R v Minahan [2014] ACTSC 168

A Good Behaviour Order be imposed for a period of 2 years with conditions.

CRIMINAL LAW - sentence - using a carriage service to access child pornography material - offender reported himself to police - Child Exploitation Tracking System - offender disabled

Crimes Act 1914 (Cth) s 23ZD

Commonwealth Director of Public Prosecutions (Crown)

1. Luke, Minehan, on 14 March this year you entered pleas of guilty in the Magistrates Court to two charges. The first (CC2014/698) is a charge that between the 7 January and the 16 January 2013 you used a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code 1995 (Cth), an offence which carries a maximum penalty of 15 years' imprisonment. The second charge (CC2014/699) is that between the 19 July 2013 and the 26 October 2013 you used a carriage service to access child pornography material which is contrary to the same provision of the Criminal Code 1995 (Cth) and carries the same penalty.

2. The circumstances surrounding these offences coming to light are very unusual. On the 15 October 2013 you attended Woden Police Station and told police that you had been accessing child pornography material heavily in the past week and gave details about how you were accessing that material through your personal computer. You told the police that you had not saved any of the material but you had been viewing it and that you were worried that you could not rule out offending against children.

3. As a result of those revelations, police obtained a search warrant and on 25 October 2013 searched your premises at Watson. They located and seized two computers, being a black Toshiba laptop computer and a MacBook laptop computer. The two charges, to which you have pleaded guilty, relate to images found on those computers respectively.

4. On analysis of the Toshiba laptop, it was ascertained that you accessed child pornography material between 7 January and 16 January 2013. You accessed 11 web sites, each containing child pornography material. The material you accessed was classified according to the Child Exploitation Tracking System as seven images of Category 1, one image at Category 2, one image at Category 3 and three images at Category 4. An examination of that computer also revealed searches that you had entered into various search engines. Whilst some of those searches were clearly designed to locate child pornography material, others were apparently directed towards accessing sites which may provide you with some assistance in understanding why you were doing what you were doing and addressing that.

5. Analysis of the MacBook laptop computer revealed that you accessed child pornography between 19 July 2013 and 26 October 2013. You accessed 48 web sites each containing child pornography material. The material was classified according to the Child Exploitation Tracking System as nine images at Category 1, seven images at Category 2, eight images at Category three, 23 images at Category four, and one image at Category 5. The web sites that you accessed and the searches you entered all indicate that you were looking for child pornography.

6. The Statement of Facts which was tendered acknowledges that prior to you attending Woden Police Station and confessing what you had done, police had no reason to suspect you of committing any offences. I note that even after you attended Woden Police Station you could, if you wished, have frustrated any prospect of being charged with these offences by the simple expedient of removing both of the laptops from your home. It speaks of your genuine remorse and desire to change not only that you made your initial confession to police but over the next 10 days you took no action to frustrate police investigations.

7. You have a short prior Criminal History, mainly for traffic offences, which I will ignore for present purposes.

8. The Pre-Sentence Report prepared for the sentence hearing records that you are 26 years old and that during your formal education you had learning difficulties requiring the assistance of a special needs class and extra tutoring. You were subjected to intense bullying which escalated to physical abuse. Since 2009 you have been employed full time in the Commonwealth Public Service but you are currently suspended from duties pending an investigation of, as I understand it, these offences. You have been actively involved in the community with the New South Wales Rural Fire Service for the past nine years with your father. You reportedly told the author of the Report that you began accessing pornography web sites as a distraction from stressors that you were experiencing in your work and personal life.

9. Since January of this year you have apparently attended weekly appointments with a psychologist and monthly appointments with a psychiatrist to address your mental health issues. Your treating psychologist confirmed your attendance and positive engagement and progress with treatment.

10. The Report noted that you have a number of protective factors, including stable accommodation, involvement in pro-social community activities, parental support and engagement with treatment and mental health professionals. The author of the Report assessed you as being at low to moderate risk of general re-offending.

11. I have been greatly assisted by two reports from clinical psychologists provided at the sentence hearing. The first is a report by Miriam Wyzenbeek, dated 2 May 2014. The report speaks of perinatal complications arising from a traumatic birth which have impacted on your health, learning ability, ability to socialise and relate to others, your mental health and neurological development. You experienced delay in achieving developmental milestones, associated with speech and motor movement. You were diagnosed with hypotonia when you were around 10 months old and commenced a rigorous rehabilitation program involving speech therapists, occupational therapists, and physiotherapists until you were around 8 years old. As a result of the condition, you continue to experience a lack of coordination. You are unable to master many sporting abilities. You experience fatigue and you have a low frustration threshold resulting in you becoming easily irritated. You also experienced learning difficulties and problems coping with common demands of life, including a range of daily skills.

12. You have complex issues surrounding sexuality. You were sexually abused as a child at boarding school and there are aspects of sexual orientation you feel your parents do not approve of. I take into account but will not repeat here those aspects of the report dealing with your sexuality.

13. The report states that the core features of your mental health concerns appear to be around anxiety, ruminative thinking, impulsivity, dysregulated mood and uncontrollable obsessions and compulsions. Secondary to this you experience negative coping strategies encompassing depressive symptoms of intense low mood, suicidal thoughts, self-harming behaviours and guilt.

14. Ms Wyzenbeek assesses you as posing a high risk of sexual offending, generally confined to offending of the type that brings you before the court today but notes that that is likely amenable to intervention. Ms Wyzenbeek expresses the view that your risk of sexual reoffending is likely to be more acute under conditions of stress, emotional collapse and sexual preoccupation. She believes that this risk can likely be managed through appropriate intervention. She also expresses the opinion that you need to engage in ongoing treatment, which would be best managed in the community.

15. The second report to which I referred was provided by Ms Rima Nasr and is dated 24 June 2014. It provides details of your attendance for treatment between January and June this year. The report notes that you present as a complex man with several needs that to date have been appropriately managed in treatment with the support of your family. It notes that you have demonstrated ongoing motivation for change with an ability to challenge yourself interpersonally, socially and psychologically. You have also demonstrated proactive and helpful coping skills in managing personal stressors, such as communicating with your employer about facilitating and implementing risk management strategies in the workplace and, more recently, beginning to communicate more openly and honestly with family members about the challenges you face. It is clear that you have fully cooperated in the treatment which has been offered to you, evidencing a true desire to change. I note that you have been placed on the waiting list for the Group Sex Offender Program offered by Ms Nasr, but in the interim you continue to accept treatment from her appropriately. You have, apparently, improved your insight into your offending behaviour and expressed, seemingly, genuine expressions of remorse and victim empathy.

16. I take into account and give great weight to the letter from your parents dated 21 June 2014, which speaks of your history and your development and your family's ongoing support.

17. The nature of this offending usually calls for the imposition of a term of imprisonment. The evil of child pornography requires courts to do what they can to remove any incentive for people to engage in its production or distribution. As such, courts are obliged to impose sentences designed to deter offenders from engaging in either the production or distribution of this material, including its reception. The urgent need to deter such offenders will usually warrant a term of imprisonment, even for offences of simple possession of child pornography material.

18. In the present case I feel justified in not adopting this course. I note that the number of images that you accessed were quite small comparatively. I also take into account that you are entitled to very considerable leniency based upon your voluntary revelation of this offending in circumstances where it would not otherwise have come to the attention of the authorities.

19. I am satisfied your actions were indicative of a desire to change and were part of a process of bringing about that change. That process has continued with you accepting appropriate treatment and becoming more open with your family and others about your issues.

20. I am satisfied that you have good prospects for rehabilitation, such that the sentences I impose do not need a strong element of personal deterrence. Your intellectual deficits and mental health issues means that the requirements of general deterrence should be appropriately moderated.

21. In my opinion, the appropriate course is to impose convictions and also recognisance orders.

22. On the first charge alleging an offence between the 7 and 16 January last year (CC2014/698), I record a conviction and without passing sentence I order that you be released upon your giving security yourself in the sum of $500.00 that you will be of good behaviour for two years. It will be a condition of that order that you will, during that period of two years, or such lesser period deemed appropriate by your supervising officer, accept the supervision of ACT Adult Corrections or its delegate and obey all reasonable directions of such persons, including directions to participate in assessments, counselling or treatment. It is a further condition of that order that you provide your probation officer with authority to speak to and receive information from those providing you with medical, psychological, or psychiatric treatment. I recommend that you be directed to continue in your treatment with Rima Nasr. I further recommend that your probation officer convene a meeting or meetings as required from time to time with those treating you, and with your parents, to determine your requirements and to formulate appropriate directions for you.

23. On the second charge (CC2014/699) I record a conviction and without passing sentence I order that you be released on the same terms as I have just imposed with respect to the first charge.

24. I make a forfeiture order pursuant to section 23ZD of the Crimes Act 1914 (Cth). The order is made in respect of a MacBook laptop and a Toshiba laptop which were seized by members of the Australian Federal Police during the execution of search warrants at Unit 51, 20 Federal Highway, Watson on 25 and 29 October 2013.

25. I will also say something about your current employment. The material before me suggests that the outcome of these proceedings and anything that I may have to say may have some influence in determining whether you retain your current employment. It is not for me, of course, to speak on behalf of your employer or to suggest what your employer should do. I will, however, say that I believe that it is in the best interests, not only of yourself, but also of the broader community that you maintain employment. It is clear to me from the psychologists' reports that your rehabilitation will be greatly enhanced by you remaining in employment. This will benefit you and it will also benefit the community. The evidence before me establishes that your conduct does not arise from an inherent anti-social personality and I am satisfied that you have good prospects for rehabilitation, particularly if you maintain your employment.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.