Mr B Vasic (Counsel for the offender)
File Number(s): 2018/286010
[2]
Judgment
Sasa Sekulic, who was born in 1982, appears having pleaded guilty to one count under s 91H(2) of the Crimes Act 1900 (NSW) of possessing child abuse material, carrying a maximum of ten years imprisonment; and one count under s 474(19) of the Criminal Code 1995 (Cth) of using a carriage service to make available child pornography material, which carries a maximum penalty of 15 years imprisonment. As submitted by Mr Vasic, counsel for the offender, it is clear that the Commonwealth offence is much less serious than the State offence.
The offender pleaded guilty at an early opportunity, and is entitled to 25% discount for the utilitarian value of the plea in relation to the New South Wales count, and the Crown does not contest that a discount of 25% should be allowed for the Commonwealth offence.
It is agreed that a term of full time custody is required and it is unnecessary for me to consider any alternatives.
The facts are very extensively set out in great detail over ten pages, and I have been shown a brief sample of some the material at the request of the Crown.
The offender was first spoken to by Police in September 2018 when they attended his premises as a result of investigations into the use of paedophilia file sharing platforms for the purposes of accessing, making available, and distributing child pornography. Police downloaded two videos from a uTorrent connected to the offender.
R v Sekulic [2020] NSWDC 209 | Case summary | Zoe
They spoke to the offender. He acknowledged that the computer that they found was his and he was the only person using it. There are a total of 718,000 files found on a hard drive. A sample of 34,000 were selected for review, and 41% of them are characterised as child abuse material in various of categories 1-6 under the CTS. About 45% of them were category 7 images which are not classified as child abuse material.
On another hard drive there were a total of 447,000 files, of which a random sample of 4,479 were investigated, 93% of those were child abuse material across various categories 1-5, and a small percentage of category 7 material.
On an Apple iPhone there were 21,000 images of which 247 were classified as child abuse material in categories 1 and 3, and a large number in category 7.
I have to take account of the sentencing principles for both State and Federal offences. As helpfully set out in the Crown's written submissions, the principles are not significantly in dispute.
The subjective case for the offender is based on the history set out in reports which are not tested, or adopted, and therefore subject to the caution expressed in Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369 and similar cases, but there is no challenge by the Crown to the history as a reasonable basis upon which to proceed. The history is relevantly consistent across all the material that I have seen.
An important factor is that the offender has begun the process of seeking therapy for his actions and has attended four sessions commencing in December 2019 and it is recommended he have continuing treatment in the future.
The Sentence Assessment Report describes a close relationship with his parents. He is single and has minimal pro-social relationships outside his family. He has no prior criminal history and a good work record. He said that his offending arose out of curiosity from his general consumption of online adult pornography. He acknowledged that he had done the wrong thing and expressed shame about his actions. He was assessed as being at a low risk of re-offending.
A report by psychiatrist Dr Antony Henderson expands significantly on the family history. He has no history of drug or alcohol abuse. He has been unable to maintain employment since his offences were uncovered because of the feeling of shame relating to the offending behaviour and he does not want to disclose his background to prospective employers.
He ultimately came to acknowledge his offending behaviour, as Mr Vasic put it, and struggled to explain why it was morally wrong, but he stated "It just is", and he agreed that young people cannot consent to the behaviour shown in the material, and that engaging in such behaviour results in physical and emotional harm, which he acknowledged.
He had a very modest educational history and scored below 20% in his HSC. He attempted tertiary studies but struggled with those, and has been a manual labourer for the last several years.
Dr Henderson says that his mental conditions, namely, social anxiety disorder, sexual dysfunction disorder, and persistent depressive disorder, significantly contributed to his offending behaviour. Treatment of those mental conditions is likely to significantly reduce his risk of further offending behaviour. He is not suitable for acceptance in to the CUBIT programme because that is only for people who have a moderate to high risk of offending behaviour.
He acknowledges that his mental conditions are likely to deteriorate in a custodial environment. A similar diagnosis and assessment as to risks of recidivism are reached by a counselling psychologist, Ms De Santa Brigida.
The Crown sets out in written submissions a number of principles of sentencing for child pornography which have been restated by Johnson J in R v De Leeuw [2015] NSWCCA 183 at [70] and [72].
As to the state offence, it is true, as the Crown says, that he was in possession of a vast library of child abuse material which he had amassed and stored over a period of three years. It is not possible to identify the exact number of individual victims, but it is, as the Crown points out, a very high number, predominantly being prepubescent females between the ages of five and 13. In my view, the state offence is above the mid-range of objective seriousness, but not in the high range as submitted by the Crown.
The Commonwealth offence relates to the seeding of two video files via a peer-to-peer sharing network. The offender possessed both of them in their entirety and made them available to any anonymous uTorrent user. There is no contest that the objective seriousness of the Commonwealth offence is in the low range
I take account of the various purposes of sentencing set out in the Crown's submissions, in particular that the offence involving multiple vulnerable children as victims. General deterrence is of fundamental importance in sentencing for these offences, in particular due to their increasing prevalence. But as Mr Vasic puts, the mental conditions diagnosed by Dr Henderson and the causative link reduce the need for emphasis on specific deterrence. As I have said, his prospects of rehabilitation are good, given his recognition of his offending and the favourable assessments made by professionals.
The Crown points to a number of supposedly comparable cases, including R v Porte [2015] NSWCCA 174, R v Martin [2014] NSWCCA 283, Mouscas v R [2008] NSWCCA 181 and R v De Leeuw [2015] NSWCCA 183, and they are not relevantly dissimilar to the outcomes displayed in the statistics and the summary of the statistics which has been provided by Mr Vasic.
The sentence must be one which involves separate sentences for the state and the Commonwealth offences, and it is accepted that there should be a degree of accumulation, to be achieved by way of a staggering of the starting point of individual sentences.
By way of clarification, Mr Vasic points out that the offender possessed and viewed the images for his own private use, they were not distributed for sale or profit and he did not subscribe to or pay for any of the images, they were downloaded without cost from the internet, he acted alone and not as part of any organisation and there was no risk that the material could be acquired or potentially be seen by any vulnerable person, given his living circumstances.
There is no challenge by the Crown that a finding of special circumstances should be made, given the clear need for continued treatment and the fact that this is his first time in custody, and his time in custody will, even in the absence of evidence, but according to what may be described as common knowledge in these cases, will be more onerous than normal, given that such offenders are generally incarcerated in protection.
The orders that I make are:
[3]
002 Possess child abuse material (NSW)
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 20 months, to commence on 20 March 2020.
3. I impose a non-parole period of 10 months, expiring on 20 January 2021.
4. I find special circumstances.
[4]
005 Use carriage service to make available child pornography material (Cth)
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 12 months to commence on 21 February 2020.
3. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released after 7 months on the condition that the offender enters into a recognisance, self, in the sum of $100, subject to the following conditions:
1. The offender is to be of good behaviour for 1 year;
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
[5]
FORFEITURE ORDERS
1. I make forfeiture orders pursuant to the Short Minutes of Order (Crimes Act 1914) and Short Minutes of Order (Confiscation of Proceeds of Crime 1989)
So the effective non-parole period is 11 months, that is, ten months for the state offence, starting one month after the commencement of the Commonwealth offence.
Note - These extempore remarks were revised without access to the court file.
[6]
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Decision last updated: 19 May 2020