Mr Spohr (Solicitor for the Offender)
File Number(s): 2017/35364
[2]
Judgment
Over a three week period between January and February 2017 the offender, who was then aged 40, communicated over Skype with a woman in the Philippines. The Skype chat logs comprised the central evidence in this case and they disclosed that, on his specific request and payment of money via Western Union, the woman caused female children aged nine and 12 years respectively to engage in sexual activities, other than sexual intercourse, over Skype including showing him their "pussy", which is the subject of counts 1 to 3, 5, 6. There was an attempt to cause a nine year girl to do the same, which the subject of count 4.
While these sexual activities were not recorded, sufficient information was disclosed in the chat logs as to the activities engaged in and the woman also sent him child pornography material, namely photographs of female children aged 7, 9, and 12 showing their "boobes" and "pussy", the subject of counts 2, 3 and 5 and a video of a naked six year old female child, count 7.
He also communicated with the woman about his plans to travel to the Philippines to have sex with the children, the subject of the earlier counts, including negotiating prices, whether the children would be held down if they resisted and the possibility of pregnancy if he was permitted to finish inside the "pussy" rather than use a condom which is the subject of count 8.
The offender pleaded guilty to each of these counts and an early opportunity in circumstances, which in accordance with Xiao v R (2018) 96 NSWLR 1 justify a 25% discount for the utilitarian value of the plea and the willingness to facilitate the course of justice.
The matter initially came before me on 2 August 2018 at which time I imposed a sentence on Mr Purves having signed and certified that three matters on a schedule under s 16BA of the Crimes Act 1914 (Cth) had been taken into account, and that certificate had been signed by the offender at the time. Notwithstanding that having occurred, when the offender lodged an appeal against sentence to the Court of Criminal Appeal the Crown identified a procedural error in the sentencing proceedings, namely that s 16BA(1), which was not brought to my attention at that time, required the Court to be satisfied that the list had been signed by the Commonwealth Director of Public Prosecutions and by the offender and that in all the circumstances it was appropriate to adopt the procedure.
The Court remitted the matter for further sentence and after some delays the matter has returned to be dealt with by me today. The matter was the only sentence matter listed before the Court at 10am today. When the matter was adjourned on 31 January 2020 the orders showed that the matter was listed for sentence Friday 13 March at 10am. Last evening my associate received an email from the Commonwealth Crown indicating that counsel was not available until 2pm and suggested that that indication had been conveyed to the Court on 31 January when the adjournment was granted. The Court records do not contain any indication of such a notation and in the circumstances it has been appropriate to proceed with the sentence hearing today with Mr Brummert ably representing the Commonwealth Crown in the absence of counsel.
It is acknowledged that as this is a fresh sentence hearing and the proper approach is for the sentencing judge to put completely to one side the sentence imposed which was quashed by the Court of Criminal Appeal. The offender is entitled to a sentence hearing and determination conducted according to law, and that is what he will receive.
The evidence on this hearing comprises the Commonwealth Crown sentence summary contained in the agreed facts which I have summarised and to which I will return. In addition to oral evidence today from the offender there are two reports of psychologists, Mr Machlin, which was available on the last occasion, and Mr Levidis who saw the offender recently and prepared a detailed report. There is also a certificate been tendered showing that the offender had fulfilled a course for Certificate I in Skills for Vocational Pathways.
The offender gave evidence today in which he affirmed the history set out in both the psychological reports. He said that he had been drinking at the time of the offending, surprisingly up to one and half to two cartons per day of full strength beer, that is between 36 and 48 cans of beer while working occasionally as a truck driver and surviving on about two hours of sleep per day.
As to the specific matters alleged under count 8, namely doing an act with intention of preparing for sexual intercourse with a child outside Australia, he said that he had no passport, it having been stolen some eight months before, that he had no funds to go overseas, he was trying to catch up with his bills, and he had no savings. I am satisfied in the light of that evidence that his prospects of travelling overseas in the foreseeable future at the time of the offending were remote to say the least.
He said that, as he has expressed previously to the psychologists, he is disgusted with his behaviour and he did not understand why he acted this way. He acknowledged that he had hurt the kids and he had engaged in what he described as the lowest act that one could ever do to kids and he recognised the impact on the victims, in particular in that it would affect their relationship with adults and men in the future.
The offences to which he has pleaded guilty and the schedule offences will be set out in the table that I will hand down at the conclusion of these remarks which will set out the maximum penalty for each count, my finding as to objective seriousness on each matter, the starting point for the indicative term of imprisonment and the indicative sentence after a 25% discount.
It is conceded by Mr Spohr for the offender that a term of full-time custody is the only appropriate outcome in these proceedings.
The facts show that Australian Federal Police received reports linking a user of an Australian internet address on social media chatting to a lady, named Analyn in the Philippines. The conversations initially involved discussing Analyn's 21 and 23 year old daughters and then turned to younger children.
Count 1 is an offence of cause a child to engage in sexual activity (other than sexual intercourse) outside Australia, contrary to s 272.9(2) of the Criminal Code 1995 (Cth), in relation to the offender causing Analyn to lift up a 12 year old girl's top and expose herself live on camera over Skype. He later issued commands to the same girl to masturbate and she referred to her brother saying "he'd get angry if he saw me doing this, so make it fast, three minutes". The offence carries a maximum penalty of 15 years imprisonment.
Count 2 is an offence of use carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth), in relation to the offender's demand to see pictures and video of a nine year old without her top so that he could see her breasts. The offence carries a maximum penalty of 15 years imprisonment.
Count 3 is an offence of use carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth), in relation to the offender asking for a 12 year old to provide a picture of her naked and then to see her naked on camera once a week from there on, including with help from her mother so that he could see her vagina. The offence carries a maximum penalty of 15 years imprisonment.
Count 4 is an offence of attempt to cause child to engage in sexual activity (other than sexual intercourse) outside Australia, contrary to ss 272.9(2) and 11.1(1) of the Criminal Code 1995 (Cth), involving the offender attempting to get a nine year old girl on camera over Skype. He forced her to undress while he masturbated. He performed acts, more than merely preparatory, namely transferring money to Analyn and making repeated requests, but the girl did not appear on camera as planned. The offence carries a maximum penalty of 15 years imprisonment.
Count 5 is an offence of using a carriage service to solicit child pornography contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth), involving the offender making repeated requests for naked pictures of a seven year old girl, specifically her naked body and face. The offence carries a maximum penalty of 15 years imprisonment.
Count 6 is an offence of causing a child to engage in sexual activity (other than sexual intercourse) outside Australia contrary to s 272.9(2) of the Criminal Code 1995 (Cth), in relation to the offender causing Analyn have a seven year old girl lie down and open her legs live on camera over Skype. The offence carries a maximum penalty of 15 years imprisonment.
Count 7 is an offence of using carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth), in relation to the offender's demands for a video of five minutes or more depicting a six year old girl lying on a bed with her legs open with her vagina, body and face in view. The offence carries a maximum penalty of 15 years imprisonment.
Count 8 is an offence of do act with the intention of preparing for or planning an offence of sexual intercourse with a child outside Australia contrary to s 272.8(1) of the Criminal Code 1995 (Cth). Count 8 established that he was preparing to travel to the Philippines to have sex with children, who were the subject of the earlier counts, throughout the conversations which were the subject of the earlier counts he made increasingly detailed enquiries with Analyn about the availability of the children with whom she had become acquainted, and they discussed the level of financial support expected in return for the provision of sex by these children.
The s 16BA schedule matters involve:
1. Item 1 (seq 004) was an offence of using a carriage service to solicit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth), in which he asked for pictures of a nine year old girl with no top on.
2. Item 2 (seq 009) was an offence of attempting to engage in conduct in relation to a child, intending to cause the child to engage in sexual activity (other than sexual intercourse) in the presence of the offender the child being under 16 years of age and the activity having been engaged outside Australia contrary to s 279.9(2) and 11.1(1) of the Criminal Code (Cth), in relation to his attempts to get a nine year old girl live on camera over Skype, and forcing her to take her clothes on the bed while she masturbated.
3. Item 3 (seq 002) was an offence of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) in relation to the accessed videos depicting material which is set out in detail at [38] to [41] of the agreed facts and need not be repeated here. The images and videos were classified as category 1 under the CETS scale.
Contrary to the Crown's submissions that he has an unremarkable subjective case, his evidence and the evidence of the psychologists containing a detailed history, demonstrates a dysfunctional and difficult background. His parents separated and his father left when he was about 18 months old. His mother suffered mental breakdowns and was hospitalised several times. He was emotionally and physically abused at a Catholic orphanage and in a number of foster homes. When he was six years old and he would wet the bed the orphanage staff would make him eat only raw onion for the day.
He left the home and lived on the street, but he was repeatedly caught by Police and taken to a new foster home. He lived in various foster homes between the ages of six and 16.
He was groomed for intercourse by his mother's 36 year old female friend. He reports that he was 12 years old and he had a sexual relationship with this woman once or twice a week for 12 to 18 months. Although he was a willing participant at the age of 12, he was unable to understand that there was a power imbalance and he had limited refusal skills.
He had a partner from the Philippines in 2013 and he was with her for about 18 months. He finished his school certificate at Gunnedah High School and started year 11. He did some rural jobs and various delivery driving and truck driving jobs. Despite an unstable lifestyle he was mostly in employment, particularly over the last 15 years or so before his incarceration.
He started drinking at age seven and he was immersed in a drinking culture that continued most of his adult life. He tended to drink alone. He undertook a six month rehabilitation program in Townsville in 2009 and abstained from drinking for a year, but he does not recall why he relapsed but he curbed his drinking since his arrest and before going into custody.
He was initially taken into custody for nine weeks, before being granted bail on strict conditions which included not being permitted to attend public places where he could be a risk for children and he continued to work prior to his sentence.
He had attended a psychologist for six or seven sessions for counselling, and reflecting on the plight of the victims and the more general reflection on a range of subjects.
Mr Machlin diagnosed an alcohol use disorder and a depressive condition. He noted that he was contrite and described his misconduct as heinous and acknowledged the harm suffered by the victims. The main indicators of future risk were the offences themselves and his need to develop further insight into his behaviour. However, in his favour was the fact that there was no known history of sex offending or sexual deviation and nor does his history reflect any other recurrent offending patterns, that he has no major mental illness or employment problems and no attitudes that condone sex offences generally, and he has a positive disposition towards treatment.
Mr Lavidis noted after a detailed examination that he showed no signs of intellectual deterioration or impairment, and his logic was normal even though he only has the educational level to year 10. His intellectual development was disadvantaged by his childhood trauma and dysfunctional family background. His IQ was average and his memory was within normal limits. He continues to report nightmares and flashbacks of the physical abuse he suffered as a child, and he avoids people, places, conversations and activities that remind him of that abuse. He is depressed and anxious and hates himself because of what he did and why he did it. He fits the diagnosis for a major depressive disorder, but he has insight into his condition which would indicate a good prognosis. He is sincerely remorseful and he is on antidepressant medication.
It is recommended that while incarcerated he receive counselling for post-traumatic stress disorder and Mr Lavidis recommends that he be placed on antidepressants as a matter of urgency. I recommend that the reports of Mr Lavidis and Mr Machlin accompany the offender and be brought to the attention of the corrective officers so that Justice Health may provide antidepressant prescription as required. Mr Lavidis also suggests cognitive behavioural therapy for depression and post-traumatic stress disorder, which is a course that is recommended if appropriate in custody.
Commonwealth Crown's written submissions set out in great detail the principles of sentencing for Commonwealth offences which must be carried out in accordance with Pt 1B of the Crimes Act 1914 (Cth). General deterrence, of course, is a very significant matter in this type of offence as the Court highlighted in the judgment of Simpson J in R v Booth [2009] NSWCCA 89 at [39] - [41],
[39] 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; v Assheton v R [2002] WASCA 209; 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.
[40] 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 notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
[41] 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.
A number of principles were set out by Price J in Director of Pubic Prosecution (Cth) v Beattie [2017] NSWCCA 301 at [127], that are of relevance in assessment the objective seriousness of this type of offending,
"(1) the age of the child or children, and the number of children involved in the sexual offence;
(2) the gravity of the sexual offence;
(3) the extent of any cruelty or physical harm occasioned to the child or children involved in the sexual offence;
(4) the vulnerability of the child or children to sexual exploitation, including the country in which the child resides and the child's impoverished circumstances;
(5) the role of the offender in the production of the sexual offence, including in the selection of the child or children, the nature and duration of the sexual offence, the number of adults directly involved in the commission of the sexual offence, and whether the offender provided any payment or other material benefit to a third party for the sexual offence;
(6) the level of control exercised by the offender, including by communications and directions with persons overseas, before or whilst the sexual offence occurs;
(7) the degree of planning, organisation or sophistication employed by the offender in causing the child or children to engage in the sexual offence;
(8) whether the sexual offence was viewed live by the offender by technological means such as real-time video links, webcams, chat and video rooms, or live streaming;
(9) whether the sexual offence was also viewed live by persons other than the offender, including whether there was transmission by live streaming to those other persons by the offender;
(10) whether the sexual offence was recorded by the offender;
(11) whether the sexual offence was recorded by the offender with the intention of disseminating the recording to other persons;
(12) whether any payment or other material benefit was intended to be received or was received by the offender for causing the child or children to engage in the sexual offence, or for live streaming the sexual offence or disseminating any recording of the sexual offence;
(13) whether the offender acted alone or in a collaborative network of like-minded persons; and
(14) any other matter under s 16A of the Crimes Act 1914 (Cth) bearing upon the objective seriousness of the offence"
As the Crown notes, the children involved here were aged between six and 12. There were at least four children involved. Children in impoverished circumstance are more vulnerable to exploitation and the evidence supports the conclusion that the children were to the knowledge of the offender in relatively impoverished circumstances. The offending was not one off and took place over a period of time or was a course of conduct as the Crown points out in relation to s 16A(2)(c) of the Crimes Act 1914 (Cth).
The Crown also acknowledges there is no evidence that the material produced was viewed by anyone other than the offender or those directly involved in it's production and no evidence that he intended to disseminate nor receive payment for them, and no evidence of any material risk that it would be seen or acquired by others. However that does not mitigate the penalty for this type of offence, merely because there's an absence of features which would have made it more serious as the Court said in cases such as R v Porte [2015] NSWCCA 174.
Although there are no victim impact statements, as the Crown points out the absolute prohibition on underage sexual activity are founded on the presumption of harm.
The offender is a man with no convictions for this type of offending. He has no criminal convictions prior to this, but as Price J said in Mouscas v R [2008] NSWCCA 181, courts may give less weight to prior good character as a mitigating factor in this type of offending.
I accept his expressions of remorse and regret and accept that he has insight into his offending. The Crown points to a number of cases said to be comparable including Director of Pubic Prosecution (Cth) v Beattie [2017] NSWCCA 301, Rivo v The Queen [2012] VSCA 117, R v Le Gassick [2014] VCC 1288, R v Cole [2016] VCC 1748 and R v Hawke [2018] VCC 518, while noting that as the High Court said in Hili v R; Jones v R (2010) 242 CLR 520 consistency of federal sentencing does not require numerical equivalence.
The Crown submits that there should be some accumulation in sentences and that can be contemplated in an aggregate sentence. The non-parole period is to be the minimum term required to be served in accordance with the application of the principles under Pt 1B of the Crimes Act 1914 (Cth), namely the minimum period that justice requires the person to serve having regard to all the circumstances of the offence.
The Crown's submission is that counts 1 to 7 are each in the mid-range and count 8 is in the mid to high range of objective seriousness and as Mr Spohr's helpful written submissions point out the central issue on which the parties appear to disagree is the characterisation of the objective seriousness of the offences, although both parties have identified the relevant matters to be taken into account in that characterisation.
In relation to counts 1 to 7 the Crown asserts a degree of planning but as Mr Spohr submits, they amount to no more than the minimum requirements for the acts involved in the offence or they are inherent in the offending. Mr Spohr puts a number of matters in relation to each particular count acknowledging that count 1 is inevitably a serious offence carrying a maximum penalty of 15 years imprisonment. Count 2 involved a request for a picture of the child. Count 3 is slightly more serious than count 2 but still in Mr Spohr's submissions towards the lower end of the range and Count 4 related to an attempt.
Ultimately having regard to the factors highlighted by both the Crown and Mr Spohr my assessment of counts 1 to count 7 is that they are in the low to mid-range and that count 8 is below mid-range in light of the evidence of the offender that his prospects, as I have said, of travelling overseas were remote at least, and the Crown and Mr Spohr notes, for example, that in the case of R v Cole [2016] VCC 1748, one of the Crown 's comparable cases, there had been plans to participate in sexual activity with children during overseas trips which had already been booked and were imminent.
I accept, in relation to the 16BA schedule offences, that having regard to the fact that they represented part of the course of conduct which included the substantive offences, the impact on the overall sentence should be relatively limited.
I accept that the offender's deprived childhood and its sequelae namely post-traumatic stress disorder, alcoholism and the described link between his mental health conditions and poor judgment serve to partly ameliorate his offending behaviour so as to moderate his moral culpability to a limited degree.
As Mr Spohr pointed out when dealing with the Commonwealth Crown's comparable cases, the Court must be astute not to directly compare what the offender did in this case, which were preparatory acts, with cases like Director of Pubic Prosecution (Cth) v Beattie [2017] NSWCCA 301 where the principal offence had, in fact, been completed.
Ultimately, although this is a fresh sentencing exercise Mr Spohr submits that the findings of fact made at the first sentencing hearing are largely adopted, but there should be, in the light of the additional evidence, some downward revision of the sentence in the light of the lesser objective seriousness of count 8.
As Basten J said in Director of Pubic Prosecution (Cth) v Beattie [2017] NSWCCA 301 the Court does not view the video recordings and photographs which are the subject of the charges, which involves a real risk that the true impact of the offending on the victims being children overseas may be underestimated.
I must bear in mind questions of totality and accumulation in accordance with the High Court decision in Pearce v The Queen (1998) 194 CLR 610 and it is not disputed that the sentence for one offence could not comprehend and reflect the criminality of the other offending.
I accept that there is a proper basis for a significant period of release on parole under supervision to address the difficulties which are indicated in the psychologists' reports.
The orders I make are:
1. The offender is convicted of each offence.
2. The indicative sentences are:
Maximum penalty Objective seriousness Starting point 25% discount
Count 1, taking into account the s16BA schedule matters 15 years Low-mid range 6 years 4 years, 6 months
Count 2 15 years Low-mid range 4 years, 9 months 3 years, 7 months
Count 3 15 years Low-mid range 4 years, 9 months 3 years, 7 months
Count 4 15 years Low-mid range 4 years, 9 months 3 years, 7 months
Count 5 15 years Low-mid range 4 years, 9 months 3 years, 7 months
Count 6 15 years Low-mid range 4 years, 9 months 3 years, 7 months
Count 7 15 years Low-mid range 4 years, 9 months 3 years, 7 months
Count 8 10 years Below mid range 3 years, 9 months 2 years, 11 months
[3]
I impose an aggregate sentence of imprisonment of 7 years to commence on 24 May 2018.
2. I impose a non-parole period of 4 years, 2 months expiring on 23 July 2022.
RECOMMENDATIONS
1. I recommend that the offender be held in segregation for the duration of his term of imprisonment.
2. I recommend that the psychological reports of Nicholas Lavidis dated 2 March 2020 and John Machlin dated 31 July 2018 follow the warrant and are made available to Justice Health to assist with ongoing treatment.
Note - These extempore remarks were revised without access to the court file.
[4]
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Decision last updated: 19 May 2020