R v Vouden

Sequence 4 - use carriage service to access child pornography

1. The metadata for each of the images shows the time and date that the images were saved onto the iPad Mini. The web browsing history on the device shows the time and date that websites were accessed, including an image sharing website that is known to be used for sharing child pornography images.
2. A number of pages on this site had been accessed, including: 1. An album involving 832 page visits 2. A second album 3. A third album involving 38 page visits 4. A fourth album involving 74 page visits
3. The time and date of access of these image sharing sites, with matching titles, is contemporaneous with the time and date that images were saved onto the device.

Sequence 5 - possess child abuse material

1. A number of images saved on the iPad Mini depict prepubescent females. The images depict children aged between 5 and 16 years of age in various stage of dress from completely undressed to dressing in lingerie or swimwear. Most of the images of undressed children appear to be children in their teens.
2. After executing a search warrant at the Offender's residence, Police seized a number of items including a ZTE Blade L5 mobile phone belonging to the Offender.
3. A review of the media contained within the device identified 150 images of material that is classified as Category 2 on the INTERPOL Baseline Categorisation classification system. These images predominantly depicted female children aged between 5 and 16 years of age in either sexual poses or framed in such a way to accentuate the genital area. A very small amount of these images depicted the bare breasts of females below the age of 10. Many of the images were the same as the images located on the iPad Mini device.
4. The Offender participated in an interview with Police but made no comment in regard to the above offences charged.
5. There are no images that depict a child: 1. As a victim of torture, cruelty or physical abuse; or 2. engaged or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or 3. in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity.
6. A very small proportion of images that do classify as "exposing the genital area or anal area or the breasts of a female child" are not coupled with a sexual pose.
7. The devices were also found to contain a large number of images and videos that classify as adult pornography.

Second Instance of Offending

1. At about 9:40pm on 28 December 2018, police stopped a vehicle in relation to the manner of driving. The Offender was a passenger in the rear of the vehicle.
2. The Offender was arrested in relation to a breach of bail, namely his use of a mobile phone in the car to view the Facebook application. Whilst he was being processed at the police station, he disclosed to police that there were images of "girls" on his mobile phone. The mobile phone that was in the Offender's possession was seized.
3. On 29 December 2018, consent was obtained by police from the Offender's father to search the Offender's bedroom for electronic storage devices. A Samsung tablet was seized.
4. On 1 February 2019, the mobile phone and Samsung tablet were analysed.

Sequence 1

1. The mobile phone was found to contain nine category 1 images and one category 2 image.

Sequence 2

1. The Samsung tablet was found to contain twelve category 1 images and twenty-two category 2 images. Six of the images were duplicates at varying levels of zoom.
2. As was the case with the material located on the iPad Mini and ZTE Blade L5 mobile phone, the images on the mobile phone and Samsung tablet depicted female children between the approximate ages of 5 and 16 with the majority being prepubescent. Some were undressed. The photographs of clothed children were generally framed in a way to accentuate the children's genital areas.
3. There are no images that depict a child: 1. As a victim of torture, cruelty or physical abuse; or 2. engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or 3. in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity.
4. There were only a very small number of images that do classify as "exposing the genital area or anal area or the breasts of a female child".

Objective Seriousness

1. In assessing the objective seriousness of sequence 4, the Crown drew attention to the number of times that the review showed that the Offender accessed three of the relevant pages being 832 times, 38 times and 74 times respectively. Furthermore, it noted that the images had been saved onto the device on the same date and times as the pages were viewed.
2. The Crown submitted that this was not an insignificant number of files to access for offences of this kind and drew attention to the fact that the Offender repeatedly accessed an online environment to obtain child pornography material.
3. The Crown drew attention to the fact that in Sequence 5, the Offender possessed approximately 1000 images on his iPad Mini and approximately 150 images on his mobile phone, which meant that they fell within the criteria for category 2 of the INTERPOL baseline categorisation classification system.
4. The images on the iPad mini depict children aged between 5 and 16 years of age in various states of undress, from completely undressed to dressed, in lingerie or swim wear. Photos of clothed children were framed in a way to accentuate their genital area.
5. Overall, the Crown submitted that in relation to Sequence 4 and 5, the offending fell towards the lower range.
6. The Defence drew attention to the fact that the Offender accessed the material but did not disseminate or solicit the material to others. It conceded that the offender visited the website a number of times and accessed a number of different pages.
7. The Defence drew attention to the fact that the number of images was relatively low in relation to other offences of this kind and that most of the images of undressed children appeared to be children in their teens. The Defence submitted that Sequence 4 and 5 fell within the low range of objective seriousness.
8. In relation to Sequence 1 and 2, the Crown conceded that each described as not a large number of files relative to other offences of this kind and the objective seriousness of the offending fell in the lower range. The Defence agreed with this submission.
9. In relation to images to Sequence 1, the Crown observed that they predominately depicted children aged between 5 and 16 years of age in either sexual poses or framed in such a way to emphasise their genital areas. It noted that a very small amount of images depicted the bare breasts of female children under the age of 10 years.
10. The Defence otherwise drew attention to the fact that there were no images on the device that depicted a child as a victim of torture, cruelty or physical abuse or engaged in or apparently engaged in sexual activity. It submitted that a very small portion of the images which do classify as exposing the genital area, anal area or breasts of a female child are not coupled with a sexual pose. It further observed that many of the images on the mobile phone were duplicates of images on the iPad mini. There was no suggestion that the material was for the purpose of sale or further distribution.
11. The Defence also submitted that the number of images was low and the nature and content of the material was relatively low level in relation to offences of this kind. It specifically drew attention to the fact that the images were of children between the approximate ages of 5 and 16, with a majority being prepubescent. It acknowledged that some were undressed and the photos of the clothed children were framed in a way to accentuate the children's genital area. It reinforced that there was no suggestion that the material was for the purposes of sale or distribution.

Assessment

1. In assessing the seriousness of the offending I bear in mind the non-exhaustive factors referred to in R v Hutchinson. [1]
2. The Crown submitted that there was no particular evidence going to moral culpability that impacted on the activity that constituted the offending. Despite experiencing frontal brain injury, there was no evidence that that the offender engaged in such conduct because of impaired judgment arising from the motorcycle accident (discussed below). The Defence made no contrary submission. I accept that this is so.
3. Much of the Offender's explanation for his conduct rests on his illicit drug use. Pursuant to section 21A(5AA) of the 1999 Act, self-induced intoxication at the time of an offence is not to be taken into account as a mitigating factor on sentence for the State matters. No submission was advanced that the offending occurred in circumstances amounting to diminished moral culpability.
4. Although Sequence 4 involved category 2 child abuse material, there is nothing to describe the content of that material in the agreed facts except that it incorporated the material the subject of Sequence 5. Nevertheless, I have borne in mind the frequency of access of the relevant sites described, although nothing in the facts suggests any collaboration, dissemination or that the Offender acted in a network of like-minded people. The evidence indicates that the material was accessed for his own use.
5. In the case of Sequence 5, I have noted that the offending involved two devices with a number of the images being the same. On the iPad mini, the persons depicted were between 5 and 16 years of age in various levels of undress with most of the undressed ones being in their teens. The images on the mobile phone were 150 in number with the predominant feature being females between five and sixteen years. The number of children depicted overall is not clear. Although each fall within the COPINE 2 scale, they do not include depictions embraced in that scale as earlier referred to.
6. Overall I would regard Sequence 4 as falling towards the lower end of objective seriousness and the Sequence 5 falling within the lower range.
7. In the case of sequence 1, I have noted that there were 9 category 1 images and 1 category 2 image. In the case of sequence 2, there were 12 category 1 images and 22 category 2 images, 6 of which were duplicates at various levels of zoom. Beyond this, the specific number of victims depicted is not described and nor is the content of the category 1 images.
8. I have borne in mind the features not depicted as earlier described. I have also borne in mind the relatively small number of the images, the content and ages to the extent able to be made out. Overall, they involved female children between 5 and 16 years of age with the majority being prepubescent, 'some' undressed with the clothes and framed to accentuate "genital areas." I accept the position of the parties that each of sequences 1 and 2 fall within the lower range of objective seriousness.

Plea of Guilty

1. It was acknowledged that the Offender pleaded guilty to all of the offences in the Local Court.
2. With respect to the State and Commonwealth offences, [2] the Offender is entitled to a discount for a guilty plea which is to be quantified. In the case of the State offences the discount should be 25% in accordance with R v Thomson and Houlton. [3]
3. Whilst the R v Thomson and Houlton guideline does not apply to sequence 4, I accept that a similar discount should be applied of 25% taking into account the utilitarian value of the plea. No submission was advanced to the contrary.

Remorse and Contrition

1. The Offender did not give evidence. A statement was however, tendered on his behalf, which was marked as Exhibit 1.
2. In that statement, the Offender apologised for his actions resulting in the charges and stated that he was extremely embarrassed and ashamed of what he had done.
3. The Offender sought to minimise his conduct by reference to the fact that he had a heavy addiction to ice and only ever carried out the offending under the influence of ice. He stated that prison has opened his eyes, and is not something that he wishes to experience. He expressed a willingness to undertake courses and therapy that might be recommended to him.
4. In the report of Ms Thea Gumbert, psychologist, dated 21 October 2019, she reports: Mr Vouden said that being arrested in front of his father was "the most embarrassing moment of my life". He said, "I am embarrassed and deeply ashamed for what I've done, I deeply regret it. I'm focused on changing my life." Reflecting on the offences he said, "when I look back, I can't believe that was me. I hate to think that was me". When asked who had been harmed by his offending behaviour, Mr Vouden first identified himself and his family, but then added, "the people in the images who didn't intend for the images to be downloaded for the intent that they were". He said he wanted to seek treatment to "better understand why I did this". [4]
5. Ms Christine Vouden, the Offender's mother, also provided a letter dated 8 October 2019, stating: Adam is not only remorseful for his actions, but also seems ashamed and repulsed and I know he is keen to receive treatment. My greatest hope is for Adam to have access to intensive rehabilitation for drug reform and psychological support for his personal disabilities and short comings which he has not had the benefit of before now. [5]
6. The Crown drew attention to the fact that in a statement to the presiding magistrate at Campbelltown Local Court dated 14 December 2017, Gayle Stannard, Drug Health Counsellor, recorded that: Mr Vouden reports no methamphetamine use since late October 2017. In each session he reported no thoughts, no cravings and no lapses regarding this drug. He was with Relapse Prevention Skills. Mr Vouden reports seeing a psychologist on a regular basis, so by mutual agreement he was discharged from Drug & Alcohol Counselling, but is aware that he is welcome to retract this service at any time. [6]
7. That statement was written at a time period which preceded Sequences 1 and 2. The report also records that after having been charged with the earlier sequences, the Offender was placed on bail with reporting conditions and prohibitions on internet use. Ms Gumbert records: He breached his bail when he accessed the internet on his smartphone, in front of a police officer, and subsequently more images were found on his phone. He said he was unsure why he had continued to access child abuse material but again related it to his ice use, stating that while he had said he was sober, his addiction had actually been further escalating.
8. In this respect, Ms Gumbert noted that the Offender freely admitted that he misled his family as well as his drug counsellor, and that the information in her letter of December 2017 regarding his abstinence from drug use is not accurate.
9. I note Ms Gumbert records: Although he denies any history of sexual interest in children or underage persons sober, Mr Vouden acknowledged that he developed an interest in looking up child abuse material and did so routinely while under the influence of methamphetamine. He related that he does not understand his own proclivities in this regard and maintains that he was disgusted by the same images when sober. As such he relates his offending directly to his drug use. I note that this may reflect an honest account of Mr Vouden's interests, but potentially may also reflect a conscious and unconscious attempt to manage feelings of shame about his offending, and to distance himself from the offending behaviour as a deliberate or conscious choice. In either case it does appear that Mr Vouden's substance use was associated with his offending and increased his degree of dysregulation.
10. There is plainly some attempt by the offender to minimise his responsibility for his actions.
11. On the balance of probabilities, I accept that on the basis of the evidence provided, the offender has demonstrated contrition pursuant to s 16A(2)(f) of the 1914 Act. Contrition is also a matter I take into account in respect of the state offences. I also bear in mind his acceptance of responsibility implicit in his plea of guilty and acknowledgement of the harm brought about by his conduct to Ms Gumbert. However in light of his minimisation I am not satisfied that he has fully accepted responsibility for his actions within the terms of section 21A(3)(i) of the 1999 Act such that I would regard remorse as limited.

Offender's Character, Antecedents and Age [7]

1. The Offender is a 39 year old man. The Crown acknowledged that he had limited criminal antecedents.
2. Ms Gumbert reports that the Offender is the youngest of three siblings and was raised in the Campbelltown area. He stated that he had a good relationship with his family and denied any history of exposure to abuse, neglect or other adverse circumstances.
3. The Offender reported that he had lived with his family for most of his life, estimating that for only a total of around 6 months he was living in share houses or with his sister. He reported that his drug use was a factor in his choice to do so.
4. The Offender acknowledged that he has an 8 year old daughter, but he has had no contact with her since she had been a toddler. He states that he wishes to establish an independent lifestyle first, and then to regain contact with her. Ms Gumbert reports that the Offender recorded having good schooling until the age of 16, when his parents moved house and he moved to a new high school. He stated that he felt uncomfortable in the new environment and stopped attending school. When his parents were notified, he was transferred back to his old school, but by then many of his friend had left and he found it difficult to readjust.
5. The Offender reported truanting and dropping out in Year 11. Thereafter, he worked at a mattress warehouse, and gained an apprenticeship with MNM Engineering building truck bodies. In his second year, he was involved in a serious motorcycle accident and suffered extensive injuries, requiring two years of rehabilitation before he was able to re-enter the workforce. He then completed an apprenticeship as a mechanic, qualifying in 2007 and for the next ten years he was employed full time in various workshops.
6. In 2017, consequent to his methamphetamine use, he lost his job and was then unemployed for approximately a year. He stated that although he found other jobs, he was unable to take them up because of his drug use.

Offender's Physical and Mental Condition

1. The serious motor cycle accident occurred on 18 September 2000. In that accident the Offender suffered a depressed comminuted frontal bone skull fracture with underlying frontal contusion, requiring emergency craniotomy and multiple facial fractures including left zygoma, left sphenoid and both nasal bones and orbits. He remained in hospital for three months and reports he returned several times afterwards.
2. Subsequently, the Offender was readmitted in February 2001 and underwent various medical procedures. He was on hormone replacement therapy, and then continued to have visual impairment and complained of reduced hearing. [8]
3. According to a report from Ms Cheng Kouch, optometrist, the Offender has visual instability in his right eye on the basis of poor visual acuity consequent to optic nerve damage. [9]
4. The Offender has had lasting problems arising from the subject injury, including insomnia, reduced visual acuity, deafness in the left ear and seizures. All these traumas require regular treatment, as recorded in Justice Health records which were tendered as Exhibit 1, Tab A, and the Gosford Hospital Medical Records which were tendered as Exhibit 1, Tab B.
5. More specifically, on 23 July 2019, the Offender experienced a seizure which resulted in him being hospitalised at Gosford until 28 July 2019.
6. On 5 August 2019, Justice Health records that Corrective Services were unable to facilitate the offender having an urgent pathology sample taken due to "staff/security issues". This was a sample that had been requested by a treating professional, to take place on 31 July 2019. [10] The sample was not collected until 6 August 2019, despite concern expressed by a Doctor regarding the delay. [11]
7. The Defence contended that a custodial sentence would weigh more significantly on the Offender given the ongoing problems arising from his traumatic brain injury. The Crown accepted that this was the case, and I take that matter into account. I have noted that the Offender's mother reports that the Offender has never really come to terms with his disabilities and restrictions caused by his traumatic brain injury and has had many hospital admissions for different illnesses and seizures which she opines, led to his abuse of drugs as an escape.

Mental Health

1. Ms Gumbert reports that the Offender has had no contact with mental health services prior to entering into custody, nor any prior diagnoses of mental health disorders. She records however, reports of the Offender having experienced symptoms of depression, for which he did not seek treatment. The Offender reported frequent nightmares of a general variety and disturbed sleep due to the accident.
2. The Offender was reported as not discussing his emotions and trying to keep them away from his family. In the year prior to the index offence, he reported depressive symptoms such as a lack of motivation and anhedonia, but denied any history of sexual harm or suicidal ideation.
3. As part of the clinical assessment, the Offender was assessed using a depression and anxiety stress scale - 21 Items (DASS-21). It was recorded that the Offender obtained a score of 36 on the depression sub scale and 28 on the anxiety sub scale, and 38 on the stress sub scale, with all scores falling within the extremely severe range of clinical symptoms.
4. Ms Gumbert reports that the Offender has had two sessions with a psychologist whilst he has been in custody, and has seen a general practitioner who recommended anti-depressants, an option which he is considering together with further counselling.

Substance Abuse

1. Ms Gumbert recorded that the offender in his teens occasionally used illicit drugs, including cannabis, MDMA and cocaine, but denied any related problems. However, subsequent to the motor car accident he reported that he tried amphetamines several times, but experienced seizures on two occasions which prompted him to curtail his drug use.
2. Ms Gumbert reported that in his late twenties, the offender first used crystal methamphetamine (ice) and within a year progressed from occasional to weekly use. He would use around 0.5 grams over a weekend, which he reported was enough to stay awake for days, which had a detrimental impact on his work and health. His drug use then progressed to daily use of around 0.2 grams, and stated "it was a massive problem that took over my life". The Offender stated that he never sought treatment because he was ashamed.
3. The offender's symptoms were described to be consistent with DSM 5 Diagnostic Criteria for stimulant use disorder. Ms Gumbert reports that the Offender is now in early remission in a controlled environment. I accept that the offender's feelings of depression relate to his drug use, which he described as "a big part of that". [12]

Likelihood of Reoffending and Prospects of Rehabilitation [13]

1. The Offender has only minor matters in his criminal history, and no offences of a similar nature. He has expressed a wish to seek treatment and describes a "desire to better understand why I did this."
2. Ms Gumbert states that in her opinion, the Offender meets DSM-5 criteria for a diagnosis with 302.89 Other Specified Paraphilic Disorder. This diagnosis applies to presentations in which symptoms characteristic of a paraphilic disorder (in this case, paedophilia and voyeurism) are present, but full diagnostic criteria are not met. Ms Gumbert opines that while the offences suggest paedophilic interest, the Offender's actions have been limited to viewing child pornography, and he has not made any attempts to sexually engage a child.
3. Ms Gumbert identified the risk factors as the offender's substance abuse, coping deficits, and limited history of intimate partnerships. She also notes protective factors, that she opines support the offender's prospects for change and rehabilitation, being his expressed motivation to participate in treatment to better understand his offending, his reports that he is progressing well in recovery from drug use, and has been abstinent for around 10 months, and has suitable means to re-integrate positively into the community by enjoying family support and having prospects to return to stable employment.
4. I accept that the Offender does have some insight, so far as recognising that he would need to refrain from drug use, and has confidence in his ability to remain abstinent. He has indicated that he is willing to engage in treatment to address his drug use. Despite his reluctance to acknowledge his paraphilic interest he has expressed some desire to participate in treatment to better understand his offending.
5. Overall, Ms Gumbert opines that the Offender is at low risk of reoffending, but would benefit from community based sex offender treatment programs and referral to forensic psychology services. She also specifies that the offender would benefit from interventions in the following areas:

• Developing insight into his individual risk factors and triggers for accessing child pornography (e.g. setting events, cognitions and behaviours in the lead up to offences) with a focus on risk management
• Understanding the harm inflicted upon victims, as well as broader ramifications for himself, his family and the community
• Interventions aimed at facilitating appropriate social and sexual relationships, while also drawing appropriate boundaries
• Imparting effective emotional coping skills

1. Ms Gumbert also stated that the offender would benefit from individual therapeutic support in recovery from drug use, with a focus on relapse prevention skills. She suggested that this should be provided by a registered psychologist who can provide interventions for management of the offender's depressive symptoms.
2. Overall, subject to the offender embracing treatment as recommended, I am satisfied that the offender has reasonable prospects of rehabilitation and a relatively low likelihood of reoffending.

Sentence

1. A finding of special circumstances in relation to the State offences and the making of a recognisance release order in the case of the Commonwealth offence would ordinarily be justified taking into account the fact that this is the offender's first period in custody, his health and the desirability for an extended period on parole. However in light of the respective length of the State and Commonwealth sentences, it is an appropriate matter that I take into account in setting the recognisance release order. This is consistent with the position advocated by each of the parties.
2. In sentencing the offender I have regard to the purposes of sentencing in s 3A of the 1999 Act and s 16A(2) of the 1914 Act.
3. In respect of Sequences 4 and 5 there is an overlap in the relevant material the subject of the offences. Nevertheless, the offences are directed to different vices. [14] There is also overlap in the material the subject of Sequence 1 and 2.
4. I am mindful in this regard of the principles referred to in R v Porte as to concurrency and accumulation between State and Commonwealth matters. [15]
5. I note that Counts 1 and 2 were committed whilst on bail for counts 4 and 5. However no submission was advanced that the sentences for these matter should be aggravated on this account.
6. I am satisfied in the circumstances that no penalty other than imprisonment is appropriate.
7. The offender came into custody on 28 December 2018. I propose to commence the relevant State sentence from that date.
8. In relation to the State offences I propose to proceed by way of aggregate sentence. Having regard to the pleas of guilty, I indicate the following sentences: 1. Sequence 5 - 9 months imprisonment 2. Sequence 1 - 4 months imprisonment 3. Sequence 2 - 4 months imprisonment
9. Overall, I would impose an aggregate sentence of 12 months to date from 28 December 2018 and to expire on 27 December 2019. In the circumstances, I would decline to set a non-parole period in respect of this sentence.
10. In respect of Sequence 4, I would sentence the offender to 18 months imprisonment commencing on 28 June 2019 and to expire on the 27 December 2020. The offender is to be released on a recognizance release order in the sum of $100 from 27 January 2020.

Endnotes

1. [2018] NSWCCA 152 at [45]-[46] referred to in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243.
2. S16A(2)(g) of the Crimes Act 1914 (Cth) (hereinafter "the 1914 Act"). See also Xiao v R [2018] NSWCCA 4 and s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (hereinafter "the 1999 Act").
3. (2000) 49 NSWLR 383.
4. Exhibit 1, Tab 1, page 6.
5. Exhibit 1, Tab 5.
6. Exhibit 1, Tab 2h.
7. S 16A(2)(m) of the 1914 Act and s 21A(2)(e) and (f) of the 1999 Act.
8. Exhibit 1, Tab E.
9. Exhibit 1, Tab F.
10. Exhibit 1, Tab B (progress/clinical notes) 5 August 2019.
11. Exhibit 1, Tab B.
12. Exhibit 1, Tab 1, at [2.7].
13. S 16A(2)(n) of the 1914 Act and s 21A(2)(h) of the 1999 Act.
14. See R v Porte [2015] NSWCCA 174 at [55]-[56] per Johnson J (Leeming JA and Beech Jones J agreeing).
15. See [99]-[100]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2020