R v Philpot [2015] ACTSC 96

CRIMINAL LAW - Sentence - use carriage service to solicit child pornography material - school principal solicits child pornography from young person - early plea of guilty - sentencing purposes - general deterrence and denunciation - discount for guilty plea

Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 21B

Criminal Code Act 1995 (Cth) ss 474.19, 474.26, 474.27

DPP (Cth) v Walls [2014] VSCA 323

DPP v Manser (Unreported, County Court of Victoria, Howard J, 23 January 2014),

Minehan v The Queen [2010] NSWCCA 140

R v Booth [2009] NSWCCA 89

R v Gent [2005] NSWCCA 370; [2005] 162 A Crim R 29

R v Heaney (Unreported, District Court of New South Wales, Wells J, 11 July 2014)

R v Sananikone (Unreported, District Court of New South Wales, Flannery J, 23 May 2014)

R v Trevor TED (a pseudonym) [2014] VCC 1794

Commonwealth Director of Public Prosecutions (Crown)

1. The offender adheres to a plea of guilty entered in the Magistrates Court on 27 November 2014 to the offence that, on 24 September 2012, he used a carriage service to solicit child pornography material. This offence, contrary to s 474.19(1)(a)(iv) of the Criminal Code Act 1995 (Cth), carries a maximum available penalty of 15 years' imprisonment.

2. When the initial charge was changed, the offender entered the plea in the Magistrates Court. The plea to the altered charge showed a substantial willingness to assist the course of justice. The sentence that I would otherwise have imposed will be discounted by 20% in acknowledgement of that willingness.

3. The offender was employed in the Catholic education system as a school principal. A senior employee with the Catholic Education Office for the Archdiocese of Canberra and Goulburn seized a work iPhone and a laptop from the offender. At that officer's request, the offender provided username and password details to his laptop and removed the passwords and pin codes on his iPhone to allow access to both devices.

4. It was ascertained that the offender had used his iPhone to communicate with a young person. The matter was referred to police who undertook forensic analysis of the iPhone. They were able to identify the young person.

5. Initially, the offender and the young person made contact through a social networking application, which was supposed to be used only by those over 18, although there was no real means of enforcing that requirement. The offender and the young person began communicating by text messages and the communications continued in the period 23 September to 13 December 2012. The communications switched from Grindr to text messaging because of the cost to the young person of using the social network.

6. The young person was 13 or 14 years old. The young person informed police that he may have told the offender that he was 16 years of age at the time that they began communicating through the social network.

7. The text messages between the offender and the young person were sexually explicit. On 23 September 2012, sexual activity is discussed.

8. On 24 September 2012, the offender stated in a text message that he appreciated that the young person had been at school that day. There was then a discussion about the exchange of pictures, including pictures of the genitals. At the request of the offender, the young person provided a photograph of his genitals and the offender provided a photograph of his genitals. The soliciting of the photograph of the young person's genitals is the gravamen of the offence for which I am to sentence the offender.

9. On the same occasion, the young person provided a picture of himself from the waist up immediately before he provided the picture of his genitals. When he viewed the picture of the young person from the waist up it would have been quite clear to the offender that the young person was under the age of 18 years. The offender agrees that he was aware that the young person was under the age of 18 years, although he did not realise that the young person was as young as 13 years.

10. After the occasion when photographs were exchanged, there were a number of text conversations between the offender and the young person. The offender asserts that he decided to terminate the communications but it may be that the young person himself decided to do so when he realised that his sexual interests lay elsewhere.

11. On 20 August 2013, police executed a warrant at the home of the offender. At that time it became apparent that the photographs of the offender, to which I have referred, were taken in his home.

12. The Court heard a Victim Impact Statement read by the mother of the young person. The statement was received pursuant to s 16A(2)(ea) of the Crimes Act 1914 (Cth). The mother of the young person described the impact of the relationship on her son. She said that it caused her son to exhibit angry behaviour and to direct anger inwards by self-harming behaviour. At the time, the young person's parents did not realise the cause of the behaviour. As a result they later felt guilty; that they had let their son down and failed to protect him. Understandably, they are now hyper vigilant about his safety and guarded about permitting him the independence that would normally be allowed to an adolescent boy.

13. The young person has been counselled. He has received specialist counselling, which is ongoing. It is anticipated that he will require counselling for some time into the future.

14. In addition, the young person's mother has obtained counselling. The court process has been very stressful for both the young person's parents, on top of the pressure of having to confront the offending behaviour itself. Fortunately for the young person, his parents have responded to the situation in a very sensible fashion and they have provided him with a great deal of support, providing a very good basis for him to achieve a reasonable recovery from the offence. The Court acknowledges the injuries suffered by the young person and his parents.

15. The offender provided considerable subjective material. He gave evidence and called evidence from his wife and a friend who is also his current employer. The Court also received a Pre-sentence Report, affidavits from friends of the offender and a lengthy report from Ms Robilliard, of Duffy Robilliard Psychologists.

16. The offender is now 58 years old. He was raised in a stable and supportive environment. He has been married to his wife for 35 years. It has been a loving and supportive relationship and the offender's wife continues to be supportive. There are four children of the relationship, who are now adults.

17. The offender was employed in the education system (primarily, if not exclusively, in the Catholic education system) for a period of 37 years. He left that employment only as a result of the commission of this offence.

18. He has since found employment as a parttime bookkeeper. The offender and his wife have suffered a significant loss of income but as the offender's wife has resumed fulltime work, the couple are able to make ends meet.

19. The offender remains a resident in the Young community. While on the one hand he has been "named and shamed" in that community, on the other hand he enjoys the support of many members of the community, including members of the Young church community. He attends church regularly and is involved in a prayer group.

20. The report of Ms Robilliard outlines the work stresses that the offender was under in the period preceding and during the commission of the offence. In 2005, the offender's performance as a principal was rated very poorly by the Catholic Education Board. This had a profound impact on the offender, considerably undermining his selfconfidence, which was poor to start with. The offender, in effect, sought to delay the termination of his role as a principal by taking shortterm appointments out of Young. At one stage he took an appointment in Tumut. He had to live away from home during the week and it was while he was working at Tumut that the offence occurred. In paragraph 29 of her report, Ms Robilliard states:

The client's offender behaviour appears to have commenced at a time in his life when he felt professionally and personally challenged. He was living alone in Tumut during the week and he found his way onto a website that gave him sexual excitement in an intimate but anonymous manner at a time when he was experiencing intimacy deficits...[H]e rationalised his internet activities using Grindr as a way of disinhibiting himself sexually for the ultimate benefit of his marital relationship.

21. The reporter goes on to state that the communications in which the offender became engaged became an entrenched pattern of behaviour. At paragraph 31, Ms Robilliard states:

In other words Mr Philpot's offending behaviour was a distraction and [a] dysfunctional coping strategy for dealing with emotional stressors.

22. The offender told Ms Robilliard that he really does not understand why he engaged in the behaviour. It seems clear to me (and probably to most others who view the situation dispassionately) that he engaged in the behaviour for the immediate purpose of gaining sexual gratification and that, when he says that he had a higher motive, that is just a rationalisation. Of course, it is very hard to confront such aspects of one's own behaviour.

23. The offending behaviour occurred in the context that the offender is a person of generally low self-esteem, despite his achievements in life and, as his wife said, a person who has great difficulty to communicate his emotions (she described what was almost an inability to do so). Ms Robilliard hypothesised that, to some extent, this might be associated with his Catholic upbringing.

24. Regardless of the offender's personal circumstances, including his emotional and psychological state, as a man in his 50s who was a school principal and who had been involved with the education of young people over many years, the offender would have been very well aware of the nature of their psychological immaturity and vulnerability. He was in the Catholic education system which, of recent years, has been notorious for the engagement of teachers and others in sexual activities with young people in their care. The behaviour was quite scandalous and in no way do the offender's psychological circumstances excuse his conduct.

25. I accept that the offender is a person who is otherwise of unblemished character. Until this matter came to light, he was held in very high esteem in the Young community. He was well regarded, not only because of his contribution to education but also because of other activities, such as his involvement with the Young Lions Soccer Club, where he worked as a coach and provided IT and general administrative assistance.

26. For many years, he has been very involved in the church and has contributed to that community. Fortunately for him, many members of that community have forgiven and supported him in his current situation. He also has the benefit of support from his wife and his extended family. He is fortunate indeed in the degree of support that he enjoys.

27. In his evidence, the offender expressed remorse for the pain that he has caused to the young person and his family. He also expressed an appreciation of the impact that his conduct has had on his own family and upon the wider community. The offender accepted that he knew that the young person was under 18, but he said that he was devastated when he found out that the young person was only 13 years of age.

28. Soon after the offence came to light, the offender sought counselling from a local counsellor. That was primarily in relation to the stress that he was suffering as a consequence of being arrested.

29. More recently, on the recommendation of Ms Robilliard, he consulted a Dr Robinson, a specialist in this area. He has found counselling to be "painful and challenging" because he has had to confront what occurred, as well as other painful aspects of his past that may be having a continuing psychological impact upon him, including the death of his father and the suicide of his brother. Because Dr Robinson is located in Sydney, the offender is able to consult her only once a month. However, he anticipates doing so for a further 12 months, when the counselling may move from single counselling to couple counselling.

30. The offender accepts that the counselling is helping him. In particular, it is helping him to accept responsibility for his actions.

31. Counsel for the offender accepts that any offence of this nature is very serious, as indicated by the maximum available penalty of 15 years' imprisonment.

32. A number of considerations are important when assessing the objective seriousness of this particular offence. Relevant considerations were identified in the New South Wales decisions of R v Gent [2005] NSWCCA 370; [2005] 162 A Crim R 29 and Minehan v The Queen [2010] NSWCCA 140. In no particular order of importance, the following matters are of significance.

33. First, the nature and content of the material and the number of images in question. In this case the image was a very explicit image. Fortunately, there was only one such image.

34. A second and related matter is the context in which the soliciting occurred. This was not a short-term or isolated involvement between the offender and the young person. Rather, the involvement continued for almost three months. It was towards the beginning of that period that the offence occurred. This is a significant factor because it provides context to the offence. However, the offender is only being sentenced for one activity on one day.

35. The prosecution referred to the consideration of the proximity of the offender to the creation of the material. I am not convinced that that is a particularly significant consideration in cases of soliciting because the nature of a charge of soliciting, generally speaking, is that the solicitor will be very close to the creation of the material.

36. Another related issue is the degree of planning or organisation involved. While I doubt that there was a great deal of planning in connection with obtaining the particular image, the offence occurred in the context of an ongoing relationship that was deliberately encouraged and pursued by the offender.

37. A further consideration is the intended use of the material. There is no suggestion that the offender intended to further distribute the material or in any way to profit from it.

38. An important consideration is the age of the young person, who was only 13 years old. This offence applies to victims up to 18 years of age.

39. The significant age difference between the offender and the young person is also an important consideration. The offender should have had a much greater degree of maturity and an understanding of the vulnerability of the young person, particularly given the offender's profession.

40. The prosecution submitted that a relevant consideration is that the young person was a real victim, a real person. In cases of soliciting, generally if not always, the victim is a real person. The position is otherwise in cases involving the possession of child pornography, where the pornography may be cartoon images.

41. I accept the prosecution submission that there was significant harm to the young person. It is almost impossible to identify what part of that harm related to the offence itself and what part related to other aspects of the relationship between the offender and the young person.

42. While this matter may not aggravate the objective seriousness of the offence, I note that the offender used an iPhone provided by the Catholic Education Office to engage in the offence. This matter can only add insult to injury.

43. In sentencing the offender I am required to consider the relevant provisions under the Crimes Act 1914 (Cth), in particular s 16A. Section 16A(1) requires that I impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) requires me to take into account such of the enumerated matters as are relevant and known to the Court. The prosecution has identified relevant matters and, generally, I agree that those matters are relevant.

44. First, there is the nature and circumstances of the offence, including the course of conduct that surrounded the offence. I have addressed that matter when discussing the objective seriousness of the offence above.

45. Next, there are factors concerning the young person: the personal circumstances of the young person, the injury to the young person and the Victim Impact Statement which has been provided by the young person's mother. I have also addressed those matters above.

46. The next matter arises under s 16A(2)(f): the degree to which the person has shown contrition for the offence. In relation to this matter, the prosecution submitted that there is no evidence of contrition. It seems to me that the offender is indeed contrite in relation to the commission of the offence. He accepted responsibility by entering a plea of guilty at an early stage. He did not make admissions to the police, but that was on legal advice and I cannot draw any adverse inference against him on that basis. The fact that the offender has engaged in counselling suggests that he recognises the seriousness of his conduct and he is contrite about it.

47. As far as the guilty plea is concerned, I have referred to the discount that I consider to be appropriate. As noted above, the plea was entered at a reasonably early stage, albeit in the face of a very strong prosecution case.

48. Under s 16A(2)(j), the Court is required to consider personal deterrence. The prosecution submitted that the offender's demonstrated sexual interest in young people increases his risk of reoffending and creates a need for a strong component of personal deterrence in the sentence. I consider that the offender has been strongly deterred in a personal sense by the reaction of the Young community and the fact that his commission of the offence has been made public in that community. That has had a very significant impact on the offender and, I doubt that any sentence that I impose will have such a strong effect as that punishment, which he has already suffered. That is not to say that I will not impose a significant punishment, but merely to note that personal deterrence is not a matter that requires the imposition of a heavier sentence.

49. The next matter arises under s 16A(2)(k): the need to ensure adequate punishment. I note that matter. It is part and parcel of imposing a sentence that is appropriate in all the circumstances.

50. As far as s 16A(2)(m) is concerned, I have referred to the relevant subjective circumstances of the offender.

51. In relation to prospects of rehabilitation, the offender has good prospects. He has sought appropriate treatment and continues to engage with it. He has been open with his family and friends, not that there was much choice. His family and friends are supporting his rehabilitation. He is receiving excellent support, both from family and friends and from professional healthcare providers. It is my view that, because he is receiving strong support, there are very good prospects of rehabilitation.

52. In addition to the matters to which I have referred, in any sentencing exercise, but particularly for an offence of this nature, considerations of general deterrence are very important. Offences such as this are difficult to detect and relatively easy to commit. There is a growing use of the internet by young persons and it is almost impossible to prevent young people accessing sites such as that in question if they choose to do so. Therefore, it is particularly important that the Court send a strong message of general deterrence to potential perpetrators who may be prepared to take advantage of the natural curiosity of children.

53. Although the sentencing purpose of denunciation is not expressly mentioned in the legislation, I agree with the observations made by Simpson J in R v Booth [2009] NSWCCA 89, that denunciation is an important consideration when sentencing those who engage in a "callous and predatory crime" such as the present.

54. While reliance on sentencing statistics is fraught with risk, they are a useful yardstick against which to compare a possible sentence. I have had regard to the sentencing statistics on the Commonwealth Sentencing Database in relation to offences against ss 474.19, 474.26 and 474.27. There are not many, if any, statistics recorded for soliciting. It is therefore difficult to obtain a clear picture of the sentencing patterns in relation to soliciting. I have also looked at the ACT Sentencing Database, but there are very few matters recorded, so it is of limited use. Insofar as it does contain matters, the sentencing results are generally consistent with the patterns of sentencing indicated on the Commonwealth Sentencing Database.

55. I have found the comparable cases to which the prosecution referred in the submissions on sentence to be very helpful and, interestingly, to be consistent with the sentencing revealed by the database searches.

56. When referring to comparable cases, one has to remember that all cases are different and so one cannot jump to conclusions about sentencing patterns from particular cases. However, where a group of cases discloses a pattern which appears to be consistent with the pattern in the databases, then one starts to get a fairly clear picture.

57. The prosecution referred to the case of DPP v Manser (Unreported, County Court of Victoria, Howard J, 23 January 2014), where an offender was sentenced for two offences, one of using and one of soliciting. In that case, the offender was much younger than the present offender, being 19 years of age, but the victim was 13 years of age. The nature of the exchanges was fairly similar to those in the present case, although they occurred over a period of only two days. It would appear that the offender himself was a young man trying to establish his sexuality. His situation was significantly different to that of the offender in this case. The Court imposed a sentence of 12 months' imprisonment on the using charge and nine months' imprisonment on the soliciting charge, releasing the offender forthwith on recognizance release orders to be of good behaviour for 18 months.

58. In DPP (Cth) v Walls [2014] VSCA 323, the offender was charged with four offences, one of which was soliciting pursuant to s 474.19(1). The offender received a six month sentence accumulated by a factor of two months. The total effective sentence was 22 months' imprisonment and the offender was released forthwith upon giving security by recognizance to be of good behaviour pursuant to s 21B of the Crimes Act 1914 (Cth). In that case, there were three child complainants. The offender was 25 to 26 years of age. The victims were 14 and 15 years of age. The Court of Appeal declined to overturn the sentence imposed at first instance but described it as a very lenient sentence.

59. The prosecution referred me to the decision of R v Sananikone (Unreported, District Court of New South Wales, Flannery J, 23 May 2014). That was a grooming charge. The offender was 32 years of age and the victim 14 years of age. That matter resulted in a sentence of 12 months' imprisonment to be released forthwith on entering a recognizance for two years.

60. R v Heaney (Unreported, District Court of New South Wales, Wells J, 11 July 2014), involved one charge of grooming a person under 16, where the offender was significantly older than the victim, a 13 year old boy. The offender was sentenced to imprisonment for 18 months and released under a recognizance release order after serving 12 of the 18 months.

61. In R v Trevor TED (a pseudonym) [2014] VCC 1794, a 54 year old man was found guilty of using a carriage service to groom a person under the age of 16 years (the victim was 14 or 15 years old). The offender was sentenced to two years' imprisonment to be released after serving three months upon giving security by recognizance to be of good behaviour for two years.

62. The appropriate starting point for a sentence is two years' imprisonment and an appropriate discount is 20%, resulting in a sentence of 19 months' imprisonment.

63. In considering the manner in which that sentence should be served, I pay full regard to the objective seriousness of the matter but when I look at the purposes of sentencing I find that the community will be best protected if the offender continues with the rehabilitation that he is currently undergoing.

64. I recognise the harm to the young person, the need for general deterrence, denunciation and appropriate punishment. Those objectives can be met if I impose a recognizance release order and sentence the offender to 19 months' imprisonment.

65. I sentence the offender to 19 months' imprisonment and I direct that the offender be released forthwith upon giving security in the sum of $1000.

66. I place the offender on a good behaviour order for a period of two and a half years. That good behaviour order is subject to the following conditions:

(a) Continue counselling with Dr Robinson or such other healthcare professional as his general practitioner recommends for a period of two years;

(b) Submit to the supervision of ACT Corrective Services for as long as the Services considers necessary;

(c) Undertake such treatment or other interventions as are recommended by ACT Corrective Services, including undertaking the Adult Sex Offender Program if assessed as suitable; and

(d) Report to ACT Corrective Services at Eclipse House by 4 pm tomorrow.

I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.