embarrassed and humiliated by the revelations. I doubt that any sentence will add to the personal deterrence which he has already experienced. Adequate punishment is a very relevant sentencing consideration, as is the prospect of rehabilitation, to which I have already referred.

23. There are a number of cases which provide assistance in relation to the proper approach to sentencing for offences such as this General deterrence is a particularly important sentencing consideration in relation to offences of child pornography, largely because such offences are very difficult to detect. They are insidious offences that threaten the most vulnerable members of our society and, indeed, our global society (because many children depicted in child pornography images are not Australian children). See R v Cooper [2012] ACTCA 9 and R v Forbes [2014] ACTSC 91 per Penfold J at [38].

24. It is often thought that offences such as these are less serious because they involve only one person accessing material without sharing it. It must be remembered that those who possess and access pornography provide the market in which others produce the pornography and thereby directly abuse the child victims. Every case of possessing or accessing child pornography has a victim, and in this case there were a number of victims. In relation to the third charge, there were approximately 30 different boys.

25. In Cooper the Court of Appeal adopted 13 factors that were outlined in Minehan v R [2010] NSWCCA 140 as relevant to an assessment of the seriousness of an offence of this type. I will refer to some factors that are of particular relevance in this case. These include the use of actual children in the creation of material, the nature and content of the material, the extent of cruelty or physical harm (there was no specific cruelty or physical harm identified in this case) and the number of images. I have referred to the fact that the offender's conduct involved accessing images for his own purposes, not for sharing or disseminating. The boy victims were mainly in the range of ten to 15 years of age.

26. The Crown referred me to what could be described as a seminal decision in this area; the case of R v Oliver [2002] EWCA Crim 2766. In that case the Court of Appeal gave guidelines for sentencing those convicted of child pornography offences. The Court indicated that, in cases at the lowest end of the spectrum of objective seriousness, a fine may be the appropriate outcome. For more serious offences, more serious penalties are necessary. The maximum penalty available in Oliver was ten years' imprisonment. Oliver is a case of some interest but it does not constitute a guideline decision in this jurisdiction.

27. It is more relevant to look at sentences that have been imposed within Australia for breaches of s 474.19(1)(a) of the Criminal Code. I have looked at the sentencing statistics available through the Commonwealth Sentencing Database. They indicate that, for offenders facing multiple offences of this type who have no prior criminal history, the most common form of sentence is a suspended sentence. Sixty-seven percent of offenders received such a sentence, albeit that the numbers were possibly not statistically significant.

28. The decision of the Queensland Court of Appeal in R v Lovi [2012] QCA 24 is useful. It summarises the outcomes in a number of cases, mostly Queensland cases, involving offences of relatively low objective seriousness. The outcomes were consistent with the sentencing statistics to which I have referred. For offences of low objective seriousness (where the number of images is low and the content of the images is less serious), a common sentence is one of suspended imprisonment. That was the outcome in Lovi itself_._ Admittedly, for a number of the matters, the maximum available penalty was ten years' imprisonment as opposed to 15 years' imprisonment. Where the maximum available penalty was 15 years' imprisonment, the Court imposed a sentence of 12 months' imprisonment concurrent with other sentences, and ordered that the offender be released on a recognisance after the offender had served two months' imprisonment. The recognisance lasted two years.

29. In this case, it is my view that each of the first two charges should result in a good behaviour order. The offences were at the bottom end in terms of objective seriousness.

30. There is a recent decision of Burns J of this Court in R v Minahan [2014] ACTSC 168. His Honour imposed a two year good behaviour order. The circumstances were quite unusual in that the offender had attended the police station expressing concern that he had accessed child pornography material. He stated that he could not rule out further offending against children and, in effect sought assistance. Although it was an unusual case, it is indicative of the appropriate penalty for cases at the lowest end of objective seriousness.

31. The third offence does not fall into that category. The number of images was 234, but the number of victims was approximately 30. Further, about half the images were classified as CETS 4. For this offence, an appropriate sentence would be 12 months and I would suspend that sentence for a period of two years. I would have suspended it for a longer period, but the offences themselves occurred two years ago. The offender has been on bail for that period and there has been no concern about his conduct on bail.

32. There was some uncertainty as to whether s 20(1) of the Crimes Act enabled the imposition of a term of recognisance that would exceed the period of imprisonment. Counsel for the defendant drew my attention to the decisions of R v Walsh (1993) 69 A Crim R 579, 580-581; R v Smith [2004] QCA 417 at [4]- [9] and Fowler v Gualberto Jnr [2006] ACTSC 106 per Gray J at [12]-[16]. These decisions establish that a Court can impose a recognisance release order that exceeds the period of imprisonment.

33. In relation to each of the first two matters; originally known as charges 7 and 8, the offender is convicted. Pursuant to s 20(1)(a) of the Crimes Act, by order I release him without passing sentence, upon him giving security, without surety, in the sum of $250 in each case, to comply with the following conditions:

(a) Be of good behaviour for a period of two years from today;

(b) Report to ACT Corrective Services by 4 pm today and thereafter follow their instructions to the intent that he is supervised by the Victorian authorities on behalf of ACT Corrective Services for as long as those authorities deem appropriate, not to exceed two years, and under their supervision he continue to receive such counselling and other treatment as they deem appropriate;

(c) If assessed as suitable for a sex offenders program and referred to that program, the offender is to undertake it.

34. Pursuant to s 23ZD of the Crimes Act I make a forfeiture order in relation to the Dell notebook computer that was seized by the police.

35. In relation to charge 3, pursuant to s 20(1)(b) of the Crimes Act, the offender is sentenced to imprisonment for 12 months but is to be released forthwith upon giving security in the sum of $250 on a recognisance release order for a period of two years. The recognisance release order is subject to the same conditions as apply in relation to the other two charges.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

1. Remove file number SCC 97 of 2014 from cover page.

Associate to her Honour Chief Justice McCallum: L Ireland