[2018] ACTSC 31

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - using a carriage service to transmit child pornography material - using a carriage service to solicit child pornography material - using a carriage service to distribute child pornography material - using a carriage service to menace, harass or cause offence - intentionally possess child exploitation material - pleas of guilty - no prior criminal record

Crimes Act 1900 (ACT) s 65

Crimes Act 1914 (Cth) ss 16A and 17A

Criminal Code Act 1995 (Cth) ss 474.19(1) and 474.17(1)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

Director of Public Prosecutions (DPP) v Thomas [2016] VSCA 237; 315 FLR 31

R v Dixon (1975) 22 ACTR 13

R v Harrington [2016] ACTCA 10; 11 ACTLR 215

Xiao v The Queen [2018] NSWCCA 4

Commonwealth Director of Public Prosecutions (Crown)

1. This morning, the offender was arraigned and pleaded guilty to five counts in an amended indictment dated 6 November 2017. The offences, and the respective maximum penalties, are as follows:

(a) Count 1: using a carriage service to transmit child pornography material (CC 2017/4239), contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years' imprisonment.

(b) Count 2: using a carriage service to solicit child pornography (CC 2017/4241), contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years' imprisonment.

(c) Count 3: using a carriage service to distribute child pornography material (CC 2017/4243), contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years' imprisonment.

(d) Count 4: using a carriage service to menace, harass or cause offence (CC 2017/9961), contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 3 years' imprisonment.

(e) Count 5: intentionally possessing child exploitation material, contrary to s 65 of the Crimes Act 1900 (ACT). The maximum penalty for the offence is 7 years' imprisonment and/or a fine of $105,000.

2. Pleas of guilty were indicated following a committal hearing and some negotiations. The pleas were not entered at the earliest available opportunity.

3. Whether the offender is entitled to a discount for the utilitarian value of his pleas is perhaps uncertain. There is some conflict between a decision of this Court (R v Harrington [2016] ACTCA 10; 11 ACTLR 215 ('Harrington')) and decisions in Victoria and New South Wales (Director of Public Prosecutions (DPP) v Thomas [2016] VSCA 237; 315 FLR 31 and Xiao v The Queen [2018] NSWCCA 4 respectively).

4. In Harrington, the plurality said that utilitarian value should not be taken into account in arriving at a discount for a plea of guilty for a Commonwealth offence. The other two cases are to the contrary. I am bound by Harrington, to the extent that I do not think I can apply a discount in excess of 15%. But for Harrington, I would have applied a discount of 20%.

5. In reaching the discount of 15%, I have taken into account the offender's remorse, his acceptance of responsibility and willingness to facilitate the course of justice.

6. As far as the Territory offence is concerned, I will apply a discount of 20%.

7. The offender was born in 1997 in Italy. He is currently 20 years of age. The offences occurred in 2016, when the offender was 18 and 19 years of age.

8. The offender moved to Australia when he was four years of age. Although his parents separated shortly after arriving in Australia, he has had a stable upbringing. He is the eldest of two children and has the support of his parents and sibling.

9. The offender currently lives with his mother. He did very well at school but struggled to form strong relationships with his fellow classmates. After completing Year 12, the offender commenced an undergraduate degree. He has deferred his studies until these matters are finalised.

10. The offender is physically well but did suffer from some mental health issues at the end of Year 12. He has been diagnosed with depression and anxiety. He currently sees a psychologist and a counsellor.

11. It is clear from the Pre-Sentence Report that the offender has not minimised his criminal behaviour and has expressed a good deal of remorse. I was also advised that he has expressed a desire to write letters of apology to the victims and engage in restorative justice.

12. Unfortunately, according to the Pre-Sentence Report, the offender did not originally appear to have much empathy for the victims, although he "has now been able to articulate the impact it had on them". Also of concern is the observation that there is a moderate to high risk of sexual reoffending.

13. The offender is, however, entitled to some leniency because he does not have a prior criminal record. This is, of course, moderated by the nature of the offences. It is also necessary for me to take into account the offender's age and the fact that he has most of his life ahead of him. There is also a danger, as expressed by Fox J in R v Dixon (1975) 22 ACTR 13, that imprisonment will have an adverse effect on the offender.

14. I have read the references tendered on the offender's behalf. They describe a decent and intelligent young man with the potential to be a contributing member of society. They also describe his shame at the offences and his commitment to rehabilitation.

15. There is a report from a psychologist, Mr Nomchong. He says that the offender:

...has developed a very good understanding of his actions, the effects upon innocent others, the enormity of his actions, the factors that were present that delivered him into his behaviour and how to resist such undue influences...

Fortunately, Oliver has responded well to therapy from me and others and as a result, I have formed the view that it's quite unlikely that Oliver will engage in such abhorrent behaviour again, that he has good insight into his actions and the impact upon others, and that he is deeply regretful of those actions.

17. The impact that offences of this type have on their victims is substantial. The abuse of children is not limited to the time when the abuse occurs or the photograph is taken. It is perpetuated each time an image is shared or seen by another person. It is capable of following a victim for many years into the future. This is graphically illustrated in this case, where an apparently private photograph was distributed some three years after it was taken. The threats to distribute the material, and the actual posting of the material on Instagram, render the offence all the more serious.

18. Other elements of aggravation that were highlighted by the Crown include the threats and demands made, the use to which the child pornography was put and its distribution, the call for original material (thus engendering a need for yet further abuse to occur) and the offender's role as a supplier of child pornography.

19. The Crown further pointed out that the offender rejected the victim's plea to stop, in relation to Count 2.

20. It is clear that the principles of specific and general deterrence are very important in dealing with these type of offences.

21. The offences are described in detail in the agreed Statement of Facts (Exhibit A). The following is a summary. Count 4, which I have already mentioned, involved the offender sending a young woman some photographs of herself with little clothing on, taken some years earlier, and threatening to disseminate the photographs to a large group of people.

22. Count 1 relates to the offender sending the same young woman a photograph in which she was wearing underwear but her breasts were exposed. When an enquiry was made as to how the photograph was obtained, the offender replied "revenge porn sites are great. Your life ends now you have until my shitty internet loads to stop me".

23. Count 2 concerns the offender sending a photograph to another young woman, then aged 17 years of age, that had been taken when she was 12 years old. She was scantily dressed in the photograph. Once again, the photograph was accompanied by a threat and the young woman was given five minutes to send back a full body nude photograph. A girl aged 14 also received a message with a photograph of her wearing only a bra. The photograph had been taken about a year previously. Once again, nude photographs were demanded from the victim to prevent the photograph being disseminated.

24. Count 3 concerns the offender taking part in a chat group which involved the exchange of child pornography. One of the images obtained by the offender is that involved in Count 4. The photographs included pictures of pre-pubescent girls, some in sexually explicit poses.

25. In respect of each of the above offences, the offender used a pseudonym to conceal his identity.

26. Count 5 refers to a number of child pornography images and videos found on the offender's mobile phone. There were 206 files classified as child pornography. A further 209 files were found on the offender's computer and a further 108 files were found on an older computer. There were 25 files on a portable hard drive.

27. Analysis of the offender's computers identified 154 separate children. Each one of these children is appropriately referred to as a victim. The images covered a number of categories relating to the degree of abuse and offensiveness. Although most of the images held by the offender were in the lowest category, depicting sexually suggestive posing with no sexual activity, there were at least 25 images in Category 5, which relates to sadism, humiliation or bestiality.

28. There are approximately 700 images in total. It was submitted on behalf of the offender that this is not a large amount when compared to the thousands of images that are identified in other cases. The number of images may be comparatively small when compared to many thousands or tens of thousands. Nevertheless, in my view it is still a large amount. The offender's submission misses the most important point. As noted above, 154 children have been abused to produce the images possessed by the offender.

29. Both sides provided me with other decisions but conceded that there was no very similar case. I have taken the decisions into account but emphasise that this case must be decided on its own facts.

30. Sentencing for Commonwealth offences requires consideration of both the Crimes Act 1914 (Cth) and the Crimes (Sentencing) Act 2005 (ACT). The latter act sets out the objectives and principles of sentencing in sections 6 and 7.

31. Section 16A of the Crimes Act 1914 (Cth) provides that the primary purpose of sentencing is to arrive at a sentence that "is of a severity appropriate in all the circumstances of the offence". Section 17A states that a person should not be sentenced to a term of imprisonment for a Commonwealth offence unless the court is satisfied that no other sentence is appropriate in the circumstances of the particular case.

32. The offender has submitted that, while imprisonment is an inevitable consequence of his conduct, the sentence need not necessarily be served by way of full-time imprisonment. An Intensive Corrections Order was suggested.

33. The Crown has submitted that the nature of the offences, including their impact on the victims, combined with the need for specific and general deterrence, demand a sentence of full-time imprisonment.

34. I agree with the Crown. In terms of s 11(3)(a) of the Crimes (Sentencing) Act 2005 (ACT), I consider that the level of harm to the victims and the community renders an Intensive Correction Order inappropriate. In other words, the offences are simply too serious.

35. I have said on many occasions that the most difficult sentences are those which involve a young person of previous good character, who has potential and is part of a close family. Every effort should be made to keep such persons out of prison. The risk of destroying this young man's life by sentencing him to a term of full-time custody is substantial. Sentencing requires consideration of an offender's subjective circumstances, as well as the nature and effects of criminal conduct.

36. However, part of the sentencing exercise is, of course, to consider the wrong that has been committed. In this case, the wrong is far from minor. It is objectively serious. The three young women who were contacted were no doubt terrified by the messages they received and the possible realisation of the threats. Every one of the 154 victims whose images have been disseminated have, simply by being depicted, been abused.

37. There is a Victim Impact Statement from one of the young women who was contacted by the offender. She describes her emotional and psychological reaction to what occurred. She describes the impact of the offence on her personal life and her capacity to maintain the social life she had enjoyed prior to being contacted by the offender. Fortunately, this young woman had the resilience and support networks to recover from this attack upon her. Nevertheless, she had to see a psychologist, had time away from school and was under so much stress that her hair began to fall out (possibly in an episode of telogen effluvium).

38. In my view, the demands of appropriate punishment, including the need to express the revulsion that the community feels for this type of conduct, must be reflected by a period of immediate imprisonment. I appreciate that the offences took place over a relatively short period of time. Nevertheless, they are separate offences and there must be at least an element of accumulation in the sentences.

39. In setting the particular sentences, it is necessary to take into account the difference in maximum penalties that apply between them, including the relativity of this offender's conduct compared to conduct which might attract the maximum penalty.

40. At the same time, I recognise the principles of totality and the need to avoid an unjustly long sentence. I intend to impose a head sentence of two and a half years, with some degree of accumulation and concurrency.

(a) In respect of count 1 (CC 2017/4239), using a carriage service to transmit child pornography material, the offender is sentenced to 18 months' imprisonment (after a reduction of 15% for the discount) commencing on 23 February 2018 and ending on 22 August 2019.

(b) In respect of count 2 (CC 2017/4241), using a carriage service to solicit child pornography material, the offender is sentenced to 18 months' imprisonment (after a reduction of 15% for the discount) commencing on 23 February 2019 and ending on 22 August 2020.

(c) In respect of count 3 (CC 2017/4243), using a carriage service to distribute child pornography material, the offender is sentenced to 18 months' imprisonment (after a reduction of 15% for the discount) commencing on 23 August 2018 and ending on 22 February 2020.

(d) In respect of count 4 (CC 2017/9961), using a carriage service to menace, harass or cause offence, the offender is sentenced to 6 months' imprisonment (after a reduction of 15% for the discount) commencing on 23 February 2018 and ending on 22 August 2018.

(e) In respect of count 5 (CC 2017/4244), intentionally possessing child exploitation material, the offender is sentenced to 12 months' imprisonment (after a reduction of 20% for the discount) commencing on 23 August 2018 and ending on 22 August 2019. The sentence is suspended on 22 November 2018 upon the offender entering into a Good Behaviour Order for a period of 2 years.

(f) On 22 November 2018, the offender is to be released upon giving security in the sum of $1,000 to be of good behaviour for 2 years and he is to be subject to supervision by the Director-General or its delegate for the period of 2 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of that person.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.