CDirector of Public Prosecutions v Boyce (a pseudonym)

[2020] VCC 1812

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BOYCE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2020
DATE OF SENTENCE:	5 November 2020
CASE MAY BE CITED AS:	CDPP v Boyce (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1812

REASONS FOR SENTENCE
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Subject: Sentence
Catchwords: Possession of child abuse material – reoffending of similar nature – extraordinary circumstances

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. James	Office of Public Prosecutions
For the Accused	Mr S. Norton	Stary Norton Halphen Criminal Lawyers

HIS HONOUR:

1Daniel Boyce[1], you have pleaded guilty to one charge of knowingly possessing child abuse material, which carries a maximum penalty of 10 years imprisonment.  You are also being dealt with for the contravention of two community corrections orders imposed by Judge Pullen on 14 June 2017.  The facts of your offending are set out in the Summary of Crown Opening for plea dated 23 September 2020, which became Exhibit A on your plea.  On 12 March 2019, at approximately 12:20am you arrived at Melbourne International Airport from Singapore, along with your mother and father.  At approximately 12:39am, you were approached by Australian Border Force (‘ABF’) Officers and requested to undergo a baggage examination.  At this time, you were also asked if you understood all the questions on your incoming passenger card, which included a question regarding if you were bringing any goods into Australia, including illegal pornography.

[1] A pseudonym.

2You said you understood the question and had checked the ‘no’ box on the card.

3While undertaking a search of your bag, ABF officers located a Dell brand laptop computer inside a black satchel bag in your possession.  You provided the password to the officers which allowed them to search the laptop and located images suspected of being child abuse material. 

4You were then cautioned by the Australian Federal Police (‘AFP’) Officers and deemed unfit for interview.  Your laptop, mobile phone, iPad, Australian passport, incoming passenger card and travel itinerary were all seized by the AFP. 

5You subsequently left the airport with your parents with whom you reside.

Digital Forensic Examination

6Your electronic devices were forensically examined between 14 May 2019 and 13 September 2019, with seven offending files being located. 

7The AFP employed the Child Exploitation Tracking System (‘CETS’) which categorises the seriousness of child abuse material.  Categories 1 to 5 escalate seriousness, with one being the less serious, and five being the most serious. 

8The images found in your possession were as follows:

a)Category One – Four files

b)Category Two – One file

c)Category Four – Two files

9Whilst the numbers of files you possessed are at the very low end of the scale, in terms of offending of this type, the images themselves were extremely disturbing and were at the high end of seriousness. 

10In the absence of significant personal mitigation, the possession of such images would necessarily end in a term of imprisonment.  That proposition has even more force when considering your prior matter. 

11I was provided with the sentencing reasons of Her Honour Judge Pullen, in relation to that prior matter.  Suffice  to say, it is like offending, more serious offending and I have also noted the contents of the contravention report in relation to that matter. 

Personal Circumstances

12Your personal circumstances were outlined in your counsel's written Outline of Plea Submissions, dated 26 October 2020, which was Exhibit 1 on your plea and forms part of these reasons. 

13You grew up in a loving and supportive home environment and were steadily employed before a severe decline in your mental health during your mid-20s.  Mr Norton, on your behalf, described your life as one with great limitations, due to a confluence of mental and physical illness. 

14Consequently, it was submitted that your case is exceptional.  Whilst a case like yours would normally warrant a disposition of imprisonment, there were factors present in your case that warranted a different disposition.  Sensibly the Prosecution concurred with this submission.  I have had no difficultly coming to the conclusion that the disposition advanced by your counsel, and agreed with by the Prosecution, is appropriate given your myriad psychiatric, psychological and physical infirmities.

Mental Health

15I was assisted by a wealth of material setting out your psychiatric and psychological history and the effects of your serious psychiatric illness.  I was also assisted greatly by the oral evidence of Dr Raj Darjee, who is eminently qualified in opining on the matters, the subject of this hearing.  I was also assisted by a report dated 12 October 2020, also the reports of Dr Andrew Carroll, 28 August 2018 and 31 May 2017.  The report of Dr Cox, dated June 2016 and the Forensicare report conducted by Dr Keseuz and Dr Patel, dated 14 November 2017.

16In short, you were diagnosed with treatment resistive paranoid schizophrenia, which results in auditory, visual and tactile hallucinations.  You were also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) which has had an impact on your developments since your teenage years. 

17The schizophrenia diagnosis occurred sometime after your mental health took a significant decline in early-2012, after a self-described nervous breakdown, following the deterioration of a long-term relationship.  The evidence suggests ADHD was present in your teenage years and indeed, there is evidence that you experienced auditory hallucinations as early as your teenage years.

18Dr Cocks refers to these conditions as two serious psychiatric disorders.  Further, you have depressive and anxious symptoms, including suicidal ideation, evidenced by your attempted suicide in January 2017.  You are on an extensive neuropsychiatric medication regime to treat your conditions.  There are a number of aspects throughout the psychological and psychiatric material which are of note:

1.              Your cognitive functioning appears to be of an average or just below average level, being potentially dulled by your medication.  You were high functioning prior to the onset of your illness.  Accordingly, you are aware that your conduct is a criminal offence and you have expressed some disgust to Dr Cocks at these sorts of matters;

2.That you deny sexual interest in children, despite committing offending of this kind previously. This is of relevance when determining your risk of reoffending and level of remorse;

3.Your risk of reoffending is generally assessed as low; 

4.As opined by Dr Carroll, Dr Patel, Dr Kessous and Dr Cocks, your psychosis is likely not to be causative of your offending as such, rather a factor among many, which weakens the protective factors, which offer resolve not to use child abuse material.  Whilst not causative, I am satisfied of a nexus with the offending, in the sense described by Dr Darjee;

5.Your prospects of rehabilitation are at best unclear;

6.Your mental state is a fragile one, as you struggle to cope daily with the confluence of mental conditions, that result in hallucinations, depressive and anxious symptoms.  You are identified as having a high risk of self-harm and suicide.

19In addition to your mental health, you have co-existed physical conditions of grand mal epilepsy being whole body seizures, with a loss of consciousness and emphysema.  You were prescribed anticonvulsants and an inhaler to treat these conditions. 

20You also have a benign cyst on your brain, however, this has unclear clinical significance. 

21Your dental health is poor and its effects should not be understated.  I have received a report from your brother, a dentist of considerable experience, who has provided helpful insights into the limitations and difficulties you experience in personal care and the impact this had on your general health and your dental health.  It was evident at your plea that these physical conditions also exacerbate your lack of social interaction and overall functioning, which is readily impeded by your co-existing mental illnesses. 

22A letter from your father was tendered on your plea and I found it useful in providing an overall picture of the debilitating effects of the combination of your infirmities. 

23In short, I am satisfied that the hardship presented by a gaol term for you would be at the extreme end of the range.  I doubt the authorities would be in a position to manage the combination of ailments and their effects.  The inevitable decline from what is already a decerped position would be disastrous.

24It is clear that your mental and physical health operate in a way to drastically decrease your standard of life, creating real and appreciable barriers for you to participate as a fully functioning member of society.  The extent of these are well summarised by your father and other materials.  As I understand it, you are effectively completely dependent upon your parents.  I have already touched on the report of Dr Darjee and I will refer in particular to three passages from his report.  First at paragraph 23, where he states:

'He was clearly suffering from schizophrenia at the time of the offence.  In terms of the relationship between his mental illness and his offending, although there is not a direct relationship between positive symptoms (such as delusions or hallucinations) and his offending, it is my view that his offending is largely explained by the severely disabling effects of his mental illness in terms of his social functioning, isolation, lack of ability to have intimate relationships and poor emotional functioning.  These are due to the negative symptoms of schizophrenia which he suffers, his cognitive difficulties and the impact of positive symptoms on him (making him feel afraid, despondent, lacking in self-worth and anxious).

If one accepts that he did access child sexual exploitation material, then it seems that he has been predisposed to do this almost entirely by the indirect effects of his mental illness, particularly via its significant and severe impact on his ability to function as an independent adult'.

25I accept that opinion.  At paragraph 28:

'In terms of risk of further offending, it is important to take into account that further sexual offending (of any kind) in individuals convicted of child sexual exploitation material offences is much less common than those convicted of contact sexual offences.  In particular, several search studies have shown contact sexual offending is very unlikely and individuals convicted of child abuse image offences.  It is particularly unlikely where such individuals have no other types of convictions, no other history of antisocial conduct, made previous or concurrent allegations of contact offending.  Do not seek or have contact with children and do not have pro-offending attitudes.  A number of images, nature of images and the time a person spends accessing such material have not been shown to be related to the risk of reoffending'.

26I was impressed in particular with Dr Darjee's experience in relation to treatment and assessment, pursuant to sex offenders’ programs.  At paragraph 35 he wrote:

'Considering the impact of imprisonment, it is likely to have a very significant and seriously deleterious impact on his mental and perhaps physical health.  He is on a complex medication regime to treat his chronic schizophrenia, epilepsy and related conditions, and it is essential that this is prescribed, monitored and adjusted as necessary by medical experts, who know his case well.  If imprisoned, he will lose the close weekly monitoring of his medication regime by a psychiatric who knows the complexities of his case'.

27He goes onto expand on that view.  Counsel on your behalf touched on a number of these factors as being significant in mitigation, emphasising of course the exceptional mental and physical health issues and the burdensome nature of a term of imprisonment. 

28It was submitted your health conditions are complex and severe, such that sending you to prison at any point would be catastrophic.  Your counsel made submissions in relation to a moderation of general deterrence due to a causal connection between your conditions and the offending.  As I have stated, I accept in part a nexus and general deterrence should be moderated accordingly, perhaps more pertinent as the consideration of how effective or how appropriate you are as a vehicle for general deterrence and I will say more on that in a moment.  I also accept the submission of your counsel that a proper assessment of your moral culpability must factor in the effects of your mental health condition and the effects of it upon your lifestyle.

29Most importantly, in my view, it is the factor relating to the burden of imprisonment which carries the most weight in your case.  As I have stated, the Prosecution in written sentencing submissions submitted that a Community Corrections Order with conviction would be a sentencing disposition open in the particular circumstances of your offending.  Notwithstanding the breach, it was noted you completed all other conditions of the order and you were unable to access the specialist sex offender treatment and other programs due to your mental condition.

30I have formed the view that you are far from an entirely appropriate vehicle for general deterrence and I have already noted the significant mitigation available due to your complete unsuitability for the experience of prison.  As I stated on the plea, however, you need to be aware that specific deterrence is a relevant sentencing factor in your case.  Should you offend again in this manner, a prison term, notwithstanding all of its hardships that that would present for you will necessarily be a very real prospect.

31I had you assessed for a Community Corrections Order.  As I indicated, I received the sentencing reasons of Her Honour Judge Pullen and I have read those and I have had regard to the reports in relation to your contravention and of course the extent to which you complied and completed with it, the orders being contravened by this offending.  When I had you assessed, you were assessed as not suitable.  Two reasons, one is that you stated that you deny the offending.  Second being the difficulties associated with providing assessment and treatment for you.

32Given the matters I have referred to above, I see no alternative other than the imposition of a Community Corrections Order and it will then fall of course to Corrections to devise an appropriate approach to treatment, potentially accessing current practitioners as is contemplated in the assessment report.  Corrections understand of course that they must make every endeavour to supply appropriate correctional and rehabilitative mental health treatment in your case and I am satisfied that they will do so.

33Now turning to sentence, on Charge 1, knowingly possessing child abuse material, you are sentenced to a Community Corrections Order of two years duration with conviction.  That Community Corrections Order of course will have the core conditions as part of the order.  There will be special conditions of supervision, also mental health assessment and treatment and also engagement in programs designed to reduce reoffending.  They will be set out in terms in the order itself.

34On the contravention of the Community Corrections Orders, on the Community Corrections Order for state offences, I make no further order having found the contravention and in the contravention, on the community corrections order for Commonwealth matters, I find the contravention proven and place you on a good behaviour bond for a period of three years duration, that being an adjourned undertaking to be of good behaviour.  Now do you consent to the community corrections order that I have imposed Mr Boyce?

35OFFENDER:  Yes.

36HIS HONOUR:  All right, well that will be printed and produced.  I accept your oral consent, but a hardcopy of it, or an electronic copy will be sent to you for your signature.  Charge 1 on the indictment is a Class 2 offence under the Sex Offenders Registration Act and it is a registrable offence.  As you are already a registrable offender as defined under the Act, due to your previous offending, you will now be registered and required to report for the period of life.

37Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty to these offences, I would have imposed a Community Corrections Order of three years duration.  Now Ms James, are there any matters that need raising?

38MS JAMES:  Just one more brief matter, Your Honour.  In terms of dealing with the breach of the Commonwealth CCO, the good behaviour bond isn't an option.  It's no further action, a fine or resentence.  So it may be best to switch what's (indistinct words).

39HIS HONOUR:  The other way around?  All right.

40MS JAMES:  Yes, that's probably the best way to do it.

41HIS HONOUR:  All right, I will just - Ms Breckweg is the expert and I thought that she told me to do. 

42MS JAMES:  Apologies, Your Honour.

43HIS HONOUR:  I will do it the other way around. 

44MS JAMES:  Thank you, Your Honour.

45HIS HONOUR:  I will take no further action on the contravention in respect of Commonwealth matters, other than having found it proven.  On the state matters, it will be an adjourned undertaking, three years to be of good behaviour with a condition to be of good behaviour.

46MS JAMES:  Thank you, Your Honour.

47HIS HONOUR:  All right.  Mr Norton, anything I've overlooked?

48MR NORTON:  No, Your Honour.

49HIS HONOUR:  All right, thank you everyone.  Mr Boyce, I am sure you understand having already been through this process that if you do not comply with the order in any way, you will be back before me for consideration of resentencing.  And if you breach the order by, or contravene the order by further offending, you will also come back before me, all right?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  Yes, we will adjourn the court.

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