The problem of child pornography is an international one. Both the State of New South Wales and the Commonwealth of Australia by the laws enacted on behalf of the people of Australia and the State of New South Wales try to do what they can to prevent people committing such offences. Given the prevalence and ready availability of pornographic material involving children on the internet the courts are required to give paramountcy to the principle of general deterrence; that is by the severity of the sentences imposed attempting to deter this offender and others from accessing child pornography. Those who make up the market for that pernicious trade should not be allowed to escape responsibility for the exploitation of children involved in the production of such material: R v Porte [2015] NSWCCA 174: Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477, at [21].
[2]
Offences
Peter Rampton was well aware of the consequences to himself of accessing child pornography or child abuse material as I will call it in this judgment and aware of the consequences to the children involved to which I have just alluded. He has previously been gaoled for offences of possession of child abuse material and accessing child pornography.
He is for sentence today for two offences: possession of child abuse material pursuant, s 91H(2) of the Crimes Act 1900 (NSW); maximum penalty ten years imprisonment and use a carriage service to access child pornographic material, s 474.191 Criminal Code 1995 (Cth); maximum penalty 15 years imprisonment.
He was arrested on 3 April 2019. He has been in custody since that date.
He is currently 31; born in 1988. He had been on the Child Protection Register on 23 February 2018. He was I am sure aware of his obligations and the fact that he would be subject to monitoring.
On 3 April 2019 police came to his home. They conducted a formal visit: s 16C Child Protection Offenders Registration Act 2000 (NSW). They examined his mobile phone. They noted that he had been accessing Twitter accounts. He gave them a pre-emptory excuse but otherwise cooperated. A search warrant was executed.
So far as the possess child abuse material is concerned a total of 22 images and two videos were located on the mobile phone. The agreed facts set out in more detail the process used to access the martial and a description of the file pathways used. The access to child pornography was noted when the offender's Twitter account search history had been deleted. The offender made admissions that he had joined and then later unjoined certain Twitter accounts that are notorious for their child abuse material content. Screenshots were located. The three screenshots show access through Twitter on 1 April 2019. Some of the material was in Arabic. I am presuming that the offender does not know Arabic. But nevertheless the content was clearly child abuse material.
[3]
Viewing the material
I have viewed the material in Exhibit B. Viewing sample of the material is sometimes necessary but it is preferable that the prosecuting authorities provide an adequate written description of the material rather than the judge having to view it, as there would be little comfort for any child victim to know that in addition to offenders pouring over such images there will be lawyers and judges examining them as well: R v Hutchinson [2018] NSWCCA 152.
Here the description of the material within the statement of facts had insufficient detail to enable me to form a view of the seriousness of the material from the descriptions alone. The current insistence on using the INTERPOL Baseline Classification did not enable me to form a view of the seriousness of the material from classification category alone. The use of such categories may be of assistance to polcie in dealing with agencies in other jurisdictions but to describe the material by reference to only two categories does not enable any objective assessment of the material, in effect compelling a judge against their wishes and personal concerns to view the material.
As the High Court made clear in HT v The Queen [2019] HCA 40, as a general rule the parties, including the defence, should also view this material as a matter of procedural fairness. A judge must do what he can to avoid practical injustice and procedures should be adapted to meet difficulties which may arise. In this case Ms Parkes, who appears for the offender, felt herself sufficiently instructed by her client, and having viewed the search warrant video, to decline an invitation to view the material. I understand that position entirely; here it led to no apparent procedural unfairness.
[4]
Objective seriousness
When I reviewed the possess child abuse material I noted content involving sexual connection between the penis of an adult male and a young child, an oral connection between a penis and a young child. There were other images that did not so graphically depict abuse. Having sentenced many of these matters and having been referred to authorities it is clear that so far as the images and their content were concerned they were clearly child abuse material and they clear involved the exploitation of real children. The number of images was not significant and by comparison with many other cases was very low in the order.
So far as the Twitter accounts are concerned the offender is being punished for his accessing those accounts. They were all accessed on the one day. While the agreed facts carry with them an implication that the offender was doing more than accessing the Twitter accounts on this day, I can only sentence him for the material that is before me in the agreed facts. Three items accessed. I have regard to the nature and content of the material and the number of images.
I remind myself that actual children were involved in most of the images. I think there was one that was a cartoon. There was no additional cruelty, but that is the absence of an aggravating factor, not a mitigating factor.
The use of the Twitter account shows that he was prepared to join with other likeminded persons. There is no evidence of direct communication with those others but the network being used was pernicious in its intent and content. There is no proximity between this offender's activity and those responsible for bringing the material into existent, no particular planning or sophistication was undertaken, and given that he was living in the family home there was no risk of the material being seen by anyone else: see R v Hutchinson [2018] NSWCCA 152; Minehan v R [2010] NSWCCA 140.
[5]
Other aggravating factors
Other aggravating factors include of course that he was on the register and being gaoled for prior offences of a similar nature. That criminal history is relevant to my determining the proper sentence. It indicates that these offences are not uncharacteristic aberrations. It demonstrates a continuing disobedience towards the law. While his criminal history cannot result in a sentence which is disproportionate to the gravity of the offences, a more serious penalty is required with additional focus on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
[6]
Guidance
While every offence and every offender requires individualist treatment, courts in their discretion refer to a number of sources. They include here the maximum penalties prescribed and the guidance offered by those maximum penalties. I also have to consider the decisions of other courts, particularly decisions designed to give guidance, and while not prescriptive, the cases cited to me set out the fundamental principles that must be considered and applied. Consistency in approach to sentencing is one mark of justice.
Of course I have to have reference given they are both State and Federal offences to the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and s 16A of the Crimes Act 1914 (Cth). Both importantly set out considerations including deterrence and require a proper recognition of the harm done to the individuals, and more particularly in cases such as this, the community. They also require me to give proper consideration to the subjective case and matters put in mitigation.
[7]
Subjective case
There was a plea of guilty at the earliest opportunity. The delay in bringing the matter to the Court was not the offender's fault. There will be insofar as both matters are concerned a reduction in each otherwise appropriate sentence to reflect utilitarian value of the plea of guilty. That reduction of 25% will apply to each sentence and I will take care that the process of accumulation does not erode that specific benefit.
It is accepted by the Commonwealth Director of Public Prosecutions that there is some evidence of remorse and contrition, but also a recognition that the plea comes in the face of realisation that the offender was caught red-handed with material on his own phone.
Although terms such as contrition and remorse are used, I think Dr Furst summed it up best at p 4 of his report when he referred to the "regret" expressed by the offender. He is more sorry for himself, it would seem, at this stage and the impact of his offending on his family than he is for the children who were the subject of the material which he viewed and had in his possession: exhibit 1.
I am as always helped by reports from respected experts such as Dr Furst, forensic psychiatrist, and Ms Durkin, a clinical forensic psychologist, whose reports are before me: Exhibits 1 and 2.
Dr Furst, in his comprehensive report, refers to material that was before the Court on the last occasion from other respected psychiatrists. In his opinion Rampton has an autism spectrum disorder, suffers from a major depressive illness and has a paedophilic disorder.
Ms Durkin casts some doubt as to whether while there are clearly symptoms associated with autism, whether he has that disorder, but she accepts that his major depressive illness and total medical condition played a significant role in his offending behaviour. She makes no reference to paedophilic disorder, although the persistence in viewing and accessing child abuse material would cause anyone some concern.
The existence of the medical conditions detailed requires some understanding and consequent moderation of the sentence that might otherwise be imposed. Where someone suffers from long-standing mental illness or conditions described, it can reduce their moral culpability, and as here meaning that a custodial sentence will weigh more heavily on the offender. I have had regard to the relevant principles summarised in R v Verdins (2007) 16 VR 269 [2007] VSCA 102 and DPP v De La Rosa [2010] NSWCCA 155.
The offender is presently on limited association and protection classification which limits as I understand his access to programs and access to the general discipline of the gaol. He is also subject to the restrictions imposed so far successfully which are designed to avoid COVID-19 getting into gaols. He will as a consequence not have family visits, although access to family visits will be limited because his present location is well away from the Illawarra. He does however have additional access to video conferencing visits which were made available post-COVID.
There is no indication Rampton has any particular health or other concerns other than those which both prisoners and those in the general community have regard to the current pandemic. As a Commonwealth offender he would not qualify for early release under the New South Wales provisions should COVID‑19 break out in the gaols. All matters I have to take into account as part of the synthesis of relevant factors.
Returning briefly to Dr Furst's report; he concludes that the pattern of accessing and viewing child abuse material dating back many years is consistent with sexual deviance in the form of paedophilic disorder. He notes unfortunately the recurrent or obsessive features of such disorders tend to be accentuated by dysfunctional traits and behaviour patterns in people with underlying autistic spectrum disorders, which likely accounts for Rampton's difficulty in desisting from accessing and viewing such material.
While she approaches the issues from a different professional perspective, Ms Durkin at para 46 identifies a number of significant risk factors which will remain present:
Chronicity of Sexual Violence
Diversity of Sexual Violence
Attitudes That Support or Condone Sexual Violence
Problems With Stress or Coping
Sexual Deviance
Major Mental Illness
Problems With Intimate Relationships
Problems With Non-Intimate Relationships
Problems With Employment
Problems With Treatment
Problems With Supervision
She concludes that he presents a moderate risk of reoffending, as the majority of the identified risk factors are offence specific, that is accessing or possessing child abuse material specific. She concludes this "raises concern about a relapse into such behaviour in the future. In particular, his potential for sexual deviance, the consistency with which he has engaged in this conduct and the level of diversity in Rampton's sexual offending is of particular concern. Other particularly notable risk factors relate to Rampton's interpersonal skills deficits, which may be either attributable or compounded by mental health issues"
Both Ms Durkin and Dr Furst discuss the programs that are available for sex offenders in New South Wales gaols. He has not had access to those services either during his past sentence or the current one. Given the relatively low objective seriousness of these offences relative to others, and by that I do not mean to undervalue the objective seriousness of the offences, a sentence of more than three years will not be imposed; that length of time is the minimum required to enter and complete a custodial programs. It is not called for here.
If I can cut the Gordian knot insofar as both reports are concerned, it is unlikely that programs in custody will be of any assistance, and while Rampton may get benefits from a structured program, it is not going to be made available to him. While there are Community Corrections programs available, and I am aware Ms Durkin refers to them, in the community they are generally group programs. Rampton is not a suitable candidate for group programs. If the community is to be protected from Rampton and he is to help himself, it seems critical that he can engage in psychiatric management for his depression and coupled with psychological interventions to assist with other problems such as anxiety, depression and avoidance behaviour.
Cognitive Behaviour Therapy is required, and it is best coordinated through his GP and a Mental Health Care Plan. Ms Durkin says it is recommended that a psychologist trained in the treatment of sexual offending rather than engage in a group program where his other psychological traits, difficulties or conditions might make attendance at such program difficult.
Other positive relevant factors include his strong family support. His family standing by him is one matter that I can take into account. I am also aware from well-researched studies as evidence by this case that supervision on parole can assist, particularly if it is accompanied by management and direction toward treatment and pro-social activities.
His father has recently been diagnosed with a serious illness. That will mean that his mother is not as available to him and it will be an additional concern that he will have to bear while he is in custody.
[8]
Structure
I have given consideration to how the two sentences should be served and how they can be structured. By the fact that there are two offences enables a degree of flexibility in how the sentences are to be structured.
There are distinct offences and they should be partially cumulative. Given the one device was used for both, given that man of the relevant factors on sentencing overlap, given the principle of totality which allows for an aggravation of all sentences the just and appropriate measure of total criminality involved, the accumulation should not be significant.
[9]
Special circumstances
In the ordinary course of events so far as the New South Wales offence was concerned I would have made a finding of special circumstances. It is not necessary here apart from some minor adjustment because that sentence and its parole period would be effectively absorbed into the subsequent Commonwealth matter. In fixing that sentence I have had particular regard to the principle that requires the minimum time in custody properly reflect all the purposes of sentencing and what I regard as an appropriate sentence.
The Commonwealth sentence has a short period partly cumulative to be served in custody and then a recognizance release order which I believe will allow for a suitable period of monitoring. Although the Commonwealth matter has a higher maximum penalty, in all the circumstances equivalent sentences are required.
[10]
Synthetise
Just so everyone can understand, possession of child pornography is a callous and predatory crime. So too is accessing child abuse material. The material cannot come into existence without the exploitation and abuse of children somewhere in the world. On every occasion on which such items are downloaded for possession or accessed on the internet, that such access and possession provides further encouragement for those who produce such material to expand their activity: R v Booth [2009] NSWCCA 89 at [39]-[44].
I cannot extend this sentence beyond what is called for by the objective seriousness of the offence. I have sought to give effect to all of the mitigating factors and structure the sentence in such a way that both individual sentences and the total sentence is appropriate to the circumstances of the crime and the offender.
Sentences should aim for community protection. It can only do so by ensuring that first, the offender is adequately punished, but also by ensuring in this case that he is properly supervised and monitored for as long as possible.
[11]
Orders
In relation to both matters I enter formal convictions. I will sentence for the State offence first.
[12]
NSW offence
Taking into account the utilitarian value of the plea of guilty there will be a sentence of one year and ten months imprisonment. That sentence will date from 3 April 2019. There will be a non-parole period of one year and four months imprisonment. That parole period will end on 2 August 2020. The total sentence will expire on 2 February 2021.
[13]
Commonwealth offence
In relation to the Commonwealth matter you are sentenced to a term of imprisonment of one year and ten months to commence on 3 June 2020 and expire on 2 April 2022. I direct that you be released at the expiration of four months of your sentence on 2 October 2020 upon you entering into a recognizance pursuant to s 21B of the Crimes Act yourself in the sum of $100 with the following conditions:
1. To be of good behaviour for a period of 2 years.
2. To appear to receive sentence if called upon so to do at any time in respect of any breach within the said period.
3. Accept the supervision and guidance of an officer of Community Services NSW for a period for all long as they deem necessary.
4. Obey all reasonable directions of that service particularly in relation to Mental Health Plan, Psychological treatment and if necessary attendance on Corrective Service psychologist..
5. Report to Community Services, Wollongong within 7 days of release.
Mr Rampton - you are still a registrable person and you must comply with any reporting obligations on release. That is separate to any sentence I impose. You are aware of those obligations although you breached them in the past. You will be monitored and you will be checked and if you breach you will be caught. I am not taking into account that you are a registrable person except for the breach of the Act.
I will make a forfeiture order. The Court orders that pursuant to s 23ZD Crimes Act 1914 upon the application of the Commonwealth Director of Public Prosecutions that following item be forfeit, LG mobile phone serial number 507KPSL00706 IME 352514070070069
[14]
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Decision last updated: 30 September 2020