HIS HONOUR: Christopher Harold Schipanski pleaded guilty on an indictment, having been committed for sentence, in respect of four offences, one a Commonwealth crime, the other three offences contrary to the New South Wales Crimes Act.
The Commonwealth offence alleged that he between 1 January 2011 and about 12 December 2013 at Broken Hill in the State of New South Wales did use a carriage service to access child pornography material. This is an offence contrary to subs 474.19(1)(a)(i) of the Commonwealth Criminal Code. I am informed by the Crown in its written submissions it carries a maximum penalty of 15 years imprisonment.
In relation to the three State offences they are all offences contrary to s 91H(2) Crimes Act 1900 NSW, and each offence carries a maximum penalty of 10 years imprisonment.
Each offence was committed on 12 December 2013 and relates to the possession of child abuse material stored in particular places hence the different charges.
Count 2 on the indictment alleged the prisoner's possession of child abuse material on what is described as a Lexar USB flash drive.
The third count in the indictment alleges the accused's possession of child abuse material on a black Thermaltake PC tower.
The fourth count in the indictment alleges possession of child abuse material on fourteen CD/DVD's.
The essential facts of the matter are that by the use of a carriage service over a period of time of almost three years, at least, the prisoner used a carriage service to access child pornography which he downloaded and stored in relevant repositories reflected, as I understand it, from the facts in counts 2, 3 and 4.
The crimes are closely related to one another obviously and there must be a substantial degree of concurrence. But in my view, having regard to the evidence of the prisoner, and what is self-evidently the case from the facts, that the prisoner was able to pick and choose what he would retain for future reference. The prisoner accessed the child pornographic material beyond that which is specifically stored in the three repositories. Thus, the totality of the criminality in relation to the matter is enhanced by the four charges together rather than if, for example, count 1 had stood alone, or counts 2, 3 and 4 had stood alone.
The statement of facts is very detailed. I do not propose to go through it all and relate every detail. But particular essential details perhaps need to be included within the judgment. There is annexed to the judgment, as annexure A, a description of various materials that were found in various disks and DVD's found by police, as I understand it, in their investigation of this matter, the subject of particularly count 4 in the indictment, with a summary of the material contained therein.
I also was required - reluctantly but obviously importantly - to view some of the images which were accessed by the prisoner by use of the carriage service, and then particularly downloaded.
The background to the offending in the facts states that peer to peer file sharing is the distribution and sharing of digital media using peer to peer (P2P) networking technology over the Internet. This file sharing allows users to access media files such as pictures, videos, music and other files using a P2P software programme that searches for other connected computers on a P2P network to locate the desired content. The users of such networks are end user computer systems that are connected via the Internet.
In 2011 investigators from the Northern Territory Police Online Child Exploitation Investigation Unit identified what is described as an Internet protocol (IP) address being used by a subscriber who had child exploitation material in the shared folder of a P2P programme. This subscriber was identified as the prisoner.
Why further action was not taken at that point of time I do not know. However the facts as they reveal it show that the prisoner - as the particulars of count 1 identify - continued to offend in terms of court 1. Whilst in 2012 investigators from a similar investigation unit of South Australia Police identified five IP addresses used by a subscriber who had child exploitation material in a shared folder, and again this offender was identified.
Again, for reasons that are not explained over a year later on 12 December 2013, police executed a Commonwealth Crimes search warrant on the prisoner's address in Broken Hill. The first thing the prisoner is recorded as saying, when asked if he wanted to declare anything, was "I'm going to gaol, aren't I?" I have already answered that question for him today but I am sure that he knew from the moment he was arrested, given the character of this offending, which is serious offending indeed, that inevitably he would go to gaol.
When police entered the house they located a computer operating in the dining room, and the screen had numerous files, the names of those files indicating that they contained child abuse material. The computer was shut down and seized. Numerous other hard drives, cameras, USB drives, and CD's and DVD's were seized.
In relation to count 4 many of the CD's and DVD's had particular words written on them describing what was contained in the disks. "Piccys", "Good Piccys", "Favourites", and "Nude pictures" were written on these disks. The prisoner indicated the disks contained child abuse material. A number of times during the search the prisoner became emotional and said, "Just put me in gaol", and also "I don't want to go to gaol".
Child pornography under State law is material identified by police as child abuse material. In relation to child abuse material and/or child pornography there is a scale called the CETS scale. The acronym relates to Child Exploitation Tracking System. This scale developed in conjunction, I would understand, through national protocols, identifies what I understand to be six levels of such material.
The first level is sexually suggestive posing with no sexual activity - and I pause to say, as the facts will reveal, a great deal of the material the prisoner had was of that character.
The second category is non-penetrative sexual activity between children or solo masturbation by a child.
The third category is non-penetrative sexual activity between adults and children, or an adult and a child.
The fourth category is penetrative sexual activity between children, or adults and children.
The fifth category is sadism, humiliation or bestiality.
The sixth category is animated, or virtual depictions of children engaged in sexual poses or activity.
As one can see, the scale moves up in number the seriousness of the character of the images increases.
It goes without saying that anybody with any common sense whatsoever would know that, whether it be category on or the worst - as I see it - category of images, what one would be watching would be images of a child who had been exploited in various ways. It would be self-evident to anyone watching any particular image, whether it be a posed picture or a video, that the exploitation of that child would not necessarily be fully represented by the image and the surrounding circumstances in which that child had been brought to the image would be, on occasions, circumstances of coercion and other improper conduct towards the child.
The items specifically retrieved from the prisoner's property were items described in counts 2, 3 and 4 as I have outlined them, the flash drive, the PC tower, and the fourteen CD's and/or DVD's.
In dealing with count 1 the essence of that charge, the Commonwealth charge, is that the accused by using a particular P2P programme, described as 'eMule', downloaded material to the relevant tower, USB stick or drive, and CD and DVD's.
The prisoner during the course of an interview admitted to using the P2P programme eMule daily over the past three to four years to download child pornography. To be fair to the prisoner, in giving evidence he shed - to my mind - more light upon the matter than was revealed in the interviews with the police. It is quite clear, on his own version, that practically on a daily basis he was, with the use of a carriage service, accessing child pornography, viewing images, and picking and choosing what material he would download.
Sometimes of course, as he explained it, he would download material en masse which would not necessarily require him to look at every image, he could come back to those images if he had the time at a later time. The facts show the particular files that he created in the PC tower or, as I understand it, the hard drive of the personal computer he had.
With regard to counts 2, 3 and 4 the Crown has categorized by reference to the CETS category what the prisoner downloaded. So far as the USB drive or stick is concerned he downloaded sixty-nine videos that fit into the category one of the scale. He downloaded six videos related to category two. A total of seventy-five videos.
As far as I am aware - I was not shown any videos, for that I am grateful - I would understand it that the videos would be consistent with the still images that I primarily saw in the sealed material.
The facts set out in relation to the category two material, the conduct of persons shown in the video are consistent with that category of this child abuse material. One video, for example, had two young girls naked together. One video had a young girl of approximately eight years of age naked, undertaking particular activities, and another video had two pre-teen children naked involved in particular activities.
With regard to the category one material the ages of the children shown in some of the videos - three particularly identified in the facts are meant to be representative - is estimated to be eight years of age.
With regard to count 3 the PC contained a total of 47,224 images and 8,017 video files. A random sample of 6,688 images were viewed, and 325 of those images were classified as child abuse material - that is about 4.86%. It is estimated, as I understand it, on an extrapolation from this cross-sampling, that the total number of images classified as child exploitation material on the hard drive is between 19,098 and 25,090.
A random sample of 223 videos was viewed and 61 of these videos were classified as child abuse material, that is 27.35%. It is estimated on this sampling that the total number of videos classified as child exploitation material on the PC is between 1,593 and 2,791.
In relation to the images that have been identified through random sample, 324 of the images were category one, one was category two.
Fifty-four of the videos were category one, five were category two. There were two videos that were category four, and of course category four is penetrative sexual activity between children, or adults and children. The words speak for themselves.
I have some description of the category two image. The category one images were basically photographs of nude, or semi-naked girls, pre-pubescent, as I understand it, largely in states of undress in sexually suggestive poses.
I also have details of the various categories of video. One video showed an adult male having penile/vaginal penetrative sex with a girl aged four or five, and the male forces the child to perform fellatio upon him. One image shows two young girls masturbating themselves, and other activities consistent with the category four classification. The category two matters involve young girls, pre-teen and the like. The category one material shows nude children aged from two to sixteen in various positions.
Count 4, the CD's and DVD's, I have already referred to, and I have referred to the annexure, and I will not go through the detail of that. An estimate of the number of images at what is level one of the CETS scale exceeds 11,000 images. It is thought in relation to the CD and the DVD's they are practically all level one images.
The prisoner participated in an electronic interview on 7 February 2014 which quite clearly, by reference to his evidence before me, was not entirely frank. He made admissions of possession of the material, made admissions about downloading the material, and made admissions describing some of the material that was either already seen by the investigators, or subsequently to be seen by them.
He said, and it is probably true because he had done so so many times, he did not have a 'clue' how many times he accessed child pornography on his computer. He gave explanations as to how he accessed it, how he copied it, and how he downloaded it, and how he described the relevant pictures.
At one stage he said that some of the young girls were "beautiful, and I wish they were my daughter". But he could not understand why he said that. He expressed regret for his conduct and claimed that he realised his mistake. I pause to point out that whilst I acknowledge that expression of regret, one would have great difficulty believing that he realised his mistake only because he had been arrested by the police. He had ample opportunity over the three years before, or at least the two years and 11 months particularised in count one, to realise the error of his ways.
He claimed that he got no sexual satisfaction out of the images. With respect to him, a claim by him that not only is it ostensibly untrue but in my view is contradicted by the evidence he gave before this court. He went so far as to deny that he liked to look at young nude girls, which is a completely unacceptable explanation by him. It scarcely explains why he went on a daily basis to access such material, view it and store it. But he did acknowledge that he realised that what he was doing was wrong. He also, I hasten to say as his evidence revealed here and as he said in the interview, downloaded a body of adult pornography. In fact, as I understood his oral evidence although I do not have particulars of this, he had far more adult pornography, which as I gather within reason is legal - than he did child pornography.
He did deny however sharing the images with other people. There is no suggestion in the facts available to me of commercial exploitation or creation of child abuse material by him. He explained that in fact he thought that he was "ripping off the paedophiles" who he would have understood had created this material. If he did not understand the sordid circumstances in which this imagery would have been obtained. He ought to have had that understanding. I have great difficulty accepting or understanding that he did not understand the sordid and darker context of child abuse material. There can be no suggestion whatsoever that child abuse material or child pornography is in some way some form of victimless crime. Every image shows a victim and the circumstances in which children are placed in that position one can imagine defy description. Simply the idea of a five year old child being penetrated in the vagina by an adult male speaks of the horror of that material.
The offender had no criminal history at the time of the commission of these offences and I take that into account. He is a mature man, 56 years of age. Although the images, the subject of this charge, were retrieved by the execution of the search warrant on 12 December 2013, and although the police had ample information just from their observation of the offender's living quarters, the operation of the computer, he was in possession of the relevant material, he was not interviewed until 7 February 2014, at which time he was arrested and apparently was released without bail. He later was placed on conditional bail. He has spent no time in custody.
In relation to the assessment of the offending with which I am concerned in the submissions of the learned Crown Prosecutor, which have been most helpful, and the oral and professional written submissions, which were produced at the heel of the hunt on behalf of the accused, reference is made to a number of authorities which deal with the issue of categorising the offending with which I am concerned.
One such case is R v Gent [2005] NSWCCA 370, a decision of the New South Wales Court of Criminal Appeal in which Johnson J, in his usual thorough, succinct and insightful way, sought to identify the character of offences of this type and matters that may be taken into account in considering aggravating circumstances expressed in the general sense. In relation to the matter of Gent the two matters that are relevant arising from the criteria, if I might call them that, identified by his Honour are, firstly, the nature and content of the images including the age of the children and, secondly, the gravity of the sexual activity portrayed. No child abuse material of course, I hasten to say, is acceptable. But the characterisations that are nationally recognised identify various levels of activity which might reflect upon the seriousness of the offending, and, as has been pointed out from the facts, the vast majority of the images are level one images.
The second matter identified arising out of Gent relevant in this matter is the number of images or items of material possessed by the offender. Although his Honour said in the case of the possession of material for personal use as a relevant matter, the significance of the quantity lies more in the number of different children who are depicted and thereby victimised. The facts available to me are not entirely clear as to the number of children. From my observation of the limited images that I was shown there were in fact images of many different children shown in that material. Frankly, when I had the displeasure to look at that material, I was not particularly astute about that matter before I sealed the envelope containing the material. I certainly have not had a great deal of information from the facts. But I would understand that this is not a case of thousands of images of one child, there are many many children involved.
The Crown states, quite properly, that the offences are objectively serious and it says what is pertinent, in the context of considering the totality of the criminality particularly by reference to count one, that the offender accessed and subsequently processed over 13,000 child pornography images and over 2,000 videos. The ages of the children depicted in the images and videos range from about two years to 16 years. A number of different children were depicted and thereby victimised. A very substantial number indeed and the categories are as I have earlier identified.
One other feature of the matter that the Crown did not refer to in that part of its written submissions (at para 25) is the fact that the images that were stored in the offender's flash drive, hard drive and in the disks and DVDs that had been obtained, not on one day or two days but over an extensive period of time. Over the three years that the offender had been accessing the internet, on his own admission almost daily, viewing images and determining which images he would use for his own purpose.
In the written submissions of the offender it is acknowledged the seriousness of the offending. That goes without saying. I really cannot do justice to it really by a mere summation of the facts. It is acknowledged, as the Crown submits, that general deterrence is a paramount consideration in these types of offences citing the decision of Gent to which I referred.
The defence refers to a decision of Minehan v R ((2010) 201 A Crim R 243) where Hulme J, like Johnson J, a very learned judge in the area of sentencing and other aspects of the criminal law, has taken upon himself to identify what he states, and which I accept, are relevant matters to be taken into account in the assessment of the objective seriousness of the offending relating to the possession and/or dissemination or transmission of child pornography. Although, as I say, the offender is not responsible for dissemination or transmission which would either warrant other charges or, alternatively, aggravate the seriousness of the offending with which I am concerned. He points to these features which arise in this matter. Actual children were used in the creation of the material. He refers to the nature and content of the material including the age of the children, the gravity of the sexual activity portrayed. I have already dealt with that matter. He refers to the extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. I would imagine in the case of penile penetration of the vagina of a five year old there would be, one would expect, pain or physical harm to the child. However, I am not aware of any 'gratuitous' cruelty per se shown in the images. Of course, as to what cruelty had been inflicted upon the children getting to and from the place of the images is a matter of complete speculation. But the Crown does not submit that there are images depicting cruelty. I accept from what I understand of the facts, images or videos that might infer at least physical harm or show physical harm are fairly to be said to be limited. Sexual penetration in these circumstances is clearly a form of cruelty.
Here, the main features are: there is the number of images of the material and the number of children as discussed in Gent, there is possession without dissemination, which is a relevant matter to take into account and, of course, there are matters such as the proximity of the offender's activities to those responsible for bringing the material into existence. This offender is not said to be closely linked to the creators of this disgusting material. The degree of planning or organisation or sophistication in this matter was not great. It really required essential computer skills which I am sure are not uncommon throughout the community. The offender acted alone. He was not involved in what I would call a collaborative network of like-minded persons as arises in the facts of some of the cases to which I was referred. There was no suggestion of the material being seen or acquired by vulnerable persons, particularly children. There is no suggestion the offender's computer was one to which children had access to, nor was there any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
Of course I am required to take into account relevant matters too under s 21A Crimes (Sentencing Procedure) Act as well as s 16A Commonwealth Crimes Act, to which provisions I will refer shortly.
In this matter I have a pre-sentence report setting out the background of the offender. Much of the material in the report was reflected in the evidence of the offender. Again, perhaps in a qualified way, I say "in fairness" to the offender, I believe he was more frank in his evidence before this court than he was to the Community Corrections Service and to the psychologist who assessed him.
The offender lives alone in Broken Hill and he lives next door to a brother for whom the offender is a carer. I understand the brother has significant health issues, the precise detail of which was not made known to me, although I have a general understanding of his condition. His brother was in fact at court during the earlier sentencing proceedings. It was not submitted on behalf of the offender that there were exceptional circumstances arising out of the relationship of the offender with his brother to be taken into account, but the fact that the offender is a carer for his brother is a matter to be taken into account as one of a number of factors. There has been an AVO taken out against him from an ex-girlfriend concerning some activity of the offender. But I draw no conclusion adverse to the offender in relation to that matter.
He has been married and lived with his wife for 13 years and has two children. However, that marriage broke down and the circumstances I do not propose to divulge upon in public, it is not a matter of significance other than the fact that the offender does have contact with his son, but no contact with his daughter for many years.
He attended high school in Broken Hill I am informed and received an education to Year Ten. He has got a moderate level of numeracy and literacy skills. He obviously has considerable computer skills. He receives a carer's pension. Occasionally he does part-time casual work. He did work for a period of time as a storeman for a local mining company.
He claimed to the Community Corrections Service that he suffered from depression and anxiety and had been seeing a counsellor for these issues prior to his arrest in relation to the current matters. The counsellor confirmed he had attended 18 sessions with her for problems relating to post traumatic stress disorder, generalised anxiety disorder and prolonged grief disorder. He grieves for his mother who died over three years ago and they had a very close relationship. He also suffers stress from seeing his grandmother being killed in a motor vehicle accident when he was four and the accidental death of his father in a workplace accident in 1983. He also is very stressed in relation to the current court proceedings as one would expect.
To the Community Corrections Service he claimed that he only began looking at the child pornography out of interest "to see what the hype is about". He claimed to the Community Corrections Service that he was unaware that there were no many images that he had stored and could not really explain how he downloaded them. This clearly is not correct. Certainly it does not accord with the evidence he gave before me which as I said before was much more frank. He tried to downplay the seriousness of the offences with the Community Corrections Service. He seemed to show more insight in his evidence before me. Perhaps he had better opportunity to discuss with his legal representatives precisely what is the significance of the offending with which I am concerned. He said in relation to the character of the offences that he was shocked and "amazed" that he was the person described in the facts as they were alleged against him. He claims that he was not sexually attracted to children and he did not gain any sexual satisfaction from viewing the images. Claims I have a great deal of difficulty giving any credence to whatsoever.
It was thought applying the actuarial risk needs assessment that he was a "medium risk of re-offending" and he has particular issues that are required to be addressed in any supervision, including matters relating to education, his financial circumstances, the profitable use of his recreation and leisure time and addressing personal and emotional matters.
The Community Corrections officer assessed the offender as having a problematic upbringing and a very fractured history of personal relationships but having no insight into the seriousness of the offences and endeavouring to minimise his behaviour, showing no empathy for the victims of these offences, portraying himself as a victim and claiming fears for his personal safety. He would require supervision of Community Corrections which would involve psychological treatment and other matters consistent with his needs.
A psychologist with the Department of Corrective Services prepared a report dealing with the facts of the matter as alleged against the offender and reporting upon the offender's claimed lack of sexual interest in the images. A risk assessment was undertaken in accordance with criteria that identified both static and dynamic risk factors. The dynamic factors relevant to him include consideration of the research that suggests that online pornography offenders have the same major risk factors associated with re-offending as offenders who commit 'offline' sexual offences. In other words, people who view images online have the same risk factors as people who go out and indecently assault and rape and otherwise sexually interfere with children and other people. The risk factors are sexual and general self-regulation, sexual deviance, offence supportive attitudes and beliefs, antisocial orientation and intimacy defects and she describes other matters that can be defined as dynamic risk factors.
The dynamic risk factors appearing relevant for Mr Schipanski appear to be deficits in developing intimate relationships reflected in marriage breakdown and other relationship issues, the offender having had no relationships for apparently eight years before his arrest. Another risk factor for him was sexual self regulation. But in this regard it was noted he did not admit to a sexual interest in prepubescent girls and denied being aroused by the images. A claim, as I say, I have difficulty accepting.
In summary, it was thought that he had a low rate of re-offending, accepting what he had said of course. There were factors self evidently missing from his background that might otherwise increase the risk of him re-offending, such as prior criminal history including violence, prior criminal history of contact sexual offences amongst other matters. It was thought that, bearing in mind there were no drug or alcohol issues, he still would need assistance in relation to treatment for anxiety and depression although that would appear to be appropriately managed, he would benefit from continuing psychological assessment, counselling and monitoring but sex offender treatment would not be available in the community, particularly in the Broken Hill area. It was unlikely that he would receive any sexual offender treatment whilst in custody.
The prisoner as I have said gave evidence before me and I have cited some aspects of his evidence as they relate to the material that has already been tendered. He said amongst other things that he felt terrible about what he had done and was glad that he had been arrested. He said he made no attempt to hide the material. He reflected upon what he had said in his interview about wishing some of the girls had been his daughter. He gave an explanation for that comment which I found difficult to understand let alone accept. I believe it was an off the cuff remark which did reflect his great, at least personal and emotional interest in the images that he had at least if not sexual.
He claimed that he felt terrible and remorseful over the period of time that he was downloading images and as I said, he did agree as he had not agreed before that it wasn't entirely accurate that he had no sexual interest in the images. He claimed he had an interest at one stage but did not like it but he could not explain to this Court as he could not explain to anybody else why he kept downloading the images. There is some material that he did not perform particular acts to reflect his sexual gratification and I have no evidence to contradict that assertion.
He claimed remorse and he also claimed that he did not realise how much material he had. Another assertion I completely reject having regard to the number of disks that he had and the number of images on the disk. He agreed as I said earlier to, for at least 18 months on a daily basis accessing images, looking at images for at least half an hour a day but not always viewing all the images that he had downloaded. Some images were automatically downloaded. He reiterated the assertion that he felt good to rip off the "paedophiles".
He said that whilst he liked looking at the images, there were aspects of the matter that he was ignorant of and claimed that really in effect that the downloading of the images was essentially compulsive conduct on his part to use my words and he was forced to admit in cross-examination that it is self evident that there were images he must have liked because of the manner in which he had downloaded them and categorised them, as is the case in relation to count 4.
The last piece of evidence that I need cite out of the material that has been presented to the Court is the psychological report by Jane Farrin which is a very detailed report that runs to 21 pages. The report is very thorough like the psychological report, which is much shorter, prepared by the Department of Corrective Services. One of the problems with this report and its findings is reliance upon, or at least consideration of, the representations made by the prisoner about his lack of sexual interest in the images which I have already commented upon. It reflects upon his history which provides much greater detail than I have referred to in this judgment. My summary of his background is merely that, a summary, and I am prepared to accept the much greater detail of his interests, his employment and other personal matters, including his financial history, appears in the report of the psychologist, Ms Farrin.
He gives a history of depression in his family, his mother particularly. His mother passed away in 2011 of pulmonary oedema. I am not given the date of her death day but if she died in 2011. It would seem, based on the particulars in relation to count 1, he had already started downloading this material before his mother's death. I do not accept for one moment that the downloading of material is a reaction to his mother's death. Although I accept the general proposition, as it is self-evident from all the material, that the prisoner was a relatively socially isolated person that made him vulnerable to making access to internet material of this type.
There is reference in the report to a history of mental health treatment. In 1995 he was dealt with by Dr Philip Kneebone in August 1995 for depression, suicidal ideation and active intent and "neurovegetative symptoms of depression". He was actually admitted to Broken Hill Hospital on 3 October 1995 by police who found him wandering aimlessly along a road after living in the bush for a number of days. He had visual hallucinations and other persecutory beliefs and he was admitted for two weeks. He was readmitted on 9 January 1996 to hospital for eight weeks showing various symptoms consistent with a significant mental illness including paranoid thoughts and other matters. He was admitted to hospital again for mood stabilisation. He then on that occasion went to live with his mother and brother being too scared to live alone.
In the course of committing count 1, he was reviewed by a visiting psychiatrist at Broken Hill Mental Health Service on 7 October 2011 reporting occasional suicidal thoughts, vivid dreams, hallucinations, hearing the voice of his mother upon falling asleep and having various sleep disorders. He was said to display symptoms consistent with a "schizotypical personal trait".
He was reviewed again by Dr Kneebone, who was then a visiting psychiatrist, on 23 January 2014. He had not seen Dr Kneebone for 15 years. He was presenting, after being arrested by the police but not then charged, with vivid dreams, auditory hallucinations, sleep disturbance, low mood, suicidal ideation, anxiety disorder and surprisingly "low libido". He was given anti-depressant medication and he gave a history which I will not go into in detail of the effect upon him of his mother's death and the effect upon his mental state in the manner that I have generally described.
He has been seeing a mental health social worker in 2013 and 2014 and throughout 2014 to 2015 and he said that he was seeking some counselling in relation to dealing with other people who he thought took advantage of him. He is currently prescribed Zoloft on a daily basis and I would recommend that the custodial authorities ensure that he is provided with relevant medication when he is in custody. He is not prescribed any anti-psychotic medication. He continues to have some regular suicidal ideation but no active intent and many symptoms of anxiety.
I do not propose to go through his psycho sexual development. I have noted what is said in the report. I note again his claim that he was not sexually aroused or sexually attracted to the images. He denied any particular activity in relation to the images.
On the basis of the information provided by the prisoner, in conjunction with some objective facts, the psychologist was of the view that despite poor cognitive problem solving as a risk factor, but in the circumstance of having no deviant sexual interests or activities and having had three significant relationships, he was not thought to be at high risk of reoffending. He also did not report attitude supportive of adult sexual offending or behaviours consistent with using sex as a coping strategy. Thus the risk factors identified are very few.
Ultimately the conclusion of the psychologist is that in the context of social isolation and the impact upon him of mental illness in the past, relationship breakdown and the like, but in the absence of a history of sexual deviancy or substance and alcohol abuse, the prisoner was a man of average to below average intelligence with diagnostic criteria for 'Schizoaffective Disorder' characterised by paranoid thoughts, delusions, hallucinations, depression, suicide ideation and sometimes poor personal hygiene, sleep disturbance, appetite changes and social isolation. He has had a history of over 20 years of auditory and visual hallucinations, and he possesses few of the traditional static and dynamic criminogenic risk factors of general reoffending which have been identified as predisposing an individual towards offending behaviour. He has no prior criminal history amongst other matters.
His risk factors for sexual reoffending include deficits in his problem solving, his negative affect and loneliness, and he is a person who would require treatment both in custody and at large, particularly addressing matters relating to problem solving skills, addressing his social isolation, and getting him to understand his sexual offending. She noted that whilst the offending was very serious, he was vulnerable and socially isolated. She said he expressed significant remorse and distress regarding his offending, and was extremely fearful of incarceration and was embarrassed about talking of his offending behaviour, knowing it was morally wrong. Imprisonment imposes a significant deterrent to him. She believed that he was not a person who could be categorised as a paedophile, not satisfying the diagnostic criteria for paedophilia. She sets out at pp 19, 20 and 21 a summary of these various matters at paras 1 to 12, and recommendations relating to treatment in the community set out at paras 1 to 4 which no doubt will be available for the Parole Authority to consider.
Naturally, as is self-evident from the attention I have taken to the matters raised in the evidence, I have had regard to all the evidence. As I said, I was assisted by detailed written submissions by the Crown and the defence. It is clear in relation to the Commonwealth matter I am required to have regard to the terms of s 16A Commonwealth Crimes Act, and in relation to the State offences I am required to have regard to the relevant provisions dealing with consideration of the factors in sentencing in various sections of the Crimes (Sentencing Procedure) Act 1999.
With regard to that latter Act, if I might deal with that first. I am required to have regard to the 'Purposes of Sentencing' in s 3A. Clearly each of the matters identified as purposes of sentencing are relevant, particularly general and personal deterrence, denouncing the conduct of the prisoner, ensuring adequate punishment, making him accountable, but also promoting his rehabilitation in the context of sentencing a man to a term of imprisonment for the first time at his age. I point out that, as all the cases that I have been referred to and the cases I have dealt with show, it is not unusual for a person with no prior criminal convictions to be guilty of crimes such as those disclosed in the counts and this indictment. Many of those individuals having similar profiles to this prisoner are socially isolated people, but on the other hand people who should know better.
With regard to the Crimes (Sentencing Procedure) Act, I am also required to have regard to s 5, and clearly no sentence other than a term of imprisonment should be imposed. I am required to have regard to s 21A Crimes (Sentencing Procedure) Act, not only those matters of aggravation and mitigation that might be inferred from the operation of subs (1) but also those matters arising under s 21A(2) as aggravating factors, and (3) as mitigating factors in respect of the State offences.
In respect of particular aggravating factors, the subsection does not speak of any particular matter that I could identify which has not already been commented upon by reference to the facts. Of course, it might be said that the State offences involve multiple victims or a series of criminal acts in this limited sense, that he had access to images which showed multiple people being exploited in the way that the photographs - and clearly somewhere in the world, many of these images no doubt coming from overseas, there were criminal acts being committed by others upon children that the prisoner by mere possession of the offending material must have condoned. To have an interest in this material in my view is to condone what is shown in the images, and to assert otherwise with respect scarcely rates acceptance.
With regard to mitigating factors, there are a number. Whilst I have not found as an aggravating factor the offences were quite 'planned or organised 'criminal activity, I could not conclude on balance favourable to the prisoner that they were not "planned" activities, but they certainly were not part of organised criminal activity, at least on the part of the prisoner. I acknowledge of course that organised crime is very active in the exploitation of human beings around the globe, particularly children. This should have been understood by the prisoner, but the prisoner is not responsible for those organisations.
The prisoner did not have any record of previous convictions. I am prepared to accept that before the prisoner commenced this course of conduct reflected in count 1 he was a person of good character. I cannot conclude however he is unlikely to reoffend. I have to say in relation to that aspect and his prospects of rehabilitation, although I note the views of the psychologist that he is of low risk of reoffending, he certainly needs a great deal of counselling and direction before one could be confident that those circumstances occurred.
By reference to his evidence last Tuesday, I ultimately conclude that he has shown remorse, shown that he has accepted responsibility for his actions, acknowledged the harm that is caused by his conduct. But it must be fairly said this has been late coming and was only partially revealed and rather emptily revealed when he was interviewed by the police. His plea of guilty is of course a mitigating factor for which he receives a discrete discount.
Just turning if I may to s 16A, I have dealt with the nature and circumstances of the offence. There are no other offences to be taken into account. The offence in count 1 does reflect a course of conduct encompassed within the charge but leading of course to the commission of the State offences. I am not aware of the personal circumstances of the victims in the sense of the people sadly portrayed in the various images, but it is to be fairly said it was not the prisoner who made them victims but it is the prisoner who exploited them. I cannot identify any injury, loss or damage to any individual beyond what might reasonably be inferred by the circumstances of the images. The prisoner is not personally responsible for that.
I am required to take into account the fact that he has pleaded guilty. I am required to take into account the fact that he has co-operated with the investigating officials. I am required to take into account the deterring effect of any sentence upon him and also give full weight to general deterrence, although it is not mentioned in s 16A, but is clearly relevant in Commonwealth sentencing as was held in decisions many years ago of El Karhani and Paull and others subsequently. I have to ensure that the prisoner is adequately punished. I am required in relation to the Commonwealth matter to take into account his character, his antecedents, his age, his physical and mental condition, which I do, and his prospects of rehabilitation, which I have already commented upon. The effect upon his brother I take into account, but again it is not a matter of exceptional circumstances but still is relevant.
With regard to the issue of his mental health, this is a very live issue in this sentencing proceeding that seemed to have received to my mind somewhat scant attention. In approaching the matter I reflect upon and specifically refer to the observations of Justice McClellan, then the Chief Judge at Common Law, now the royal commissioner into institutional child abuse in the decision of DPP v De La Rosa [2010] NSWCCA 194, particularly the summary of a number of authorities he reviewed at [177]-[178]. It is to be fairly said that the mental conditions identified in great detail by the psychologist, Ms Farrin, could not be seen to be directly causally connected to the offending, but they are related, albeit indirectly, contributing as I have earlier pointed to what I see is the significant matter of his isolation, leading to the development of what he would have taken to be "relationships" through the viewing of images of people in the manner described in the facts. His Honour said that,
"where a person is suffering from a mental illness, intellectual handicap or other mental problems, the court has developed principles to be applied when sentencing. When the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced."
The materiality in a direct sense of course is small, but in an indirect sense it does exist. The moral culpability of the prisoner however in my view is only marginally reduced by reason of that factor. It may also have the consequence, he said, that an offender is not an appropriate 'vehicle' for the 'message' of general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.
In my view, that principle, as summarised from the earlier decided authorities such as Engert and Israil, has some role to play here. But not a great role given the relationship of his mental disorders and the offending as I have analysed it. I accept however that his condition may mean that a custodial sentence will weigh more heavily upon him and be more onerous for him. In my view he may require a great deal of hospitalisation or isolation from other offenders given his mental condition. Of course, he no doubt will be isolated and will need protection because of the character of the offending. His condition is not one which in my view reduces or eliminates the significance of specific deterrence. On the other hand I do not believe his conditions, because of their indirect contribution to the offending, require greater weight to be given to specific deterrence by increasing sentence in the circumstances described by the learned Chief Judge at Common Law.
His Honour pointed out (at [178]) that the mental health problems of an offender need not amount to a serious psychiatric illness before they be relevant to the sentencing process. Clearly here the prisoner has a serious mental illness, at least in the past, exhibiting florid symptoms at various times, but there is no evidence of florid symptomology. Perhaps underlying symptomology but certainly not pronounced symptomology as has occurred in the past at the time of the offending. This is a matter relevant both in relation to State and Federal sentencing, particularly in relation to s 16A(2)(m) Commonwealth Act.
The Crown's written submissions point to the need for a term of full time custody. That goes without saying. It has been the case the Crown has endeavoured to provide the Court with some assistance with some comparative sentences. I have regard to the cases that are annexed to the Crown's written submissions so far as they provide some assistance. However, I am very mindful of what the Court of Criminal Appeal recently said in RCW (No 2) about the need to treat each case individually and not to be fixated upon one particular sentencing exercise in fixing the appropriate sentence for the matter that the Court has to determine at bar.
I have discussed with the Crown today some of the Crown submissions in relation to the fixing of sentences and I take into account the Crown's written submissions. The particular mater that I took issue with appears at para 25. I do not understand any provision in the Commonwealth Crimes Act that dictates that when sentencing for State and Commonwealth offences, one must accumulate the Commonwealth sentence upon the non-parole period fixed for the State offence. My understanding of these various provisions, particularly s 19, is that in fixing sentences involving State and Commonwealth matters, bearing in mind different sentencing regimes exist, that it is pertinent to ensure that there be no gap between the minimum term fixed in relation to a Commonwealth matter and the minimum term fixed in relation to a State matter, or in relation to each of the sentences imposed.
With regard to the prospects of rehabilitation aspect, if I might just come back to that for a moment. I note what the Crown wrote in its written submissions and I generally accept what is there although the reservations about the prisoner arising from his out of court statements to psychologists and to interviewing police need to be seen in the context of his greater candour when he appeared to give evidence before me.
With regard to the written submissions of the accused and his oral submissions, I note what was put by counsel orally and reflected in the written submissions, the weight to be given to the plea of guilty, the weight to be given to the mental health of the prisoner, the likelihood of reoffending, his prospects of rehabilitation. The difficulty I have with his prospects of rehabilitation is his lack of insight, which is reflected upon by Community Corrections and which I have observed from his statements about various matters. But it is to be fairly said that in assessing that matter one has to take into account his absence of prior sexual offending and the absence of diagnostic criteria with paedophilia. There is also the issue of his mental health which might contribute to his attitude.
I am required to consider principles of totality, in other words I am required to sentence the offender in accordance with the majority decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly at [45]. It was submitted on behalf of the accused that I should look to alternatives to full time imprisonment and to that extent in part reliance is made upon some statistics that are provided.
Unfortunately the samples provided by counsel for the accused, and I do not criticise Mr Rajalingam's industry, but the sample of cases from JIRS statistics is pitifully small. Not for the first time in this sittings I refer to the observations of the learned Chief Justice Spigelman in 1998 in respect of inadequacy of statistics, admittedly from his perspective, when considering matters in the Court of Criminal Appeal in the decision of Bloomfield, one needs a healthy sample before one could draw any fixed conclusions and it seems to me quite clear from the authorities setting out general principles, such as Gent and Minehan, and also from some of the comparative cases, that ultimately given the period of time the offender was accessing images and the number of images and the character of the images, that notwithstanding his mental health and his absence of prior criminal convictions a term of fulltime custody ought be fixed.
I have determined that in accordance with State legislation, pursuant to s 44 Crimes (Sentencing Procedure) Act 1999, there should be a finding of 'special circumstances'. The matters that might be said to be favourable to the offender in conjunction with his mental health issues and matters reflected in the report of Ms Farren requiring address by way of counselling demand an extension of the relationship of the minimum period to the balance of the sentence. I am mindful in relation to the Commonwealth sentencing the observations of the High Court in Hili and Jones where the High Court put to rest the fallacy that somehow developed that there was some sort of fixed ratio that was required to be fixed between the minimum term of a term of imprisonment, usually a non-parole period where the sentence is more than three years, and the total sentence. That fallacy which developed in part in New South Wales in cases such as Bernier and others, was based upon no legislative fiat - no disrespect to the Judges who developed those principles - but based upon essentially personal views there are a number of matters to be taken into account in fixing a minimum term; s 44 demands consideration of particular matters and it seems to me that consistent with High Court decisions such as Hili, Muldrock and the much earlier decision of Bugmy from the 1980's (not the 2013 decision of Bugmy but the appeal from the Victorian Court of Appeal) all reflect that, in fixing a minimum term to reflect, the need for an appropriate period of supervision, which I propose to do, but not so low as to ignore the seriousness of the offending. Otherwise, I believe I have had regard to all that has been put before me.
Mr Schipanski, could you stand up stand up please, thanks very much. I will start with the New South Wales sentences, if I may.
In relation to count 2, 3 and 4, in respect of each offence you are convicted. You are sentenced to a term of imprisonment in relation to each offence which consists of a non-parole period of six months to commence on 21 May 2015 and to expire on 20 November 2015. The balance of the sentence is one year and the balance of sentence, on my calculation, will expire on 20 November 2016. In the fixing of that sentence I have given you a discount of 25% to reflect the utilitarian benefit of your plea of guilty in accordance with the guideline judgment in New South Wales of Thomson and Houlton, the total sentence is one year and six months.
For counts 2, 3 and 4 there will be total sentences of 18 months each with a non-parole period of six months, each sentence to be served concurrently. I appreciate, of course, that one might look at count 3 and having regard to the number of images conclude that that is more serious in a sense than the offence involving the hard drive or the offence involving the CDs and the DVDs, but ultimately I have concluded, notwithstanding the capacity to distinguish between one and the other to some extent, concurrent sentences of the same length are appropriate given your moral culpability particularly in relation to each offence.
In relation to count 1 you are convicted. I sentence you to a term of imprisonment pursuant to the Commonwealth Crimes Act, s 20, of two years and three months. That sentence is to commence on 21 November 2015 and to expire, on my calculation, on 20 February 2018. I direct that you be released at the expiration of nine months of your sentence upon you entering a recognisance pursuant to s 20(1)(b) yourself in the sum of $200 to be of good behaviour for a period of one year and six months from this date and appear to receive sentence if called upon to do so at any time in respect of any breach within that said period.
A further condition of that recognisance if that you are to accept the supervision and guidance of an officer of the New South Wales Community Corrections Service for a period of one year and six months and obey all reasonable directions of that officer and that you report to the Community Corrections Service within 48 hours upon your release from custody. I do not propose at this stage to impose any other conditions of that recognisance unless so requested by the Crown.
Mr Crown, do you seek a forfeiture order?
WILLIAMS: Yes, your Honour.
HIS HONOUR: Could you assist me with the terms of that order, please.
WILLIAMS: I have a draft order.
HIS HONOUR: Could I have that, please. Any objection to the forfeiture order, Mr Walton?
WALTON: No, your Honour.
HIS HONOUR: Mr Schipanski, in accordance with s 23ZD of the Commonwealth Crimes Act and upon the application of the learned Director of Public Prosecutions, the following items are forfeited to the Commonwealth: one black Thermaltake computer tower with a particular serial number: one Lexar USB flash drive with a particular exhibit number on a property seizure form; and 14 CDs and DVDs with a particular exhibit number on a property seizure form. That order will be dated today, 21 May 2015.
I'll have that sealed and I'll give you a copy, Mr Crown, and I'll give you a copy, Mr Walton. Now, Mr Crown, any technical matters from you?
WILLIAMS: No, everything is covered, your Honour.
HIS HONOUR: Thank you. Any technical matters from you, Mr Walton?
WALTON: No, your Honour.
HIS HONOUR: Mr Schipanski, you are sentenced in effect to a minimum term of one year three months and you will be released, as I calculated it, to supervision, as I have ordered it, on 20 August 2016 and you will be subject to supervision by the Community Corrections Service for a period of one year six months from that date.
[2]
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Decision last updated: 09 March 2016