R v Williscroft

District Court of NSW|2024-08-02

Introduction

This morning Mark Williscroft was arraigned and pleaded guilty to nine serious offences; some very serious. The indictment was presented to correct some procedural matters as Williscroft had, when before the Local Court, indicated that he would accept responsibility for his crimes and plead guilty to them.
There are eight New South Wales State offences for sentence and one Federal offence. They are interrelated, but I must sentence applying the rules and principles set out in both the Commonwealth and State legislation. So far as they apply here, most reflect common law principles.
While I am required to consider s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) and s 17A Crimes Act 1914 (Cth) it is accepted that so serious was the offending that custodial sentences of some length must be imposed.
Custody is required because the offences here involved child abuse material or public sexual acts, matters which most in the community regard as abhorrent. That said, every offender and every offence for sentence requires an individualised assessment. Courts must approach the imposition of sentences in a principled manner. One simply does not give voice to a 'gut' or personal reaction to the offending. Rather, I have to consider each offence, the totality of the offending, the harm suffered by victims, known and unknown.

Facts for sentence

A search warrant was executed on Williscroft's home on 30 December 2022. During its execution three USBs, one laptop, and a mobile phone were seized. Those devices were subject to review and found to contain:

USB1: Over 2,500 photographs and eight videos containing child abuse material and a folder containing 80 photographs of female children proximate to the offender's residence and taken by him. They fit the definition of child abuse material, which definition I note is particularly broad, and here covers material that involved photographs of the genital area of children wearing underwear, to the most extreme forms of abuse.
USB2: 55 videos containing child abuse material.
USB3: 12,000 plus photographs, 25 videos of child abuse material and a folder containing 41 photos of young female children proximate to the offender's residence, 13 of which fit the definition of child abuse material, six involved a child who was then aged between nine and 11 and seven photographs of three children, who were able to be identified. They were then aged three, six and seven.
The laptop: Child abuse material including photographs and videos.
The mobile phone: Five videos of the offender masturbating on trains in the presence of others, two involving female children and three involving young adult females.

In total, on all the devices, over 123 gigabytes of child abuse material were located, in 90 separate folders, containing at least 15,000 photographs and 75 videos. The videos included adult men sexually assaulting children. They included recordings of sadism, bestiality, and children in sexualised poses.
The child abuse material depicted female infants and children ranging from months to 11 years old being treated sadistically, engaged in sexual acts with animals, being sexually assaulted by adult men, including various forms of penetrative sexual intercourse.
Following the acceptance of responsibility by the offender for the material on his devices his offending was, during Local Court negotiations, reduced to the nine offences to which he reaffirmed his guilty pleas this morning.

Count 1 - An offence pursuant to s 91H(2) Crimes Act 1900 (NSW), of produce child abuse material. That offence carries a maximum penalty of 10 years.
Count 2 - Is another offence pursuant to s 91H(2) Crimes Act (NSW).
Count 3 - An offence pursuant to s 66EB(3) Crimes Act (NSW), of groom a child under 14 years for unlawful sexual activity. It carries a maximum penalty of 12 years imprisonment and, for an offence that falls in the middle of the range, taking into account only objective factors, Parliament has fixed a standard non-parole period of 4 years.
Count 4 - An offence pursuant to s 61KE(a) Crimes Act (NSW), of carry out sexual act towards another without consent. It carries a maximum penalty of 18 months imprisonment.
Count 5 - Another offence pursuant to s 61KE(a) Crimes Act (NSW).
Count 6 - Another offence pursuant to s 91H(2) Crimes Act (NSW) of produce child abuse material.
Count 7 - Another offence pursuant to s 61KE(a) Crimes Act (NSW).
Count 8 - Another offence pursuant to s 91H(2) Crimes Act (NSW).
Count 9 - An offence pursuant to s 474.22A(1) Criminal Code Act 1995 (Cth), of possess or control child abuse material obtained or accessed using a carriage service. It carries a maximum penalty of 15 years imprisonment.

Count 1 - Produce child abuse material

The child depicted in the recordings lived proximate to the offender. There were images on a USB stick of her when aged between nine and 11. Those images fit into the category of child abuse material.
There were also images on another USB stick when she was aged between nine and 11. The showed the child in the backyard of her home. They fit into the "category 1" child abuse material. I note that there are only two categories, so they are fairly broad. They were taken between 2011 and 2013 and depict the genital region of the child, covered by underwear.

Count 2 - Produce child abuse material

Seven images were located on a USB of three female children aged three, six and seven, taken in the backyard of their homes. They fit the definition of child abuse material. The children lived proximate to the offender. The images depicted the genital regions of the children, covered by underwear. They were taken between 1 December 2013 and 31 December 2013.

Count 3 - Groom a child under 14 years

A police investigation led to them to the mother of the child, the subject of Count 1. The child provided information to New South Wales Police.
She had known the offender since she was four. From then until she was 14 she interacted with the offender regularly. She often spent time at his home. In 2014 / 2015, when she was about 13 years old, and the offender was aged 32, he gave her cannabis and purchased alcohol for her. In 2015 he made a sexual proposition to her. He requested that she pose naked and have sex with him. He told her what he intended to do to her, things that he said he did to other women when he visited Thailand. About that time, he also sent to the child a photograph of his penis and videos of him masturbating to ejaculation. In response, the child was induced to provide naked images of herself, which she did.

Counts 4, 5 and 7 - Sexual act towards another without consent

Police located three videos on the mobile phone seized taken by the offender. They showed him on New South Wales trains masturbating in the presence of young adult females. It is obvious (and accepted) that none of the adult females depicted consented to the sexual acts which are detailed in the Agreed Facts.

Count 6 - Produce child abuse material

On the mobile phone were two videos taken by the offender of him masturbating on a New South Wales train in the presence of a female child. Those videos are described in detail in the Agreed Facts.

Count 8 - Produce child abuse material

Also on the phone were two videos taken by the offender of him on a train masturbating in the presence of a female child.

Count 9 - Possess or control child abuse material obtained or accessed using a carriage service

Relates to all the child abuse material found on the various devices which I have earlier described. Some of the images which were the subject of the produce child abuse material offence are also contained in that material, but given the extent of the material, they form only a small portion of it.

Objective seriousness

The written submissions prepared by Ms Akthar, Crown Prosecutor, for the Commonwealth, and Mr Kwan, solicitor for the offender, both provide succinct summaries of matters relevant to assessing the seriousness of the respective offences. There is little between the parties. Those summaries have informed my sentencing judgment.
Counts 1 and 2 involve real children. The children are not naked. The images focus on their underwear. They were filmed in their homes or places they were entitled to feel safe. The defence material confirms that they were taken for the offender's personal sexual gratification; he admitted to being "aroused" by them.
The images themselves fall at the lower end of what is regarded as child abuse material, but the context in which they were taken makes them quite serious, particularly as there must be trust between neighbours in our community and the trust of the community, in a sense, was abused by these actions.
Count 3 involved the grooming of a young child aged under 14. His actions were progressive, they exploited the trust the child had in the offender as a neighbour and the trust her family had in him. It escalated over time. It involved attempts to undermine the resistance of the child by providing her with drugs and alcohol. The sexual desire expressed was explicit, as were the images he sent. Images that elicited a response by a child who had been influenced by the offender for his own prurient purposes.
The length of time over which the offence occurred, and the relative ages are important factors that increase the seriousness of the matters. Perhaps by good luck more than anything else, the sexual activities did not proceed as so many that I have had to sentence occur. Every offence of this type has matters remarkable and individual to it. As Mr Kwan submits, this is well outside the more serious categories of such offences.
Counts 4, 5 and 7 involved gross and exhibitionist behaviour. The offender was caught because he filmed himself engaged in the acts. They were planned. They were filmed for his own prurient purposes. He got a thrill out the act and the recording, otherwise I suspect, he would not have done what he did. They are serious examples of their type.
Counts 6 and 8 involve similar acts and recordings, but they are more serious because they involve children. His sexual activity was in the presence of children, even if they were not aware of his presence, means that he was technically producing child abuse material. They are more serious examples of their type.
The possess child abuse material was of a high order and there is a high volume of material produced. It needs to be stated and restated that harsh penalties are imposed for such offences. They are imposed in order to stress to this offender and others in the community tempted to possess or control and obtain such material, the seriousness of the crime.
Primacy is given to general and specific deterrence and denunciation because this form of offending is often very difficult to detect. Sadly, harsher, and harsher penalties have not dented the production and dissemination of such images. But one important reason for the harsh penalties is to signal to those inclined or to punish those who did give vent to their inclinations to exploit children, because the viewing of these images is an exploitation of each child involved. It must be discouraged.
This material would not be produced unless there was a market for it. Those who make up the market for such material cannot escape responsibility for the exploitation of real children.
I was taken to Minehan v The Queen [2010] NSWCCA 140 and R v Hutchinson [2018] NSWCCA 152. Relevant here is the fact that actual children were used in the creation of the material. The nature and content were graphic, involving multiple forms of sexual intercourse and cruelty. There were an enormous number of images and videos organised on the device. The offender says he did not view it all, but it is clear he viewed a lot of it. They were held for his prurient purposes - his sexual gratification.
There is no evidence he was transmitting it or using it other than for himself. His persistence and his organisation have to be taken into account. These were not victimless crimes. Obviously, harm was done to real children in the production of this material.
The bottom line in matters such as this was succinctly summarised by Justice Simpson in R v Booth [2009] NSWCCA 89 at [41] and [42]: "It is well to bear firmly in mind that the material in question cannot come into existence without the exploitation and abuse of children somewhere in the world … What makes these crimes even more callous is not just this exploitation and abuse but the fact that every time the material is viewed the offender is reminded of and confronted with the obvious pictorial evidence of all that exploitation and abuse and degradation."
Some of the images included in those possessed as part of Count 9 included those produced, the subjects of Counts 1 and 2. While they are separate types of offences, I have to be particularly careful in not duplicating or doubling up punishment for both the production of the images and their retention, along with the multiple images of unknown children.

Criminal record

The offender has a criminal record. During the course of his remand period, he spent 4 months in custody for multiple offences relating to another hobby of his, putting graffiti on trains and railway stations. That history, apart from one offence of masturbating on a train for which a fine was imposed, is of a different nature to the matters for sentence today, but it does indicate an underlying problem of risk taking for personal gratification, matters to which I will refer shortly. He is not to be punished additionally for his record, but it does deny him the leniency often given to first offenders.
He served a 4-month sentence during the course of his remand period. Given the different nature of those offences to the ones here, some independent punishment for them is required. I propose to start this sentence 2 months after he first went into custody, which is 4 March 2023.

Victim impact

The child (now an adult), the subject of Counts 1 and 3 read a Victim Impact Statement to the Court this morning. She took the opportunity to make a personal statement to the offender, the Court, and the community. She told the Court how she struggled as a consequence of the offence to maintain healthy relationships, how she often disassociates and suppresses emotions, how she has suffered pain, emotional pain, and struggles still to comprehend how an adult could take advantage of a vulnerable child. She fears that these problems will continue for the rest of her life. She welcomes the opportunity, not given to many such victims, to at least have some closure.
The impact upon her must, so far as State legislation and Commonwealth legislation is concerned, be taken into account. The harm she spoke of is, sadly, very common to victims in such matters. She has the sympathy of the Court, but she is also to be commended for her resilience and courage. What she said reflects some of the matters I have already referred to as to why these matters are treated with particular seriousness.

Subjective case for the offender

The case for the offender is presented in a comprehensive report of Dr Koh. Sometimes courts receive reports which simply parrot excuses, this was not such a report. It is clear that Williscroft, for all his faults, appeared to be open with his psychologist.
He has cooperated with the course of justice, not just in his plea, but by being frank with his psychologist about what he did and why he did it, matters I can take into account. But, as with many sentencing factors, his responses point both ways. His frankness and honesty also revealed matters in his background and matters in his psychological history that must cause the Court and the community concern. Again, they too are matters that have to be balanced and they do not all point in one way.
Dr Koh described Williscroft's personal background. His early life was not easy, growing up with an older brother and a single mother. His father was not part of his life. He found out later that his father had suicided. There was financial stress, but his mother always ensured there was food on the table. He did not experience any physical or sexual abuse, but there were difficulties within the household. More particularly, as a child he had trouble with concentration and impulsivity, he was easily bored. He spent time in a camp for troubled teenagers and, it would appear, was diagnosed with Attention Hyperactivity Deficit Disorder.
He left school early. He was able to work and has had multiple jobs, but he rarely stayed long in a job. Some of his employment was less than honest but again he was honest in disclosing that. He reports he was a socially isolated person with few close friends. His two activities outside the home included matters to which I have referred, graffitiing trains and regular visits to a foreign country where, he would regularly engage in sexual activity with women in that country.
The report sets out a comprehensive review of his psychosexual history. It indicates how adult pornography became common in his life, and how he started downloading child abuse material and viewing child pornography more often. He described an attraction to young children rather than adults. He described children as "miniature adult-looking people". He reported symptoms which are consistent with Paedophilic Disorder, non-exclusive type, sexually attracted to females.
He acknowledged collecting material which was found. He said by the time he was arrested he had no control over what he was doing despite at times trying to stop himself. He stated that watching pornography, particularly that which had exhibitionist behaviours, influenced his own offending, including the offences that occurred on trains. He reported enjoying the sense of thrill; having videos of his sexual acts increased arousal for him when he masturbated.
His drug history is referred to as leading to what is described as, Cannabis Use Disorder, now in remission, and Alcohol Use Disorder, now in remission.
A family history of mental health issues is reported. His childhood history is consistent with Attention Deficit Hyperactivity Disorder. There is also a history of his experiencing audio hallucinations, paranoia and other matters which Dr Koh indicates are consistent with a diagnosis of Schizoaffective Disorder, depressive type. There are also indications he has an Adjustment Disorder with depressed mood. He has received some treatment for his mental health conditions.
When speaking of his activities as a graffitist, he describes himself as being "addicted to the adrenaline rush".
In her assessment at par [22], Dr Koh opined that he "appeared to have some insight into his offending behaviour but little insight into his emotions".
A combination of childhood mental illness, Schizoaffective Disorder, low self esteem, childhood problems meant that he has little emotional regulation and coping skills. She reported he used pornography as a sexual coping mechanism, but his developing interest in children and sexual preoccupation has led to the development of a Paedophilic Disorder. She concludes at par [27]: "The easy access to obtaining photographs of his victims from his home emboldened him to take pictures of his own as they were more arousing for him. Mr Williscroft appears to understand that his behaviours were wrong and he had previously attempted to delete some of the pornography from his computer. However, he held attitudes supportive of sexual offending where he minimised his behaviours, believing he was not hurting his victims. Therefore, although his mental health improved after [earlier] treatment, he continued to abuse child pornography and engage in taking pictures of the victims when he had the opportunity."
Dr Koh concludes that after a review of the disorders suggested, that Williscroft fits the criteria for Attention Deficit Hyperactivity Disorder. He needs to be referred to a psychiatrist for assessment, so this condition can be managed.
He will also need sexual offending specific treatment. While in custody he would benefit from the High Intensity Sex Offender Program. He should be referred to forensic psychology services in custody and he should undertake the Real Understanding of Self Help ('RUSH') program and EQUIPS Foundation.
A copy of Dr Koh's report will be sent with the warrant to Community Corrections.

Synthesis

In both submissions reference is made to the decision of Justice McClellan in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. As is pointed out in that decision, the underlying mental illness of a person and their psychiatric and psychological conditions are very relevant to sentencing. Here, it is suggested that a combination of those underlying psychiatric matters to which I have referred, which started when he was a child, must be considered and go to, along with other matters in his background, reduce his moral culpability.
To an extent, that can be accepted here, because a person's background helps form them, and Williscroft does not have the same background as a person who did not have those underlying conditions and difficulties.
At the same time, the existence of the Paedophilic Disorder means that in the sentencing exercise additional weight has to be given to community protection. Community protection can be achieved by removing a person from the community, but they must be returned to it, and they should be returned in a better position than when they went in. Hopefully, he will have time and opportunity to commence and complete the High Intensity Sex Offender Program.
He will also need support and monitoring in the community. He may need to continue sex offender programs in the community. He will need help adjusting to normal community life on release.
The State sentence will be partly accumulated on the Commonwealth sentence. All of these factors require a finding of special circumstances pursuant to s 44 of the State Crimes (Sentencing Procedure) Act.
I have to consider in particular, so far as the Commonwealth matter is concerned, the possibility of rehabilitation. I have sought to structure both the Commonwealth sentence and the total sentence to allow a period for rehabilitation in the community.
I have, as I am required to do, considered common law principles relating to sentencing. I have, as I am required to do, considered the statutory provisions in the Commonwealth Crimes Act and the statutory provisions in the State Crimes (Sentencing Procedure) Act. There are slight differences between them. I have sought in this judgment to address the matters put to me by counsel and the respective provisions of the legislation.
Because a custodial sentence must be imposed for the Commonwealth offence, I note that I have considered ss 16A, 16 (2AAA),17A, 20(1)(b), B(2), and 20(1B)Crimes Act 1914 (Cth), all of which were set out in careful submissions from Ms Akthar.
The offender must be punished for each individual offence. But the Court simply does not add up those individual sentences. To do so would be led to too harsh a punishment. I have to formulate individual sentences for each offence taking into account the principles that relate them and to which I was referred in written and oral submissions. I have to then determine a total sentence for the State matters, and then a just and appropriate total sentence period that reflects all the State and Federal matters.
The minimum term that must be served in custody for the Commonwealth matter and then the State matters added to it, must be the minimum that is required to meet the purposes of sentencing, particularly the seriousness of the offending. But as I said, the offender has to be returned to the community.
I hope that while in custody he is allowed to engage in the treatment he so desperately needs. It may be that if he has not completed that program release to parole may be delayed. He will not be released to parole by the State Parole Authority unless community safety concerns can be met: Crimes (Administration of Sentences) Act 1999 (NSW), s 136.
The Court has to formulate appropriate sentences. In doing so, the Court has to consider many varied factors.

Where individual victims are concerned, Courts have to attempt, by the severity of the sentence imposed, to vindicate their dignity.
The Court has to denounce crimes, particularly crimes of this nature. The Court has to, by the severity of the sentence imposed, signal to others what will happen if they do what this offender did.
The Court has to attempt to get through to the offender, that continuation of this behaviour in the community cannot be tolerated.
The Court also has to give the offender the chance to prove he can be returned to the community and give him opportunities to prove he can be rehabilitated.

Given Williscroft's underlying Paedophilic Disorder, while other material may reduce his risk, particularly drug and alcohol assistance, I could not be confident that he will not reoffend. But I cannot hold him in custody longer than is required. Sentence must maintain due proportion to the crime. And, too long a period in custody could reduce his motivation to change. These are all matters I have to try and balance and synthesise.
I thank everyone for sitting on. I hope I have done justice to the material and submissions, but ultimately, I have to convert all of those factors into period of imprisonment.

Orders

For the State matters there will be an aggregate sentence. I have, for the reasons outlined, made findings of special circumstances. As required, I will reduce each indicated sentence by 25% to reflect the utilitarian value of the plea. I have sought that the process of accumulation not to undermine that reduction.
In relation to the Commonwealth matter there was considerable assistance in the course of justice, despite the fact that the material was found on his phone. He has cooperated during his period on remand. It is appropriate to reduce the otherwise appropriate sentence by 25% to reflect those factors.
In relation to the Commonwealth matter, there will be a sentence of 4 years and 6 months imprisonment. That sentence will commence on 4 March 2023. The offender will be released to parole subject to an order pursuant to s 19AL Crimes Act (Cth) after he has served 2 years and 8 months of that sentence.
The State sentence will commence after he has served 1 year and 8 months of that sentence, which means that sentence will commence on 4 November 2024.
I indicate the following sentences:

In relation to Count 1 - The first 91H(2) offence, there will be an indicated sentence of 1 year and 6 months.
In relation to Count 2 - Produce child abuse material, there will be a sentence of 2 years and 1 month.
In relation to Count 3 - The grooming offence, there will be a sentence of 3 years imprisonment with an indicative non-parole period of 2 years.
In relation to Count 4 - The sexual act, there will be a sentence of 6 months imprisonment.
In relation to Count 5 - The second carry out sexual act, there will be a sentence of 6 months imprisonment.
In relation to Count 6 - Produce child abuse material, there will be a sentence of 1 year and 3 months imprisonment.
In relation to Count 7 - Carry out sexual act, there will be a sentence of 6 months imprisonment.
In relation to Count 8 - Produce child abuse material, there will be a sentence of 1 year and 3 months imprisonment.

In relation to that matter there will be a sentence of 5 years and 3 months imprisonment. It will commence on 4 November 2024. There will be a non-parole period of 2 years and 10 months, meaning that he will be eligible for parole on 1 September 2027. There will be a parole period of 2 years and 5 months which means the total sentence should expire on 2 February 2030.
Release to parole will be subject to the determination of the State Parole Authority. The total sentence therefore is one of 6 years and 11 months with a total effective non-parole period of 4 years and 6 months.

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: 17 September 2024

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Judgment (17 paragraphs)

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